Several competition authorities consider the exemption of horizontal agreements among firms from antitrust liability if the agreements sufficiently promote public interest objectives such as sustainable consumption and production. We show that when consumers value sustainable products and firms choose investments in sustainability before choosing output or prices, coordination of output choices or prices boosts investments in sustainability and may even enhance consumer surplus when products are sufficiently close substitutes and the marginal cost of investment in sustainability is relatively low. By contrast, coordination of investments in sustainability leads to lower investments and harms consumers.
{"title":"Can Collusion Promote Sustainable Consumption and Production?","authors":"M. Schinkel, Y. Spiegel","doi":"10.2139/ssrn.2704259","DOIUrl":"https://doi.org/10.2139/ssrn.2704259","url":null,"abstract":"Several competition authorities consider the exemption of horizontal agreements among firms from antitrust liability if the agreements sufficiently promote public interest objectives such as sustainable consumption and production. We show that when consumers value sustainable products and firms choose investments in sustainability before choosing output or prices, coordination of output choices or prices boosts investments in sustainability and may even enhance consumer surplus when products are sufficiently close substitutes and the marginal cost of investment in sustainability is relatively low. By contrast, coordination of investments in sustainability leads to lower investments and harms consumers.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129082317","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines the core features of the EU reform package designed to encourage greater volumes of private enforcement of the EU competition rules, particularly the Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. Its principal objective is not, however, to scrutinize these provisions in detail. Rather, its purpose is to reflect on the questions of why, especially when compared with the position in the US, it has proved so difficult for a culture of antitrust litigation to develop in the EU, why the Commission believed that EU measures were necessary to kindle it and to consider, against that backdrop, whether the EU package is likely to achieve its stated goals. Section 2 commences by exploring how private enforcement has developed in the US, examining not only the factors that have facilitated and encouraged it, but the extremes widely-believed to have bedeviled and undermined it, and the steps which have consequently been taken to limit and curtail private actions there. Section 3 then examines the EU system and seeks to unpick the different factors that have operated over time as barriers to private litigation in the EU Member States and to identify those that still exist. Having set out the factors that have encouraged and hindered litigation in the US and the EU respectively and examined some of the pros and cons of each system, it is possible to reflect more fully on the questions of whether private litigation should be further encouraged in the EU, what measures might be desirable or required to overcome the obstacles which exist to it, what measures should be avoided, whether the current package is likely to succeed, what pitfalls might be anticipated and/or what further developments and clarifications are likely to be required in the future. Section 4 concludes that the package of reforms is not likely to lead to over-enforcement or to the encouragement of unmeritorious antitrust actions in the EU. What may be more of an issue, however, is whether it has done enough to boost and facilitate private damages actions and to create the level playing field across the EU sought by the Commission. Not only does the Directive not institute a completely harmonised framework, leaving a number of potential obstacles to national actions and areas of legal ambiguity outstanding, but a number of the Directive’s provisions are liable to introduce considerable complexities into national proceedings. Further, scope for some significant divergences between national rules remain; such differences are likely to continue to affect where litigants choose to commence their actions and to result in forum-shopping.
{"title":"Private Enforcement of EU Competition Law: A Comparison with, and Lessons from, the US","authors":"Alison Jones","doi":"10.2139/SSRN.2715796","DOIUrl":"https://doi.org/10.2139/SSRN.2715796","url":null,"abstract":"This paper examines the core features of the EU reform package designed to encourage greater volumes of private enforcement of the EU competition rules, particularly the Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. Its principal objective is not, however, to scrutinize these provisions in detail. Rather, its purpose is to reflect on the questions of why, especially when compared with the position in the US, it has proved so difficult for a culture of antitrust litigation to develop in the EU, why the Commission believed that EU measures were necessary to kindle it and to consider, against that backdrop, whether the EU package is likely to achieve its stated goals. Section 2 commences by exploring how private enforcement has developed in the US, examining not only the factors that have facilitated and encouraged it, but the extremes widely-believed to have bedeviled and undermined it, and the steps which have consequently been taken to limit and curtail private actions there. Section 3 then examines the EU system and seeks to unpick the different factors that have operated over time as barriers to private litigation in the EU Member States and to identify those that still exist. Having set out the factors that have encouraged and hindered litigation in the US and the EU respectively and examined some of the pros and cons of each system, it is possible to reflect more fully on the questions of whether private litigation should be further encouraged in the EU, what measures might be desirable or required to overcome the obstacles which exist to it, what measures should be avoided, whether the current package is likely to succeed, what pitfalls might be anticipated and/or what further developments and clarifications are likely to be required in the future. Section 4 concludes that the package of reforms is not likely to lead to over-enforcement or to the encouragement of unmeritorious antitrust actions in the EU. What may be more of an issue, however, is whether it has done enough to boost and facilitate private damages actions and to create the level playing field across the EU sought by the Commission. Not only does the Directive not institute a completely harmonised framework, leaving a number of potential obstacles to national actions and areas of legal ambiguity outstanding, but a number of the Directive’s provisions are liable to introduce considerable complexities into national proceedings. Further, scope for some significant divergences between national rules remain; such differences are likely to continue to affect where litigants choose to commence their actions and to result in forum-shopping.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115447384","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper analyses the functioning of the passing-on of price overcharges in damages actions for breaches of EU competition law and aims to give a critical appraisal of the present regulatory framework in Europe. In particular, this paper maintains that the European Directive 2014/104, in order to facilitate the claims of damages caused by the infringement of European competition rules and to provide full compensation for those damages, has adopted a complex set of rules placing the burden of proof on the party that has, assumedly, the best access to evidence on the relevant issue. Moreover, it is noted that these rules give a strict definition of the overcharge harm and of its diffusion through the market chain. In this connection, it is argued that the objectives of the Directive are partly compromised by the fact that this restrictive approach fails to take into consideration a number of other subjects who may potentially be damaged by the passing-on of the overcharge harm. Secondly, this paper maintains that the set of rules laid down by the Directive 2014/104 creates a system of presumptions, which, contrary to its intended purpose, is likely to discourage damages actions. Finally, this paper argues that actions by indirect purchasers based on the passing-on of the overcharge will still need to heavily rely on domestic civil law rules in particular on local principles of causation and evidence.
{"title":"The Passing-On of Price Overcharges in European Competition Damages Actions: A Matter of Causation and an Issue of Policy","authors":"C. Lombardi","doi":"10.2139/ssrn.2700042","DOIUrl":"https://doi.org/10.2139/ssrn.2700042","url":null,"abstract":"This paper analyses the functioning of the passing-on of price overcharges in damages actions for breaches of EU competition law and aims to give a critical appraisal of the present regulatory framework in Europe. In particular, this paper maintains that the European Directive 2014/104, in order to facilitate the claims of damages caused by the infringement of European competition rules and to provide full compensation for those damages, has adopted a complex set of rules placing the burden of proof on the party that has, assumedly, the best access to evidence on the relevant issue. Moreover, it is noted that these rules give a strict definition of the overcharge harm and of its diffusion through the market chain. In this connection, it is argued that the objectives of the Directive are partly compromised by the fact that this restrictive approach fails to take into consideration a number of other subjects who may potentially be damaged by the passing-on of the overcharge harm. Secondly, this paper maintains that the set of rules laid down by the Directive 2014/104 creates a system of presumptions, which, contrary to its intended purpose, is likely to discourage damages actions. Finally, this paper argues that actions by indirect purchasers based on the passing-on of the overcharge will still need to heavily rely on domestic civil law rules in particular on local principles of causation and evidence.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124119380","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The 1914 Clayton Act prohibited any acquisition whose effect may be to “substantially” lessen competition. International Shoe defined § 7’s word “substantially” by saying that an acquisition’s effect is “substantial” only if it “will injuriously affect the public.” This paper shows that Standard Stations agreed: International Shoe’s definition of the Act’s word “substantially” was the only definition that Standard Stations offered. Although Standard Stations found that Congress had “authoritatively determined” that § 3 was exceptional, it never disputed International Shoe’s definition, which remained the well-known meaning of § 7’s word “substantially” when Congress reenacted § 7 in 1950. Since the context of Congress’ action is consistent with International Shoe’s definition, Congress was “presumed” to have adopted it, producing a better policy than what has been proposed since later Courts misread that history.
{"title":"How to Fix Unreasonable Merger Regulation","authors":"Sheldon Kimmel","doi":"10.2139/ssrn.2663097","DOIUrl":"https://doi.org/10.2139/ssrn.2663097","url":null,"abstract":"The 1914 Clayton Act prohibited any acquisition whose effect may be to “substantially” lessen competition. International Shoe defined § 7’s word “substantially” by saying that an acquisition’s effect is “substantial” only if it “will injuriously affect the public.” This paper shows that Standard Stations agreed: International Shoe’s definition of the Act’s word “substantially” was the only definition that Standard Stations offered. Although Standard Stations found that Congress had “authoritatively determined” that § 3 was exceptional, it never disputed International Shoe’s definition, which remained the well-known meaning of § 7’s word “substantially” when Congress reenacted § 7 in 1950. Since the context of Congress’ action is consistent with International Shoe’s definition, Congress was “presumed” to have adopted it, producing a better policy than what has been proposed since later Courts misread that history.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"131 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122825845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-09-09DOI: 10.4337/9781788117340.00008
Peter Behrens
This paper explores the impact of ordoliberal thinking on the drafting of the prohibition of "abuse" of a dominant position in the market that was included in the competition rules of the Rome Treaty establishing the European Economic Community as well as on its interpretation by the Commission and the Court of Justice of the European Union (CJEU). Firstly, it is shown that the ordoliberal school must not be regarded as a set of ideas frozen in its formative period of 1933 to 1950 or 1957 when the "Freiburg School" was established but rather as an approach that has been dynamically developed and refined over the last 75 years (i.e. over four generations of ordoliberals) up to the present day by integrating important new insights without, however, giving up its core tenets and convictions. Secondly, it is shown on the basis of the preparatory work which lead in the 1950ies to the Rome Treaty that the adoption of the concept of "abuse" for the control of dominant undertakings was due to the strong influence of the German negotiating team that consisted of (in the meantime second generation) ordoliberals. Thirdly, it is explained how ordoliberal thinking about the "system of undistorted competition" and the protection of "residual competition against exclusionary practices" has influenced the application of the "abuse" concept in the jurisprudence of the Commission and the CJEU from the Continental Can case to the recent Intel case. This approach has come under attack from welfare-economic approaches which emphasize efficiency instead of competition and which have accused the ordoliberal approach of formalism, lack of sufficient economic analysis, preoccupation with fairness, protection of competitors instead of competition, obsession with interventionist regulation etc. This paper demonstrates that all of these characterizations are based on fundamental misunderstandings of what ordoliberal thinking originally meant and what it stands for today.
{"title":"The Ordoliberal Concept of 'Abuse' of a Dominant Position and its Impact on Article 102 TFEU","authors":"Peter Behrens","doi":"10.4337/9781788117340.00008","DOIUrl":"https://doi.org/10.4337/9781788117340.00008","url":null,"abstract":"This paper explores the impact of ordoliberal thinking on the drafting of the prohibition of \"abuse\" of a dominant position in the market that was included in the competition rules of the Rome Treaty establishing the European Economic Community as well as on its interpretation by the Commission and the Court of Justice of the European Union (CJEU). Firstly, it is shown that the ordoliberal school must not be regarded as a set of ideas frozen in its formative period of 1933 to 1950 or 1957 when the \"Freiburg School\" was established but rather as an approach that has been dynamically developed and refined over the last 75 years (i.e. over four generations of ordoliberals) up to the present day by integrating important new insights without, however, giving up its core tenets and convictions. Secondly, it is shown on the basis of the preparatory work which lead in the 1950ies to the Rome Treaty that the adoption of the concept of \"abuse\" for the control of dominant undertakings was due to the strong influence of the German negotiating team that consisted of (in the meantime second generation) ordoliberals. Thirdly, it is explained how ordoliberal thinking about the \"system of undistorted competition\" and the protection of \"residual competition against exclusionary practices\" has influenced the application of the \"abuse\" concept in the jurisprudence of the Commission and the CJEU from the Continental Can case to the recent Intel case. This approach has come under attack from welfare-economic approaches which emphasize efficiency instead of competition and which have accused the ordoliberal approach of formalism, lack of sufficient economic analysis, preoccupation with fairness, protection of competitors instead of competition, obsession with interventionist regulation etc. This paper demonstrates that all of these characterizations are based on fundamental misunderstandings of what ordoliberal thinking originally meant and what it stands for today.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"277 1-2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134428101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, it is proposed to highlight a series of evolving risks that should be taken into account by all businesses in Ireland, especially those seeking new business partners or exploring acquisition opportunities in Ireland or abroad. Most experienced practitioners will be aware of the legal obligation to notify specific types of transactions to competition authorities before completion. Equally, it is widely known that any transaction which should have been notified under the competition rules, but is completed before the proper approval is obtained, will be void. However, the decision whether a transaction must be notified or not is increasingly complex and depends on a number of fluid factors which are discussed in this article. A number of recent developments have significantly increased the risks associated with merger control process for businesses in Ireland.
{"title":"Developments in Merger Control and the Need to Notify","authors":"Conor C. Talbot","doi":"10.2139/SSRN.2615761","DOIUrl":"https://doi.org/10.2139/SSRN.2615761","url":null,"abstract":"In this article, it is proposed to highlight a series of evolving risks that should be taken into account by all businesses in Ireland, especially those seeking new business partners or exploring acquisition opportunities in Ireland or abroad. Most experienced practitioners will be aware of the legal obligation to notify specific types of transactions to competition authorities before completion. Equally, it is widely known that any transaction which should have been notified under the competition rules, but is completed before the proper approval is obtained, will be void. However, the decision whether a transaction must be notified or not is increasingly complex and depends on a number of fluid factors which are discussed in this article. A number of recent developments have significantly increased the risks associated with merger control process for businesses in Ireland.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129657676","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines vertical effects in competition law and regulatory decisions in pay-television markets in France, the United Kingdom and the United States, with a focus on vertical input and customer foreclosure, exclusive dealing, countervailing buyer power and some aspects of the implementation of remedies. Its inception in the discussion surrounding convergence is justified by the importance of vertical effects in consolidation and vertical integration trends between the telecommunication and pay-television industries. Although convergence between these two industries may be considered both from the vertical (vertical integration) and horizontal (service bundling) perspective, this paper only addresses its vertical aspects. Among all types of vertical effects, only those judged more relevant by the authorities, and subject to a greater degree of scrutiny are being addressed, as explained in Section 1. First, we examine the different treatments of buyer power and its use as an argument to justify relaxing requirements for the authorisation of mergers in France and the United Kingdom (countervailing buyer power). Second, we conduct an exhaustive assessment of vertical foreclosure (both input and customer foreclosure) in relation to its regulatory treatment in these countries. In a separate section, exclusive dealing and related competition law practice are assessed in order to discern in which situations it can be pro- or anti-competitive, including future market structures. Finally, a section discusses the pros and cons of having wholesale reference offers for pay-television content against the use of arbitration mechanisms to prevent vertical foreclosure.The overall conclusion of the paper is that, while the United States has been moving away from stringent ex-ante regulation in pay-television markets, justified by an improvement in competition dynamics, France and United Kingdom have only partially succeeded in addressing these concerns – in many ways more serious that in the United States – due to a lack of a legal framework to issue ex-ante regulation. The empirical evidence for this paper is based on an exhaustive assessment of all related competition law and regulatory decisions in pay-television markets in France, the United Kingdom and the United States. The Annex includes a summary of vertical effects in antitrust and merger decisions in these countries from 1996 to 2014.
{"title":"Vertical Effects in Competition Law and Regulatory Decisions in Pay-Television: France, the United Kingdom and the United States","authors":"Agustin Diaz Pines, Y. Biondi","doi":"10.2139/ssrn.2616385","DOIUrl":"https://doi.org/10.2139/ssrn.2616385","url":null,"abstract":"This paper examines vertical effects in competition law and regulatory decisions in pay-television markets in France, the United Kingdom and the United States, with a focus on vertical input and customer foreclosure, exclusive dealing, countervailing buyer power and some aspects of the implementation of remedies. Its inception in the discussion surrounding convergence is justified by the importance of vertical effects in consolidation and vertical integration trends between the telecommunication and pay-television industries. Although convergence between these two industries may be considered both from the vertical (vertical integration) and horizontal (service bundling) perspective, this paper only addresses its vertical aspects. Among all types of vertical effects, only those judged more relevant by the authorities, and subject to a greater degree of scrutiny are being addressed, as explained in Section 1. First, we examine the different treatments of buyer power and its use as an argument to justify relaxing requirements for the authorisation of mergers in France and the United Kingdom (countervailing buyer power). Second, we conduct an exhaustive assessment of vertical foreclosure (both input and customer foreclosure) in relation to its regulatory treatment in these countries. In a separate section, exclusive dealing and related competition law practice are assessed in order to discern in which situations it can be pro- or anti-competitive, including future market structures. Finally, a section discusses the pros and cons of having wholesale reference offers for pay-television content against the use of arbitration mechanisms to prevent vertical foreclosure.The overall conclusion of the paper is that, while the United States has been moving away from stringent ex-ante regulation in pay-television markets, justified by an improvement in competition dynamics, France and United Kingdom have only partially succeeded in addressing these concerns – in many ways more serious that in the United States – due to a lack of a legal framework to issue ex-ante regulation. The empirical evidence for this paper is based on an exhaustive assessment of all related competition law and regulatory decisions in pay-television markets in France, the United Kingdom and the United States. The Annex includes a summary of vertical effects in antitrust and merger decisions in these countries from 1996 to 2014.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121709943","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the last decades, the nature and scope of services offered by public sector entities has changed considerably. More recently, one can also distinguish a rising awareness of the economic potential of public sector information, in turn raising demand for the availability of such information for re-use for both commercial and non-commercial purposes. The expansion of the public sector information available for re-use, however, can lead to collisions with the services offered by private commercial entities. Therefore, the question is raised as to what rules apply to these governmental entities. As governmental entities have access to means and resources often unavailable to private commercial entities, one could find that such governmental entities hold an unfair competitive advantage over their private commercial peers. Therefore, this article will analyze whether or not such governmental entities fairly compete with private commercial entities offering similar services and what rules can apply to such situation.
{"title":"Can Public Sector Information Distort Markets?","authors":"N. Vandezande, S. Hugelier, K. Janssen","doi":"10.2139/SSRN.2599575","DOIUrl":"https://doi.org/10.2139/SSRN.2599575","url":null,"abstract":"In the last decades, the nature and scope of services offered by public sector entities has changed considerably. More recently, one can also distinguish a rising awareness of the economic potential of public sector information, in turn raising demand for the availability of such information for re-use for both commercial and non-commercial purposes. The expansion of the public sector information available for re-use, however, can lead to collisions with the services offered by private commercial entities. Therefore, the question is raised as to what rules apply to these governmental entities. As governmental entities have access to means and resources often unavailable to private commercial entities, one could find that such governmental entities hold an unfair competitive advantage over their private commercial peers. Therefore, this article will analyze whether or not such governmental entities fairly compete with private commercial entities offering similar services and what rules can apply to such situation.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127705960","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In his seminal 1984 article, The Limits of Antitrust, Judge Frank Easterbrook proposed that courts and enforcers adopt a simple set of screening rules for application in antitrust cases, in order to minimize error and decision costs and thereby maximize antitrust's social value. Over time, federal courts in general—and the U.S. Supreme Court in particular, under Chief Justice Roberts—have in substantial part adopted Easterbrook's “limits of antitrust” approach, thereby helping to reduce costly antitrust uncertainty. Recently, however, antitrust enforcers in the Obama Administration (unlike their predecessors in the Reagan, Bush, and Clinton Administrations) have been less attuned to this approach, and have undertaken initiatives that reduce clarity and predictability in antitrust enforcement. Regardless of the cause of the diverging stances on the limits of antitrust, two things are clear. First, recent enforcement agency policies are severely at odds with the philosophy that informs Supreme Court antitrust jurisprudence. Second, if the agencies do not reverse course, acknowledge antitrust's limits, and seek to optimize the law in light of those limits, consumers will suffer.
弗兰克·伊斯特布鲁克(Frank Easterbrook)法官在其1984年的开创性文章《反垄断的限制》(The Limits of Antitrust)中提出，法院和执法机构在反垄断案件中采用一套简单的筛选规则，以最大限度地减少错误和决策成本，从而最大化反垄断的社会价值。随着时间的推移，一般的联邦法院，尤其是首席大法官罗伯茨领导下的美国最高法院，在很大程度上采用了伊斯特布鲁克的“反垄断限制”方法，从而有助于减少代价高昂的反垄断不确定性。然而，最近，奥巴马政府的反垄断执法者(不像他们的前任里根、布什和克林顿政府)已经不太适应这种方法，并且采取了降低反垄断执法的明确性和可预测性的举措。不管在反垄断限制问题上分歧立场的原因是什么，有两件事是明确的。首先，最近的执法机构政策与最高法院反垄断判例的理念严重不符。其次，如果这些机构不改变方向，承认反垄断的局限性，并根据这些局限性寻求优化法律，消费者将受到损害。
{"title":"Recognizing the Limits of Antitrust: The Roberts Court Versus the Enforcement Agencies","authors":"T. Lambert, Alden F. Abbott","doi":"10.1093/JOCLEC/NHV020","DOIUrl":"https://doi.org/10.1093/JOCLEC/NHV020","url":null,"abstract":"In his seminal 1984 article, The Limits of Antitrust, Judge Frank Easterbrook proposed that courts and enforcers adopt a simple set of screening rules for application in antitrust cases, in order to minimize error and decision costs and thereby maximize antitrust's social value. Over time, federal courts in general—and the U.S. Supreme Court in particular, under Chief Justice Roberts—have in substantial part adopted Easterbrook's “limits of antitrust” approach, thereby helping to reduce costly antitrust uncertainty. Recently, however, antitrust enforcers in the Obama Administration (unlike their predecessors in the Reagan, Bush, and Clinton Administrations) have been less attuned to this approach, and have undertaken initiatives that reduce clarity and predictability in antitrust enforcement. Regardless of the cause of the diverging stances on the limits of antitrust, two things are clear. First, recent enforcement agency policies are severely at odds with the philosophy that informs Supreme Court antitrust jurisprudence. Second, if the agencies do not reverse course, acknowledge antitrust's limits, and seek to optimize the law in light of those limits, consumers will suffer.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116210962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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