EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

but its performance perhaps does not compromise its essence. Some externally imposed “exogenous” challenges for competition policy are more dangerous, as they may strike at the very heart of the AT and threaten its core function for which it was created, and which gives it its purpose: to protect competition and consumer welfare. The statement that competition policy is nothing but a policy is trivial, but it implies a certain lesson (some commentators note that AT is becoming a policy with a small “p” – Waller, Morse, p. 92). It must, from time to time, be opportune by its very nature. Opportunism may, however, be only an exception and not a rule. To being conceptually opportunistic, policy must, of course, be subject to lobbying pressures (also conceptually). While it has always been political in nature, the degree to which AT has re-entered the political arena has changed. Competition, as a conflict of interests, takes place in a broad moral, social, and governmental context in which regulation is given only a limited role. After all, the political power of competitors (direct or indirect) is a more effective tool to influence the competitive environment than market power, as it is superior to the creation of a legal environment for the development and protection of competition. We have mostly moved out of “legal romanticism” and know that some undertakings can (within a certain framework) create a comfortable legal environment for themselves, including antitrust regulation (Etzioni, p. 185) or at least more “appropriate” sectoral regulation. However, the functionality of AT can be undermined or threatened not only by competitors, but also by the (perhaps well-intentioned and noble) efforts of socially responsible and ethical people for the “social good for all”. However, we must be very cautious about them from the AT viewpoint without necessarily calling into question the broader societal goals themselves or the values that underpin them. Also, behind the lofty-sounding values to which competition considerations should be aligned, there may be a vested interest that is better promoted than an undistorted competition environment would allow. AT is unable to deal with societal tasks aimed at “citizen welfare” instead of “consumer welfare”, such as “low incomes and marginalised communities”, “structural racism”, “press freedom” etc., the fulfilment of which should condition mergers and could even break up longstanding merged companies for similar reasons (Ohlhausen, p. 11 ff). Competition is an agnostic principle (Thomas 2021b, p. 14) serving consumer welfare. Society at large and the legislature may, of course, be interested in various outcomes arising in a competitive environment. But not through antitrust, but perhaps through environmental, labour, social, and other regulation. That is, through linear instruments that pursue other normative goals besides competition. The anonymous parametric influence of competition should not be conflated with the pursuit of other direct normative objectives.

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