Transatlantic Perspectives On Interlocking Directorates

This article highlights the potential anticompetitive risks raised by interlocking directorates between competitors, as facilitating collusion, and possibly reducing the intensity of competition, especially if combined with financial links. In the U.S, interlocking directorates among competing firms have long been prohibited by Section 8 of the Clayton Act, but until very recently, absent of enforcers radars. In the EU, there is no such prohibition. This article explains that anti-competitive issues raised by interlocking directorates have not attracted the attention they deserve, across both sides of the Atlantic. Yet the (enforcement) winds seem to be changing, at least in the U.S.

By Florence Thépot^[1]

“We have […] launched the broadest enforcement program in the history of Section 8 of the Clayton Act, which prohibits interlocking directorates on corporate boards.” declared Jonathan Kanter, head of the U.S. DOJ Antitrust Division, in March 2023.^[2] In the U.S., Section 8 of the Clayton Act prohibits interlocking directorates among competing companies. Interlocking directorates refer to situations in which companies have one or more members of their boards in common. To give an example, Eric Schmidt, CEO of Google stepped down from the board of Apple in 2009, to comply with the ban on interlocking directorates. Although the U.S. ban on interlocking directorates has never particularly been contentious, (or enforced), Jonathan Kanter’s statement marks a ch