Competition Law as a “MUST HAVE” Course in Legal Education
All law student are familiarized, in the first years of their bachelor of laws with the concepts of “public goods” and “ private goods”; often, such legal concept does not exactly match such economic concept, and there are consequences are some sort of confusion being created. The list of goods that follow under each category is not exhaustive, nor are students given proper mechanisms to acknowledge that some legal fields can, on its own, be considered as a “public good”; this is the case of Competition. Legal authors consider that “competition law is used to promote public interest” and, as such, it is a “public good”; in economics theory, Competition is the first public good in a market economy, as the enabler of allocation efficiency. Competition law is the legal tool to support the proper functioning of the market economy and democracy itself.
It is a fact that Competition Law only applies to economic activities, still, competition is object of private litigation as an integral part of Public Law.
The competitive market is characterized by the existence of a large number of producers and a large number of consumers, so that neither of them has a market share which allows them to influence the prices of the goods concerned; this situation only occurs when, moreover, there is no product differentiation, that is, the supply of one producer is perfectly substitutable by means of the supply of any other producer. In the non-competitive market which is the monopoly, there is a single vendor who controls a whole branch of activity - it is the sole producer and there is no substitute product. The monopoly is currently a structure which results from the existence of any form of legal protection, which is generally disclosed in the ownership of an exclusive right (such as the protection afforded by Industrial or Intellectual Property, or the right to exercise certain activity). The oligopoly is a very common structure nowadays and is a market in which there are a limited number of operators, each with market power and where the product presented has little differentiation, i.e. products whose characteristics make them mutually substitutable (or substitutes). Monopolistic competition, for its part, is characterized by the existence of a large number of operators, recalling the competitive market situation; the distinction is made through the product, which in this case presents differentiated characteristics. When a given market fails to meet, cumulatively, all the requirements of competitiveness, there is a real possibility that prices will cease to be competitive. Such event will result in a waste of resources on the part of consumers and to potential losses of efficiency on the part of suppliers as well as decreasing well- being.
Economic analysis is indispensable in Competition Law for two reasons: (1) in the first place because Competition Law aims to combat market failures and in this sense it is indispensable to determine the existence of the fault and its origin; (2) secondly, it is through economic analysis that the imputation of the fault to a given market agent can be imputed or challenged.
It is possible to argue that, under some circumstances, this need should be reduced; will be the case when the normative approach is guided by a more formalistic and less intentionalist solution. The question for us lies, as we have already anticipated, in the least reasonableness and efficiency of a formal solution, despite its greater legal certainty, to the detriment of an approach based on the effects of behavior.
Any fair (competition) solution wishing to address the economic problem will necessarily have flaws and shortcomings. As a rule, this type of solution adopts a formalistic view, considering a legal or an illegal behaviors per se, which will result in a concrete pro-competitive behavior that will be illegal or concrete anti-competitive behavior that will be legal. From the point of view of efficiency, both situations are equally harmful and undesirable.
In recent years, we have witnessed a growing approach to the effects of Community competition law, both by the European Commission and by the Court of Justice, making economic analysis increasingly relevant.
It is well known that anti-competitive practices are a source of inefficiency and waste of resources that diminish social wellbeing. In this sense, competition law’s main goal is to increase and disseminate social welfare, rather than granting power to large companies.
Regulation and competition protection developed with the goal of promoting consumer well-being by correcting market failures, resulting from cartels and other restrictive agreements between companies, as well as to face the abuses of dominant position and economic dependence. However, ‘these benefits are frequently so disseminated that there is not enough incentive for the victims to react to these offences. The protection of competition, as a public good, entails the creation and safeguarding, first and foremost, of conditions that allow the competitive functioning of markets, to the benefit of consumers as well as companies. We understand, therefore, that the legal right protected by the rules of Competition Law is essentially the free market operation. In the present socio-economic context, perfect competition does not exist’.
Still, regardless of the importance of Competition Law in the economic activity and market regulation, most student complete their studies in law, join the Bar Associations and engage in their professional activities never having been given sufficient tools to deal with the increasing demands of a globalized world. The lack of knowledge of economics, market functioning and the mechanisms at their reach in order to ensure proper realization of their duties as lawyers/ attorneys-at-law would be tackled if Competition Law would be included as part of the curricula of Law Schools.
Proper teaching of Competition Law would combine the foundations of Competition Law, doctrine, case solving and Case Law study. Students should to understand and apply the analytical model. Special emphasis should be given to EU Competition Law, namely the TFEU Articles 101 to 106. Damages Directive should also be part of the curriculum. Students must in the first place acquire and master the economic rationale as competition and the world of competition law are the cornerstone of sound and efficient market.
The teaching of Competition Law in undergraduate programs in Law would contribute to fulfill the potential of the students who will deal with matters related to consumer protection, economic and commercial law issues both in private practice and as in-house lawyers for companies.
Keywords - Higher Education; Competition Law, Legal Education, Law, Market Economy, Industrial Economics