Legal and Economic Perspectives
Edited by François Lévêque and Howard Shelanski
Chapter 3: Contrasting Legal Solutions and the Comparability of EU and US Experiences
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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