Academic journal article Michigan Law Review

Troubled Waters between U.S. and European Antitrust

Academic journal article Michigan Law Review

Troubled Waters between U.S. and European Antitrust

Article excerpt

TROUBLED WATERS BETWEEN U.S. AND EUROPEAN ANTITRUST The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy. By Daniel J. Gifford and Robert T. Kudrle. Chicago and London: The University of Chicago Press. 2015. P. 216. $65.

INTRODUCTION

Antitrust is an important area of law and policy for most companies in the world. Having divergent rules across antitrust systems means that identical economic behavior may be treated differently depending on the jurisdiction. This leads to disparate outcomes, with one jurisdiction finding illegal behavior (that the other does not) when the underlying behavior may be pro-competitive. For example, one of the U.S. antitrust agencies, the U.S. Federal Trade Commission (the other is the Department of Justice Antitrust Division, or "DOJ Antitrust") unanimously voted to close its investigation into Google in 2013 after concluding that the company's behavior was not anticompetitive.1 Yet, in spite of this outcome, more recently the European Commission's Competition Commissioner and its antitrust agency equivalent, the Directorate-General for Competition ("DG Competition"), issued a statement of objections against Google in a case that remains ongoing. 2 This is but one example of how an antitrust divide continues to exist across the Atlantic.

This disparate set of outcomes creates a world in which the most stringent antitrust system may produce the global standard.3 As a result, if the antitrust rules applied are too rigid, they threaten to hurt consumers not merely in the jurisdiction where they are applied but globally as well.4 The stakes are high, not merely in the tech sector, but more generally. Other jurisdictions look to both the United States and Europe for guidance for antitrust jurisprudence.5

Though antitrust law and economics has transformed across both the United States and Europe in the past forty years, institutional differences may explain, in part, these divergent outcomes. Starting in the 1970s, the United States went through an antitrust revolution as it moved from multiple public interest goals to a singular goal based on economic analysis.6 The end result of that revolution is that antitrust in the United States has some variation of economic efficiency as its sole goal (based on a welfare standard of either total welfare or consumer welfare).7 The United States was the first jurisdiction to give economic analysis primacy in antitrust law, although other jurisdictions have since moved in this direction.8

Given that economic thinking continues to develop, case law plays a particularly important role in antitrust. The Supreme Court recently explained in Kimble v. Marvel Entertainment, LLC:

We have therefore felt relatively free to revise our legal analysis as economic understanding evolves and . . . to reverse antitrust precedents that misperceived a practice's competitive consequences. Moreover, because the question in those cases was whether the challenged activity restrained trade, the Court's rulings necessarily turned on its understanding of economics.9

In Europe, by contrast, the shiftto greater economic analysis in antitrust (or as they call it, competition law) started in earnest only in the early 2000s-though as this Review will illustrate, economic analysis has not permeated as far in European competition law cases as it has in the United States, even if the language used by the European Commission's Competition Commissioner and DG Competition is that of consumer welfare.10

In their book The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy, Daniel Gifford and Robert Kudrle11 analyze a distinct set of cases across a number of different substantive areas in the two jurisdictions. In doing so, they also discuss the potential for both convergence and divergence (Chapter Ten). Their comparative analysis makes an important and well-informed contribution to the literature, even if parts of the book might have limitations. …

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