Monopolization and Abuse of Dominance: Why Europe is Different

Abstract

The U.S. law of monopolization and the EU law of abuse of dominance share some common ground. The projects for convergence, however, have tended to obscure some basic differences. Each set of laws grows from its own roots and lives in its own “house” of institutions and value sets. Convergence is more apparent at the agency level, while distinctiveness is unmistakable at the level of the highest court of each jurisdiction. More than twenty-five years ago, there was a significant gap at the high court level between the U.S. and the EU law governing dominance. Over this quarter century, EU law has moved toward more appreciation of outcome-focused economics while preserving other Community perspectives, values, and objectives. Nonetheless, perhaps surprisingly, the size of the gap remains approximately the same, due to the significant movement of U.S. law in the direction of nonintervention. This article identifies precisely the points of divergence, in the interests of knowledge and awareness, while supporting the projects of convergence, in the interests of nurturing a sympathy of systems.