EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

4. Some Exogenous challenges The number of out-of-competition normative goals that can be taken into account in the competition law assessment is practically unlimited (Thomas 2021b, p. 10). However, they practically oscillate around a few ethically and media attractive topics, the solutions to which are offered at the cost of weakening (or at least risking) the self-regulatory effect of competition. I will only touch on some of the most topical ones. 4.1 So called Sustainability Competition policy – just because it is policy – is about weighing different interests and optimising them. Competition policy cannot be pursued under the slogan “competition above all” because, as a type of policy, it must weigh the interest in protecting competition against other values and interests, the weight and ranking of which are the result of political will-making. An example is the “service function” of competition rules laid down in the primary EU law to the creation and functioning of the internal market. The ongoing debate is conducted under a strong value bias. Proponents of so-called Chicago School argue that the only goal of competition law is economic efficiency leading to increased consumer welfare. The goals of EU competition law are, however, much more plastic. They include the creation and functioning of a common market but they promote consumer welfare by increasing economic efficiency, too (Stucke, p. 27 ff.; Fuchs, p. 53 ff). However, the objective of protecting effective competition clashes in practice with a number of more specific objectives of a non-competitive (and sometimes rather ideological) nature, the pursuit of which sometimes justifies the need for exceptions to the competition rules. I believe that “such objectives are just reflexes or beneficial side effects”, rather than “immediate goals that ought to be achieved directly by a specific government intervention in antitrust cases”(Fuchs, p. 58). The relevant state authorities should limit themselves to protecting the efficient functioning of the competitive process while avoiding overregulation (type I errors), since functional markets tend to be self-correcting. One of the recently most preferred attractive challenges seems to be the buzzword of so called sustainability. Even this word has not escaped its use as a mere label, which is undeserving of the respectable value it implies and denotes. First of all, it is not at all clear what is meant by “sustainability”. It is far from being just a question of environmental sustainability, which is inherently dynamic. Some relevant and otherwise systematic sources (OECD 2021, p. 5) even speak of some vague and arbitrarily adaptable “green quality improvements”, “green investing direction”, “carbon-neutrality targets”. The experience with the once famous “more economic approach” to the law of competition is instructive. It

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