The Chicago School10
9 Cases 56 and 58/64, Consten and Grundig v. Commission, ECR 1966 I-299 (page 340).
and ordoliberalism were opposites. According to the Chicago School, economic efficiency should be at the centre of competition law and other parts of the economic order. The Chicago School wanted to
‘purify’ antitrust policy; all social or interventionist elements should be taken away. This School held two basic assumptions. The first was that markets were robust and that competitive outcomes were likely to emerge without
10 The Chicago School was a name given in retrospect to a group of lawyers and economists who were very influential in the 1980-ties and 1990 ties. Aaron Director (1901–2004) was a celebrated professor at the University of Chicago. He taught antitrust courses at the law school and founded the Journal of Law and Economics. Many of the leading persons took his classes as students and testified to his importance for their understanding of competition law. When school expanded, important contributions also came from persons not in Chicago and not sharing Aaron Director’s influence as a common denominator with the original group.
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governmental interference; the second was that competition authorities and other governmental agencies were prone to make bad decisions.11
The book best describing the thinking of the Chicago School is probably The Antitrust Paradox by Robert Bork. He argues that monopolies often grow because they are efficient producers of goods and services. Bork claims that so many efficient cartels and monopolies have been attacked by the antitrust agencies that it would have been better if the authorities had made the opposite mistake and allowed all cartels and monopolies as non-dangerous to society.12
There were many heuristic rules and principles in both EU and US competition law, dealing with measurements of economic power or the abuse of it. A presumption of dominant position applying to companies with more than 50 % of the market share is one example. Such rules were attacked by economist and legal scientists influenced by the Chicago School.
They argued – for instance – that it was very difficult to raise prices even in oligopolic industries. Therefore, a company having 50 % of the relevant market could not be presumed to have pricing power.
Accepting big economic concentration today as a reasonable price for economic efficiency is at the heart of the Chicago School thinking.
13
Disciples of the Chicago School were successful in persuading both the European Court of Justice and American Courts to rely less on heuristic rules measuring economic power or the abuse of it. Thus, it became harder to use competition law to fight economic power as such. Nevertheless, the Chicago School – though very influential – left some important principles in EU law intact.
11 Hovenkamp, H., The Reckoning of Antitrust, In: A. Cucinotta et al (eds), Post Chicago Developments in Antitrust Law, Edward Elgar Publishing, Cheltenhem 2002, pp. 1–33, p.
12 8.
Bork, R., The Antitrust Paradox – A Policy at War with Itself, The Free Press, New York 1978 (reprinted 1993), p. 8.
13 Ibid pp. 101 ff and chapter 8. Compare p. 178 ‘If the leading firms in a concentrated industry are restricting their output in order to obtain prices above the competitive level, their efficiencies must be sufficiently superior to that of all actual or potential rivals to offset that behavior. Were this not so, rivals would be enabled to expand their market shares because of the abnormally high prices and would thus deconcentrate the industry’.
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Firstly, the questions of when a company or a group of companies is too powerful and how this behaviour hurts society were as alive as ever. The post-Chicago economic literature has produced impressive arguments that certain types of collaborative activities are much more likely to have anti-competitive effects than the Chicago School imagined. For example, when proportions of inputs can be varied, vertical integration can be socially harmful. When information is not evenly balanced, anti-competitive strategic behaviour is possible. In the presence of specialised assets and economics of scale, even prices significantly above costs can be anticompetitive. Network externalities in some markets can give dominant firms decisive advantages, and help them even to beat superior technologies.14
Secondly, the Chicago School’s success in attacking heuristic rules does not mean that they have been abolished. It is well-known for instance that scale efficiencies have been used by the Commission and the EU Court as a factor relevant towards proving a dominant position. According to the Chicago School, scale efficiencies are one reason why a market may have only a few big companies and should thus not be seen as a competition problem, as big companies are what economic efficiency dictates. Superior technology is a similar example. Today, many of the previous rules of thumb cannot be relied on as before. Lawyers may convince the Commission and the EU Courts to disregard them in some cases, but they may be used in others.
Competition law is always social in the sense that it identifies when certain actors have too much power. However, post-Chicago economics continued to be based on a strong bias towards leaving the markets alone. Interventions continued to be exemptions that must be motivated by economic reasoning in the individual case.
The third is that – unlike in the U.S. – integration and the creation of a common market remained important in EU law. With regard to EU law, ordoliberalism was supposed to be as dead as the American rival of the Chicago School, the Harvard School. Instead, competition law was described as based on (Chicago School or post-Chicago School) economic thinking, but with a twist. The integration argument was obviously
14 Hovenkamp 2002, p. 5.
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important to the EU Court, but apart from that it was pure economic reasoning.15
To summarise the fight between the Chicago School and the Ordoliberal School, the Chicago School has been successful in reducing the emphasis on using competition law and economic regulation as a mean of reducing private economic power. Several heuristic rules assessing private economic power or the abuse of it have been attacked in the name of economic efficiency. Many such rules cannot be used in a heuristic way anymore;
instead, the use of them must be motivated in each individual case. Still, the Chicago School has not been able to make economic efficiency the sole aim of the EU market legislation. The integration argument is as important as ever.
Looking at EU competition law and EU market legislation, I clearly felt both areas to be value-based, and that integration and open markets were the core value. I definitely sided with the Ordoliberals. At the same time, I respected the Chicago School for its intellectual rigour. Post-Chicago thinking made deep analysis regarding when companies actually had market power in a sense that made it rational for them to behave in a way that reduced the overall effectiveness in the economy. They really worked hard to identify the exceptions to the general truth they believed in. I wanted to apply that kind of rigour with regard to wage discrimination.