EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

AT protects the competitive environment as a public good and thus consumer welfare, and it also provides protection against some market failures, since the market obviously doesn’t possess a mystical and reliable autocorrective capacity (Galbraith, 1967, p. 76). It is clear that no branch of law or legal regulation has any “natural” tasks or goals, they are all set (assigned) by the legislature and we can talk about rather traditional and majority accepted goals. Antitrust is thus traditionally assigned the task of protecting competition and consumer welfare. The dispute is whether this is the only objective or only the main objective, accompanied by a number of collateral objectives, or even whether it is a differently composed interplay or contest between a number of parallel goals imposed on the AT according to the political order of the day. The question is whether AT law intervention should be limited to the protection of competition (when competition fails) and possibly in cases of other market failures (existence of public goods, externalities, incomplete markets, lack of and asymmetry of information, unemployment etc. – Stiglitz, p. 22) or whether it can also pursue specific sectoral or broader societal goals. The answer to this question cannot be “right or wrong”, but only consistent or inconsistent with this or that value premise and stance. The value base correlates with the political direction that is currently in power. AT is not the only area of law that is instrumentalized to achieve extraneous goals. It also sometimes happens even in private law, which might be required to be a vehicle for pioneering progressive values that may not be in tune with its main protective purpose (cf. private corporate law “enriched” by corporate social responsibility considerations, mandatory participation of employees´ representatives or mandatory female quotas for statutory boards, etc.). AT deals with the protection of competition mainly in the course of cooperation of private companies. They naturally act in their own interest. The performance of society-wide tasks is difficult to delegate to them. Nor can the decisions of a cartel authority or a court substitute for an authoritative and legitimate countervailing decision by the legislature on how the conflict between the interests of protection of competition on the one hand and the objectives of the public good on the other hand should actually be resolved (BKA, p. 14). AT was not created – and thus should not be used – as an all-purpose tool for dealing with and treating all the ills of modern society. To widen its inherent goals may be tempting but endangering its enforcement, while it may not even benefit those added (expanded) goals. The ideology of competition as a governing principle of a market-based economy is, in general, no worse or better than the ideology of targeted regulation of central assurance of general welfare. The superiority of the former is, of course, backed up by convincing empirical evidence, and the latter too, but with the opposite sign. Therefore, I confess at the outset that I am a proponent of the

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