A Comparative Study of US and EU Approaches
New Horizons in Competition Law and Economics series
Chapter 1: The roots of transatlantic clashes
1. The roots of the transatlantic clashes* This chapter explores the divergences between the EU and US antitrust laws with respect to the rules applicable to unilateral conduct and the antitrust treatment of market distortions resulting from a state action or private parties’ petitioning for a state action. As explained in the Introduction, these rules are decisive for the treatment of unilateral conduct involving IP rights in the two jurisdictions. The discussion below is not meant as a comprehensive review of Article 82 and §2, the state action doctrine and the government petitioning immunity in the EU and in the United States. It is designed to offer some observations which are helpful in understanding how American and European antitrust enforcers approach competitive concerns resulting from the combination of IP and market power. There are numerous ways in which dominant companies may unfairly use their market power to increase or maintain their market power and thereby disadvantage consumers. Market mechanisms are not always sufficient to ensure that dominant companies do not weaken competition and harm consumers, which is why §2 of the Sherman Act makes it illegal to ‘monopolize’ and Article 82 of the Treaty establishing the European Community prohibits an abuse of a dominant position. The key issue is how to distinguish between competition on merits, which is legal, even if it eliminates rivals of a dominant company, and conduct by private companies which limits competition and hurts consumer welfare.1 Dissatisfaction with how the antitrust enforcers deal with distinguishing between...
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