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The Digital Markets Act, as proposed by the Commission, alongside with discussed Parliamentary amendments and ECN specifications, has triggered ‘a Copernican transformation of the field’. Together with comparable in terms of their significance bills, drafted by the US House Judiciary Committee, US President Executive order 14036 and remarkable developments taking place in other important antitrust jurisdictions, a new generation of competition rules are shifting the area of the digital economy towards a ‘regulatory Big Bang’. An unprecedented recalibration of the rules regulating the functioning of competition in the digital markets has catalysed diverse reactions among the main stakeholders. The proposed approach to regulating gatekeepers will have a paradigmatic impact on European consumers, businesses and public institutions. It will have equally significant implications for the theoretical foundations of competition law, economics and policy.While formally the DMA is complementing, not substituting, existing provisions of competition de lege lata, such a substantial extension of the rationale and instruments of competition policy is likely to have significant implications also for the application of ex-post rules. The entire apparatus of competition law will be extended by the new modality. On one hand, such an extension may be seen as an enrichment. For decades, the great variety of the ideas about economic competition and its regulation have been substantially narrowed down and standardised by the Law & Economics analysis. Clearly, such a limitation was put in place for good reasons: homogenisation, commensuration, universalisation, expediency, predictability and calculability are among the undisputable advantages of analysing competition through the lens of neoclassical microeconomics. The optimisation, however, comes at a cost. Evidently, the value of economic competition is not always reduceable to a singular metric particularly if such a monovalent methodology is underpinned categorically by a monovalent normative ethos of non-intervention. Supposedly, the phenomenon of competition is more diverse and not as rigid and singular as the prevalent approach claims it to be. To an extent, the DMA epitomises this broader vision. By introducing a new type of competition rules, it essentially embodies a new role of competition policy in the constitutional constellation of public goals and values. In this sense, the proposal reflects a more general trend, that is not exhausted by the processes taking place in the area of ex-post competition policy internally. On the other hand, however, the proposed recalibration is likely to raise many additional issues and challenges for the discipline. Some of them are discussed in this article. Out of the wide spectrum of changes introduced by the DMA/DSA proposal, this article identifies and analyses one of the central – though not so commonly discussed – elements of the transformation. It asks a normative question about what kind of competition in the digital markets the European Union should seek to establish, and a methodological question about procedural and substantive legal mechanisms used for shaping such a new format.

The EU competition policy is on the verge of significant reform. The main provisions of the reform are set out in the draft legislative document, the Digital Markets Act, initiated by the European Commission. However, its content goes beyond this Act. The project is subject to detailed and multilateral discussion in the EU. In view of the direct link between the economies of the EU and Ukraine and the prospects of Ukraine’s membership in the EU, there is an ongoing general adaptation of Ukrainian legislation and technical regulations to EU requirements and standards. Naturally, this reform will soon become part of the harmonization process. Given the complexity and multifaceted nature of this reform, not only its coverage of legislation, but also changes in the modality of relations between competition authorities and the largest players in the digital economy, it is advisable to initiate such a discussion today while the bill is under development. With this in mind, as well as the general novelty of this process, the three main components of the reform are analyzed. The external preconditions that prompted the European Commission to take such innovative (and rather controversial) legislative steps are considered, and the context and driving forces are described. The main procedural elements of the bill are highlighted, the original formula of selection among the subjects of the digital economy exclusively of its largest system participants and imposing on them a wide range of obligations to protect and encourage competition in the EU digital markets is shown. The material side of the new responsibilities envisaged by the reform is described, the importance of its adoption or at least an in-depth analysis for Ukraine is emphasized.

This article explores the role of sustainability in EU competition law from the perspective of the theory of legal realism. It addresses the issue by analysing three interrelated themes. It first outlines the main normative and methodological arguments of the protagonists and the opponents of a more societally engaged account of competition policy. Such an account pleads for a more permissive interpretation of competition rules. Secondly, it develops an account of competition law, basing on the premises of the legal realist tradition, adjusting legal realism to the needs and specificities of our field and our time, and submitting that this legal philosophical theory is well-suited for capturing the present discussion. Finally, it projects this jurisprudential theory of legal realism to an applied dimension, offering an outline of the central theoretical issue of a more societally inclusive EU competition policy: the issue of balancing incommensurable values.

The new book by two prominent competition law thinkers Maurice E. Stucke (Professor of Law at the University of Tennessee) and Ariel Ezrachi (Professor of Law at the University of Oxford) 'Competition Overdose: How Free Market Mythology Transformed Us from Citizen Kings to Market Servants' (Harper Business, USA, 2020, pp. 402) has triggered a vivid discussion over the ever-fading question on the goals of competition law, economics and policy and – more broadly – on the very nature of the multifaceted phenomenon of competition. The previous blockbuster of the tandem 'Virtual Competition: The Promise and Perils of the Algorithm-Driven Economy' (2016) has generated vocal and diverse feedback, and the authors continue their market success with publishing another thought-provoking piece. The book provokes not only thoughts. From its very title, subtitle, name of chapters, normative position, methodological argumentation and the choice of preprint reviewers, across the selection of case studies and to its very writing style, the book is designed to generate discussion. And for the right reasons. The times when competition policy was perceived as an axiomatic, mathematised, highly technical and pretty much non-controversial area of Law & Economics have gone. Over the last decade, competition has become a great theme again. Full of ideological appeals and statements, mindful of their political pedigree, competition law, economics and policy are transitioning from the mechanistic field of microeconomic modelling to the real world of geopolitical chessboards.A quick look at the composition of the book, makes clear the authors' intention to transpose their well-established and highly influential academic reasoning from the narrow world of competition theorists to the broader and more diverse audience. The key objective of the book in this respect is to convince such broader societal circles of the need to reform competition policy – or rather to revise our perception of the very essence and the very mission of economic competition as such. The book is in several senses iconoclastic. As skilful diagnosticians, the authors reveal weakness after weakness of the market-centred ethics. The main cures offered by the book – both in terms of the normative propositions as well as the politicised vocabulary and intentionally approachable argumentative apparatus – will be appealing to many. The authors aim to raise (or perhaps to refine) the ethical dimension in the otherwise morally neutral phenomenon of economic competition and its regulation, and this book's objective and mission are remarkable in themselves. It is hard to find a reasonable person disagreeing with the normative premises of the book. It is much easier to find one disagreeing with the enforceability of these intentions. In what follows I’ll try to articulate ten polemical points, written as a reflection on the book. Only a few of these points express disagreement. All are written with deep and sincere respect to both authors – the Masters of the discipline. We agree on most of the things, disagreeing rather on nuances. I believe though that some of those nuances are important.

Does competitive process constitute an autonomous societal value or is it a means for achieving more meritorious goals: welfare, growth, integration, and innovation? The hypothesis of The Normative Foundations of European Competition Law is that the former is the case. This insightful book analyses the phenomenon of competition from philosophical, legal and economic perspectives demonstrating exactly why competitive process should not be viewed only as an instrument. It consolidates various normative theories of freedom, market and competition, and explains how exactly they can be operationalized effectively in the matrix of the EU competition policy. -- Introduction -- The evolution of the economic concept of competition -- Doctrinal foundations of competition law -- The normative value of competition -- The mechanics of balancing -- The legal thoretical aspects of competition -- Practical conclusions Published version of EUI PhD thesis, 2011

This paper is an attempt to evaluate the conceptual relationship between two central elements of the theory of antitrust: competition and consumer welfare. These two notions are analysed in their mutual dependency. In terms of methodology, the paper proposes to structurally separate competition from consumer welfare. This technique is successfully applied in the domain of legal philosophy when the correlation between law and morality is debated. The main purpose of this paper is to show that both competition and consumer welfare are economic values of fundamental importance with no ex ante hierarchical dominance of consumer welfare over competition. In case of conflict, priority might be given to either of these values depending on the context of the assessment. This paper has a discursive character, it constitutes a response to Dawid Miąsik’s article entitled: ‘Controlled Chaos with Consumer Welfare as the Winner – a Study of the Goals of Polish Antitrust Law’ which was published in the ‘Yearbook of Antitrust and Regulatory Studies’ 2008 vol. 1.

The normative argument of this paper is that competition should constitute a fundamental value of liberal democracy. The antitrust law thereby should primarily address the deontological issues of protection and promotion of the competitive process. The utilitarian values of competition, such as consumer or total welfare, as well as other economic or political interests which competition ancillary promotes should not be considered as the only legitimate reason for the existence of antitrust law. The assumption that competition is only useful as a means to generate welfare is critically contested in this paper. If liberal democracies appreciate welfare more than competition then the latter could be subject of compromise any time when there are more efficient ways to generate welfare. This would undermine the very concept of freedom which constitutes the main component of the competitive process. The normative justification of this statement is provided by analysing similarities between political, cultural and economic aspects of competition and by demonstrating their constitutional significance for liberal humanistic societies. This bold premise, however, faces many practical difficulties which are addressed in this paper with the view of providing an operational algorithm for correlation between the ethical dimensions of competition and its functional, welfare-centred aspects.

Defence date: 17 December 2011 Examining Board: Professor Hanns Ullrich, EUI (supervisor); Professor Giorgio Monti, EUI; Professor Andreas Heinemann, University of Zurich; Professor Philippe Coppens, Catholic University of Leuven PDF of thesis uploaded from the Library digital archive of EUI PhD theses The task of this thesis is to provide a conceptual analysis of the phenomenon of competition law. It argues that the competitive process represents a distinctive feature of liberal democracy. The suggested constitutional recognition of competition implies that its legal status can be reduced neither to the cost-benefit calculus nor consumer welfare benchmark. This research proceeds as follows. The introductory chapter offers an overview of the main topics. The next chapter looks at the historical evolution of the concept of competition and explores the phenomenon of competition from the perspective of economic theory. The third chapter analyses the conceptual foundations the US and EU competition laws. The fourth chapter addresses the main theoretical background of the competitive process, comparing the role of competition in political, cultural and economic systems, developing the normative premises of the research. The fifth chapter concentrates on mechanics of balancing, which reflects the main methodological aspects of coexistence of competition with other economic and social values. In the sixth chapter the phenomenon of competition is explored from the broader legal theoretical perspective, contextualising the competitive process with the main theoretical problems of jurisprudence. It concentrates upon the jurisprudential aspects of the problem of balancing, trying to apply the techniques, developed in the previous chapter to the legal discourse with the purpose to demonstrate the significance of the competitive process not only in economic, political and cultural aspects, but also for the law itself. The final chapter explains the normative proposal, which this analysis puts forward, explores its practical implications and summarises the main finding of the overall research.

This paper considers the market process as the essence and intrinsic core of liberal democracy. It disentangles market means from welfare ends and recognises the importance, constitutional status and independent stand of the former. Freedom is placed in the same categories as rights. Each constitutional right is protected not because it is efficient, useful or self-executable. On the contrary, rights are protected as a matter of evolutionary choice, as a matter of public principle, as an ethical rather than a practical value.Economic freedom usually leads to success. Its successfulness however sometimes transforms into its biggest enemy. Economic prosperity is a category which can find supporters more rapidly than the notion of economic freedom does. Therefore the latter is often perceived as a means to reach former. The main argument of this paper is that freedom itself loses its internal legitimacy if it is constantly subordinated to the tangible outcomes which it can eventually generate. Freedom can generate welfare, indeed, but welfare maximisation is neither an unconditional nor a quintessential feature of freedom. Freedom must be perceived as a driving force for entrepreneurial discovery, and a prerequisite to democracy, rather than as a mere component of the economic success. Freedom cannot be seen as purely rational, predictable and calculable.

The main idea behind this article was to perform a theoretical analysis of the purposes and tools of antitrust policy and law. An ancient dialectical method has been applied to separate different components of competition policy with the following deconstruction of the conflicting essence of those elements without inevitable evening-out the distinctions between them. Dialectical approach to antitrust demonstrates why competition deserves to be explored independently from other legitimate economic goals and that the primary purpose of competition law logically is protection (via preventive antitrust, i.e. arts 101-106 TFEU) and promotion (via proactive antitrust, i.e. sector-specific regulation) of competition. Dialectical antitrust does not deny that consumer welfare constitutes a meta-goal of modern competition policy. Indeed in the hierarchy of economic values consumer welfare remains decisive, but methodologically it is neither exhausted nor entirely embraced by competition law, which exists in order to regulate competition. Antitrust theory has striven for a long time to reconcile the apparent dilemma between the aspiration to protect the freedom of undertakings to benefit from their successful competition on one hand, and the freedom of their less successful counterparts to participate in this competition on the other; to provide for firms liberal environment on the one hand and to fine-tune their behaviour in order to establish legal predictability and economic efficiency on the other; to protect competition on the one hand and maximise common benefits for society on the other. Essentially, those three crucial dimensions of the competition dilemma can be solved within the framework of dialectical antitrust, which on the level of methodology proposes to utilitise those conflicts by placing their different components into separate parentheses.

The main idea behind this article was to perform a theoretical analysis of the purposes and tools of antitrust policy and law. An ancient dialectical method has been applied to separate different components of competition policy with the following deconstruction of the conflicting essence of those elements without inevitable evening-out the distinctions between them. Dialectical approach to antitrust demonstrates why competition deserves to be explored independently from other legitimate economic goals and that the primary purpose of competition law logically is protection (via preventive antitrust, i.e. arts 101-106 TFEU) and promotion (via proactive antitrust, i.e. sector-specific regulation) of competition. Dialectical antitrust does not deny that consumer welfare constitutes a meta-goal of modern competition policy. Indeed in the hierarchy of economic values consumer welfare remains decisive, but methodologically it is neither exhausted nor entirely embraced by competition law, which exists in order to regulate competition. Antitrust theory has striven for a long time to reconcile the apparent dilemma between the aspiration to protect the freedom of undertakings to benefit from their successful competition on one hand, and the freedom of their less successful counterparts to participate in this competition on the other; to provide for firms liberal environment on the one hand and to fine-tune their behaviour in order to establish legal predictability and economic efficiency on the other; to protect competition on the one hand and maximise common benefits for society on the other. Essentially, those three crucial dimensions of the competition dilemma can be solved within the framework of dialectical antitrust, which on the level of methodology proposes to utilitise those conflicts by placing their different components into separate parentheses.

This paper suggests that an interpretation of competition solely as a means to increase consumer welfare eliminates substantial characteristics from competition as a process, depriving competition from its original meaning. It is misleading to define competition by evaluating its external role on the economy. This role is important only from the perspective of performance. From the ontological view however it is irrelevant. Some forms of competition are good or beneficial others are considered as harmful or undesirable, but in both cases we talk about different features of the same phenomenon. The idea that ‘competition has to bring positive outcomes for economy, otherwise it is not competition’ is logically incorrect. It is impossible to qualify the essence of object only by exploring its external effects. The paper concludes that competition itself deserves its protection even in circumstances when it does not lead to efficiency gains. In this respect competition can be seen as a ‘luxury product’ of market-oriented societies, which is not indispensable for achieving such values as industrial growth, market integration, social coherency, consumer welfare or innovations.

Published online: 2010

This paper is an attempt to evaluate the conceptual relationship between two central elements of the theory of antitrust: competition and consumer welfare. These two notions are analysed in their mutual dependency. The main purpose of this paper is to show that both competition and consumer welfare are economic values of fundamental importance with no ex ante hierarchical dominance of consumer welfare over competition. In case of conflict, priority might be given to either of these values depending on the context of the assessment. As can be understood from the very etymology of the term, competition is a notion which encompasses a process, more than a result. The notion of consumer welfare, on the other hand, is result-oriented. If we are interested in the outcomes that can be generated by competition only, then the very process of rivalry between undertakings would be seen as unnecessary or, at least, not indispensable. If, however, we consider that competition (seen as a process) is important for the societal paradigm of economic development, then the outcomes generated by this process are not the only reason for the rivalry between undertakings to exist. Methodologically, the latter approach appears to be more consistent with the idea of liberal democracy.