Abstract
This article discusses the possible benefits of updating competition law theory with regard to behavioural economics. On the basis of a brief description of behavioural economics as a branch of economic theory, the article argues that there is a growing need to include behavioural insights in competition law.
This holds especially true for the developing digital economy. The results of this general discussion are further illustrated by three decisions issued by the European Commission.
On this basis, the article provides answers to three questions concerning the legal implications of a potential shift to behavioural economics. First, behavioural theories of harm can be hard to capture by some of the conventional tests developed in competition law.
Second, based on the higher factual complexity of cases based on a behavioural theory of harm, more precise conditions of empirical analyses conducted by competition authorities would be beneficial. Not last in importance, a shift towards behavioural theories of harm could lead to a lower degree of legal certainty because of the complexity of the cases.
This phenomenon can be mitigated by more detailed soft law documents of the European Commission accompanied by basic tests that would allow them to delineate some of the potentially problematic cases without prejudice to the subsequent empirical analysis.