In my opinion, the increased popularity of the empirical approach to (EU) competition law is one of the most exciting developments of this year. The use of empirical methodologies has been anticipated for many years now. After all, competition law is naturally based on economic- and effects-based evidence. We could expect that the same scientific rigor that is used in applying competition law would have encouraged practitioners and academics to also make use of empirical methods. It is rather surprising therefore that there is an only scarce empirical study of this field, particularly in the EU context.
A set of developments this year, however, may very well indicate that 2019 will be the harbinger of change(!):
One important development was the long-anticipated Comparative Competition Law and Enforcement Datasets that were published this summer. Led by Anu Bradford and Adam Chilton, the project offers a new empirical foundation to investigate what motivated the adoption of competition laws around the globe and what effects these laws had on markets. Especially since the database is available to download for free, I’m sure it will inform many interdisciplinary studies in the future (www.ComparativeCompetitionLaw.org).
The shift towards an empirical approach was also made evident in the EU. For instance, Pablo Ibanez Colomo’s new book, The Shaping of EU Competition Law, undertakes a comprehensive analysis of the EU Courts’ and the Commission’s decisional practices to examine how substantive competition law principles were shaped by the institutional framework in which they operate. In addition to this direct contribution, the book marks the general advancement of the empirical study of EU law, particularly by providing open access to the database of cases (https://www.cambridge.org/ 9781108429429). This trend has further been marked by the launch of the Strathclyde Centre for Antitrust Law and Empirical Study (SCALES) in October. The promising launch event has attracted a diverse group of scholars, practitioners, and decision-makers, demonstrating the growing interest in this field (https://www.strath.ac.uk/media/1newwebsite/departmentsubject /law/scales/Programme_(alternative)_2.pdf).
Personally, this year was particularly exceptional because the empirical findings of my 4-year PhD research project were published for the very first time. In this project, I coded all 3,000+ Article 101 TFEU cases rendered by the Commission, the EU Courts, NCAs and national courts of five Member States to map and critique the role of non-competition interests in the enforcement. Parts of this study were published in the Common Market Law Review in January, under the title Struggling With Article 101(3) TFEU: Diverging Approaches Of The Commission, EU Courts, And Five Competition Authorities. Later in the year, I defended my dissertation Coding non-competition interests under Article 101 TFEU: A Quantitative and Qualitative Study at the University of Amsterdam (I also discussed this project here: https://acelg.uva.nl/content/news/2019/10/or-brook-on-a-novel-approach-to-eu-competition-law.html?1574771801850).
The increasing use of empirical methodologies invites new research questions that cannot be examined by traditional legal methodologies and is likely to lead to novel and intriguing research findings. I’m sure that such projects will continue to grow and attract further attention in 2020, perhaps especially by the next generation of antitrust scholars and practitioners…
Dr. Or Brook is a lecturer of competition law at the University of Leeds.