Abstract
This chapter points to areas where both industrial policy and competition law can conflict. It contains a short explanation of the effects of government policy (Sect. 3.1). What follows is a brief analysis of the repercussions of regulation and industrial policy on competition as such, including reference to the above concepts of industrial policy as well as the individual policies referred to (Sect. 3.2). Then, the interaction with competition law, both from an old and modern view of industrial policy, is examined (Sect. 3.3). The last part of this chapter looks at potential mechanisms to reconcile competition law with industrial policy intervention (Sect. 3.4).
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Notes
- 1.
There is interaction not only with industrial policies but a large number of government measures. In order to guarantee efficient regulation, there is a need to achieve coherence among all of them. See UNCTAD, ‘The Importance of Coherence Between Competition Policies and Government Policies’ (2011) 1, 4.
- 2.
P Aghion and others, ‘Industrial Policy and Competition’ (2011) 1.
- 3.
D Schmidtchen and R Kirstein, ‘Wettbewerb als Entdeckungsverfahren’, Center for the Study of Law and Economics Discussion Paper 2001–02 (2001) 3.
- 4.
CN Pitelis and P Kelmendi, ‘The Political Economy of European Anti-trust and Industrial Policy’ (2009) 3.
- 5.
Since hereby investment risks which private investors usually bear are taken off their shoulders, there is some likelihood for investors to pursue the chosen path. Also, with policy failures not usually threatening states’ existence, they have more room for experimenting than is available to companies subject to business constraints. See U Immenga in R Zäch (ed), Towards WTO Competition Rules: Key Issues and Comments on the WTO Report (1998) on Trade and Competition (1999) 343, 348.
- 6.
D Schmidtchen and R Kirstein, ‘Wettbewerb als Entdeckungsverfahren’, Center for the Study of Law and Economics Discussion Paper 2001–02 (2001) 17. Note that there is a difference between particular predictions and pattern predictions. It is the first that refer to the number of participants or the price and quality of products and that are relevant here. See also M Neumann, (1990) 34 (2–3) EER 562, 564.
- 7.
U Immenga in R Zäch (ed), Towards WTO Competition Rules: Key Issues and Comments on the WTO Report (1998) on Trade and Competition (1999) 343, 348.
- 8.
See for this famous dictum FA von Hayek in FA von Hayek (ed), Freiburger Studien: Gesammelte Aufsätze (1969) 249, 249.
- 9.
UNCTAD, ‘The Relationship Between Competition and Industrial Policies in Promoting Economic Growth’ (2009) 1, 3.
- 10.
See SJ Evenett in DH Brooks and SJ Evenett (eds), Competition Policy and Development in Asia (2005) 47, 64.
- 11.
A fact not to be misunderstood as yardstick for the general acceptance of industrial policy intervention. Compare R Hausmann and D Rodrik, ‘Doomed to Choose – Industrial Policy as Predicament’ (2006), talk given at First Blue Sky Seminar by Center for International Development, Harvard, Harvard University, 9 September 2006, 2–3. The authors point out the contradiction between governments holding up an anti-industrial-policy stance and at the same time setting up all sorts of agencies to cater for specific policy issues.
- 12.
Compare M Neumann, (1990) 34 (2–3) EER 562, 563. Regarding the interplay between competition and industrial policy, the author argues for an evolutionary as opposed to a constructivist approach, which reserves the state a crucial role in basic regulation.
- 13.
Naked short selling is an instrument to bet on falling share prices without borrowing a security. In the aftermath of the financial crisis 2007/2008, several European countries banned this instrument.
- 14.
Competition advocacy refers to non-enforcement activities carried out in order to raise awareness for the benefits of competition. International Competition Network, ‘Report on Advocacy and Competition Policy’ (2002) 25. On its importance, see SJ Evenett, (2006) 26 (3) Nw. J. Int’l L. & Bus. 495, 497.
- 15.
See SJ Evenett, (2006) 26 (3) Nw. J. Int’l L. & Bus. 495, 505.
- 16.
Even the economically liberal US has an industrial policy tradition. See LJ White, ‘Antitrust Policy and Industrial Policy: A View from the U.S.’, NYU Law and Economics Research Paper No 08-05 (2008) 5.
- 17.
See on this immediately at Sect. 3.3.1.
- 18.
Competition authorities regularly disapprove. There are prominent examples where government overruled a competition authority’s assessment: In 2002,German energy producerE.ON proposed to merge with Ruhrgas, a German gas company. Despite the prohibition by the Federal Cartel Office, the Ministry of Economics cleared the merger. In 2006,E.ONbid for the Spanish-owned energy company Endesa. Although E.ON’s bid was higher than that from another Spanish bidder, the Spanish government tried to block the German takeover and facilitate the Spanish merger. Objections by the Spanish Competition Tribunal notwithstanding, the Spanish Council of Ministers cleared the domestic merger. The South African Walmart case is to some extent comparable to this, see at Sect. 6.3.2.1.1.12. In 2016, in yet another German case the Minister cleared a merger between the two supermarket chains Edeka and Tengelmann after the Cartel Office had prohibited the transaction and the Monopolies Commission (‘Monopolkommission’), an advisory committee to the government, had advised against it.
- 19.
International Competition Network, ‘Competition Enforcement and Consumer Welfare Setting the Agenda’ (2011) 1, 17. U Immenga in R Zäch (ed), Towards WTO Competition Rules: Key Issues and Comments on the WTO Report (1998) on Trade and Competition (1999) 343, 354.
- 20.
Art 173 TFEU, for instance, makes clear that no action taken in the area of industrial policy must distort competition.
- 21.
See OECD, ‘The Objectives of Competition Law and Policy’, Global Competition Forum 2003 – Session 1 (2003) 1, 10.
- 22.
There are exceptions of course. See for instance unorthodox Jamaica, which has opted against merger control. P Brusick and SJ Evenett, (2008) (2) Wis. Law Rev. 269, 287.
- 23.
On the topic, see A Jones and B Sufrin, EU Competition Law (6th edn, 2016) 1210ff.
- 24.
See on topic F Becker, (2007) 3 (1) JCLE 97; A Bhattacharjea, ‘Export Cartels: A Developing Country Perspective’, Centre for Development (CDE) Economics Working Paper No 120 (2004); MC Levenstein and VY Suslow, (2005) 20 (3) Am. U. Int’l L. Rev. 785.
- 25.
This is most evident in the case of the US. The Webb-Pomerene Export Trade Act and the Export Trading Companies Act explicitly sanction export cartels. On a major ten-year-long case of such a US cartel being prosecuted under South African law, see Competition Commission, ‘Justice Delayed but not Denied – After Years of Litigation the American Soda Ash Corporation Case Delivers Results’, Fifteen Years of Competition Enforcement – A People’s Account (2013) 4; D Lewis, Thieves at the Dinner Table: Enforcing the Competition Act (2012) 21ff; K Moodaliyar, (2006) 18 S. Afr. Mercantile L.J. 367.
- 26.
See MS Gal and EM Fox in MS Gal and others (eds), The Economic Characteristics of Developing Jurisdictions – Their Implications for Competition Law (2015) 296, 321–322. Even the policy-averse US features more than 30 statutory or judicial exemptions, including professional baseball. See LJ White, ‘Antitrust Policy and Industrial Policy: A View from the U.S.’, NYU Law and Economics Research Paper No 08-05 (2008) 7.
- 27.
Typical exemptions are said to fall into four categories: exemptions as a counterbalance to economic power, including, for example, exemptions in favour of farms; exemptions that concern collective action problems, such as coordination to establish common standards; exemptions that reduce uncertainty and risk, which comprises banking and insurance; and exemptions granted due to lobbying efforts. RS Khemani, ‘Application of Competition Law: Exemptions and Exceptions’, UNCTAD (2002) 1, 27ff.
- 28.
OECD, ‘State Owned Enterprises and the Principle of Competitive Neutrality’, Background Note (2009) 1, 44.
- 29.
A Capobianco and H Christiansen, ‘Competitive Neutrality and State-Owned Enterprises: Challenges and Policy Options’, OECD Corporate Governance Working Papers No 1 (2011) 26.
- 30.
OECD, ‘State Owned Enterprises and the Principle of Competitive Neutrality’, Background Note (2009) 1, 35ff.
- 31.
DEM Sappington and GJ Sidak, (2003) 71 (2) Antitrust Law J. 479, 501–502 and 512–513. See also DD Sokol, (2009) (6) Brigh. Young Univ. Law Rev. 1713, 1727 and 1775. For likely anticompetitive practices, see OECD, ‘State Owned Enterprises and the Principle of Competitive Neutrality’, Background Note (2009) 1, 39ff.
- 32.
On competitive neutrality frameworks, see A Capobianco and H Christiansen, ‘Competitive Neutrality and State-Owned Enterprises: Challenges and Policy Options’, OECD Corporate Governance Working Papers No 1 (2011) 11ff; OECD, ‘State Owned Enterprises and the Principle of Competitive Neutrality’, Background Note (2009) 1, 50ff. See also D Healey in J Drexl and V Bagnoli (eds), State-Initiated Constraints of Competition (2015) 3, 7ff.
- 33.
Compare UNCTAD, ‘Model Law on Competition (2010): Chapter VII – The Relationship Between Competition Authority and Regulatory Bodies, Including Sectoral Regulators’ (2010) 1, 3–4.
- 34.
UNCTAD, ‘Best Practices for Defining Respective Competences and Settling of Cases Which Involve Joint Action of Competition Authorities and Regulatory Bodies’ (2005), 4. See also CUTS, ‘Competition and Sectoral Regulation Interface’ (2003) 3.
- 35.
UNCTAD, ‘Model Law on Competition (2010): Chapter VII – The Relationship Between Competition Authority and Regulatory Bodies, Including Sectoral Regulators’ (2010) 1, 8.
- 36.
This can, for example, happen by granting the competition authority supremacy with regard to competition issues. On this and further approaches, see CUTS, ‘Competition and Sectoral Regulation Interface’ (2003) 4–5. See also International Competition Network, ‘Report on Interrelations Between Antitrust and Regulatory Authorities’ (2004) 1, 9; UNCTAD, ‘The Importance of Coherence Between Competition Policies and Government Policies’ (2011) 1, 8ff.
- 37.
On regulation and difficulties for regulators to introduce competition, see M Armstrong and DEM Sappington, (2006) 44 (2) J. Econ. Lit. 325.
- 38.
Note though that it is also conceivable that an authority as such pursues ‘protectionist antitrust policy’. On the motivation to do so, compare A Bradford, RJ Jackson and J Zytnick, (2018) 15 (1) J. Empir. Leg. Stud. 165.
- 39.
Speaking of a ‘political filter’ and a ‘two-way relationship’, see PS Mehta and SJ Evenett in PS Mehta and SJ Evenett (eds), Politics Triumphs Economics: Political Economy and the Implementation of Competition Law and Economic Regulation in Developing Countries (2009) 23, 24 and 29–30.
- 40.
F Gilardi and M Maggetti in D Levi-Faur (ed), Handbook on the Politics of Regulation (2011) 201, 202.
- 41.
A regulatory authority’s independence is said to consist of two components: self-determination and ownership of its actions. The first refers to the authority’s ability to judge its own interests and values, the second refers to its ability to translate these interests and values into authoritative actions. See ibid.
- 42.
Ibid 202 and 207. On the positive relationship between de facto independence and the effectiveness of enforcement, see also M Tay Cheng, (2010) 30 (3) Int. Rev. Law Econ. 226.
- 43.
See LJ White, ‘Antitrust Policy and Industrial Policy: A View from the U.S.’, NYU Law and Economics Research Paper No 08-05 (2008) 12.
- 44.
This is why the self-financing of authorities through the fines it imposes remains a topic of debate. See on this topic P Sabbatini, ‘Funding the Budget of a Competition Authority With Fines it Imposes’ (2009).
- 45.
UNCTAD, ‘Foundations of an Effective Competition Agency’ 1; see ibid 7.
- 46.
Note though that independence is not an end in itself but that some form of alignment is advisable. It is suggested therefore to balance it with accountability towards government so as to ensure some responsiveness to government policies. Ibid 6.
- 47.
See UNCTAD, ‘The Relationship Between Competition and Industrial Policies in Promoting Economic Growth’ (2009) 1, 3–4.
- 48.
Some laws make consistency of both an express goal. See OECD, ‘The Objectives of Competition Law and Policy’, Global Competition Forum 2003 – Session 1 (2003) 1, 7.
- 49.
Other sources may be the constitution, jurisprudence, legislative materials or agency guidelines. See ibid 10.
- 50.
In Europe this happened even though the goals as formulated in the various treaties have not been included with a specific focus on competition law. See I Lianos, ‘Some Reflections on the Question of the Goals of EU Competition Law’, Centre for Law, Economics and Society (CLES) Working Paper Series No 3/2013 (2013) 32ff, 45. See also L Parret, ‘Do We (Still) Know What We are Protecting?’, TILEC Discussion Paper No 010 (2009) 10. The author similarly argues that the CJEU has heavily relied on Art 2 and 3 of the (old) Treaty Establishing the European Community (TEC), rules which ‘probably have been the most important source for the interpretation of the Treaty provisions on competition.’ On the EU Commission’s general hesitance to accommodate industrial policy concerns, compare N Petit and N Neyrinck, ‘Industrial Policy and Competition Enforcement: Is There, Could There and Should There be a Nexus?’ (2012), talk given at 2012 Global Competition Law Centre (GCLC) Annual Conference, Brussels, Residence Palace, 8–9 November 2012.
- 51.
Recession cartels were allowed in Japan. See ME Porter and M Sakakibara, (2004) 18 (1) J. Econ. Perspect. 27, 37–38. See also UNCTAD, ‘The Relationship Between Competition and Industrial Policies in Promoting Economic Growth’ (2009) 1, 15. For a cautious defence, see J Fear, ‘Cartels and Competition: Neither Markets nor Hierarchies’, Harvard Business School (HBS) Working Paper 07-011 (2006) 16ff.
- 52.
SJ Evenett in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2006) 452, 465 and 470.
- 53.
On the development approach, see at Sect. 2.2.2.3.
- 54.
See OECD, ‘The Objectives of Competition Law and Policy’, Global Competition Forum 2003 – Session 1 (2003) 1, 4.
- 55.
On the advantages of focusing on merger enforcement for young authorities, see D Lewis in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2007) 340, 352–358.
- 56.
Also the European courts have developed a couple of instruments to manage conflicting interests. See I Lianos, ‘Some Reflections on the Question of the Goals of EU Competition Law’, Centre for Law, Economics and Society (CLES) Working Paper Series No 3/2013 (2013) 45.
- 57.
Ibid 49–50. Lianos refers to the European Court of Justice’s practice of balancing with regard to labour agreements and suggests the same for competition cases.
- 58.
Compare the following comment by M Brassey in M Brassey (ed), Competition Law (2002) 1, 6. ‘[A] regulatory system devoted to the promotion of competition within the market … can say nothing and do nothing about the social desirability of its outcomes: it cannot, for instance interfere to prevent the rich from getting what the poor might better use. Classic competition law makes no apology for these shortcomings. It stakes no claim to regulate the outcomes of the market, but concerns itself rather with how those outcomes are produced – the market’s mechanisms, in other words. It neither countenances nor discountenances provisions regulating the destination of market outcomes, but they are in a sense collateral to it for, whether they are embodied in the selfsame statute or not, they have a different object. They are concerned with results, whereas competition law, at least in its classic form, is concerned with means.’
- 59.
R Whish and D Bailey, Competition Law (8th edn, 2015) 23.
- 60.
OECD, ‘The Objectives of Competition Law and Policy’, Global Competition Forum 2003 – Session 1 (2003) 1, 4.
- 61.
Ibid.
- 62.
Compare UNCTAD, ‘The Importance of Coherence Between Competition Policies and Government Policies’ (2011) 1, 5. It is argued that competition policy cannot solve all economic and social challenges and that there may hence be a need to use it in a flexible manner.
- 63.
SJ Evenett in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2006) 452, 465.
- 64.
Compare Art 101(3) TFEU, which exempts agreements if they contribute to the production or distribution and allow consumers a fair share of the resulting benefit. Note also the numerous block exemption regulations published by the European Commission.
- 65.
See UNCTAD, ‘The Relationship Between Competition and Industrial Policies in Promoting Economic Growth’ (2009) 1, 7.
- 66.
Regarding, for instance, Kenyan law, see G Miralles Murciego, ‘Cartel Exemptions in Developing Countries: Recent Work from the World Bank Group’ (2013) 8. On other developing and transition economies, see RS Khemani, ‘Application of Competition Law: Exemptions and Exceptions’, UNCTAD (2002) 1, 22ff.
- 67.
RS Khemani, ‘Application of Competition Law: Exemptions and Exceptions’, UNCTAD (2002) 1, 1–2.
- 68.
The World Bank’s exemption guidelines for individual countries also seem to emphasise this point. See G Miralles Murciego, ‘Cartel Exemptions in Developing Countries: Recent Work from the World Bank Group’ (2013) 9.
- 69.
On the development leading to the adoption of antitrust laws, see D Millon, (1988) 61 SCLR 1219, 1224ff. On the overall meagre result of deconcentration efforts following the Act’s passage, see WE Kovacic, (1989) 74 Iowa Law Rev. 1105.
- 70.
Among business leaders as well as politicians there was strong opposition against the disposal of the old cooperative structures. See W Abelshauser, Deutsche Wirtschaftsgeschichte: Von 1945 bis zur Gegenwart (2004) 173ff.
- 71.
See WTO, ‘The Role of Competition Policy in the Process of Economic Development – Communication from the Republic of Korea’, Working Group on the Interaction Between Trade and Competition Policy (2001) 1, 3.
- 72.
See UNCTAD, ‘The Importance of Coherence Between Competition Policies and Government Policies’ (2011) 1, 7.
- 73.
Compare on this S Roberts, ‘Competition Law Prescriptions and Competitive Outcomes: Insights from Southern and East Africa’, Centre for Competition, Regulation and Economic Development (CCRED) Working Paper No 14/2017 (2017) 16. He argues for a proactive, hands-on competition policy that leaves room for industrial policy interventions where necessary to nurture competition. According to Roberts, it was therefore paramount to distinguish between good industrial policy, that is policy which supports new rivals and new technologies and spurs productivity increases, and bad industrial policy, that is policy which results from lobbying for protection of incumbents. Similarly in S Roberts, ‘Competition and Industrial Policies Relating to Food Production in Southern Africa’, African Development Bank Group Working Paper Series No 255 (2017) 26. Roberts holds that reactive competition policy which addresses anticompetitive conduct ex post was not sufficient; instead, one had to move to a proactive policy with a focus on developing local capabilities.
- 74.
See P Aghion and others, ‘Industrial Policy and Competition’ (2011) 8 and 17. The authors argue that in order to create alignment both criteria are crucial to avoid rent-seeking and contribute to economic growth.
- 75.
At a more fundamental level this presupposes that economic policy making is in line with the larger political economy. See PA Hall and D Soskice in PA Hall and D Soskice (eds), Varieties of Capitalism – The Institutional Foundations of Comparative Advantage (2001) 1, 8 and 46. The authors differentiate between liberal and coordinated market economies. Each has a different set of institutions, providing entirely different capacities for the exchange of information among private actors. They argue that industrial policies can only be successful if they are ‘incentive compatible’ to this underlying structure. Liberal market economies, which coordinate their activities through hierarchies and competitive market arrangements, including competition regulation, may not provide as fertile ground for policy intervention as coordinated market economies, where actors depend more heavily on non-market relationships. In the latter, state institutions may have a greater role to play.
- 76.
See ML Possas and H Borges in M Cimoli, G Dosi and JE Stiglitz (eds), Industrial Policy and Development (2009) 447, 461.
- 77.
Flexibility with regard to the weight given to efficiency is said to be key. Compare SJ Evenett in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2006) 452, 458. Compare remarks on previous section on industrial policy and competition.
- 78.
Speaking of synergies and tensions, see UNCTAD, ‘The Relationship Between Competition and Industrial Policies in Promoting Economic Growth’ (2009) 1, 12.
- 79.
Compare PS Mehta and SJ Evenett in PS Mehta and SJ Evenett (eds), Politics Triumphs Economics: Political Economy and the Implementation of Competition Law and Economic Regulation in Developing Countries (2009) 23, 33. The authors stress the need to appreciate that support for competition regulation is dependent on policy makers’ view of how well markets work.
- 80.
Reportedly, the following criteria are crucial in order to obtain coherence on the policy side: advocacy with regard to other government bodies, transparency so as to expose policymakers in interfering in competition matters, accountability for each single policy document to ensure that it fits the macroeconomic framework, and policy targeting in order to guarantee that development objectives are served. See UNCTAD, ‘The Importance of Coherence Between Competition Policies and Government Policies’ (2011) 1, 13ff.
- 81.
See SJ Evenett in DH Brooks and SJ Evenett (eds), Competition Policy and Development in Asia (2005) 47, 66. See also U Immenga in R Zäch (ed), Towards WTO Competition Rules: Key Issues and Comments on the WTO Report (1998) on Trade and Competition (1999) 343, 350.
- 82.
See SJ Evenett in DH Brooks and SJ Evenett (eds), Competition Policy and Development in Asia (2005) 47, 66–67.
- 83.
Compare German law, which in § 42 of the Competition Act allows the Minister of Economics to override non-clearance decisions of the authority because of superior public interest. This system is said to help maintain a divide between competitive and political criteria.
- 84.
Supportive in this respect, see U Immenga in R Zäch (ed), Towards WTO Competition Rules: Key Issues and Comments on the WTO Report (1998) on Trade and Competition (1999) 343, 354 and 359.
- 85.
See also SJ Evenett in DH Brooks and SJ Evenett (eds), Competition Policy and Development in Asia (2005) 47, 33–34.
- 86.
See DB Audretsch, WJ Baumol and AE Burke, (2001) 19 Int. J. Ind. Organ. 613, 616.
- 87.
Ibid 622.
- 88.
See J Drexl, (2012) 8 (3) JCLE 507, 509; D Hildebrand, (2002) 25 (1) World Competi. 3, 8.
- 89.
For an explanation of the European structure-conduct-performance paradigm, see D Hildebrand, (2002) 25 (1) World Competi. 3, 6.
- 90.
See GJ Sidak and DJ Teece, (2009) 5 (4) JCLE 581, 589.
- 91.
See ibid 583. For an overview of how perceptions have changed in this regard, see OECD, ‘The Role of Efficiency Claims in Antitrust Proceedings’ (2012) 1, 19ff.
- 92.
D Hildebrand, (2002) 25 (1) World Competi. 3, 8. Dynamic efficiencies include inter alia: learning by doing, upgrading management, eliminations of duplicative R&D, economies of scale and scope, joint exploitation of intellectual property and standard setting. See list in OECD, ‘Dynamic Efficiencies in Merger Analysis’ (2007) 1, 25–28.
- 93.
See J Drexl, (2012) 8 (3) JCLE 507, 510 The author differentiates between evolutionary and revolutionary technology. The first refers to innovation in a given market, the second to innovation with regard to future markets.
- 94.
See Austrian School representative FA von Hayek, Individualism & Economic Order (1948) 94 and 106. He held that ‘competition is by its nature a dynamic process whose essential characteristics are assumed away by the assumptions underlying static analysis.’ He elaborated: ‘Competition is essentially a process of the formation of opinion: by spreading information, it creates that unity and coherence of the economic system which we presuppose when we think of it as one market. It creates the views people have about what is best and cheapest, and it is because of it that people know at least as much about possibilities and opportunities as they in fact do. It is thus a process which involves a continuous change in the data and whose significance must therefore be completely missed by any theory which treats these data as constant.’
- 95.
JA Schumpeter, Capitalism, Socialism and Democracy (1942) 82.
- 96.
Ibid 84.
- 97.
See ibid 82.
- 98.
See ibid 85.
- 99.
See DB Audretsch, WJ Baumol and AE Burke, (2001) 19 Int. J. Ind. Organ. 613, 618–619.
- 100.
JA Schumpeter, Capitalism, Socialism and Democracy (1942) 69.
- 101.
Ibid 83 and 99.
- 102.
See GJ Sidak and DJ Teece, (2009) 5 (4) JCLE 581, 610 and 611. The authors recommend to de-emphasise concentration analysis.
- 103.
See ibid 585.
- 104.
On the difficulties involved and for a criticism of the yet insufficient European approach, see J Drexl, (2012) 8 (3) JCLE 507, 512, and 522ff.ff.
- 105.
For a list of factors that make measurements difficult, see OECD, ‘Dynamic Efficiencies in Merger Analysis’ (2007) 1, 34ff.
- 106.
A number of approaches have been suggested. See ibid 40–42. On the specific problem of uncertainty as part of an effects-based approach, see J Drexl, (2010) 76 (3) Antitrust Law J. 677, 680.
- 107.
See A Singh, ‘Competition and Competition Policy in Emerging Markets: International and Developmental Dimensions’, UNCTAD G-24 Discussion Paper Series No 18 (2002) 1, 18. To have development-friendly competition policy there was ‘the need to emphasise dynamic rather than static efficiency as the main purpose of competition policy from the perspective of economic development’.
- 108.
See also SJ Evenett in DH Brooks and SJ Evenett (eds), Competition Policy and Development in Asia (2005) 47, 65. The author argues that ‘even where developmental or similar goals are not explicitly written into competition laws, responsible officials can and increasingly do take into account dynamic as well as static efficiency considerations in the application of relevant laws.’
- 109.
See S Roberts in O Edigheji (ed), Constructing a Democratic Developmental State in South Africa – Potentials and Challenges (2010) 222, 225. The author sees a dynamic approach as a specific means for reconciliation.
- 110.
Compare ML Possas and H Borges in M Cimoli, G Dosi and JE Stiglitz (eds), Industrial Policy and Development (2009) 447, 450. The authors put forward two reasons that justify trade-offs in developing countries: higher constraints to innovate, to learn and to keep up with technical progress, and protracted learning, which might justify temporary protection from competition. See also DB Audretsch, WJ Baumol and AE Burke, (2001) 19 Int. J. Ind. Organ. 613, 629. In their analysis of European law they too point out the necessity to have a social welfare criterion in order to produce consistency in the balancing exercise.
- 111.
ML Possas and H Borges in M Cimoli, G Dosi and JE Stiglitz (eds), Industrial Policy and Development (2009) 447, 451.
- 112.
See above at Sect. 2.1.2.1.
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Strunz, B. (2018). Interface of Industrial Policy and Competition Law from a Theoretical Point of View. In: The Interface of Competition Law, Industrial Policy and Development Concerns. Munich Studies on Innovation and Competition, vol 8. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-57627-4_3
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