Fairness should be viewed as a consequence rather than an objective of competition enforcement, an EU official has said in response to criticism of fairness as an enforcement benchmark.
Brice Allibert, deputy head of the antitrust unit at the European Commission’s Directorate-General for Competition, noted that there’s “no treaty provision on fairness” in the European Union. He spoke in his personal capacity at GCR Live Telecoms, Media and Technology earlier this month.
In enforcing competition law, “you somehow directionally go towards more fairness on the market, but not because that’s your objective. It’s because you’re abiding the law, and as a side effect, you rectify something that was not in line with competition law,” Allibert said.
“That doesn’t mean the aim of competition is fairness as an objective,” he said, but it moves “gradually in the same direction”.
Allibert warned that fairness tends to be interpreted to two extremes: either as a tool to broaden the scope of competition law at the risk of “overstating jurisdiction”, or as a needed concept that bridges a consumer welfare enforcement “gap” in competition law.
There is an undeniable connection between competition and the concept of fairness, he said, but the latter’s relevance heavily depends on definition.
“If you look at the words being used [in competition enforcement] – ‘abuse’, ‘competition on the merits’, ‘exploitative abuse’ – these are words very much tied to fairness. Being abusive is unfair, exploiting something is unfair,” Allibert said.
Panel moderator Laurent Garzaniti, a partner at Freshfields Bruckhaus Deringer in Brussels, said it is difficult to do anything “practically” with the concept of fairness in competition law enforcement.
“It has to be an objective of competition law enforcement, but as soon as you depart from competition on the merits, that should be the guiding line for antitrust authorities, and I don't see much added value in terms of concrete antitrust enforcement on fairness,” Garzaniti said.
Maria Coppola, counsel in the US Federal Trade Commission’s international antitrust division, said while the consideration of “fairness” is provided in US competition law, the country’s agencies do not use the tool often.
“These are difficult lines to draw,” she said. Coppola noted that the FTC failed to offer explicit examples of lawful versus unlawful conduct in 2015 guidance on the agency’s authority under section 5 of the FTC Act to enforce against unfair methods of competition:
“The idea was that you could reach conduct before it became a violation of the Sherman and Clayton Acts [...] We have that tool and we don’t use it often, but we do use it sometimes,” Coppola said.
Fairness can be a useful tool when considering how to best tackle inequality through competition law enforcement, given the fact the “most egregious anticompetitive practices happen in sectors that affect the poor disproportionately,” she added.
David Foster at Frontier Economics in London called the concept of fairness “a terrible legal standard,” as “it can mean whatever you want it to mean.”
In this context, the role of economists is to moderate the concept when different interpretations present themself in a case to ensure that efficiency continues to be prioritised when fairness is also being considered, Foster said.
GCR Live 7th Annual Telecoms, Media & Technology was hosted in London on 4 May.