Saturday, November 28, 2020
Pablo has a very insightful essay where he points to a changing reality in European competition law and the role of economic analysis. He notes:
Ultimately, the shift in the role of economic analysis signals a broader shift in the sources of legitimacy. Achieving certain outcomes is now deemed more important than following the right framework, irrespective of where it leads. By the same token, the framework is deemed legitimate so long as it supports the desired results. Times of change indeed.
For those who want a political based competition law, let me remind people how quickly politics and policy can change - compare Obama and Trump (and Biden) environmental approaches. If you prefer a system with pre-determined outcomes built in, then you should not complain when political winds change. Competition law did better by focusing on specific facts and economic analysis of these facts rather than on pre-set outcomes. Pre-set outcomes also make a mockery of due process. Hopefully this is a lesson that can be learned on both sides of the Atlantic.