Competition and the Noerr-Pennington Doctrine: When Should Political Activity Be Barred under European Community Competition Law?
Cooney, William, The George Washington International Law Review
In two cases in the early 1960s the Supreme Court announced that the Sherman Antitrust Actl does not prohibit a firm or group of firms from engaging in political activity intended to influence public officials, even if this activity has anticompetitive effects.2 These cases established the so-called Noerr-Pennington doctrine as an exception to U.S. antitrust law. Although there are many similarities between U.S. antitrust law and European Community (EC or Community) competition law, the Noerr-Pennington doctrine has not been applied in Community courts.3 This Note will discuss four of the reasons why the doctrine should be applied in the European Community as it is applied in the United States. First, the doctrine should apply because of the similarity of U.S. antitrust law and EC competition law. They are similar in most respects, and the harmonization of U.S. antitrust law and EC competition law will only continue to reduce transaction costs as trade between the two jurisdictions increases. The second reason is that adoption of the Noerr-Pennington doctrine requires an approach that considers
competition as a value to be considered with other, possibly more weighty values, and not to their exclusion. Put slightly differently, the Noerr-Pennington doctrine acknowledges the limits of competition policy and that political regulation is beyond its ken. It would be particularly significant for the EC to acknowledge this because of the different rules that apply to "dominant" firms, which currently have their economic and political activity regulated more stringently than nondominant firms. Third, the doctrine will permit EC firms to enjoy the same competitive advantages as U.S. firms. Finally, the doctrine should be adopted because it will spur Europe's political integration through democratic participation.
A. Application of the Noerr-Pennington Doctrine in the United States
1. Role of the First Amendment in U.S. Antitrust Law
Although the right to petition, guaranteed by the First Amendment, was at issue in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.,4 the U.S. Supreme Court did not rest its opinion on constitutional grounds.5 In Noerr, the defendant-railroads were accused of persuading Pennsylvania's governor to veto a bill that would have allowed the plaintiff-trucking companies to more effectively compete with the railroads.6 According to the complaint, this was part of a larger, general publicity campaign aimed against the trucking industry and designed to deprecate that industry in the eyes of government officials, customers, and the general public.7 The question presented was whether U.S. antitrust law, long applied to associations' business activities, applied to their political activities as well.8
Writing for a unanimous Court, Justice Black recognized that the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not
business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act.9
From this language it is clear that the Court understood that nothing less than freedom of speech was at stake should it decide to broadly construe the Sherman Act.
Given the lack of any evidence that Congress intended to apply the Sherman Act to political activity,10 the Court decided it would not construe that statute as warranting such an application.11 While the Court did point out that the interpretation of the Sherman Act urged by the truckers12 "would raise important constitutional questions,"13 the Court's construction of the Sherman Act precluded the need for a formal First Amendment analysis in this case. …