Parallels and Differences in the Attitudes towards Single-Firm Conduct: What are the Reasons? The History, Interpretation and Underlying Principles of Sec. 2 Sherman Act and Art. 82 EC

摘要

In the US and in the EU, the antitrust rules on single-firm conduct are currently underreview. Antitrust authorities on both sides of the Atlantic are reconsidering the tests tobe applied in order to distinguish between lawful competition on the merits andexclusionary conduct. In the transatlantic comparison that accompanies the review, ithas been observed that in the US, the tests for identifying anti-competitive single-firmconduct under Sec. 2 Sherman Act are frequently more narrowly construed than thetests applied in the EU under Art. 82 EC. A standard explanation for the divergence isan in-built regulatory tendency of EU competition law which is frequently ascribed toGerman ordoliberal influence – a theory supposedly antagonistic to sound economicanalysis. This paper challenges this view. Tracing the history of Art. 82 EC andcomparing US and EU competition law attitudes towards exploitative abuses, predatoryprices and refusals to deal, it argues that transatlantic differences are sometimes lesspronounced than is claimed, and may be explained by valid economic and normativereasons where they exist. Along the way, the paper attempts to clarify the frequentlymisinterpreted concept of ordoliberalism.