Parallels and Differences in the Attitudes towards Single-Firm Conduct: What are the Reasons? The History, Interpretation and Underlying Principles of Sec. 2 Sherman Act and Art. 82 EC

Abstract

In the US and in the EU, the antitrust rules on single-firm conduct are currently under review. Antitrust authorities on both sides of the Atlantic are reconsidering the tests to be applied in order to distinguish between lawful competition on the merits and exclusionary conduct. In the transatlantic comparison that accompanies the review, it has been observed that in the US, the tests for identifying anti-competitive single-firm conduct under Sec. 2 Sherman Act are frequently more narrowly construed than the tests applied in the EU under Art. 82 EC. A standard explanation for the divergence is an in-built regulatory tendency of EU competition law which is frequently ascribed to German ordoliberal influence – a theory supposedly antagonistic to sound economic analysis. This paper challenges this view. Tracing the history of Art. 82 EC and comparing US and EU competition law attitudes towards exploitative abuses, predatory prices and refusals to deal, it argues that transatlantic differences are sometimes less pronounced than is claimed, and may be explained by valid economic and normative reasons where they exist. Along the way, the paper attempts to clarify the frequently misinterpreted concept of ordoliberalism.