A Comparative Economic Analysis of US and EU Law
Chapter 1: Antitrust Law, IPRs and Economics: The Leeway for Policy Choices
A GENERAL YARDSTICK FOR THE SCOPE OF DOMINANT FIRMS’ IPRS US and EU antitrust rules are poorly defined prohibitions,1 which barely address certain firms’ practices.2 Economics is in an excellent position to imbue these rules with meaning3 because its primary aim is to explain firms’ behaviors.4 1 For such a well-established fact see, e.g., 1 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶103.d (2007); David J. Gerber, Law and Competition in Twentieth-Century Europe 345 (1988), and OECD, ‘Competition on the Merits’ 21 (2005), available at http://www.oecd.org/dataoecd/7/13/35911017.pdf (addressing directly Section 2 of the Sherman Act and Article 82 of the EC Treaty). However, see Timothy J. Brennan, ‘Saving Section 2: Reframing US Monopolization Law’, in The Political Economy of Antitrust 417 (Vivek Ghosal & John Stennek eds. 2007) (arguing that Section 2 remains a vital part of US economic policy because of its brevity and its ability to be morphed by case law according to changing circumstances and advances in knowledge). Likewise, Article 102, poor language grants a great flexibility to EU antitrust institutions. For instance, without such leeway what the EU Commission did with the 2009 Communication about dominant firms’ exclusionary behaviors – that is to say, the Guidance on the Commission’s Enforcement Priorities in Applying Article 82 of the EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings, OJ 2009, C45/7 – would have not been possible. Indeed, though not expressly, the 2009 Communication half restates the existing law and half changes...
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