Zäch, Roger --- "Competition Law Should Promote Economic and Social Welfare by Ensuring the Freedom to Compete – A Lawyer’s View" [2009] ELECD 196; in Drexl, Josef; Idot, Laurence; Monéger, Joël (eds), "Economic Theory and Competition Law" (Edward Elgar Publishing, 2009)

Book Title: Economic Theory and Competition Law

Editor(s): Drexl, Josef; Idot, Laurence; Monéger, Joël

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206312

Section: Chapter 7

Section Title: Competition Law Should Promote Economic and Social Welfare by Ensuring the Freedom to Compete – A Lawyer’s View

Author(s): Zäch, Roger

Number of pages: 5

Extract:

7. Competition law should promote
economic and social welfare by
ensuring the freedom to compete ­
a lawyer's view
Roger Zäch*

1 INTRODUCTION

In connection with the subject of the role of economics in competition law,
I will focus on the so-called more economic approach.
First of all, let me make clear that my critical view of some recent devel-
opments concerning the more economic approach refers to the application
of the law. I will not talk in particular about making new law or amending
existing law. I believe that it is important to differentiate clearly between the
two functions: law making and application of law.
As far as legislating is concerned, the legislators, when developing or
changing competition law, must ­ and this is quite obvious ­ have sound
economic knowledge. Since competition is an economic phenomenon, the
legislature must take appropriate economic theories into consideration;
consequently they should use an economic approach. The reason is: There
cannot be good law without good knowledge of the subject matter to which
that law applies.
However, I also want to point out that the legislature has to respect some
legal principles, for example the principle that legal provisions must be pre-
dictable.
This chapter deals with possible impacts of the `more economic
approach' in applying competition law. Recently, the EU enacted provisions
that could lead to a tendency for restrictions of competition being
appraised more and more by economic criteria, such as social or consumer
welfare or, in short, under efficiency ...