The idea of fairness has recently re-entered the policy discourse underpinning competition law enforcement, in the EU and beyond. Of course, the term "unfair" can be found in the EU Treaty and the avoidance of consumers' exploitation is the ultimate aim of competition principles. Still, the boundaries of fairness as a driver of competition enforcement appear unclear and, for some, dangerously flexible. At the same time, whilst the application of competition rules has over the years been focusing on restrictions to the competitive process with the effect of harming consumers, a wave of cases recently brought or decided at EU and national level appear to be inspired by wide and somewhat elusive fairness considerations, including non-discrimination, neutrality, equality of opportunities, natural justice or avoidance of abuse of law. Reference can be made to cases relating to product design, IP licensing, geo-blocking, network neutrality, privacy concerns or fiscal justice. This volume explores how fairness may guide competition enforcement, what its significance may be in explaining recent trends and actual outcomes, and what implications can be observed or expected by relying on a fairness standard in the design of substantive principles. Associating lawyers and economists, practitioners and academics, it discusses the boundaries of fairness in a world where the rationality of markets has been profoundly shaken by recent crises.

Fairness in EU Competition Policy : Significance and Implications

Proceedings of the 13th Annual Conference of the Global Competition Law Center.
This volume discusses what is the core objective - the ultima ratio - of EU competition policy against the background of a profound crisis of capitalism.

Fairness in EU competition policy : significance and implications ; an inquiry into the soul and spirit of competition enforcement in Europe

One of the key components of the modernization of competition rules has been a radical departure from the previous « form-based » enforcement to a so-called « effects-based » approach. Taking stock of ten years of experience under this new policy, the present book analyses the changes brought about, as well as the practical problems encountered in its day-to-day application, be it by competition law enforcers, judges or practitioners. This book compiles the reports prepared for the 2011 Annual Conference of the Global Competition Law Centre ("GCLC"). Each and every chapter of this volume formulates concrete proposals as to how the system can be clarified or even improved. The focus is not only on the enforcement of Articles 101 and 102 TFEU, but also in the file of merger control. Attempts are made to define more precisely the boundaries between anticompetitive object and effect, and to develop adequate safe harbours and presumptions. This book also casts a closer look at the analytical framework, possible theories of harm, evidence and defences. Overall the objective is to reconcile as best as possible law and economics, and to see how the goal to achieve the "right decision" in terms of economic outcome can be combined with the legitimate need for legal certainty.

Ten years of effects-based approach in EU competition law - State of play and perspectives

The adoption of Regulation 1/2003 marked a new era in EU competition enforcement. Since its entry into force, the work of practitioners has radically changed, the Commission's priorities have shifted towards cartels and high profile abuse of dominance cases, notifications have been abolished and new, negotiated, procedures such as settlements, have been introduced. Moreover, the relationship between national and European law has become more complex, the number of stakeholders has increased rapidly and private enforcement has slowly, but relentlessly, taken momentum. The purpose of the present book is to contribute in a timely manner to the Commission's own assessment of possible needs for the reform of Regulation 1/2003. Taking stock of five years of experience under Regulation 1, this book examines the problems that arose from its implementation and formulates public policy recommendations, advocating for future reform in the field. To this end, this book contains the reports prepared ahead of the 2009 Annual Conference of the Global Competition Law Centre (GCLC) on the review of Regulation 1. Those report, which were drafted by more than 60 lawyers from both private practice and academia, are followed by the comments of Commission officiais.

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