Selected Issues on General Strategies For Optimizing Competition Laws—Discussion on the Economic and Legal Perspectives, Parameters and Assessment Criteria

In the latest edition of the European Competition Law Review, Tomasz Zielenkiewicz, Senior Associate from the Infrastructure and Energy Practice, discusses the economic and legal perspectives, parameters and assessment criteria of selected issues on general strategies for optimizing competition laws.

In a situation in which there are phenomena in the market that lead to economic inefficiency related to the distortion of competition, i.e., a loss in terms of social welfare that cannot be offset by market forces, legal interference in the operation of the market may reduce these losses. However, crafting an optimal legal mechanism—either in general terms or in specific case, requires a thorough discussion on both economic and legal perspective. Such a discussion also requires a specific parameters and criteria for assessment. Such legal interventions made by state authorities should consider associated and generated costs, effectiveness, and potential benefits. Such a discussion should involve not only an economic, cost-benefit analysis, but should also be anchored in legal values and principles, especially the proportionality principle (suitability, necessity, and proportionality sensu stricto). A model of such optimisation mechanism, incorporating all these elements may be proposed. Such a mechanism could also provide a framework for a textured discussion on practical issues in specific situations, including specific cases before the relevant courts or bodies. What is more, an economic optimization may be compared with the way in which traditionally legal proportionality principle operates, which on the other hand, may provide economic, practical argument with legal backbone, allowing for more persuasive arguments which will be valid within legal domain.

About the publication: the European Competition Law Review provides a comprehensive updating service for competition or antitrust lawyers covering developments in EU law and the national laws of EU Member States, as well as the other major trading nations. The ECLR has an international network of correspondents, all leading practitioners in their jurisdictions, who provide expert analyses of key areas of competition law.

The full text of the article is available in the latest edition of the European Competition Law Review (2024 45 E.C.L.R., Issue 4, Thomson Reuters and Contributors) and on Westlaw.