Parallelism in EU and US Competition Law
New Horizons in Competition Law and Economics series
Chapter 1: US antitrust policy towards parallelism: the ex post enforcement
In the years following the New Deal, US economic policy had to take action in connection with abusive conduct by big companies. That scenario was the result of previous policy favourable to associationism and to expansion of companies, in the belief that only big undertakings could benefit from competitive advantages and, in this way, could contribute to improving their business performance. That particular choice had damaged small-sized companies that could not effectively compete and, in most cases, had exited the market; conversely, large companies, which had benefited from that policy, began exploiting their market power. In this framework, the presence itself of very big companies was perceived as the primary menace to competition; for this reason, Congress decided to enact a series of statutes intended to restore equilibrium between large and small companies, with the final aim of preserving correct market functioning. Nor did awareness of the remarkable advantages – especially in terms of output increase – that would come from expansion in the scale of production reduce legislative concern about protecting small business. The commitment towards commercial equality also affected competition policy that, since the time of Roosevelt’s presidency, had strengthened antitrust enforcement against cartels, perceived as the paradigmatic expression of market power exploitation. In that same period, new economic theories about oligopolies served to rationalize the intuition that, in this kind of market, cartel-like effects do not presuppose any communication, but may result from mutual observation and adaptation.3 In this context, Courts began scrutinizing oligopolistic parallelism by means of cartel categories.
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