During the last decades the criteria governing the application of EC Antitrust Law have been subjected to substantial changes. These have concerned a number of aspects: procedure, through the enactment of Regulation 1/2003, the Modernization Regulation; and substance, through a wider recourse to economic analysis. As a result of this process, the same basic aims of competition law have been questioned: while in the past EC competition law was seen as squarely directed to the protection of the competitive process, there is now growing consensus that the protection of competition is an instrument in order to achieve consumer welfare and economic efficiency. Lately, in the context of reform of the EU Treaties undertaken by the 2007 Lisbon Intergovernmental Conference, the same role of competition law in the EU legal system seems to have been put in question.
These changes reflect developments in the views about the role of competition law in the economic and legal system, which developed over time, first in the US and then in Europe, as a result of a wide ranging intellectual debate centred on the relation between economic analysis and legal rules, and which in turn reflected different views about the way in which competition works in order to obtain benefits to society. While the consequences of this debate have affected the application of EC Antitrust only relatively late, they have nevertheless been particularly relevant and have caused a substantial shift in a relatively short time span. The objective of this paper is to illustrate how the changes in the view of competitions have influenced the role of economic analysis in the application of antitrust law in particular with respect to the application of EC antitrust law .
The paper is organized as follows: in Section I we summarize how economic views of competition have evolved over time. We note that different views of competition imply a different role for antitrust law, which in turn affects the criteria according to which the law is applied. Because these developments have at first affected the application of antitrust law in the United States, we briefly review the US experience. We then make a first critical evaluation of the changes in the paradigm of antitrust analysis related to a wider use of economics. In Section II we review the developments in the application of EC competition law in the past decades. First, we examine how a specific view of the role of competition in the legal order has influenced the shape and the application of EC competition law. We then review the changes that over time have taken place in such an application, aiming at introducing an economic and effect-based approach and discuss whether these changes are compatible with the traditional orientation of EC antitrust law. In Section III we finally analyze the new approach adopted by the Commission, based on the effects on restrictive practices on consumer welfare and efficiency, and discuss its implications for the debate on the role of competition in the EU legal order which has been opened by the Lisbon Intergovernmental Conference.