Comparative Antitrust Federalism and the Error-Cost Framework or: Rhetoric and Reality: You Protect Competitors, We Protect Competition – Except When We Protect Competitors

Nicolas Charbit & Elisa Ramundo (eds.), William E. Kovacic: An Antitrust Tribute - Liber Amicorum, Volume II (Institute of Competition Law, 2014) 23-91

77 Pages Posted: 7 Feb 2014 Last revised: 12 Nov 2014

See all articles by Florian Wagner-von Papp

Florian Wagner-von Papp

Helmut Schmidt University / University of the Armed Forces Hamburg

Date Written: February 5, 2014

Abstract

The aim of this paper is threefold.

First, it seeks to contribute to a more fine-grained comparison between US antitrust and EU competition law by (selectively) including state antitrust laws as well as laws that pursue objectives different from the antitrust laws but interfere with the aims of the antitrust laws, such as sale-below-cost statutes, car dealer and franchise statutes, or general contract law invalidating resale price maintenance agreements ("non-antitrust laws").

Secondly, the paper highlights the degree to which such state antitrust laws and non-antitrust laws may interfere with the error-cost framework employed in antitrust law which finely balances Type I and Type II errors.

Thirdly, as a consequence of the first two points, the paper seeks to raise awareness of the importance of clearly defining the relationship between antitrust law on the federal (or EU) level and antitrust laws as well as non-antitrust laws on the (Member) state level. Neither the US approach nor the current EU approach to this relationship are considered satisfactory.

Keywords: Comparative antitrust law, comparative competition law, US antitrust law, EU competition law, state antitrust law, Type I Errors, Type II Errors, error-cost framework, safe havens, functional equivalents, comparative law, antitrust federalism, resale price maintenance, sales below cost, franchise

JEL Classification: D40, D42, D43, D60, D61, D63, D72, K10, K21, L10, L12, L14, L22, L40, L41, L42, L43

Suggested Citation

Wagner-von Papp, Florian, Comparative Antitrust Federalism and the Error-Cost Framework or: Rhetoric and Reality: You Protect Competitors, We Protect Competition – Except When We Protect Competitors (February 5, 2014). Nicolas Charbit & Elisa Ramundo (eds.), William E. Kovacic: An Antitrust Tribute - Liber Amicorum, Volume II (Institute of Competition Law, 2014) 23-91, Available at SSRN: https://ssrn.com/abstract=2391258

Florian Wagner-von Papp (Contact Author)

Helmut Schmidt University / University of the Armed Forces Hamburg ( email )

Holstenhofweg 85
Hamburg, 22008
Germany

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