Monopolization laws of the United States and of the European Union: comparative legal and economic analysis

摘要

The primary mission of the essay is twofold: on the one hand, it intends to account of the complexity of the monopoly phenomenon, which is reflected in its regulation in the United States and in the European Union; on the other hand, it intends to display the close interaction among the market process, the judicial process, and the political process in the molding of the laws of monopolization. The colliding forces of fostering private enterprise, on the one hand, and of protecting the openness of the market and the competitive process to the benefit of both competitors and consumers, on the other hand, show the difficulties of making “good law” when it comes to monopoly. The choice of comparing the American laws of monopoly of and the European laws of abuse of dominant position originates from the fact that the two systems can be regarded as models embodying the two most typically recognized legal families of comparative science, the Common Law family, as regards the United States, and the Civil Law family, as regards the European Union. The two models are analyzed and compared from a functional perspective, whose common departing point is the situation in which a firm abuses its market power to eliminate competition on the market for a good or a service, to the detriment of both competitors and consumers. Along with the claim that “law” is not merely statutory law, the inquiry into the legal models selected accounts of the different weight of the legislative formant, of the judicial formant and of the doctrinal formant on the question. The legislative formant is represented by Section 2 of the American Sherman Act and of article 102 of the Treaty on the Functioning of the European Union, which both consist of broad invitations to courts to develop a law of unilateral abusive practices of the firm; thus, the judicial formant plays a pivotal role in both systems, in a way that is more familiar with the Common law tradition, together with the doctrinal formant, in particular with the tenets of the Freiburg ordoliberal school, of the Chicago School of law and economics and of the Harvard structure-conduct-performance School. Despite a rather similar impact of the three formants, the two models display sensibly different concerns in the regulation of the monopoly phenomenon, in turn a concern for efficiency and for the enhancement of consumer welfare as regards the US, and a concern for the fairness of transactions and for the fostering of the Internal Market as regards the EU. The differences between the two models can be recollected in two antipodal ways of intending capitalism, the individualist laissaz faire capitalism inspiring the American model, based on the idea that free market is the most powerful driver of development, and the altruist capitalism aiming to further a social market economy inspiring the European model, based on the balance between the stakes of private enterprise and the long-term needs of society as a whole.The difficulty of achieving the social policy goals to which the two models are devoted also stems from the constraints of different processes impacting the monopoly phenomenon: the market process, and its laws of demand and supply, the judicial process, and the structural lack of expertise of courts to adjudicate complex economic questions, and the political process, and the majoritarian or minoritarian biases. Each of the three processes is not a standalone viaticum for the enhancement of consumer welfare, for the protection of fairness or for fostering of the internal. However, an account of the impact of the three processes can better reveal the variances inherent to the legal question at issue.