Introduction: Antitrust in the U.S. and the EU—Converging or Diverging Paths?

• Author: Adriaan ten Kate,Gunnar Niels
• Published date: 01 March 2004
• Date: 01 March 2004
• DOI: http://doi.org/10.1177/0003603X0404900101
• Subject Matter: Antitrust in the U.S. and the EU: Converging or Diverging Paths?

The Antitrust Bulletin/Spring-Summer 2004

Introduction: antitrust in the

U.S. and the

EU-converging

or

diverging paths?

BY GUNNAR NIELS* and ADRIAAN TEN KATE**

I.

Introduction

I

As businesses and markets are globalizing, commercial practices and

transactions increasingly have an impact across multiple jurisdictions.

Many mergers nowadays have to be notified to various competition

authorities and companies must ensure their behavior complies with

the

competition

rules in

each

of

the countries covered by their

operations. Likewise, a number of recent antitrust investigations have

unveiled cartels operating across borders, and even across continents,

showing once more the global dimension of antitrust today. As a

consequence

of

these developments, the significant differences in

legal and economic standards that exist between different antitrust

jurisdictions, in particular the U.S. and the European Union (EU),

*Managing Consultant, OXERA, U.K.

**

Director

General for Economic Studies,

Federal

Competition

Commission, Mexico.

AUTHORS' NOTE: The opinions expressed in this article are those

of

the

authors. We would like to thank all the contributors to this special issue

for

their collaboration, and Patricia Villegas

for

her technical support.

We also gratefully acknowledge the helpful comments on this article from

Simon Bishop, Lorenzo Coppi, Caldwell Harrop, Neil Marshall, Russell

Pittman and Vincent Verouden.

©

2004

by Federal Legal Publications, Inc.

2 The antitrust bulletin

have been brought to light, generating a great deal

of

controversy and

debate in the past few years, most notably over high-profile cases

such as

Boeing/McDonnell

Douglas

(1997)

and

GE/Honeywell

(2001).1

This

special issue

of

The

Antitrust

Bulletin seeks to explore

this

lack

of

uniformity

between

U.S.

and

EU

antitrust.?

It

addresses

questions

such as

where

these

differences

arise

(and

where they do not), why they arise, how significant they are, and,

importantly, whether they are decreasing or increasing. In

other

words, are U.S. antitrust and European Community (EC) competi-

tion law on converging or diverging paths?

The

contributions to

this issue have been made by what we believe is a reasonably bal-

anced mix

of

experienced practitioners and academics from both

sides

of

the

Atlantic.

The

main

focus

is

on

the

economic

approaches and standards in

the

two

jurisdictions,

although

the

differences in the legal and institutional frameworks also receive

some attention.

This Introduction is structured as follows. Section II discusses the

Virgin/British Airways cases, which provide a particularly illustrative

example

of

the

discrepancies

between

U.S.

antitrust

and

EC

competition law. Section III offers some tentative thoughts on the

reasons behind these differences and on the direction in which they

may be heading. Section IV introduces the various contributions to

this special issue. Section V concludes.

Case No. IVIM 877, BoeinglMcDonnell Douglas (July 30, 1997);

and Case No. COMPIM 2220, General ElectriclHoneywell (July 3, 2001).

2

The

articles in this

special

issue

often

loosely

use

the

terms

"European"

and

"ED"

antitrust

or

competition

law

when

they

refer

specifically to the competition rules established in the EC Treaty and in

the EC Merger Regulation, enforced by the European Commission and

European Court. It should be borne in mind that the ED member states

each have their own competition law,

and

also that

the

ED does not

include the whole of Europe. However, many of the national competition

laws (including those in the accession and other non-Elf countries) are

modeled after, or aligned with, the EC competition rules and EC case

law.