Rules and exceptions in the recent history of competition law, 2003–2017: Technocracy or scope for a social-democratic perspective?

On substance, during the 2003–2017 period, EU competition law was largely brought in line with the more economic approach developed in law and economics. It is based on promoting consumer welfare by means of efficiency, while controlling market power. This is illustrated based on developments in antitrust, mergers, state aid, and services of general economic interest, which are found to have been successfully framed in these terms. Regarding procedure and structure, a network-based system of enforcement emerged, with independent national competition authorities coordinated by the European Commission. All this occurred in spite of the statist so-called Sarkozy amendments, which sought to demote the importance of competition law in the overall treaty structure in favour of possible state intervention, but does not appear to have significantly affected practical outcomes during this historical phase of competition policy. Consistent with these findings, at EU level, there is clear evidence of a broad-based technocratic consensus based on (free trade and) free competition. This trend occurred unbroken in spite of the tenure for part of this period of the Spanish social democrat Joaquín Almunia as Commissioner responsible for competition. His role was not accompanied by the formulation of an identifiably social-democratic perspective on competition policy. There appears to have been no significant policy impact of the political affiliation of the tenants of this office during this period – rather we observe a shared law and economics-based worldview both at the top and in the enforcement practice spreading throughout the EU.