Optimal Structuring of Assessment Processes in Competition Law: A Survey of Theoretical Approaches

In competition law, the problem of the optimal design of institutional and procedural rules concerns assessment processes of the pro- and anticompetitiveness of business behaviors. This is well recognized in the discussion about the relative merits of different assessment principles such as the rule of reason and per se rules. Supported by modern industrial organization research, which applies a more differentiated analysis to the welfare effects of different business behaviors, a full-scale case-by-case assessment seems to be the prevailing idea. Even though the discussion mainly focuses on extreme solutions, different theoretical approaches do exist, which provide important determinants and allow for a sound analysis of appropriate legal directives and investigation procedures from a ‘Law and Economics’ perspective. Integrating and examining them in light of various constellations results in differentiated solutions of optimally structured assessment processes.