By: Tobias Pukropski (D’Kart)
Antitrust has arguably become increasingly political in recent years. Tobias Pukropski provides an overview of the main developments at EU-level and in Germany, and of their practical implications. A tale of hipsters, fairness, sustainability, and Germans in Chinese trains.
Once upon a time…
…antitrust enforcement was untouched by political considerations. All that mattered was the rule of law, applied without regard to political or policy considerations or to external circumstance.
Really? Sounds like a fairy-tale.
Well, that probably is a fairy-tale. Politics have always played a role in antitrust, with enforcers like the DOJ and the FTC in the US and the European Commission being political institutions. Already in 1979, Robert Pitofsky, Commissioner and later Chairman of the FTC, argued in “The Political Content of Antitrust” that antitrust should be more political. Interestingly, he pointed to companies like United States Steel and Xerox (today not quite the feared giants they were perceived as back then) potentially having too much power.
What Pitofsky’s article shows is: Politization of antitrust is nothing new. However, the level of politization seems to vary over time – politization seems to come in cycles. And this piece will focus on how antitrust has become more political both at EU-level and in Germany over the course of the last years.
So, what about politization of antitrust in the EU and Germany?
Politization is not always easy to grasp. Yet, even those just observing the antitrust world will have gotten the impression that political goals play an increasing role in defining what antitrust laws should achieve.
It is difficult to outline a clear timeline or triggering event for increasing politization. It seems to have been – and still be – a gradual process. However, there are tangible events and developments one can point to, some more and some less obvious. A book could be written about the topic, so the following will be limited to laying out four of the most important chapters in this tale: hipster antitrust, the stance of the European Commission, sustainability, and the (somewhat torn) German perspective.
As often in Western life, the US frequently sets trends also in antitrust. The term “hipster antitrust” was framed in 2017 on Twitter and describes a movement arguing that consumer welfare should not be the (sole) focus of antitrust law, rather that other goals such as employment and wages should also be taken into account.
This debate is obviously political. The US trend also gained traction in Europe – the discussion on what antitrust should be and cover is still raging. It has been described as one between “(public interest) discretionalists” and “legalists”. And as this blog’s very own Rupprecht Podszun hinted at already in December 2019, being “pro-enforcement” seems to have become the mainstream position of enforcers and scholars. The counter-revolution (by whom?) is yet to be seen.