Identifying Anticompetitive Agreements in the United States and the European Union

Abstract

Commentary in both the U.S. and the European Union (EU) has repeatedly debated whether, and when, it is more efficient to use “rules” or “standards” to determine the legality of conduct subject to the antitrust laws and how such rules or standards should be formulated. This article concentrates principally on the question of how this debate impacts on the analytical framework for identifying infringing agreements in the U.S. and EU. It sets out the view that the question of how agreements are to be analyzed under both the U.S. and the EU jurisprudence is unduly opaque. Confusion as to, in particular, the role and scope of per se rules, the role and scope of ancillary restraint doctrines, and how competing anticompetitive and procompetitive effects of mixed agreements are to be balanced against each other have led to excessive complexity in the system. The article considers what factors might shape development of a coherent and optimal framework for antitrust analysis in a jurisdiction. Once these factors have been set out, it examines how U.S. and EU competition law have approached the issues identified in relation to the analysis of agreements and what features of each system have molded the developments there. It concludes that both systems require some development to create more intelligible frameworks for antitrust analysis of agreements based on common concepts rather than historical categories of antitrust analysis and, further, that competition agencies could play an important part as catalysts in this progress.