Parallelism in EU and US Competition Law
New Horizons in Competition Law and Economics series
Chapter 2: The US merger policy towards collusion
At the beginning of the previous century, concerns about the process of concentration that was affecting the US economy, and the knowledge that many of the trusts involved in monopolization cases resulted from mergers, encouraged Congress to enact specific rules, included in the Clayton Act, to control the process of the growth of firms by acquisition. This statute originally applied only to stock acquisitions and horizontal mergers and merger control was thought of as an ex post control, taking place after the project was fully implemented. In the course of time, some changes have occurred. In 1950, Congress amended the Clayton Act, by including asset acquisitions as well as vertical and conglomerate mergers. This way, the Clayton Act provides, at Section 7, that: no person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital … or any part of the assets of another … where … the effect of such acquisition may be substantially to lessen competition, or to tend to create monopoly. Later, the Hart-Scott-Rodino Act imposed a system of pre-mergers notification and changed the ex post enforcement in an ex ante control. The resulting system, therefore, reflects the preference for preventive control over market power positions, rather than for an intensive, ex post control over behaviour of companies. On the substantial ground, US merger control deals with unilateral and coordinated anticompetitive effects. Unilateral effects allude to the merged entity’s ability to raise price, without cooperating with its rivals.
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