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Resolving Conflicts between Competition and Other Values: The Roles of Courts and Other Institutions in the U.S. and the E.U.

European Competition Law Annual 2012: Competition, Regulation and Public Policies 417 (Philip Lowe & Mel Marquis eds., Hart Publishing 2014)

George Mason Law & Economics Research Paper No. 14-01

29 Pages Posted: 18 Jan 2014 Last revised: 4 Nov 2014

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Daniel E. Haar

Government of the United States of America - Antitrust Division, Competition and Policy Section

Date Written: January 17, 2014

Abstract

In this essay we compare and contrast the methods used by courts and other institutions in the United States and in the European Union to resolve the conflicts that inevitably arise between competition law and other laws, policies, and values. In the U.S., because its generally-worded antitrust statutes give judges great interpretive freedom, the courts, in the course of deciding concrete disputes, play a large role in defining the boundary between antitrust and other bodies of law. In the E.U., competition law is effectively “constitutional” by virtue of its being part of the Treaty on the Functioning of the European Union, as a result of which the courts are more constrained in what they can do. At the same time, the Treaty permits the E.U.’s enforcement agency, the Directorate-General for Competition, to issue ex ante exemptions that serve to mediate between competition law and other laws and values. Flexibility is among the chief virtues of the U.S. approach to the reconciliation of conflicting concerns. The E.U. approach is less flexible but may provide greater predictability for private actors.

Keywords: balancing, block exemption, Credit Suisse Securities v. Billing, DG Comp, economic efficiency, executive branch agency, expertise, flexibility, implied repeal doctrine, irreconcilable goals, judges, legislature, preclusion, state action immunity, TFEU Article 101(3), uncertainty

JEL Classification: D61, D74, D80, H77, K21, L40, P51

Suggested Citation

Ginsburg, Douglas H. and Haar, Daniel E., Resolving Conflicts between Competition and Other Values: The Roles of Courts and Other Institutions in the U.S. and the E.U. (January 17, 2014). European Competition Law Annual 2012: Competition, Regulation and Public Policies 417 (Philip Lowe & Mel Marquis eds., Hart Publishing 2014); George Mason Law & Economics Research Paper No. 14-01. Available at SSRN: https://ssrn.com/abstract=2380675

Douglas H. Ginsburg (Contact Author)

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Daniel Haar

Government of the United States of America - Antitrust Division, Competition and Policy Section ( email )

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