Competition Law Thinking in Times of Change: A Conference in Honour of Valentine Korah

The competition law community recently mourned the passing of Prof. Valentine Korah (1928-2023), who, as one of the first academics to advocate for the use of economics in competition law, and one of the first female law professors in the UK, was truly a pioneer in her field. To celebrate her life and work, University College London hosted a conference to review her seminal contributions to the field, as well as to reflect — hopefully channelling her characteristically irreverent style — on the challenges facing competition law today.

The conference featured four roughly chronological panels. The first examined the historical development of competition law, the second outlined and critiqued the dominant paradigm of today, the third discussed how Article 102 TFEU could be reformed, and the last examined a smorgasbord of contemporary challenges facing competition academics and practitioners. There were also keynote speeches by Professor Eleanor Fox and Marc van der Woude (president of the General Court). A particular highlight was seeing the family of Prof. Korah there, and it was clear to see that they had each inherited her insatiable curiosity and inquisitive spirit!

The conference was introduced by Professor Ioannis Lianos and Assoc. Professor Deni Mantzari, who noted that for nearly seven decades – from the early 1950s to her final publication in 2019 – Professor Valentine Korah’s voice shaped the very foundations of competition law on both sides of the Channel and that few scholars can claim such extraordinary longevity; fewer still can match the depth of her influence in competition law. To capture Val's pioneering contributions, the organisers decided to structure the program as a journey through time and space. Hence, the programme began in 1960s Britain, where Val’s incisive analysis helped forge the bedrock of UK competition law. Then, like following Val’s footsteps, the speakers crossed the Channel to explore her profound impact on EU competition law from the late 1970s through the early 2010s.

What follows is a short summary of each panel, with the main points put forward although it is quite difficult to do justice to an extremely rich discussion.

Panel 1: The transformation of UK competition law: 1956-2024

It turns out that change and challenge in competition law is nothing new.

The first session skilfully moderated by Sir Peter Roth KC saw Peter Freeman CBE KC describe the evolution of competition law in the UK from the Restrictive Trade Practices Act of 1956 until the Competition Act of 1980. He described a rather formalistic, “byzantine” and “gloriously British” set of laws, which were opaque to all, except perhaps the various commissions and registrars enforcing them (and maybe some magic circle law firms). It was in this context that Prof. Korah first engaged with competition law, and here that she realised that the law appeared to be, in large part, divorced from the economic effects that it would produce in practice.

Prof. Richard Whish KC then described the UK’s cartel regime of the 1980’s, sparing no details in terms of how ineffective it was. Firms were required to register potentially anti-competitive agreements with the OFT, but if they did not, then the only punishment was that the agreement would be rendered unenforceable. The regime also had almost no sanctions to speak of; if a cartel was discovered and found to be against the law, then the Court would simply ask the firms involved not to do it again, and only if the firms did do it again, then would sanctions be possible because the firms would be in contempt of court!

Prof. Amelia Fletcher CBE then described the current Competition Act of 1998, which brought in the sanctions missing in the previous regime. Yet the new regime also got its fair share of critique. First, since the criminal sanctions against directors have been little used in practice for a variety of reasons. That said, she also argued that the possibility of prison time is not without merit from a behavioural economics points of view, owing to a potential deterrent effect arising from how people tend to give disproportionate weight to highly unlikely but very negative outcomes. Second, she wondered whether the UK’s Competition Appeals Tribunal (the CAT) — an innovative court in the sense that it has economists on the decision-making panel — should have more economists on staff in order to help it scrutinise economic evidence. She also gave us an insight into the institutional set-up of competition law enforcement that the Blair government created, including how the independence of the CMA was a choice pushed by Gordon Brown after the successful independence of the Bank of England.

Finally, Chris Prevett reflected on the state of the UK’s current regime. He described how the CMA had to take on a large additional workload after the UK’s exit from the EU, which required it to add procedural flexibility in its workload management and case selection. The CMA has also had to develop closer relations with other national competition authorities around the world, including the EU-UK Competition Agreement currently being negotiated. He also highlighted the challenges that the CMA faces in enforcing competition law in digital markets, and how it has responded by forming a Digital Markets Unit which specialises in these issues.

Panel 2: Challenging the dominant competition law paradigm: nurturing change

But what about the status quo? The second session moderated by Peter Freeman CBE KC started with a moving, personal keynote from Prof. Eleanor Fox, who described what it was like to teach and work alongside Prof. Valentine Korah.

In the keynote speech, Prof. Eleanor Fox honoured Professor Korah’s legacy as a true nonconformist in competition law. Known for rejecting rules that “did not work for her” —whether legal or social— Prof. Korah’s approach was rooted in pragmatism and intellectual rigour.

Fox shared an anecdote perfectly illustrating Prof. Korah’s disregard for impractical norms. While teaching as guest lecturers at each other's institutions, Fordham University and UCL, Prof. Korah and Fox bonded over ballet. At a Royal Opera House performance, during intermission, Prof. Korah surprised Professor Fox by laying newspapers on the pavement and sitting down with a glass of wine, perfectly at ease. This scene exemplified her philosophy: practicality always trumped convention.

This philosophy shaped her views on competition law, particularly in the 1980s, when she openly criticised the EU’s overly formalistic approach to vertical restraints. The focus on vertical restraints rather than cartels stemmed from the concerns towards market integration. She argued that EU law failed to reflect the practical realities and behaviour of businesses, giving a false sense of legal certainty accessible only to a few elite law firms and enforcers. Prof. Korah championed a pragmatic view, pointing to the pro-competitive effects of vertical restraints—a view that gained momentum in the U.S. with the Reagan administration and the rise of the Chicago School.

Prof. Korah's sharp critique of the EU’s “byzantine” notification system emphasised her stance: vertical restraints have pro-competitive effects in most cases. Her analysis of judgments such as the Distillers case in 1980 underscored this.

As competition law now grapples with broader questions around sustainability, industrial policy, and democracy, Prof. Korah’s legacy endures in six fundamental principles shared by Prof. Fox:

1. Always consider the consequences of rules.
2. Be reasoned.
3. Be principled.
4. Be pragmatic.
5. Be clear-eyed.
6. Be kind.

Prof. Alison Jones opened the second panel by addressing the pliable nature of competition law. She highlighted critical shifts from 1996 to 2008, including the Commission’s shift toward a more economics approach through Regulation 1/2003, new block exemptions, and the Significant Impediment to Effective Competition (SIEC) test. Prof. Jones emphasised that the competition system is inherently pliable but questioned its readiness for the digital age. She left the audience pondering whether competition law’s narrow economic efficiency focus might require broadening to meet today’s complex realities.

Fernando Castillo de la Torre, Principal Legal Adviser to the Commission’s Legal Service, shared his view on how the Commission is willing to “test the limits of the law” showcased by cases such as Continental Can and Illumina/GRAIL. He raised the concern that the heavy reliance on economic analysis might isolate competition law from the broader legal order and complicate enforcement. He advocated for a more pluralistic approach, noting that competition provisions carry EU “constitutional” values that could theoretically advance the broader objectives outlined in the Treaties, reflecting the law’s relevance to civil society. On that point, he noted how civil society organisations — despite being principally concerned for the welfare of the general public — rarely advocate for a consumer welfare standard in competition law. Instead, those connected with business interests typically push for a consumer welfare standard, while civil society organisations push for a more multifaceted approach.

Prof. Frederic Jenny built on the idea of pluralism, noting that in many OECD jurisdictions, competition law encompasses objectives beyond narrow economic efficiency, such as sustainability and gender equality. He acknowledged challenges within the OECD, including the need for consensus and ambiguity in roles among directors, staff, and ambassadors. These challenges ultimately create a burden on any policy of change. Despite these challenges, he credited the OECD with promoting competition law globally since the 1990s, when not many jurisdictions had a competition system. Currently, the OECD conducts studies that explore the intersections between competition and social issues like gender equality, sustainability, and employment, signalling a broader agenda for competition frameworks.

Prof. Bill Kovacic paid tribute to Professor Korah’s comparative expertise, emphasising her deep understanding of multiple jurisdictions. He highlighted her belief in learning from historical contexts to avoid recycling outdated ideas. Drawing on her teachings, he argued that successful movements need broad bases, lamenting how, in his view, the Neo-Brandeisian movement had shut out Obama-era competition officials. Kovacic closed with a reflection on Professor Korah’s philosophy: excessive criticism, in which all aspects of a system are rejected and deemed wrong, causes an inability to learn from the previous period.

Prof. Ioannis Lianos concluded the panel with a perspective on change as an evolutionary process: different ideas compete, and some will prevail. Taking a realist perspective, he argued that this isn't just a genteel competition of ideas duking it out in the marketplace of thoughts, but one should picture it as a grand game of legal Survivor, where ideas thrive not just because they're "right," but also because they've built the strongest alliances. These alliances form fascinating intellectual ecosystems, bringing together academics, intellectual leaders, judges and officials, occasionally business interests, with the aim to become embedded in the legal system and its supporting bureaucracy. Lianos then continued noting how Professor Korah’s emphasis on incorporating economics into EU (and UK) competition law was a winning idea due to its balance of pragmatism, authenticity, and independence. He contrasted her more pragmatic and less ideological approach of law with economics to the economic analysis of law that was put forward by the University of Chicago during the same period. Korah’s approach made sense for businesses without sacrificing the law’s broader goals. He closed his remarks by acknowledging economists' contributions and pondering the future role of other disciplines such as complexity or data science in shaping competition law in the future.

Panel 3: Reforming Article 102 TFEU

The difficulties of enforcing Article 102 TFEU are a hot topic in competition law today, and indeed were the subject of a recent CLES and ICF conference. Clearly our conference was not the last word on the topic, since the third session of the conference was on how Article 102 can be reformed. The panel was skilfully moderated by Sir Ian Forrester KC.

Judge Mark van der Woude’s keynote speech (‘Does history repeat itself?’) set the scene for the third panel discussion (‘Reforming Article 102 TFEU’) by reminding us of the ongoing challenges in the application of Article 102: in particular, that the more economics approach appeared to have made competition law almost entirely unenforceable. While not advocating to a shift back towards formalism and hence an overturning of the more economic approach, van der Woude pointed to the fact that the correct application of economics is still complex. A case in point is whether the ‘As Efficient Competitor’ test is compulsory or not? Intel’s tumultuous 24-year saga evidently blurred the answer. Van der Woude observed that the Court’s answer that it the AEC test is compulsory appears at least a tad contradictory with its previous ruling in Unilever, where it said that the test was one among several methods which could be used to assess exclusionary effects. Underlying these debates, van der Woude argued, are more fundamental questions: who should set the objectives at the root of competition law? How can competition law push back against concentrations of economic power which are able to be converted into political power? Is there room for national discretion, especially as NCAs like the German Bundeskartellamt take centre stage with their innovative interpretations? Such questions will spur contemporary discussions, for instance, over the interpretation of the DMA in national courts. 

Linsey McCallum kicked off the panel discussion by shedding light on the Commission’s perspective on modernisation. Procedurally, she noted an effort to move away from the (over)reliance on market shares and to actively encourage collaboration with NCAs. Substantively, she noted the Commission’s intention to move back to the guidelines approach to enhance the uniformity, clarity and expediency of the application of Article 102 (although she reminded us to remain realistic regarding enforcement timelines). While the Commission’s use of enforcement priority guidance papers was deliberate in a period in which case law was scarce, her view was that it is now time to unearth the concepts underlying the CJEU’s case law, such as the double pronged test confirmed in the CJEU’s Google Shopping judgement.

Cani Fernandez shared valuable observations on the future of Article 102 enforcement based on her experience as President of Spain’s Competition Agency (CNMC). She made a case for the clarification of the Article 102 guidelines as a means of enhancing legal certainty not only for firms, but also for NCAs  which the CNMC has been pushing for alongside its peer agencies at the European Competition Network. She also noted two emerging themes: the increasing enforcement of exploitative abuses at the national level (where a minority, athough a significant one, of active Article 102 cases related to exploitative abuse), and the Big Tech’s inventive circumvention of DMA rules, both of which warrant close attention.

Prof. Giorgio Monti then offered a critical account of the draft guidelines. He argued that the draft guidelines present an excellent opportunity to bring much-needed clarity to key terms in Article 102 jurisprudence. Currently, terms like "on the merits," "equal opportunities," and an "effects-based approach" lack precise definitions at a granular level. Echoing the views of earlier speakers, he emphasized that it is time for the Commission to identify the "common thread" within case law and develop functional definitions for these terms. Prof. Monti highlighted that Superleague (C-333/21) synthesizes the case law, stressing equality of opportunity and the importance of keeping markets open. He also noted that Intel II (C-240/22 P) the Court contextualises the ‘as-efficient competitor’ test in paragraphs 180-208, while in paragraph 182 acknowledging that this test is ‘merely one of the ways of assessing whether an undertaking in a dominant position has used means other than those that come within the scope of ‘normal’ competition’. He concluded that the Court of Justice appears more focused on preserving open markets than solely on promoting efficiency.

Antonio Bavasso noted Prof. Korah’s well-known dislike for formalistic analysis in all its guises carries a remarkable modernity in relation to the current debate on Article 102. He recalled the original role of Article 86 (as it was) in achieving market integration, and in enabling regulatory reforms such as in the communications sector, highlighting its continued relevance in light of the recent Draghi report. He remarked on how the geopolitical context is different today from when the more economic approach was introduced, and how enforcement should shift as a result. In the context of the current debate of the proposed guidelines on Article 102, he cautioned against the use of excessive use of “presumptions” to lower the prosecutorial burden.  Despite existence presumptions in the case law he thought that the EC had expanded their application in a way that does not align with the case law and ultimately ends up absorbing a disproportionate amount of attention. Hence, a crystallisation of enforcement principles in guidelines should be complemented - now more than ever - with further efforts of intellectual leadership on the policy side on exclusionary abuses and integrating enforcement with the priorities of a wider European policy agenda.

Prof. Damien Geradin supported greater enforcement of exploitative abuses that, he argued, have become the ‘junior partners’ of Article 102 (in line with the consensus at the UCL and ICF’s previous conference on the Article 102 draft guidelines). In suggesting such evolution, Geradin looked to historical accounts of Article 102, particularly the work of Rene Joliet, which he argued were concerned primarily with exploitative practices. As such, he supported taking a more direct approach in protecting consumers, and hence a greater focus on exploitative, rather than just exclusionary abuses.

Panel 4: New Challenges in EU Competition Law: AI, Innovation, Sustainability, Industrial Policy, EU federalism

It turns out that the challenges faced by contemporary competition law don’t stop at Article 102! The final session moderated with his usual brio by Frederic Jenny looked beyond Article 102, to examine AI, Innovation, Sustainability, Industrial Policy, EU federalism.

Kicking off the final panel, Stavros Makris opened the final panel by echoing Val’s perspective on the importance of incorporating interdisciplinary insights into competition law to keep it effective and relevant. He noted that while the current approach to competition law has moved away from the rigidity of legal formalism, it still faces challenges due to a lingering emphasis on economic formalism. To foster innovation, he argued, it is essential to move beyond static competition models and output-based metrics and focus instead on innovation diversity. Drawing on ideas like "econodiversity" and competition as a discovery process, Makris observed that mergers can diminish innovation diversity, and harm competition as a process of parallel experimentation and mutual learning. He acknowledged that the European Commission has devised new ways to account for the innovation effects of mergers, even though it still leans toward output-maximising metrics overlooking innovation diversity concerns. He concluded by suggesting that safe harbours, structural rebuttable presumptions of illegality, and new theories of harm could help enforcers address mergers' effects on innovation diversity.

Prof. Michal Gal spoke about her work on the  growing role of AI algorithms in the economy and their impact on competition. She outlined the benefits algorithms bring, such as cost reduction, faster decision-making, and more sophisticated analysis. Algorithms are widely used for price aggregation, data filtering, information generation, and data collection. However, Prof. Gal cautioned that these efficiencies come with risks, notably the potential for algorithms to facilitate collusion or predation. She highlighted Amazon's predictive pricing algorithm as an example of potential predation: the algorithm gauges whether competitors will follow Amazon's lead when it raises prices on a product. This tactic enables Amazon to maximise profits by selectively increasing prices on products where rivals are likely to match the price. Studies show that algorithm-driven pricing can lead to 5 to 30% price increases. Professor Gal's insights underscored the need for a balanced approach to AI in competition policy, ensuring that innovation and efficiency don’t compromise fair competition.

Cristina Caffarra spoke about how Prof. Korah was one of the early proponents of economics in competition law, but remarked “little did she know that we would go as wrong as we did”. Caffarra’s view is that  now the pendulum is swinging  the other way. She argued that we need to take greater account of the context in which competition policy operates. In accordance with the Draghi Report, she vouched for competition policy’s alignment with industrial and trade policy, so as to not apply competition law in an economic vacuum, and in a similar vein, argued we need to be cognisant of the trade-offs of competition policy. For example, when applying economic concepts like consumer/producer surplus, we should look at the distributive consequences, and ask who actually benefits from the resulting surplus?

Prof. Florian Wagner von Papp addressed antitrust federalism within the EU. He pointed out that, in drafting what became Article 3(2) of Regulation 1/2003, the Commission had initially wanted more harmonisation/convergence than the old Walt Wilhelm case law provided for, so as to achieve a ‘level playing field’ within the EU, but that various Member States had added the ‘unilateral conduct exception’ to the ‘convergence rule’. He recalled that the Commission had indicated, since the Review in 2009, that it would like to extend the convergence rule to unilateral conduct, but noted that in its most recent Staff Working Paper (SWD(2024) 216 final), the Commission gave up on this insistence on further harmonisation. Florian welcomed this new approach and recalled that harmonisation on any given standard prevents parallel experimentation with competing rules and results in a loss of flexibility when adaptation to new developments is required. Prof. Wagner von Papp emphasized that in the area of rules on unilateral conduct, in particular in the digital sector, the “best solution” has not yet been found. Restricting enforcement to Art. 102 TFEU and equivalent provisions would create costly Type II errors, especially since the ‘more economic approach’ robbed Art. 102 TFEU of some of its effectiveness. On the other hand, he considered the drafting of further rules on information exchange between the ECN members about the application of such national rules on unilateral conduct to be worthwhile. He was more sceptical about the calls for a definition of ‘unilateral conduct’. While there is currently some uncertainty in the penumbra of Art. 3(2) and 3(3) Reg 1/2003, for the most part the legal practice has adapted to these rules in force since 2004. Attempting a definition is likely to increase rather than decrease legal uncertainty in this area.

Finally, Prof. John Kallaugher spoke about competition law in times of polycrisis - the intersection of several different crises such as the climate crisis, forced migration, geopolitical conflict, mass extinctions, etc. He remarked that one way in which competition law could adapt would be to have an exemption regime by which firms could cooperate in times of crisis. He also noted the global nature of these issues and highlighted how competition law must address issues of jurisdiction where these challenges and the firms that may be involved in necessary responses, will almost inevitably span national boundaries. He argued that some competition law tools, such as fines, could create difficulties when applied across national boundaries, potentially leading to geopolitical tensions or trade dis-integration.

Prof. Ioannis Lianos concluded the day by noting how we need bridge-builders who can connect competition law to new intellectual territories and highlighted the work undertaken at the Centre for Law, Economics and Society (which Valentine Korah championed from day one), and the competition law team at UCL which tries to pick up Valentine Korah’s torch, but with a twist: “we're expanding beyond work with economists and increasingly the CLES and the competition law team builds bridges with complexity scientists mapping market dynamics like ecosystems, engineers bringing their systems-thinking toolkit, and computational sociologists who can model how real humans (not just theoretical ones) actually behave in markets”. Lianos noted that in the future we might not only be looking at human experts, as the future might lie in artificial intelligence and multi-agent systems that can simulate market behaviour with a richness that traditional neoclassical price theory models do not provide. The aim is not just tweaking competition law – but to reimagine it through a polycentric lens, opening-up the discipline cognitively, while preserving its normative underpinnings and its support by stakeholders who are thirsty for a more inclusive and democratic competition law. In order to achieve these goals, Lianos highlighted the importance of the Valentine Korah Memorial Fund Initiative that he launched on behalf of the Dean of the UCL Faculty of Laws, Prof. Eloise Scotford.

The summary of the discussions was prepared by Renata Stefan and Dafni Loupa currently LLM students specialising in Competition Law at UCL.