The Evolution of EU Antitrust Policy: 1966–2017
| Author | Pablo Ibáñez Colomo,Andriani Kalintiri |
| Date | 01 March 2020 |
| Published date | 01 March 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12503 |
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Modern Law Review
DOI: 10.1111/1468-2230.12503
The Evolution of EU Antitrust Policy: 1966–2017
Pablo Ib´
a˜
nez Colomo∗and Andriani Kalintiri†
This article describes, and puts in context, the evolution of the enforcement practice of the
European Commission in the area of EU antitrust law (Articles 101 and 102 TFEU). It considers
all formal decisions adopted in the period between 1966 – when the European Court of Justice
delivered the two seminal rulings that marked the discipline – and the end of 2017. The
article classifies Commission decisions in accordance with four enforcement paradigms. The
descriptive statistics show that the cases that the Commission chooses to prioritise have changed
over the years. First, enforcement has progressively moved towards the core and the outer
boundaries of the system. Second, it has become policy-driven rather than law-driven. Third,
the nature of the cases chosen by the Commission is consistent with its commitment to a ‘more
economics-based approach’ to enforcement. Finally, these cases signal a move towards a more
ambitious stage in the process of the integration of Member States’ economies.
INTRODUCTION
Competition law provisions – irrespective of the jurisdiction – are typically
drafted as general and abstract prohibitions. Article 101(1) TFEU, for instance,
bans agreements that have as their object or effect the restriction of competi-
tion.1Similarly, Article 102 TFEU prohibits the abuse by dominant firms of
their position.2The core concepts of the provisions (‘restriction of competi-
tion’, ‘abuse’, ‘dominant position’) are not defined. Sections 1 and 2 of the US
Sherman Act do not differ from their EU counterparts in this regard.3More-
over, these provisions do not specify the sectors and/or activities to which they
∗London School of Economics and College of Europe.
†King’s College London. We are grateful to Wouter Wils for his comments on a previous version
of this article. The preparation of the database on which its conclusions are based was supported
by a STICERD Research Grant. A Microsoft Access file containing the database is published as
supporting information in the online version of this article. All URLs were last accessed 15 October
2019.
1 Article 101(1) TFEU reads as follows: ‘The followingshall be prohibited as incompatible with the
internal market: all agreements between undertakings, decisions by associations of undertakings
and concerted practices which may affect trade between Member States and which have as
their object or effect the prevention, restriction or distortion of competition within the internal
market...’
2 Ar ticle 102 TFEU reads as follows: ‘Any abuse by one or more undertakings of a dominant
position within the internal market or in a substantial part of it shall be prohibited as incompatible
with the internal market in so far as it may affect trade between Member States . . . ’
3 In accordance with the Sherman Act, s 1: ‘Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with
foreign nations, is declared to be illegal. . . . ’; and s 2: ‘Every person who shall monopolize, or
attempt to monopolize, or combine or conspire with anyother per son or persons, to monopolize
C2020The Authors. The Modern Law Review C2020 The Modern Law ReviewLimited. (2020) 83(2) MLR 321–372
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which
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modifications or adaptations are made.
The Evolution of EU Antitrust Policy: 1966–2017
apply4nor do they lay down an exhaustive list of the practices that are deemed
anticompetitive.5The scope and shape of the discipline is thus not established
ex ante. It is instead defined on an incremental, ex post basis.
A first practical consequence of this feature of competition law is that it can
take many forms and can evolve in ways that were not necessarily anticipated at
the time of the enactment of the provisions. The letter of Articles 101 and 102
TFEU supports more or less ambitious, more or less far-reaching enforcement.
At one end of the spectrum, these provisions can be conceived and applied as
modest tools aimed at fighting the most blatant and socially harmful violations.
At the other end of the spectrum, they can be construed as a form of meta-
regulation addressing a wide range of market and/or gover nment failures.
A second practical consequence of this feature is that competition law is a
discipline that can undergo fundamental changes in a seamless way – that is,
without any legislative amendments of the substantive provisions.6
The malleability of competition law provisions provides fertile ground for
legal research. If a given discipline can be shaped in virtually limitless ways,what
explains that it follows one path and not another? How do the institutional
arrangements in place influence the substantive evolution of competition law?
If the substance of competition law provisions is virtually identical around the
world, what accounts for variations across jurisdictions?
The article focuses on the application of competition law provisions by
public authorities, and, more precisely, on how enforcement priorities evolve
over time. Administrative agencies entrusted with investigative and decision-
making powers dominate the institutional landscape in a majority of systems
around the world.7The EU and its Member States are not exceptions in this
regard.8Where this institutional ar rangement is in place, the choices made by
the public authority have a significant impact on the shape and evolution of
the law. Unlike courts, administrative agencies generally enjoy discretion to
any part of the trade or commerce among the several States, or with foreign nations, shall be
deemed guiltyofafelony ...’
4 Competition law provisions are designed to apply across the board. As a result, the economic
sectors to which they do not apply are typically subject to an express exemption. For instance,
Article 42 TFEU limits the application of competition law provisions to the agricultural sector.
In the US, there are legislative exemptions applying to particular sectors.
5 Articles 101 and 102 TFEU refer to some examples that amount, ‘in particular’ to a restriction
of competition and/or to an abuse of a dominant position. The European Court of Justice (the
Court) has explicitly ruled that the lists provided for in these two provisions are not exhaustive.
See, in this regard, Case 6/72 Europemballage Corporation and Continental Can Company Inc v
Commission EU:C:1973:22 at [26].
6 For an overviewof the transfor mation that US antitrust has undergone,s ee,for instance, H. Hov-
enkamp, The Antitrust Enterprise: Principle and Execution (Cambridge, MA: Harvard University
Press, 2005).
7 See E. Fox and M. Trebilcock (eds), The Design of Competition Law Institutions: Global Norms,
Local Choices (Oxford: OUP, 2012).
8 For an overview, see I. Lianos and D. Geradin (eds), Handbook on European Com-
petition Law: Enforcement and Procedure (Cheltenham: Edward Elgar, 2013); F. Cenzig,
‘An Academic View on the Role and Powers of National Competition Authorities’
Study for the ECON Committee 2016, IP/A/ECON/2016-06 at http://www.europarl.
europa.eu/RegData/etudes/STUD/2016/578971/IPOL_STU(2016)578971_EN.pdf.
322 C2020 The Authors. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(2) MLR 321–372
Pablo Ib ´
a˜
nez Colomo and Andriani Kalintiri
prioritise the cases to which they devote their limited resources.9The policy
stance of the authority determines the cases they choose to investigate. Policy
positions, in turn, are informed by several factors. The economic structure of
the jurisdiction may be one of them.10 The desire to focus on the most serious
infringements is another. Often, the political agenda of the government in
power– dr ivenby an aspiration to, inter alia, foster innovation, to fight inequality
or to promote fairness – may also influence, directly or indirectly, the nature
and scope of enforcement.
This article provides a positive analysis of the evolution of EU competition
policy across a period of over 50 years (from 1966 to the end of 2017). From
an institutional standpoint, it presents, with the support of descriptive statistics,
the policy choices made by the European Commission (the Commission),
which was responsible for the thrust of enforcement for more than 25 years
and remains a primus inter pares among entities in charge of the application of
EU competition law. From a substantive standpoint, it examines the policy
aspects relating to the interpretation and enforcement of Articles 101 and 102
TFEU. This area of enforcement is often labelled ‘antitrust’ – including by
the Commission itself.11 Accordingly, merger control and state aid, which are
two key aspects of competition policy, are not considered.12 The analysis is
based on a comprehensive database of all formal decisions through which the
Commission has expressed its policy positions.
To a significant extent, the interest of the analysis lies in the two major policy
shifts that EU competition policy underwent during the 1990s. First, the
Commission committed to following mainstream economic principles when
enforcing EU antitrust provisions and when formulating its policy positions.
This shift led to an overhaul of its approach to the legal treatment of, inter
alia, vertical restraints,13 horizontal co-operation agreements14 and unilateral
conduct by dominant firms,15 and it is often known as the ‘more economics-
based approach’ or the ‘more economic approach’.16 Second, the Commission
9 For a focus on the EU from a comparativeperspective, see J. Mendes, ‘Administrative Discretion
in the EU: Comparative Perspectives’ in S. Rose-Ackerman, P. Lindseth and B. Emerson (eds),
Comparative Administrative Law (Cheltenham: Edward Elgar, 2nd ed, 2017).
10 For a discussion of this question, see M. Gal, ‘Antitrust in a Globalized Economy: The Unique
Enforcement Challenges Faced by Small and by Developing Jurisdictions’ (2009) 33 Fordham
International Law Journal 101.
11 See for instance, the Commission Staff Working Document accompanying the Report on
Competition Policy 2016 SWD(2017) 175 final.
12 Mergers in the EU are regulated by means of Council Regulation (EC) No 139/2004 of 20
January 2004 on the control of concentrations between undertakings [2004] OJ L24/1. State
aid, in turn, is regulated by Articles 107 and 108 TFEU.
13 The concept of vertical restraints refers to the clauses imposed in the context of agreements for
the distribution of goods and/or services. The Commission reconsidered its approach to vertical
restraints in its Green Paper on Ver tical Restraints in EC Competition Policy COM(96) 721
final.
14 The approach advocated in the Green Paper on vertical restraints was extended to co-operation
agreements between competitors in the Guidelines on the applicability of Article 81 of the EC
Treaty to horizontal cooperation agreements [2001] OJ C3/1.
15 See, in particular, European Commission, DG Competition, DG Competition discussion paper on
the application of Article 82 of the Treaty to exclusionary abuses (Brussels, December 2005).
16 See J. Gual and others, ‘An Economic Approach to Article 82’ July 2005 at https://ec.europa.
eu/dgs/competition/economist/eagcp_july_21_05.pdf; A. Witt, The More Economic Approach to
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(2020) 83(2) MLR 321–372 323
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