Competition Law Between Old Goals and New Challenges. New tools for a ‘multi-value’ approach vis-à-vis: Digitalisation, Inequalities, and Climate Changes

The research question that moves the present work is whether and how competition law shall play a role in making our society more ‘sustainable’, intending this term in a broad meaning, and therefore linked to social, economic and environmental sustainability. The question raises from the awareness of the problems that are affecting our society, also if we refer at its democratic foundations. In particular, we considered that issues such as increasing income inequalities, raising market concentration rates and the even faster climate changes are topics that cannot be outside the academic analysis of the various policies. Therefore, if we try to answer at the question if competition law shall play a role in this context, the analysis should start from the very foundations of this discipline. At this purpose, in our research, we scrutinised how the most representative competition law regimes in the world - i.e., the US antitrust law and the EU competition law systems – developed during their history. This analysis is conducted by reading through legislative sources, policy statements, judicial decisions and scholar works. What emerges is that competition law shall not only be focused on mere economic and econometric objectives, such economic efficiency, but it was intended more as a structural instrument, created for preventing the concentration of an excessive degree of economic power on the same subject or on a bounce of entities. Therefore, after having affirmed this structuralist aim of competition law, it is possible to understand how every other objective shall be considered as a by-product of a healthy competitive process, and not as an end of competition law in itself. This is particularly clear in the European context, as competition law ought not to be intended as a separate or lone subject, but as a field of law well rooted into the EU and its Member States’ constitutional traditions. After having established that competition law shall play a role in the transition towards a more sustainable society, the focus moves on how this task shall be performed. For this purpose, the present research scrutinised the issues we mentioned before, by making a comparative analysis between the EU and the U.S. competition law and antitrust models and, inside the EU environment, among the various solutions adopted in the Member States. This analysis first needed to be carried out by means of an empirical assessment of the issue at stake, especially from an economic standpoint. Then, the legal tools needed in order to reach the desired outcomes were scrutinised, first by making reference to the solutions already adopted by enforcers and Courts on the basis of the existing rules, and, subsequently, new tools are analysed and proposed. In particular, the research establishes a connection between income inequalities and the increasing rates of market concentration. The latter dynamic was deemed particularly intense in the digital market context, which are characterised by market dynamics which escape from the common understanding of competition, as they lead the market to tip in favour of a firm, usually the first mover. In a nutshell, they are characterised by a sort of winner takes all structure. This field represents the core of this research, as it is where excessive market concentration shows most its detrimental effects and the need to a structuralist approach to competition law appears much needed. Therefore, this work aims to provide its contribution to the very active academic debate on this field. However, this research does not want to be limited to the digital market problem but is directed at casting lights on the need for a multi-value approach to competition law at 360 degrees, which can turn into a multi-tool enforcement to better tailor the application of competition rules to all the analysed issues, which are however interrelated thanks to the broad concept of ‘sustainability’ outlined above, in line with the Brundtland Report on sustainability issued in 1987 by the World Commission on Environment and Development. What emerges is that competition law ought to play a role in the transition towards a more sustainable economy and society. This depends on policy choices, and this work is aimed – in the realm of the current scholar debate on this topic – at providing its constructive contribution. However, what is important to affirm is that policy choices directed at establishing the multi-value and multi-tool competition law described above are not only based on progressive or hipster academic ideas, but they are deeply rooted into our societies’ constitutional traditions, and, in the end, in a healthy conception of the liberal economy itself.