Identifying anticompetitive agreements in the United States and the European Union: developing a coherent antitrust analytical framework

Identifying anticompetitive agreements in the United States and the European Union: developing a coherent antitrust analytical framework

By Alison Jones (King’s College London) & William E. Kovacic (George Washington University)

Abstract:     Commentary in both the US and the EU has repeatedly debated whether, and when, it is more efficient to use “rules” or “standards” to determine the legality of conduct subject to the antitrust laws and how such rules or standards should be formulated. This paper concentrates principally on the question of how this debate impacts on the analytical framework for identifying infringing agreements in the US and EU. It sets out the view that the question of how agreements are to be analysed under both the US and the EU jurisprudence is unduly opaque. Confusion as to, in particular, the role and scope of per se rules, the role and scope of ancillary restraint doctrines, and how competing anti- and procompetitive effects of mixed agreements are to be balanced against each other have led to excessive complexity in the system.

The paper considers what factors might shape development of a coherent and optimal framework for antitrust analysis in a jurisdiction. Once these factors have been set out, it examines how US and EU competition law have approached the issues identified in relation to the analysis of agreements and what features of each system have moulded the developments there. It concludes that both systems require some development to create more intelligible frameworks for antitrust analysis of agreements based on common concepts rather than historical categories of antitrust analysis and, further, that competition agencies could play an important part as catalysts in this progress.

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