https://orcid.org/0000-0002-6632-5743
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ABSTRACT
This paper examines how the ‘failing forward’ framework can contribute to explaining developments in EU competition policy, a policy domain where supranational and national forces have interacted over more than sixty years. The concepts of incompleteness of reforms and forward momentum, which are at the core of this framework, have been adapted to reflect the realities of this policy. In this area, the decentralisation of responsibilities to the national level does de facto correspond to a forward momentum towards a more effective competition policy enforcement. The globalisation and the digitalisation of the economy, and more recently the COVID-19 pandemic, pose new challenges. However, as it can count on strong supranational institutions and on its indispensability for the preservation of the single market, EU competition policy should be able to adapt to the changing environment, without risk of disintegration.
Acknowledgements
This paper has been written under the sole responsibility of the authors and does not necessarily represent the views of the European Commission. We are grateful to the editors of this special issue, the participants in the Princeton workshop of September 2019 and the anonymous referees for their constructive comments. We would also like to thank Karin Hunin and Angelica Cusmà Lorenzo for their editorial and research assistance.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 The notion of ‘failing forward’ was pioneered in Maxwell (Citation2000) and corresponds to the idea of using mistakes and failures to learn and improve over time.
2 Townley and Türk (Citation2019) provide a more detailed discussion of the allocation of legislative and executive competences in EU competition policy and enforcement.
3 Case C-142/84 – BAT and Reynolds v Commission.
4 See Ilzkovitz and Dierx (Citation2020) for a description of the main principles and instruments of EU competition policy.
5 The German approach consists in prohibiting anticompetitive agreements except when specifically authorised (prohibition principle) while the French approach is more prone to authorising agreements unless explicitly banned because an abuse has been identified (abuse principle). Article 85 contains the prohibition principle in its first paragraph but also exemptions in its third paragraph (Bussière, Citation2007; Gerber, Citation1994).
6 Commission Decision of 23 September 1964 (IV-A/00004-03344 – « Grundig-Consten »), OJ 64, 2545-2553.
7 Case C-56/64 – Consten and Grundig v Commission of the EEC.
8 Case C-40/73 – Suiker Unie and Others v Commission.
9 Commission Decision of 2 January 1973 (IV/26.918 – European sugar industry), OJ L 140, 17-48.
10 Source : ECN Statistics at https://ec.europa.eu/competition/ecn/statistics.html.
11 Case C-70/72 – Commission v Germany.
12 Ibid., 9.
13 Commission letter No SG(84) D/3946 of 22 March 1984 (IV/30.342 and IV/30.926).
14 In 1971, the Commission for the first time prohibited a merger based on Article 86 in the Continental Can case (Commission Decision of 9 December 1971 (IV/26811 – Continental Can Company), OJ L 7, 25–39). In the mid-1980s, the Commission used Article 85 for merger control purposes in the Philip Morris case.
15 Case C-142/84 – BAT and Reynolds v Commission.
16 Regulation (EC) No 139/2004 on the control of concentrations between undertakings.
17 Airtours/First Choice (M.1524, September 1999), Schneider/Legrand (M.2283, October 2001) and Tetra Laval/Sidel (M.2416, October 2001).
18 Commission Decision of 6 February 2019 (Case M.8677 Siemens/Alstom), OJ C 300, 14-20.
Additional information
Notes on contributors
Adriaan Dierx
Adriaan Dierx is a Senior Expert responsible for the ex-post economic evaluation of competition policy within the Directorate-General for Competition of the European Commission. His earlier experience includes the assessment of product market reforms and regional development in the EU. Adriaan holds a PhD from the University of Pittsburgh and taught regional economics at West Virginia University and SUNY Buffalo.
Fabienne Ilzkovitz
Fabienne Ilzkovitz is Associate Professor in the Solvay Brussels School of Economics and Management of the Université Libre de Bruxelles. Previously, she was Principal Adviser responsible for economic evaluation of EU competition policy in the Directorate-General for Competition of the European Commission. She also held a position of Director of the Directorate responsible for the implementation of EU competition policy in the area of transport and postal services in this Directorate-General and several positions of head of unit in the Directorate-General for Economic and Financial Affairs of the European Commission. Before joining the Commission, she was Research Fellow at the Université Libre de Bruxelles and she worked in the research department of the National Bank of Belgium. She has published several papers and contributed to several books dealing with European integration, competition policy and industrial economics.