Tuesday, August 17, 2010
Posted by Enrico Camilleri
Professor Gerber's book is, for many reasons, definitely a remarkable one and, as such, it stimulates reflections on a wide range of issues. Should I summarize my positive impressions on it, I'd say that it clearly shows a “red line” connecting many “points” (national/regional competion laws), at a first glance only weakly related each other. I mean, however, not a merely backwards “line”; Gerber's analysis doesn't just consist in a going back over - by describing the influences that the US “model” has had over the genesis of the most foreign competition laws as well as by recostructing the failed attempts to shape a global competion law in the past – but it rather shows a “line of action” for the future. Moving from the increased need for legal rules, deputed to shape global markets and regulate the conducts of (global) market actors, Gerber argues for a new way of thinking to trans-national competition law, as to its substantial premises ( an “economic approach” to competition law and the consumer welfare as its Pole Star) and to the “procedural” tools to reach such a stage ( the “multilateral agreements” method instead of the “unilateral jurisdictions” system). The blog symposium format doesn't allow me to spend further words in describing the value of Gerber's sophisticated analysis; I've however had the occasion to do that in a more detailed review of the book for the italian law journal “Europa e Diritto Privato” (forthcoming). Therefore I wish to say something about what seems to me the “critical” point in Gerber's thesis: the possibility to build up a global competition law on the premise of “consumer welfare” as the the main - and more desiderable - goal among others, these latter in a sort of ancillary position in respect of the former. I may, at first, refer to the claim that some authoritative scholars have already moved against the possibility , at least right now, to think about a global competition law : the lack of homogeneity in political and economic conditions between developed, developing and underdeveloped countries makes unlikely that they could share the same values regarding the market structure and its legal order. Well, from the point of view I'm talking about, it could be said that the consumer welfare is just a “late stage” goal in a market economy regulation, and therefore unfit to be the cornestone of competition law regimes other than those of the developed countries. It's true, on this respect,that Gerber's objection according to which a pathway strategy means multilateral agreements whose obbligations on the involved parties (states) are not all immediately applicable seems to reduce the impact of that critical assertion (see at page 318). By the way, more generally speaking and apart from any “binding” effect of multilateral agreements , there are, I think, not few elements inducing to be more sceptical towards the economic approach to competition law and its corollaries in terms of goals. This issue is, for example, much more debated in Europe than it can be thought from outside: It's here enough to refer to the “Communication from the Commission — Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings” (see §§ 5 and 6) where the Commission seems to move back to a different conception of competition law and its golas, much more in line with the ECJ approach that has been prevailing up to know .
Do we really think that any antitrust regime - expecially those operating where the development of the free market values can play as a flywheels for democracy and well-being - can be neutral towards redistributive goals and so exempt from any “political” use?