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A Study of U.S. Antitrust and EU Competition Law Policy - The assessment of a possible restraint on competition

Authors
Publisher
Lunds universitet/Juridiska institutionen
Keywords
  • Law
  • Jurisprudence
  • Law And Political Science
  • Comparative Law
  • Eu Law
  • Antitrust Law
  • Competition Law

Abstract

As globalization is emerging, competition law has grown from being mainly a national matter to a global concern. Starting from different traditions, EU competition law has moved towards U.S. competition law in some ways, yet not in others. Some consider the modernization process of EU competition law, initiated in 2004, an acceptance of U.S. antitrust thinking by embracing a more economic approach to competition law. It has been suggested that TFEU Article 101 is to be seen as a structured Rule of Reason, a fundamental principle in U.S. antitrust law. The Rule of Reason is based on evaluation of the pro and anti-competitive aspects of a given agreement between undertakings. By this, the U.S. system has come to be called an “effects-based” system, in contrast to the European system that is called the “form-based” system. The disputed scope of application of TFEU Article 101 renders legal uncertainty. One of the most complex issues for competition law to handle is the tension between producer welfare and consumer welfare. In Europe, competition law has historically embraced social justice and been part of the political system. The American system, on the other hand, applies more of an economic efficiency perspective, related to consumer welfare. The structure of TFEU Article 101 does not only cause confusion as to what is to be considered when applying it; possibly, it is the ultimate evidence of the confused view on competition of the EU. Furthermore, the confusion is fueled by the rather contradictory take on the provision by the CJEU. As long as the aims of the provision are not elucidated, the confusion remains. To consider the overall aims and political agenda of the EU when assessing possible restraints on competition seems difficult to reconcile with the rather economic approach that is stated in TFEU Article 101. Additionally, it is even more of a step away from the guidelines for the interpretation of the provision, provided by the Commission and the purely economic approach to competition that is the foundation of American antitrust law. It has to be remembered that the systems are fundamentally different, even if it does not always seem like the prohibited conduct on the liberated market differs too much between the two systems. One significant conclusion is that the aims of the provisions are likely not comparable; the assessment of an agreements restraining effect on competition is done by considering several different factors. TFEU Article 101 is not a codification of the Rule of Reason, but rather a by-product of a different philosophy, and it seems as if the express mention of U.S. terminology in EU competition law, especially by the CJEU, only serve to compound problems and confusion. The similarities between the two systems in the fundamental competition law thinking are rather an effect of the need for adjustment to changing conditions, globally. Those conditions will continually keep on changing, and competition law will have to follow. Hopefully with clear and predictable provisions on prohibited conduct.

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