Chapter 19: Excessive Pricing and the Goals of Competition Law: An Enforcement Perspective – Comment on Ackermann
Jörg Philipp Terhechte* 1 REAL AND FELT DIVERGENCE AND AN ENFORCEMENT PERSPECTIVE The reanimated debate about the regulation or control of exploitative prices by competition authorities can demonstrate, inter alia, that the phenomenon of divergence of substantive standards and even of different goals of national and supranational competition or antitrust laws is often not about real divergence, but increasingly about felt divergence.1 I totally agree with the idea that the felt divergence between US and European approaches in the field of excessive pricing could be overstated if one starts to broaden the perspective: even where a selected competition jurisdiction denies the necessity for a regulation of monopoly profits, as the US does in principle,2 a deeper analysis of the whole regulatory environment of this jurisdiction * Dr iur, Professor of Law, University of Siegen and Research Fellow, Europa Kolleg Hamburg, Germany. 1 See, e.g., M Gal, ‘Monopoly Pricing as an Antitrust Offense in the U.S. and the EC: Two Systems’, (2004) 49 Antitrust Bulletin 343 et seq; for the background, H Schweitzer, ‘Parallels and Differences in the Attitude towards Single-Firm Conduct: What are the Reasons? The History Interpretation and Underlying Principles of Sec 2 Sherman Act and Art 82 EC’, European University InstituteWorking Paper Law, No 2007/32. 2 See US v American Can Co 230 F 859, 901-902 (D Md 1916) appeal dismissed, 256 US 706 (1921); Berkey Photo, Inc v Eastman Kodak Co 603 F 2d 263, 274 n 12 (2d Cir 1979); Blue Cross & Blue Shield United...
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