EU Competition Law and US Antitrust Law
New Horizons in Competition Law and Economics series
Chapter 3: Policy developments
3.1 INTRODUCTION This chapter will describe the general development of a dynamic view of antitrust law analysis in the US and the EU. Significant early antitrust case law is presented where courts have been active in emphasizing, and possibly assessing, future market developments. Sometimes the terms under which new products and processes are created and the availability to market participants of new technologies had to be considered, since this seriously affects the level and nature of competition. The case law presented gives only a sketchy outline of the area under investigation: competition in the innovation process. Regulations and policy documents are next discussed; these further elaborate on market definition issues with regard to R&D and technology dimensions of competition law analysis. Through such instruments, analytical frameworks have evolved in which innovation constitutes a central element for antitrust analysis. The emphasis throughout is on the innovation market concept, but product and technology market issues are also covered. 3.2 3.2.1 DYNAMIC ANTITRUST ASSESSMENT Present and Future Market Conditions Formally, US antitrust policy has never been confined to merely assessing the instantaneous effects of a transaction on current markets. In FTC v. Procter & Gamble Co.,1 the Supreme Court held that the standard of Section 7 of the Clayton Act – testing whether a merger might substantially lessen competition – requires ‘a prediction of the merger’s impact on competition, present and future’.2 Federal Trade Commission v. Procter & Gamble Co., 386 U.S. 568 (1967). The Supreme Court furthermore stated: ‘Section 7 of the Clayton Act...
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