Competition Law and Market Regulation – Standards to Avoid Antitrust Overstepping in: Kreation Innovation Märkte - Creation Innovation Markets - Festschrift Reto M. Hilty, Springer, Berlin; Heidelberg 2024, 1115 - 1129.
When antitrust provisions regarding coordinated and unilateral conduct are enforced in markets where such behavior is already covered by specific ex-ante or ex-post regulation, risks associated with overstepping arise: non bis in idem concerns, duplication of efforts, infringement of rule of law and separation of powers principles, and error costs due to lack of technical expertise in a specific market, among others. The present contribution presents cases in which these risks arise and attempts to propose standards that allow to balance them against the effective protection of competition taking into account the advantages and disadvantages of competition advocacy as an alternative. The contribution uses a normative approach based on the political economy literature, which introduces into the discussion an aspect that is neglected in previous work on the relationship between antitrust and regulation that is an important determinant of market dynamics: the mutual feedback between market power and political activism of firms seeking to shape regulation and its implementation to their benefit. Finally, although a prominent part of this paper covers EU law, it also considers developments in other jurisdictions in order to take advantage of the rich experience and lessons that can be gained by widening the geographic horizon.
