Future-Proofing Plural Antitrust Enforcement Models: Lessons From the United States and the European Union

AuthorInge Graef
PositionAssociate Professor at Tilburg University, affiliated with the Tilburg Institute for Law, Technology, and Society (TILT) and the Tilburg Law and Economics Center (TILEC)
Pages339-373
FUTURE-PROOFING PLURAL ANTITRUST
ENFORCEMENT MODELS: LESSONS FROM THE
UNITED STATES AND THE EUROPEAN UNION
I
NGE
G
RAEF
*
INTRODUCTION ............................................... 340
I. PLURALITY IN THE INSTITUTIONAL MODELS OF EU
AND U.S. ANTITRUST ENFORCEMENT
................. 343
A. T
HE
E
UROPEAN
U
NION
................................ 344
1. Centralized Enforcement at the Origin of EU
Antitrust Law ..................................... 344
2. Decentralization Under Regulation 1/2003 .......... 345
3. Private Enforcement .............................. 347
B. T
HE
U
NITED
S
TATES
.................................. 348
1. Federal Enforcement .............................. 348
2. Federal Versus State Enforcement ................. 350
3. Private Enforcement .............................. 351
II. FEDERALISM IN ACTION: INSTITUTIONAL
CONVERGENCE?
....................................... 353
A. T
HE
E
UROPEAN
U
NION
................................ 353
1. Experimentation in the German Facebook Case
Under the Ultimate Control of the Court of Justice . . 353
2. Enforcement and National Legislation Against MFN
Clauses Across the European Union ............... 356
3. Sustainability and EU Competition Policy .......... 359
B. T
HE
U
NITED
S
TATES
.................................. 360
1. How States Can Complement Federal Antitrust
Enforcement ...................................... 360
* Associate Professor at Tilburg University, affiliated with the Tilburg Institute for Law,
Technology, and Society (TILT) and the Tilburg Law and Economics Center (TILEC). The au-
thor would like to thank Alexandre Ruiz Feases for his involvement in initiating this article and
Bill Kovacic, the other contributors and the editors involved in this symposium issue, as well as
the participants of the Vienna Competition Law Days 2022, for their insightful comments on an
earlier version.
339
340
A
NTITRUST
L
AW
J
OURNAL
[Vol. 85
2. How the Federal and State Antitrust Enforcers Are
Joining Forces Against Big Tech ................... 361
III. EVALUATING FEDERALISM IN ANTITRUST
ENFORCEMENT
........................................ 363
A. E
X
A
NTE
C
OORDINATION OF
E
NFORCEMENT
A
CTIONS BY
A
NTITRUST
E
NFORCERS
................................ 365
B. E
X
P
OST
C
OORDINATION
A
CROSS
A
LL
A
CTORS IN THE
A
NTITRUST
S
YSTEM
................................... 368
1. Ex Post Review of Antitrust Enforcement by Courts
and Legislators ................................... 368
2. Legislators Complementing Antitrust Enforcement . . . 369
3. Coordination Among Federal/Central and State/
National Enforcers ................................ 370
4. Involvement of Other Stakeholders ................. 371
CONCLUSION .................................................. 372
INTRODUCTION
In most antitrust systems, enforcement is based on two pillars: public en-
forcement by administrative agencies and private enforcement through actions
before courts. In the context of public enforcement, the U.S. legal system is
defined by a form of federalism in which both federal and state agencies are
competent to enforce the antitrust laws. Federalism or decentralization is also
present in the EU antitrust system, where the European Commission and na-
tional competition authorities (NCAs) are responsible in parallel for the public
enforcement of EU antitrust rules. The presence of multiple actors in the en-
forcement of antitrust laws illustrates what this article will refer to as the plu-
rality or plural nature of antitrust systems. The advantage of plural antitrust
enforcement systems is that several enforcers monitor the health of markets.
However, they also pose a real dilemma.
On the one hand, the complexity of current markets requires room for anti-
trust enforcers to experiment and learn which approaches to enforcement
achieve the best outcomes for competition and should therefore prevail in the
future. Antitrust enforcement is not an exact science and, although enforcers
must collect evidence to support their cases, it is hard to predict in advance
what the impact of antitrust intervention or the lack thereof will be. Diver-
gences in approaches and outcomes of enforcement actions are therefore not
necessarily undesirable in the long term; to the contrary, they may foster
learning-by-doing and can be useful to draw lessons for the future.
On the other hand, consistency in the interpretation of antitrust rules and
legal certainty for market players are also important values for effective en-
forcement. The presence of various enforcers can create frictions in the short
term regarding the substantive interpretation of antitrust rules and the imposi-
2023]
F
UTURE
-P
ROOFING
P
LURAL
A
NTITRUST
E
NFORCEMENT
341
tion of remedies. When one enforcer seeks to impose behavioral remedies to
stop certain illegal practices, this could limit the ability of another enforcer to
successfully claim in a different case against the same company that a struc-
tural remedy is needed to address the identified anticompetitive effects. Thus,
diverging approaches between antitrust enforcers for the same matters could
risk undermining the effectiveness of the antitrust laws.
Although the U.S. and EU antitrust enforcement systems both incorporate
federalist elements, they strike a different balance between entrusting enforce-
ment to a plurality of largely independent enforcers and integrating mecha-
nisms in the system that contribute to coordination. In the European Union,
for example, the European Commission retains a strong level of control over
the overall interpretation and implementation of EU antitrust law, even though
the NCAs in the EU Member States are becoming increasingly active as en-
forcers. The European Commission can even relieve NCAs of their jurisdic-
tion to apply EU antitrust rules by opening its own antitrust proceedings into a
given practice.
1
In contrast, in the United States, individual states and often
private parties can enforce federal antitrust laws without the consent of the
federal government.
2
Unlike the European Union, where the European Commission is the domi-
nant central enforcer, U.S. federal antitrust enforcement is spearheaded by
both the Federal Trade Commission and the Antitrust Division of the Depart-
ment of Justice. The U.S. model of dual federal enforcement has led to situa-
tions where the two federal agencies expressed conflicting opinions on the
same matters.
3
1
Council Regulation 1/2003, art. 11(6), 2003 O.J. (L 1) 1, 11.
2
See, e.g., California v. Am. Stores Co., 495 U.S. 271, 284 (1990) (holding that California
could sue under federal antitrust laws and explaining that “[p]rivate enforcement of the [Clayton]
Act was in no sense an afterthought; it was an integral part of the congressional plan for protect-
ing competition”); 15 U.S.C. § 26 (“Any person, firm, corporation, or association . . . [may] sue
for and have injunctive relief . . . against threatened loss or damage by a violation of the antitrust
laws.”); 15 U.S.C. § 15c (granting parens patriae standing to state attorneys general).
3
An example is the intervention by the DOJ as amicus curiae in support of Qualcomm and
against the FTC in the latter’s monopolization case. See Christine P. Bartholomew, Playing
Nicely with Others: How and Why Antitrust Enforcers Should Work Together,supra this issue,
85 A
NTITRUST
L.J. 241, 256–57 (2023). Likewise, in the FTC’s enforcement action against
Schering-Plough, when the FTC sought a writ of certiorari in the Supreme Court, the DOJ filed
its own brief recommending that the Court deny certiorari. See id. at 257. Other examples in-
clude the 2008 unilateral-conduct report that the FTC refused to join, despite the common hear-
ings the FTC and DOJ had organized. Press Release, Fed. Trade Comm’n, FTC Commissioners
React to Department of Justice Report, Competition and Monopoly: Single-Firm Conduct Under
Section 2 of the Sherman Act (Sept. 8, 2008), www.ftc.gov/news-events/news/press-releases/
2008/09/ftc-commissioners-react-department-justice-report-competition-monopoly-single-firm-
conduct-under. For further discussion, see D
ANIEL
A. C
RANE
, T
HE
I
NSTITUTIONAL
S
TRUCTURE
OF
A
NTITRUST
E
NFORCEMENT
44–46 (2011), and see generally Bartholomew, supra (addressing
additional examples and proposing solutions).

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