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Alberto Heimler, May 24, 2007
There are many philosophies of antitrust enforcement in the world, but in recent years we are witnessing greater and greater convergence. At the first ICN conference in Naples in 2002, Giuseppe Tesauro, then Chairman of the Italian Competition Authority, discussing the then ongoing debate on the test to apply in merger control, whether dominance or substantial lessening of competition, said “the Atlantic Ocean is not a one way street.” What he meant was that the Sherman Act of 1890, the EC merger regulation of 1989, the Italian law of 1990, and the Romanian law of 1997, all have something to say to the world and a message to deliver.
There have been important developments in European antitrust enforcement since the 1960s. The original philosophy of EC antitrust originates from the ordoliberal German tradition which already in the 1920s had distinguished “impediment competition” (to be prohibited), such as predatory pricing, loyalty rebates and boycotts, from “performance competition” which included all conduct that made a firm’s product more attractive to consumers (to be favored). The ordoliberal tradition was mostly based on form. Indeed for many years antitrust enforcement in the EC meant applying article 81, paragraph 3, on notified agreements and on developing form-based block exemption regulations. The introduction of the merger regulation in 1989, and the emphasis on economic analysis that it brought with it, started to move the Commission away from form-based to effects-based enforcement. The communication on the relevant market was issued in 1997; the new block exemption on vertical restraints in 1999. Economic analysis is now playing an increasing role in interpreting the substantive antitrust provisions.
