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Peter Alexiadis, Anthony Shortall, Apr 15, 2009
In a nutshell, the question is whether it is correct to consider that a margin squeeze simply consists, as the U.S. Supreme Court holds in linkLine, in an evaluation of a predatory pricing action (at the retail level) and a duty to deal (at the wholesale level), or whether it should constitute a stand-alone antitrust offence short of a mandatory obligation to deal and/or predation finding, as appears to have been the position taken by the European Commission (“the Commission”) and supported by the European Courts. If one adopts a high level approach towards the treatment of a margin squeeze practice under U.S. and European antitrust principles, it would be true to say that the respective approaches across the Atlantic diverge radically. However, if one looks more closely at the historical policy origins underpinning both approaches in light of the prevailing regulatory regime in place governing the electronic communications sector, and the likely paths that they will take in the foreseeable future, the approaches display significant elements of policy convergence. Ultimately, the policy wheels of both ex post and ex ante disciplines of both systems are revolving in such broad sweeps that there is great likelihood that they will achieve a balanced solution which achieves roughly similar results.
