Exploring the Source of Transatlantic Antitrust Divergence


This paper seeks to explore the sources of substantive divergence between the antitrust regimes of the U.S. and EC and to present a framework upon which harmonization could potentially be achieved. While the rise of the Chicago School and post-Chicago theory have merged to ensure a central role for economics in dictating antitrust enforcement in the United States, no such clear standard has emerged in Europe. The consequences for firms operating on a transatlantic basis are potentially severe, as they have to formulate different business strategies depending on which jurisdiction they operate in. An assessment of EC law demonstrates an interesting amalgam of conflicting jurisprudential bases, including the overriding goal of achieving single market integration, the pervasive, though subtle, presence of ordoliberal thought and a qualified desire to protect small competitors from more efficient rivals. It will be argued that the transatlantic schism currently witnessed is not inevitable and that the unique roles played by competition policy in the EC do not prohibit the employment of price theoretic principles.

This paper will seek to articulate a basis for the asymmetry in treatment given certain business practices by the U.S. and EC. Doing so will enable businesses to more readily understand the construction given corporate behavior by European authorities and to adopt their strategies accordingly. Moreover, a framework will be advanced that is facilitative of modern economic theory and which would, if universally employed, bring Europe not only to harmonization with the United States but to the end toward which it is already gravitating.


Antitrust and Trade Regulation | Comparative and Foreign Law | Economics | International Law | International Trade Law | Jurisprudence | Law and Economics | Legal History | Social Welfare Law

Date of this Version

March 2006