Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law
67 Pages Posted: 2 Apr 2008 Last revised: 22 Jun 2017
Date Written: 2007
This Article analyzes the impact of the introduction of U.S.-style antitrust settlement procedures in EU law, which occurred in 2004 as part of an ambitious antitrust modernization program. After documenting the absence of a settlement tradition in EU law and the legal systems of individual EU member states, I argue that the new procedures were inspired by and transplanted from U.S. law, and that this was done without sufficient tailoring. Drawing on lessons from the longstanding U.S. experience with antitrust settlements and on emerging evidence about the EU's own approach since 2004, I analyze the effects of the new settlement procedures within three interconnected sub-systems of antitrust enforcement: at the EU level, at the member-state level, and at the level of U.S.-EU antitrust cooperation. I demonstrate that when compared to the standard case resolution procedures, settlements are more attractive both to the antitrust authority and to companies under investigation. The resulting reliance on settlements is likely to lead to distortions in enforcement incentives and a reduction in the degree of legal certainty and accountability within the EU antitrust system, which, in turn, threatens to shift the system towards further bureaucratization and interfere with many of the original goals of the antitrust modernization program. I conclude by suggesting that the EU should revisit those goals and assess whether the U.S. cost/benefit calculus for antitrust settlements is compatible with the EU's own legal regime and societal preferences. The immediate theoretical and practical insights of the Article relate primarily to EU antitrust law; viewed more broadly and from the vantage point of comparative administrative law, the Article also represents a detailed case study of the negative effects stemming from the untailored transplantation of legal rules and regulatory approaches across dissimilar legal systems.
Keywords: comparative antitrust law, comparative administrative law, antitrust settlements, consent decrees, Tunney Act, modernization of EU competition law, EU Council Regulation 1/2003, Alrosa v. Commission (Case T-170/06, C-441/07)
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