Comparative Antitrust Law – 6840
Comparative (U.S. and EU) Antitrust
SCOPE OF COURSE: U.S. Antitrust law is designed to protect the market economy from private restraints, such as cartels and other agreements that may reduce the supply of goods or services to the disadvantage of consumers. Monopolies restrict production in order to create an artificial scarcity that will enable them to sell at inflated prices. Some agreements among producers may have the effect of replicating monopoly behavior. The antitrust laws prohibit this behavior. EU antitrust law (usually called “competition law” in Europe) is similarly designed to protect the market economy from private restraints. The EU has built its competition law into the Treaty establishing the European Union. The texts of the EU competition law are worded differently from the U.S. antitrust provisions, but they are readily recognizable by an American antitrust lawyer. The European courts and enforcement authorities employ the same concepts and often the same vocabulary as do their American counterparts, but often reach different results.
The Seminar explores the similarities and differences between U.S. and EU antitrust law, with a strong focus on the differences. Historically, the differences have grown over time. The EU antitrust provisions date back to 1957 when the Treaty of Rome establishing the European common market was adopted. During the first decade and one half, the European provisions were applied in a manner that was broadly similar to the way the American antitrust laws were applied. American antitrust changed substantially beginning in the mid-1970s when it incorporated an approach focused on “efficiency” and the maximization of “consumer welfare” as overriding principles, an approach that is widely known as a “Chicago School” approach. The Europeans did not take the same path and the two systems have been diverging since. Various American academics have been developing a so-called “post-Chicago” approach to antitrust law and the Europeans seem to be adopting a “post-Chicago” agenda. Closely related to this substantive difference is a structural difference: private actions predominate in U.S. antitrust but play a much less important role in the EU.
The seminar will take up the following topics: 1) A broad overview of the U.S. and EU antitrust systems. 2) Review of microeconomics. 3) Vertical restraints. 4) Monopolization in the U.S.; abuse of dominant position in the EU. 5) Merger law. 6) Efficiencies as a merger justification. 7) Predatory pricing. 8) Price discrimination. 9) Exclusive distributorships. 10) Loyalty discounts and rebates. 11) Bundled discounts and rebates. 12) Intellectual property related antitrust issues. 13) Microsoft related issues. 14) Dynamic competition (and the “new economy”). 15) Other matters, including judicial review; ordoliberalism and other background factors.
The goals and objectives of the seminar the semester are to teach 1) substantive antitrust law of the U.S. and the EU, with a focus on the differences between the two jurisdictions; 2) the processes followed in the two jurisdictions; 3) the application of U.S. and EU antitrust law and theory to contemporary issues such as the Google book settlement and issues involving dynamic (including Schumpeterian) competition; 4) the criteria used by the two jurisdictions for evaluating the application of antitrust law to loyalty and bundled discounts, the antitrust/intellectual property interface and efficiency issues; and 5) techniques for making informed judgments about the approaches that the legal institutions in the two jurisdictions would likely take in dealing with other problems. In addition, the seminar is designed to assist students: (a) to develop their abilities to analyze court decisions involving economic issues; (b) to develop an ability to anticipate when EU authorities will substitute noneconomic values for economic ones; and (c) to improve their abilities to articulate complex issues involving both law and economics.
Materials for the course (treaty provisions, statutes. regulations, court and administrative decisions) are available on the Internet and will be distributed through Twen. A final paper is required.