This module will examine the fundamental principles of US Antitrust Law and EU Competition Law in a comparative perspective. It is NOT designed for students who are currently enrolled in the full module on EU competition law. It is, however, designed to accommodate students both with and without prior knowledge of EU Competition and/or US Antitrust Law.
The module will examine how the US and the EU legal systems deal with antitrust (competition) law issues, such as monopolization/abuse of a dominant position, hard-core cartels and horizontal cooperation, vertical restraints, mergers, state action, and the interplay between competition law and intellectual property rights. The main objective of the module is to understand the variety of fundamental goals of competition law and how these goals influence the approach to specific issues in the EU and US.
Knowledge of the US and EU approaches is helpful when dealing with competition laws in other jurisdictions for various reasons: (1) Both US and EU competition law have an expansive extraterritorial reach, so that clients may have to consider these competition law regimes regardless of where the transaction takes place; (2) either US or EU competition law, or both together, have influenced most of the competition law regimes all over the world, so that the knowledge about US and EU law may be directly useful in the interpretation of these other competition laws; and (3) even where there is no direct legal transplant from either the US or the EU, the discussion about the fundamental goals of competition law is likely to be helpful in making a case under a foreign competition law.
US Antitrust Law and EU Competition Law have developed in very different environments, and so it is not astonishing that they sometimes arrive at different solutions. However, different solutions may occasionally lead to transatlantic frictions. There has been an on-going process of convergence of the two systems, especially over the course of the last 10 to 15 years. This process of convergence started under the influence of the Chicago School of Antitrust Economics, and then the Post-Chicago School, and was facilitated by transatlantic exchanges of the US and EU enforcers, inter alia, in the International Competition Network (ICN). Nevertheless, the different institutional and historical background may result in persisting differences in the approach to some issues. The module will identify areas of convergence, and areas of persisting differences, and will ask from a policy point of view what the reasons for such persisting differences are, and whether they are persuasive.
Suggested literature (supplementary to the materials distributed in the module):
For a comparative casebook on (mainly) EU Competition and US Antitrust law, see Einer Elhauge & Damien Geradin, Global Competition Law and Economics (2nd edn. Hart 2011).
On US Law, the ‘nutshell’ will give you a good overview over the most important issues: Gellhorn, Kovacic & Calkins Antitrust Law and Economics in a Nutshell (5th edn West 2004). For those of you who want to read about US antitrust law in more depth, one of the possibilities is Hovenkamp Federal Antitrust Policy (4th edn West 2011). For very detailed research on individual questions, you may want to consult the multi-volume work by Phillip E. Areeda & Herbert Hovenkamp. Antitrust law : an analysis of antitrust principles and their application (3rd edn. 2006-).
On EU law, you may want to have a look at different textbooks before deciding which suits you best. Excellent examples are the textbooks by Valentine Korah Introductory Guide to EC Competition Law and Practice (9th edn Hart 2007) or Richard Whish & David Bailey Competition Law (7th edn OUP 2012).