Analysis of Agreements Under U.S. And EC Antitrust Law – Convergence or Divergence?

Abstract

This article explores the question of whether, following the modernization of EU competition law, Article 101(1), or Article 101 as a whole, requires, or is developing toward requiring, a rule of reason analysis similar to that carried out in the US under section 1 of the Sherman Act of 1890. It commences by examining section 1 of the Sherman Act, its objectives, and the tools that have been utilized to resolve the question of whether an agreement unreasonably restrains trade. It then examines Article 81 against this backdrop. It concludes that despite a greater convergence between the US and EU approach to objectives in recent years, the bifucated structure of Article 81 and the difficulty of isolating competition from other Community policies means that significant differences undoubtedly remain and that the US approach to rule of reason analysis has not been embraced as a mechanism for distinguishing between agreements which do, and those which do not, harm competition.