To explore the nature of the relationship between the economist and the competition lawyer it requires the exploration of several different areas of thought, as it is a difficult relationship to define.
The two institutions are interchangeable at times, and even more considerably when examining the role of economic terms in the legal argument when it comes to the interpretation of competition law, namely Articles 101 and 102 of the Treaty of the Functioning of the European Union (formally numbered as 81 and 82 of the Treaty of Amsterdam, for the duration of this essay will simply be referred to as Articles 101 and 102); together combined formulate the provisions which regulate the single market. The history of competition law reveals the importance of regulation within the market to support economists’ visions which are naturally reflected in the evolution of judgments concerning the economic terms used in Articles 101 and 102’s judgments.
Table of Contents
1. Introduction
2. History
3. Economist v Competition Lawyer
4. Prohibited by 101
5. Prohibited by 102
6. Conclusion
Objectives and Themes
This work examines the complex interplay between economic theory and legal practice within the framework of European Union competition law, specifically focusing on the application and interpretation of Articles 101 and 102 of the Treaty on the Functioning of the European Union.
- The evolving relationship between economic experts and competition lawyers.
- The significance of the "effects-based approach" in regulatory enforcement.
- Legal definitions of key market concepts such as "undertakings" and "dominance."
- The influence of economic metrics on judicial decision-making and legislative drafting.
- Potential future impacts of political shifts, such as Brexit, on competition law regimes.
Excerpt from the Book
Prohibited by 101
Like most jurisdictions worldwide, the Court of Justice must interpret the provisions they have been given by the legislator, the European Commission. The economic terms adopted by the Commission, used in Articles 101 and 102 have been interpreted by the Court of Justice and defined throughout the common law in this area.
The term ‘undertakings’ is a basic term which is referenced in both provisions and in every case presented. It simply means an entity that is involved in economic activity in the marketplace when referred to in discussions regarding competition law. The legal definition was outlined in the case of Heffner and Elser v Macroton GmbH [1991] in which the Court of Justice delivered the statement:
[i]n the context of competition law the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed.
Despite the blanket use of ‘every entity’, there are exceptions for undertakings who’s pursued their business activity based on solidarity and lacks the intentions to make profit for capital gain, such as charitable organisations. There are also other examples of whether a body could or could not be considered an ‘undertaking’. A body established in national law such as the police or national healthcare was not an undertaking; in the case of Diego Cali v SEPG it was a body formulated to collect harbour duties. Unsurprisingly, a body set up by a Treaty was not considered to be an undertaking as per SAT v Eurocontrol, with the principle that it was not operating in “an economic nature justifying control by competition law”. In this instance, it was air traffic control for the European Union. A sporting body such as Olympic committees could be an undertaking as defined in Meca-Medina and Majcen v Commission.
Summary of Chapters
Introduction: Provides an overview of the challenging relationship between economists and lawyers when interpreting economic terms within EU competition law.
History: Outlines the origins of EU competition law, its reliance on US Anti-Trust roots, and the transition toward an effects-based approach.
Economist v Competition Lawyer: Discusses the collaborative necessity of both professions and the advisory role economists play in shaping legislative and judicial outcomes.
Prohibited by 101: Analyzes the interpretation of Article 101, defining "undertakings" and examining how the Court handles anti-competitive agreements.
Prohibited by 102: Explores the legal definition of market dominance and how the Court utilizes economic assessment to prevent abuse of power.
Conclusion: Synthesizes the importance of consumer welfare and the lasting influence of economic principles on the jurisprudence of the European Court of Justice.
Keywords
EU Competition Law, Articles 101, Articles 102, Effects-based approach, European Commission, Undertaking, Dominant position, Consumer welfare, Economic theory, Court of Justice, Antitrust, Market regulation, Predatory pricing, Monopoly, Brexit.
Frequently Asked Questions
What is the primary focus of this work?
The work explores the nature of the professional relationship between economists and competition lawyers, specifically how they collaborate to interpret economic concepts within EU competition law.
What are the central themes discussed?
Central themes include the shift toward an "effects-based approach" in regulation, the legal definition of market entities, and the influence of economic experts on legislative procedures.
What is the core research objective?
The objective is to demonstrate how economic expertise informs the legal interpretations of Articles 101 and 102 to ensure the health of the single market and protect consumer interests.
Which scientific methodology is primarily employed?
The study utilizes a legal-analytical approach, examining case law, treaty provisions, and economic commentary to assess how judicial bodies interpret and apply competition rules.
What is covered in the main section of the document?
The main sections analyze the definitions of 'undertakings' and 'dominance', the evolution of regulatory approaches, and the role of third-party economic guidance in judicial settings.
Which keywords characterize this paper?
Key terms include EU Competition Law, Effects-based approach, Undertaking, Dominant position, and Consumer welfare.
How does the author define the role of an 'undertaking'?
According to the text, an undertaking is any entity engaged in economic activity, regardless of its legal status or financing, though certain non-profit or solidarity-based entities are exempted.
What is the importance of the 'effects-based approach'?
It shifts the focus of competition enforcement from the form of actions to their actual impact on the market and the consumer, which is highly regarded by the Court of Justice.
What impact might Brexit have on competition law?
While the long-term effects remain unclear, it is predicted that the UK may establish a parallel regime while likely continuing to align with the EU's established competition models.
How is the relationship between lawyer and economist described?
The author characterizes the competition lawyer as the "operator of the machine" and the economist as the "metrics" that allow the system to function effectively.
- Quote paper
- Leanne Harvey (Author), 2017, The Treaty on the Functioning of the European Union, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/368565
