European Union competition law and policy: how much latitude for convergence with the United States?

摘要

European Union (EU) Competition Commissioner Mario Monti has repeatedly raised the prospect of a convergence of EU competition law toward the substantive standards of American antitrust law. In July 2001, he declared that "the goal of competition policy in all its aspects, is to protect consumer welfare," a formulation remarkably like the stated goal of U.S. antitrust law. Several months later, Monti elaborated that declaration, stating that "US-EU convergence is a key building bloc for a multilateral co-operation in antitrust ..." Monti concluded that "the EU and US agencies have, in spite of the different legal instruments at our disposal, been using the same micro-economic analytical tools, and increasingly so in recent years." In June 2002, he raised the question of whether the Merger Regulation should embrace an efficiencies defense. In November 2002, Monti endorsed an efficiencies defense. In that same speech, he endorsed the continued use of a "dominance" test for evaluating mergers (and thus rejected proposals to switch to the "substantially lessening of competition" test of the Clayton Act), but contended that the dominance test as used in the Merger Regulation and the Clayton Act test produce broadly convergent outcomes. His complete remarks imply that there has been a strong U.S. influence on EU policy over the period of its development, that U.S. antitrust policy has been following a "consumer welfare" standard, and that the EU is about to embrace that standard. U.S. Deputy Assistant Attorney General William Kolasky has attributed great importance to Monti's remarks. Kolasky also has asserted a growing convergence between EU and American antitrust policies, as Europe moves closer toward an efficiency-based "consumer welfare" policy. In this article we consider the feasibility of an EU movement toward convergence by exploring the apparent purposes of EU policy and the constraints that may limit change. Comparing and contrasting present European competition policy with the situation across the Atlantic best illuminates the potential for change.