Resolving Conflicts between Competition and Other Values: The Roles of Courts and Other Institutions in the U.S. and the E.U.
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
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
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.
Number of Pages in PDF File: 29
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
Date posted: January 18, 2014 ; Last revised: November 4, 2014