U.S. Antitrust Law and E.U. Competition Law, Correctly Interpreted and Applied as Matters of Law: The Tests of Illegality They Respectively Promulgate and the Business Entities and Conduct to Which Those Tests Respectively Apply

This chapter compares U.S. antitrust law and E.U. competition law as correctly interpreted as matters of law. Six points or sets of related points are most salient: (1) both legal regimes promulgate specific-anticompetitive-intent, lessening-competition, and distorting-competition tests of illegality; (2) E.U. competition law but not U.S. antitrust law promulgates an “exploitative abuse of a dominant position” test of illegality; (3) in some important respects, the business-entity and conduct coverages of the two legal regimes differ—for example, E.U. competition law covers natural-oligopolistic conduct as a concertation or exploitative abuse of a dominant position whereas U.S. antitrust law does not cover such conduct, and U.S. antitrust law prohibits contrived-oligopolistic conduct that does not involve an agreement (but only threats of retaliation against non-cooperators) and single-firm predatory conduct whereas E.U. competition law prohibits such conduct only when its perpetrator occupies a dominant position; (4) the provisions of both jurisdictions’ antitrust/competition law contain some texts that cannot be operationalized at all or without making policy-judgments—thus, the U.S. Clayton Act refers to “any line of commerce” and “any line of commerce in any section of the country,” the U.S. Clayton Act contains the expression “substantially to lessen competition” (emphasis added), Article 102 of the 2009 Treaty of Lisbon refers to “a dominant position,” and the European Merger Control Regulation contains the expression “significantly impeded effective competition” (emphases added); (5) clause (e) of Article 101(1) of the 2009 Treaty of Lisbon and clause (d) of Article 102 of that treaty manifest their drafters’ and ratifiers’ failure to understand the licit functions that various contract-clause surrogates for vertical integration can perform; and (6) the U.S. Sherman Act (which promulgates a specific-anticompetitive-intent test of illegality) gives victims of its violation a legal right to obtain redress (indeed, to obtain treble damages) whereas E.U. competition law gives no victims of violations of any of its provisions a right to obtain legal redress.