This article looks at the commonalities and disparities in the rules against single-firm market abuses in the US and in the EU and their enforcement. Despite they target the same type of business behaviour, the US and the EU have always followed divergent paths. This article will examine alternative explanations for the differences and will also look at the different forms of conduct caught under the prohibition, underlining the most recent enforcement discordances.
Together with the prohibition of multilateral anticompetitive practices, competition legal systems worldwide have a rule against unilateral anticompetitive behaviour by monopolists or dominant firms in the market. There is a broad consensus worldwide over the general idea of the need for competition law to police single-firm abuses whenever firms have achieved a position of strong market power. However, there are however very relevant disparities in the formulation and implementation of the specific rules that countries around the world have enacted to tackle abuses coming from the concentration of economic power single-handedly in the markets. Aside from the legal specificities in the drafting of the prohibition of single-firm abuses in different countries, which -at the end- may not vary so much, most differences are explained and justified in the concrete context (ideological and historical) and institutional reality in which the prohibition is to be implemented, and that may lead to similar cases reaching distinct outcomes. To analyse the variations in the treatment of unilateral conduct in competition law requires looking both at the USA and the EU experiences. These two legal systems have provided the source of inspiration in the adoption and enforcement of the prohibition elsewhere in the world.
Francisco Marcos, International Company and Commercial Law Review 2017, issue 9
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This article is nominated for the Antitrust Writing Awards 2018, with the aim to promote competition scholarship and to contribute to competition advocacy. The 2018 Antitrust Writing Awards Jury contributes to this achievement by selecting the best writings published in 2017. The 2018 edition of the Awards will take place on April 10, 2018. If you wish to vote for this article, click here.