Edited by Ariel Ezrachi
Chapter 14: Unilateral conduct: the search for global standards
Efforts to codify rules controlling the exercise of unilateral conduct have been largely unsuccessful so far. In the European Union (‘EU’) two developments illustrate this point: first, the ‘modernisation’ of EU competition law achieved under Regulation 1/2003 provides that EU antitrust provisions must prevail over national ones when both are applicable, but this is not so when national antitrust rules pursue unilateral conduct: here stricter national laws may apply. Second, at the end of its five-year review of Article 102 of the Treaty on the Functioning of the European Union (TFEU) (which prohibits abuse of a dominant position), the Commission was unable to issue a set of guidelines to explain how the provision is to be interpreted; but released a Guidance Paper on enforcement priorities, with an ambiguous status and an uncertain impact. In the United States, the two Federal antitrust agencies were unable to agree upon a joint report on the application of Section 2 of the Sherman Act (which prohibits monopolisation) and the Department of Justice’s Report was subsequently withdrawn. If local attempts to codify rules on unilateral conduct fail, what are the prospects for global agreement? At first blush, it might be thought unimportant for global standards to emerge in this context.
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