In an often-quoted passage from his magnus opus The Antitrust Paradox, Robert Bork underscored the role of objectives, ideas, and beliefs behind the operation of any competition law system: ‘Antitrust policy,’ Bork wrote, ‘cannot be made rational until we are able to give a firm answer to one question: What is the point of the law – what are its goals? Everything else follows from the answer we give.’ This paper answers Bork’s question for the European case by analysing all 11,000 European competition law decisions and judgments between 1961 and 2021 through corpus-linguistic methods that exemplify a distant reading approach. Overall, the results suggest that the initial ‘ordoliberalisation’ of European competition law was followed by a later ‘neoliberalisation.’
Thereby, this paper contributes to the existing literature in terms of data, methodology, and empirical results. First, in terms of sources, the analysis is based on a new EU competition law corpus that was created by scraping the EUR-Lex website: it contains about 11,000 observations, reflecting all four pillars of European competition law (cartels, dominant positions, merger control, and state aid) and capturing the law’s complete period of application. Compared with previous data collections, it contains by far the highest number of legally-relevant observations.
Moreover, since the new EU competition law corpus includes the full textual content of all decisions and judgements, this paper can go beyond isolated case studies or manual classification of cases and utilise advanced text mining and machine learning methods, which so far have not been used in this research context. When seeking to uncover the fundamental concepts, values, and goals that a competition authority or court implicitly adapts, traditional legal scholars have typically focused on selected cases, especially ones that address the balancing point between pro- and anticompetitive effects. However, suitable examples can be cherry-picked and their hand-coding captures only limited information and might suffer from subjectivity. By contrast, the data-structure of the underlying information in the EU competition law corpus allows machines to process these vast amounts of text in a quick, objective ‘distant reading’ process that encodes many characteristics.
Finally, this paper’s empirical results complement the actor-centric or case-specific qualitative results that so far have dominated the historiography of EU competition law and its goals. While historians have tended to focus – not least due to lacking access to primary sources of the European courts – on the work of the Commission and its DG IV, scholars with legal training have concentrated on the Court’s case law and produced heroic and teleological accounts of the ECJ’s progressive role in the constitutionalisation of Europe, which is particularly biasing in the field of competition law. However, both institutions are, to a certain extent, constrained. Since the corpus that forms the basis for this paper’s quantitative analysis combines Commission decisions and Court judgments, EU competition law is understood holistically as the constantly developing product of both actors.
digitalhistory: Anselm Küsters: Answering Bork with Distant Reading: A Corpus-Linguistic Analysis of EU Competition Law and Policy (1961-2021), in: Digital History Berlin (Blog), erschienen am: 10. Mai 2021, Internet: https://dhistory.hypotheses.org/602.
Anselm Küsters was born in Freiburg im Breisgau, Germany. After graduating from the Faust-Gymnasium Staufen, he studied History, German Literature and Economics at the University of Heidelberg, graduating with a Bachelor of Arts (B.A.) and a Bachelor of Science (B.Sc.). He continued his studies in the Master’s program Economic and Social History at Oxford University, UK. In 2018, he graduated with a Master of Philosophy (M.Phil.) and moved to Frankfurt, where he is now conducting his PhD research at the Max Planck Institute for Legal History and Legal Theory. More information on his project can be found here.