Applying transaction cost thinking to specific case assessments often results in welfare implications that contrast sharply with the respective positions taken by more prominent schools of antitrust analysis. And yet, difficulties in generalising and operationalising transaction cost economics for the purpose of policy formulation and guidance appear to forestall a broader endorsement. Unsurprisingly therefore, the EU’s new “economic-based” competition rules on vertical and horizontal restraints make little use of the approach’s superior ability to shape contract analysis. But even though transaction cost economics may seem out of reach for authorities aiming to devise simple, higher level default standards, transferred as an assessment tool to lower level regulation and case assessment, it may provide for efficient regulatory delegation in line with the White Paper’s broader competition policy reforms. What is required is an explanation of the broader economic contracting logic that could structure rules of reason, limit the costs of wrong decisions and improve the efficiency of enforcement. This article presents the notion of contracting as balanced (im)-mobilisation, to first cast in doubt the standard “market-mobility”-based reference for evaluating contractual arrangements, and a range of auxiliary assumptions linked to it. It then formulates guidelines for assessing alternative arrangements for the purpose of antitrust analysis, and compares the positions taken by the so-called “Harvard” and “Chicago” schools on a range of substantive issues of antitrust concern with those based on the proposed, explicit and systematic evaluation of transaction cost. Still, advancing the notion of (im)-mobilisation to improve antitrust analysis in keeping with the logic of institutional choice can only be the first step towards rendering EU competition rules truly “economics based”.
World Competition