Substantive Modernization in EU Competition Law: An Empirical Comparison

While existing accounts in competition law have discussed change in relation to the institutional design of enforcement agencies worldwide, the conditions under which substantive competition law evolves have remained underexplored. Concentrating on two distinct reform processes, namely, the gradual opening of traditionally state-owned markets to competition law and the shift towards the ‘more-economic approach’ (MEA), the article employs modern psychometric scaling techniques to develop two novel measurement instruments that accurately capture change. It offers the first empirically sustained account of the inherently dynamic nature of competition law and the role judicial actors can play in jurisprudential transformation. Statistical findings show that both substantive reforms constituted self-contained processes operating according to opposing logics and driven by diverse factors. Overall, the goal of furthering market integration only took centre stage for sector-specific liberalization, while it played a marginal role for the MEA. The methodological advances made in this article open the prospect of teasing out the hidden dynamics of jurisprudential change as well as the impact contextual factors can have on judicial behaviour.