Atale of Two Cities: Brussels,Washington,and the Assessment of Unilateral Conduct

Abstract

Achieving convergence between American and European competition law approaches to the assessment of single firm conduct (SFC) would reduce costly business uncertainty and promote beneficial commercial activity. In 2009, the European Commission issued formal guidance on its analysis of SFC; a 2008 Justice Department Report on SFC was critiqued by the Federal Trade Commission and withdrawn in 2009. Although withdrawal of the Justice Department Report may have narrowed the perceived gap between American and European SFC policy (and reduced potential tensions between Justice Department and FTC approaches), it has not fully eliminated it. Steps that might be taken to bridge this gap include framing bilateral discussion in commonly accepted economic terms; working toward a common understanding of balancing tests; seeking to establish consensus approaches to particular practices; analyzing the centrality to the competitive process of conduct under scrutiny; taking into account the most recent findings from economic research; and cooperating in investigations. Although not a panacea, these and similar approaches should lead to greater consistency between U.S. and European enforcement policy and thereby promote welfare.