These limited situations proposed by the Commission could be used to justify an information exchange agreement which, on the face of it, is contrary to Article 101, paragraph 1, is not always applicable (most of the information exchanged between competitors is not published) or does not reflect the sole or main reason for the exchange of information (it seems unlikely that stronger competitors will want to reveal the reasons for their success to their less successful competitors). to catch up). The Commission`s proposals highlight the difficulties in applying Article 101, paragraph 3, in this context. Competitors considering an information exchange agreement are therefore more likely to escape competition problems by ensuring that their agreement cannot be characterized as anti-competitive than to justify it as consumer-friendly. Robert Bork, in a series of articles on the revision of legislation and his book The Antitrust Paradox, criticized court decisions on cartels and abuse of dominance in the United States. [70] Bork argued that the original purpose of cartel and abuse legislation and economic efficiency is to pursue only consumer welfare, competition protection and not competitors. [71] In addition, only a few acts should be prohibited, namely agreements that set prices and divide markets, mergers that create monopolies, and dominant firms that are predatory, while allowing practices such as vertical agreements and tariff discrimination because they have not harmed consumers. [72] The diverging criticism of U.S. antitrust policy is that state intervention in the functioning of free markets does more harm than good. [73] « The only remedy for bad theory, » Bork writes, « is a better theory. » [71] Harvard Law School professor Philip Areeda, who advocates a more aggressive antitrust policy, challenged Robert Bork`s preference for non-interference in at least one Supreme Court case. [74] The classic perspective of competition was that certain trade agreements and practices could constitute an inappropriate restriction on the individual freedom of professionals to continue living. The restrictions were deemed admissible or not by the courts because of the emergence of new cases and changing business conditions.

As a result, the courts found that certain categories of agreements, specific clauses, were contrary to their doctrine of economic fairness, and they did not have an overall idea of market power. On this basis, previous theorists like Adam Smith rejected any monopolistic power. Competition law gained new recognition in Europe during the interwar period, with Germany adopting its first Cartel and Agreement Act in 1923 and Sweden and Norway adopting similar laws in 1925 and 1926 respectively. However, with the Great Depression of 1929, competition law disappeared from Europe and was revived after World War II, when, under pressure from the United States, the United Kingdom and Germany were the first European countries to enact full-fledged competition laws. At the regional level, EU competition law originated in the European Coal and Steel Community (ECSC) agreement between France, Italy, Belgium, the Netherlands, Luxembourg and Germany in 1951, after the Second World War. The agreement was aimed at preventing Germany from re-establishing the predominance of coal and steel production, believing that this dominance had contributed to the outbreak of war. Article 65 of the agreement prohibits cartels and Article 66 provides for cases of business or mergers as well as abuse of dominance by companies. [35] This is the first time that the principles of competition law have been incorporated into a multilateral regional agreement and established the trans-European model of competition.