Antitrust and Regulation in the EU and US
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Antitrust and Regulation in the EU and US

Legal and Economic Perspectives

Edited by François Lévêque and Howard Shelanski

The diverse and excellent set of authors assembled in this book sheds light on the continuing and conflicting calls for deregulation and re-regulation of important industries and informs the ongoing, increasingly global, policy debate over the evolving line between regulation and general competition policy. The purpose of this book is to understand the debate and its policy implications, focusing on the traditionally regulated sectors of telecommunications and energy, and comparing approaches in the European Union and the United States.
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Chapter 3: Contrasting Legal Solutions and the Comparability of EU and US Experiences

Pierre Larouche


Pierre Larouche* In the broad area of economic regulation, comprising general competition/antitrust law as well as sectoral regulation, ideas flow very easily and very extensively across the Atlantic, with the USA remaining the centre of gravity, however. This free flow of ideas is stimulated by a broadly shared willingness to base economic regulation on economic analysis. Economics is meant to be unique, i.e. applicable in a variety of specific national contexts without losing its universality. On the other hand, lawyers typically like to point out at differences between the legal systems – and more broadly, alleged differences in “legal culture” – to argue for diverging solutions. These claims are also often exaggerated, and indeed recourse to economic analysis helps to debunk them. Nevertheless, in some cases, legitimate legal differences between the EC and the US on matters of economic regulation might affect the universal applicability of economic science. By way of illustration of the above, this chapter examines two specific issues relating to competition law and telecommunications regulation: I. the hierarchy in the application of competition law and sectorspecific regulation: the US Supreme Court decision in Trinko and the Commission decision in the Deutsche Telekom price squeeze case evidence two different approaches; II. the principle of technological neutrality and the place of competition law principles in sector-specific regulation: here the approach of the FCC under the Communications Act can be compared with that of the Commission under the new electronic communications framework. 76 Contrasting legal solutions and the comparability of EU and...

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