Call for Papers: Reform of Competition Law Standards

Call for papers: The Reform of the competition law standards for unilateral conduct: retrospective and prospective

The Journal of Competition Law and Economics (JCLE) will be publishing in 2025 a special issue on the reform of competition/antitrust law standards for unilateral conduct, principally focusing on competition law enforcement in Europe and the United States. The special issue will aim to provide a retrospective and a prospective of the processes of reform undertaken in the European Union (EU) and the United States the last fifteen years. The first reform process refers to the prevalence of the “more economic” consumer-welfare driven approach in interpreting and implementing the law, a process culminating with the US Antitrust Modernization Commission’s report in 2007 and the European Commission’s Priority Guidance in 2009. The second process, which is still in operation, and its outcomes are still uncertain, relates to the recent evolution of the law beyond traditional understandings of consumer welfare and economic efficiency.  This includes the renewed interpretation of exclusionary abuses in the EU as put forward in the Commission’s Draft Guidelines on Article 102 TFEU, and the impact of the New Brandeis School on the evolution of the US antitrust law enforcement with regard to unilateral conduct with a more active enforcement than the previous period at the level of the federal agencies. The courts are involved in this process as well, as evidenced by recent judgments of the CJEU and the EU General Court and the recent United States and State of Colorado et al.  v. Google judgment in the US.There is a vibrant policy discussion in the EU and the US about the boundaries of competition law intervention against unilateral conduct, the way the law has dealt with the emergence of digital platforms and ecosystems, the recent challenges posed by new technologies (e.g. Big Data, AI) and the increasing concentration and profit margins across the economy, the focus on innovation and particularly the emphasis on industrial and economic transition, restrictions of competition in labour markets, and the emphasis put on broader goals, such as environmental and social sustainability, resilience, democracy.

The special issue will aim to provide a critical analysis of these policy developments, particularly of the European Commission’s Draft Guidelines on Exclusionary Abuses, and to discuss the impact of the most recent case law in the EU and US and of the decisional practice of the European Commission and National Competition Authorities in this area, as well of the enforcement initiatives of the US FTC and the US DOJ.

Possible research questions include, but are not limited to the following: Is the new approach suggested fit for purpose in an economy in constant technological evolution? Are these parallel processes of reform in the EU and the US moving in the same or different directions, and what is the role of national actors in the EU and state actors in the US? Has the first reform process towards a more economic approach been a success or a failure (in the EU and the US)? Are there any similarities, or differences, both in terms of the methodology and the substantive foundations of the law, with the reform of the antitrust standards for collusive conduct/agreements that occurred in parallel during both reform periods? Have the economic foundations/toolkit and the political economy setting of the law changed? Which parts of the old consensus are still relevant, and which have been or need to be abandoned? What is the role of the agencies/competition authorities and that of the courts in “driving” these reform processes, and what could be the institutional factors that influence the direction of change in the EU and the US? What is the balance achieved between, on the one hand, sophistication/complexity and, on the other, expediency and effectiveness of enforcement and remedies, and should this be changed? How much will the recent changes impact on the business models, private governance arrangements and product design decisions of dominant undertakings or monopolizing firms? How static or dynamic have each of these reform processes been in their assessment of anticompetitive conduct, and why, if at all, does that matter for public and private competition enforcement?

Articles following the comparative law methodology and critical legal studies approaches will be particularly valued, as well as those engaging with the economic foundations of the law, or providing an empirical dimension to the topic.

Of particular interest will also be the analysis of these changes and of the interaction of the current business tort-based model of monopolization law with other legal regimes that may regulate also from a competition perspective unilateral conduct, such as abuse of economic dependence and the DMA in the EU, or the Robinson-Patman Act and Section 5 FTC Act in the US, which raise interesting questions about the boundaries of antitrust law and the need eventually for new legislation in this area.

The Journal of Competition Law & Economics launches this call for papers bringing together scholarship addressing the changes introduced and their implications for competition law scholarship and practice. The selected papers will be published as a special issue of the Journal of Competition Law & Economics. We will aim to publish accepted articles online in 2024 and within an issue in 2025.

To submit a paper for consideration in the special issue, please follow the formatting and style instructions on the JCLE Author Guidelines page and submit your paper via the journal’s online submission system by Wednesday, October 23d, 2024 at 17.00 CET. You will be asked to declare any potential conflict of interests (see the ASCOLA Declaration of Ethics, available at https://ascola.org/declaration-of-ethics/).

The review process will take place in October and November and we aim for the accepted papers to publish online at the JCLE website by the end of 2024.

Special issue editors: Prof. Ioannis Lianos (UCL Faculty of Laws), Prof. Inge Graef (Tilec, Tilburg University), Prof. Filippo Lancieri (Georgetown Law)