On the concepts of legal standards and substantive standards (and how the latter influences the choice of the former)

Abstract

Abstract The substantial literature on the optimal choice of legal standards (LSs) in Competition Law enforcement concentrates on the factors that influence this choice given the Substantive (or Liability) Standard adopted by courts and competition authorities (CAs). Generally, this literature assumes that the substantive standard (SS) is welfarist. However, in reality, courts and CAs in different countries and over time use different criteria for establishing liability and, very often, these criteria are not welfarist. This article’s main objective is to clarify the relationship between legal and SSs and show the important influence of the latter on the choice of the former: our analysis shows that while efects-based LSs are compatible with non-welfarist SSs, under the latter courts and CAs will be much more likely to use Per Se LSs. This occurs as under non-welfarist SSs the strength of the presumption of illegality will be higher. This influence may be considered as being mainly responsible for differences in the LSs adopted in European Union and in North America (USA and Canada) or UK, especially in relation to abuse of dominance cases.