Intent in Competition Law

The law on anti-competitive practices seems to focus, particularly since its “modernization” at the turn of the second millennium—on the economic effects of corporate behavior. The effect on competition, the market, or consumer welfare serves as a criterion for both defining and characterizing offenses. At first glance, the discipline appears relatively indifferent to the concept of intent, whose role is commonly minimized or even rejected by both doctrine and case law. Contrary to these preconceptions, this study aims to shed light on the central — albeit implicit — role that intent actually occupies de lege lata. To do so, a historical approach to competition law, an attempt at a general theorization of intent, as well as numerous analogies with criminal law are used. The research ultimately suggests a paradigm shift de lege ferenda. Since the “more economic approach” or “effects-based approach” are not, in practice, as far-reaching as commonly believed, it is proposed to abandon them in favor of a less economic and more legal perspective of competition rules, based on the theory of intent developed.

This book was awarded the Concurrences Ph.D. Award in Law.