(Original post by Rolandxy)
Actually, what has been the perennial debate on competition law in this century?
Is the debate primarily concerned with the variety and the ever-changing quality of the purpose of competition law?
Or is the debate primarily concerned with the degree of reasonable central intervention of the market?
Or is the debate primarily concerned with the theoretical approach of analysis of the Harvard and Chicago School (e.g. Bork's theory)?
Or is the debate primarily concerned with the niceties of the law itself in regulating anti-competitive behaviours?
What exactly is so debatable in competition law????
I have picked out four areas of competition law which are very 'debateable' - one of which you have already picked out:
(1) What is the purpose of (EU) competition law? Is it to protect competitors or the competitive process? Does competition law have a sole goal of consumer welfare, or are non-efficiency considerations taken into account by the competition authorities? It very much depends whether you are pro-Chicago and support Bork's theory, or whether you read behind the lines and see that actually, in the EU anyway, it is worth debating but highly unlikely that non-efficiency considerations are taken into account.
(2) The 'oligopoly' problem - for some commentators this is the 'final' problem which antitrust law must confront. How does a system of competition deal effectively with the problem of tacit collusion within an oligopolistic market? If you look to the EU, our Commission and Courts have three methods of dealing with the problem of oligopoly: Under Article 101 to catch 'concerted practices' which could catch tacit collusion within oligopolies, Article 102, and using the European Union Merger Regulation to prevent an oligopoly emerging in the first place - i.e. prevention is better than cure. But why is this debateable? Well, you could argue that markets tend to cure themselves (as the Chicago School and Bork would argue) and in any case, invoking competition law in oligopolies where the market structure may be a completely natural consequence of the local economy, and thus laying the undertakings open to huge and ever-increasing fines, is wholly arbitrary and unfair.
(3) The procedural defects of competition regulation in the EU - in terms of competition law in the EU, the Commission acts as investigator, prosecutor, judge and jury. Who do you think does the dawn raids on companies? The Commission. Who gathers all the evidence together and makes a decision about an undertaking or group of undertakings as to whether they have infringed EU law? The Commission. Who has to ratify Commission decisions? The College of Commissioners (i.e. politicians from the Member States who may be affected by political lobbying). If a Commission decision gets appealed to the General Court or even Court of Justice, don't you think there is a risk of 'confirmation bias.'? With such huge fines at stake, it is inconceivable, in my view, that a prestigious institution such as the EU of which Member States ought to be proud, can be allowed to have such a deficient and unfair procedural system for implementing competition law.
(4) The fines implemented on undertakings found to be in breach of competition law - these are increasing year on year. Former Competition Commissioner Neelie Kroes would have you believe her rhetoric that if firms want to avoid fines, don't engage in cartels or other anticompetitive behaviour. This is too simplistic. Yes, undertakings should never engage in anticompetitive behaviour that distorts the market and threatens freedom of trade. But domestic remedies may have the key to deterring such behaviour; criminal sanctions on the 'controlling minds' of a company would be a better incentive than fines which are ultimately suffered collectively throughout the company at grassroots level by a majority that had no idea of anticompetitive conduct, and were wholly innocent. Why is it right that a Commission fine on an undertaking is so high that the undertaking is forced to make thousands of innocent employees redundant to cover the fine? Why can't we see more criminal sanctions, as we have in the UK - but going further? Currently, company directors can be prevented from serving on the board for up to (I think) 15 years. Why not go further and create criminal offences with lengthy prison sentences for those cartelists who deliberately go out of their way to distort competition?