Antitrust: a Heimlich manoeuvre

Abstract:

The Chicago Revolution has transformed antitrust into a highly complex, impenetrable if not impracticable area of law, all but extinguishing its traction with the public at large. Under the pretense of scientificity, furthermore, its efficiency-based mantra appears to be, under scrutiny, more a product of ideology than anything else. Not to mention a rather striking volte-face with respect to the political origin and the judicial history of US antitrust as it had developed till then: a path where the emphasis on rivalry was motivated also by the desire to protect the democratic process from the reach of big business.

In the European framework, where antitrust derived more from US pressure than any internal political debate, while the European Commission has at times tried to embrace the new US-style approach, the Court of justice has maintained its emphasis on competition and rivalry per se, sometimes indirectly referring to ordoliberal ideas and concerns. In the meantime, however, antitrust has become a training field for another roughly 120 jurisdictions all over the globe.

Briefly reviewing enforcement in such countries, with particular focus on BRICS, reveals that an emphasis on rivalry as such and a close attention to the non-efficiency-based goals actually seem to be key in such up-and-coming legal systems. Having completed a review of the legal approach in such three different areas, the article first suggests new enforcement priorities as, e.g., in the areas of mergers and monopolisation, divestiture remedies, and oligopolies. Finally, it reviews the massive collateral benefits that a rivalry-based, politically non-oblivious antitrust enforcement may carry on innovation, economic and social growth, and inclusive institutions.