Corporate Lobbying as Anticompetitive Behaviour in the EU

ABSTRACT Despite the influence of ordoliberalism in EU law, the mutual feedback between market power and political influence of dominant corporations has not become an explicit consideration in competition law enforcement and has remained rather in the background as an implicit rationale. If the threats to competition posed by regulatory capture are to be addressed, such a mutual feedback loop should become an explicit part of the analysis in competition law cases. This article proposes a factors test in order to determine when the exercise of a company's political rights has degenerated into a scenario of heightened risk of regulatory capture. The factors of the test are drawn from the main tenets of the extant literature on lobbying in the EU that describe the dynamics of how stakeholders gain access to the ears of policymakers. Once a heightened risk of regulatory capture is established, this article argues that specific instances of lobbying for a defined policy proposal can be covered by Arts. 101 and 102 TFEU. The requirement of a heightened risk of regulatory capture is designed to align the prosecution of anticompetitive lobbying with the CJEU's case law on abuse of rights as an abuse of dominance, following from AstraZeneca . When corporations aim to capture areas of public policy, they abuse their political rights and can therefore be subjected to competition law liability. In this way, competition law enforcement can complement other areas of public policy aimed at preventing market distortions caused by political influence, such as transparency obligations of corporate political activity and state aid laws.