IDEAS home Printed from
MyIDEAS: Log in (now much improved!) to save this article

Contro l'utilizzazione dell' "approccio economico" nell'interpretazione del diritto antitrust

Listed author(s):
  • Denozza Francesco
  • Toffoletto Alberto
Registered author(s):

    The economic approach proposes three main rules of antitrust law interpretation: the prevalence of substance over form; a practice cannot be deemed unlawful unless it produces a reduction of consumer welfare; a practice that reduces consumer welfare may still be lawful if the loss of consumer welfare is offset by an increase in efficiency (balancing test). To make sense of the "substance over form" principle, we can read it as an "effect's doctrine". But rules focus on structural elements not because they ignore effects, but in order to capitalize on the results of experience. If the effect's doctrine purports that experience is irrelevant and every case should be treated as a new one, it collapses in a concept of law (the s.c. "free law" or "case by case" justice) which is contrary to our legal tradition. The economic approach advocates the centrality of the notion of "consumer welfare". It attempts to present the antitrust judgment as encompassing a simple trade-off between different requirement of the same individual(s). This is not the case. Most anticompetitive practices that increase the welfare of some consumers decrease the welfare of others. Antitrust rules - as most legal rules - resolve conflicts between different interests of different individuals. If this is so, the notion of consumer welfare is useless. The real important point is: what criteria should we use to compare these interests? Among the mechanisms to allocate goods, the market mechanism by its own nature has an important characteristic: the market accepts high levels of inequality not based on the merits (result), but only if inequality is due to casual outcomes of the market mechanism (process) and not to a decision by an individual or a group with greater power. If the economic approach sees competition not in terms of a process but in terms of market performance, it encompasses a fundamental mistake. It ignores that individuals are not indifferent to the way a certain result has been obtained. It is not the same if I cannot go out because of a storm or because someone locked me in. It is not the same if I, consumer, am disadvantaged because of the casual outcomes of competition or because of a decision by a monopolist.

    If you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.

    File URL:
    Download Restriction: Access to full text is restricted to subscribers

    File URL:
    Download Restriction: no

    As the access to this document is restricted, you may want to look for a different version under "Related research" (further below) or search for a different version of it.

    Article provided by Società editrice il Mulino in its journal Mercato Concorrenza Regole.

    Volume (Year): (2006)
    Issue (Month): 3 ()
    Pages: 563-580

    in new window

    Handle: RePEc:mul:jhpfyn:doi:10.1434/23366:y:2006:i:3:p:563-580
    Contact details of provider: Web page:

    No references listed on IDEAS
    You can help add them by filling out this form.

    This item is not listed on Wikipedia, on a reading list or among the top items on IDEAS.

    When requesting a correction, please mention this item's handle: RePEc:mul:jhpfyn:doi:10.1434/23366:y:2006:i:3:p:563-580. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: ()

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If references are entirely missing, you can add them using this form.

    If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    This information is provided to you by IDEAS at the Research Division of the Federal Reserve Bank of St. Louis using RePEc data.