Joseph E. Harrington
This article compares the European Union and the United States with respect to competition law and enforcement practices as it pertains to agreements among competitors in a market (horizontal) and agreements among firms in a supply chain (vertical). Regarding horizontal agreements, the primary difference in the law is the ability of the competition authority to bring a criminal case in the U.S. and a more subtle difference is the presence of concerted practices in the EU. Enforcement differs in the far more active role of private litigation in the U.S. The differences are greater when one turns to vertical agreements. Though the EU provides safe harbors for vertical agreements, something which is absent in the U.S., it is abundantly clear that the U.S.is more lenient in the law and in enforcement. Also provided is a discussion of some recent departures between the U.S. and EU.
- Borenstein, Severin. 1994. Rapid Price Communication and Coordination: The Airline Tariff Publishing Case, in The Antitrust Revolution: Economics, Competition, and Policy. 4th ed., eds. John E. Kwoka, Jr., Lawrence J. White,, Oxford: Oxford University Press.
- Comanor, S. William, Rey Patrick. 1997. Competition Policy towards Vertical Restraints in Europe and the United States. Empirica 24: 3752.
- Cooper, C. James, Luke Froeb M., Daniel P. O’Brien, Michael G. Vita. 2005. A Comparative Study of United States and European Union Approaches to Vertical Policy. George Mason Law Review 13: 289308.Federal Trade Commission. U.S. Department of Justice. 2000. Antitrust Guidelines for Collaborations Among Competitors. Washington, D.C.
- Fersthman, Chaim, Ariel Pakes. 2000. A Dynamic Oligopoly with Collusion and Price Wars. RAND Journal of Economics 31: 207236.
- Jones, Alison, William E. Kovacic. 2017. Identifying Anticompetitive Agreements in the United States and the European Union: Developing a Coherent Antitrust Analytical Framework. Antitrust Bulletin 62: 254293.
- Kazmerzak, Karen, Ryan M. Sandrock. 2019. Vertical Agreements in the USA, Sidley Austin LLP. https://www.lexology.com/library/detail.aspx?g=fa3d74e3–37e6–4399–877d-897185c45314, last visited on January 31, 2020.
- Krattenmaker, Thomas. 1988. Per Se Violations in Antitrust Law: Confusing Offenses with Defenses. Georgetown Law Journal 77: 165180.
- Page, H. William. 2009. Twombly and Communication: The Emerging Definition of Concerted Action under the New Pleading Standards. Journal of Competition Law & Economic 5: 439468.
- Schaeffer, Fiona, Alexander Rinne, Justin Coombs. 2016. Antitrust Challenges to Most Favored Nation and Competitor Parity Clauses in the U.S. and Europe. Milbank and Compass Lexecon, slides. http://media.straffordpub.com/products/antitrust-challenges-to-most-favored-nation-and-competitor-parity-clauses-in-the-u-s-and-europe-2016–04–28/presentation.pdf, last visited January 31, 2020.
- Scott Morton, M. Fiona. 2013. Contracts that Reference Rivals. Antitrust. 27: 72–79.
- U.S. Department of Justice – Antitrust Division. Federal Trade Commission. 2016. Antitrust Guidance for Human Resource Professionals. https://www.ftc.gov/system/files/documents/public_statements/992623/ftc-doj_hr_guidance_final_10–20–16.pdf, last visited January 31, 2020.
- Verge, Thibaud. 1/2018. Are Price Parity Clauses Necessarily Anticompetitive?. CPI Antitrust Chronicle 1.