REVIEWS
“With The Atlantic Divide in Antitrust, Gifford and Kudrle have prepared a thoughtful and well-researched work, and their detailed treatment and rich comparison of approaches will be welcomed by academics and authorities on either side of the Atlantic.”
— Philip Marsden, College of Europe
"Gifford and Kudrle provide an intellectual tour de force in their comparative analysis of US and European antitrust. Their work offers important analysis of the major issues and will appeal to both academics and practitioner audiences."
— D. Daniel Sokol, University of Florida Levin College of Law
“With eloquence and thoroughness, Gifford and Kudrle examine the rich history and political economy underlying the transatlantic similarities and differences in the competition policy and law of the United States and the European Union. The authors critically examine where tensions remain, but also where convergences have emerged. The Atlantic Divide in Antitrust should be on the reading list for all antitrust lawyers, economists, and competition policy officials on both sides of the Atlantic.”
— Tom Sullivan, University of Vermont
“This fascinating little book analyzes and contrasts the similarities and differences between US Antitrust and European Union Law of competition, in the light of social, cultural, institutional, and economic backgrounds of particular period."
— World Competition
“This no-nonsense, often technical legal analysis examines laws and court rulings on mergers, price discrimination, predatory pricing, exclusive supply contracts, rebates, and the bundling of services. Recommended for scholars, graduate students, and advanced undergraduates specializing in antitrust, business, and business law.”
— Choice
TABLE OF CONTENTS
Chapter 1. American and European Perspectives on Antitrust - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0001
[competition policy, ideology, institutions, interests, Antitrust Division, Federal Trade Commission, European Commission]
This chapter presents a broad overview of the current similarities and differences between the competition policies of the two jurisdictions and of the factors that have shaped these policies and their administration. These can be best understood in historical context by comparing competition policy developments on both sides of the Atlantic in terms of the interactions of three sets of considerations across time: ideology, institutions, and interests. Many of these themes are further examined in subsequent chapters when individual competition policy issues are examined. The roles of the enforcement agencies: the Antitrust Division of the Department of Justice, the Federal Trade Commission, and the European Commission are explained. (pages 1 - 24)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 2. Welfare, Monopolization, Dominance, and Judicial Review - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0002
[monopolization, abuse of dominance, consumer welfare, total welfare, market power, monopoly power, judicial review]
This chapter explains the complications of total versus consumer welfare standards; the differences between monopolization and abuse of dominance; the varying meanings of market power and monopoly power; and differing judicial review procedures. These topics underpin the exploration, in separate chapters, of mergers; exclusive dealing; price discrimination; predatory pricing; loyalty and bundled discounts; intellectual property and dynamic competition. In these diverse areas, the rationales underlying their differing treatment under U.S. and EU law are interconnected. For example, the rationales supporting EU treatment of loyalty discounts are related to the rationales supporting the treatment of price discrimination, of exclusive supply contracts and of predatory pricing. This treatment differs sharply from that accorded the same issues in the U.S. The rest of this book explores such connections. (pages 25 - 38)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 3. Merger Policy and Efficiencies - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0003
[horizontal mergers, non-horizontal mergers, unilateral effects, tacit collusion, efficiencies, merger guidelines]
A state may be greatly affected by merger policies in other jurisdictions even if the firms involved have no production facilities in that state. Most major jurisdictions have responded by claiming a voice in the approval or rejection of mergers in other states. Despite past conflict, current treatment of unilateral effects and tacit collusion problems as well as efficiencies in horizontal mergers now appears quite similar in the U.S. and the EU as matters of declared policy. Each jurisdiction has horizontal merger guidelines that are strikingly similar. In the area of vertical and conglomerate mergers and on mergers involving potential competition, the extent of agreement is unclear. Only time will reveal whether this apparent transatlantic difference between the stated enforcement postures -- rather close convergence on horizontal mergers and much wider differences on non-horizontal mergers-- will actually lead to important differences in enforcement. (pages 39 - 62)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 4. Price Discrimination - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0004
[price discrimination, Robinson-Patman Act, Article 102 TFEU, primary line effects, secondary line effects, fidelity rebates]
Price discrimination is an important instrument of competition: firms in industries that might otherwise have excess profits based on entry barriers and recognized mutual dependence can be destabilized by the ability of participants to nibble at each other’s markets through selective price competition. Nevertheless, firms may sometimes employ targeted discrimination to hinder the competitive progress of rivals who would benefit if they could not be singled out for attack through such devices as fidelity rebates. The U.S. should repeal the Robinson-Patman Act – and not merely treat primary and secondary line price discrimination effects differently –and the EU should abandon its comprehensive prejudice against price discrimination reflected in the language and application of Article 102 TFEU. Both jurisdictions should critically explore claims that a seller’s discriminatory prices, which may adversely affect particular rivals of that seller, are threatening competition in the market. (pages 63 - 82)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 5. Predatory Pricing - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0005
[Phillip Areeda, Donald Turner, William Baumol, Patrick Bolton, incremental cost, opportunity cost, recoupment, squeeze]
This chapter explores developments in predatory pricing analysis in the United States and the European Union where the two jurisdictions have taken different approaches. It identifies major contributions to predatory pricing analysis from Areeda-Turner, Baumol and Bolton. It deals with the appropriate places in predatory pricing analysis for various costs such as marginal, average, average variable, avoidable, incremental and opportunity costs, the significance of recoupment, and identifies places where the U.S. approach may be changing. It observes differences between the European Commission and the European courts. And it looks at the divergent approaches of the two jurisdictions to a price squeeze imposed by a vertically integrated producer supplying inputs to a competitor in a downstream market. (pages 83 - 100)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 6. Exclusive-Supply Contracts - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0006
[substantial share, foreclosure, post-Chicago, collective action]
This chapter describes the traditional approaches to exclusive supply contracts taken in the United States and in the European Union, identifying similarities and differences. It examines evolutionary changes in the U.S. approach from a simple “substantial share” test to measure foreclosure to more recent concern with the effects of exclusive contracts in enlarging market power. It describes contemporary developments in applying the monopolization clause to exclusive supply arrangements. It also explores potential policy divergence between the European Commission and the European courts in dealing with exclusive supply contracts Finally, the chapter assesses the relevance of economic models (including post-Chicago models dealing with collective-action issues) to legal policy on this issue. (pages 101 - 116)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 7. Single- Product Loyalty Rebates: Is a Large Gap Narrowing? - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0007
[suction effect, discussion paper, guidance, required share, commercially viable share, contestable share, equally efficient, effective price]
This chapter identifies divergent approaches to the evaluation of loyalty discounts followed in the United States and the European Union. It tracks the evolving approach of the U.S. courts to loyalty discount issues. It explores the concepts of “effective price,” “suction effect,” “required share,” “commercially viable share,” and “contestable share” that underlie EU analysis; examines the European Commission’s Discussion Paper and Guidance on loyalty discounts (including the “equally efficient competitor” standard and the actual approaches taken by the Commission and the courts to recent cases post-dating the Guidance. (pages 117 - 138)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 8. Bundled Discounts - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0008
[Antitrust Modernization Commission, predatory pricing, LePage’s decision, Ortho decision, equally efficient, attribution]
This chapter explores the U.S. approaches to bundled discounts as illustrated by the LePage’s decision, the earlier Ortho decision and the disapproval of the LePage’s decision by the Antitrust Modernization Commission. It also examines the European Commission’s approach as manifested in its Guidance and the application of the “suction effect” to bundled discounts. It compares the usage of the equally efficient competitor test in both jurisdictions and discusses the derivation of that test from predatory pricing analysis. In addition, the chapter relates the discount attribution rule of the Antitrust Modernization Commission to the EC’s Guidance. Finally, the chapter examines bundled discounts in the light of their welfare effects. (pages 139 - 160)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 9. Intellectual Property, the Two Microsoft Decisions, and Antitrust in Dynamic Industries - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0009
[intellectual property, patents, copyrights, network effects, essential facilities, tying, new economy, essential facilities, Schumpeterian competition]
This chapter examines the extent to which competition laws in the United States and the European Union have applied the essential facilities doctrines and otherwise have imposed duties to deal with competitors. It examines the interface between Intellectual Property and competition law in both jurisdictions. It then examines the Microsoft decisions in both jurisdictions, highlighting the different approaches taken in settings that (in part) raised similar issues. The Microsoft decisions were the occasions for the two jurisdictions to opt for different approaches to the problems of reconciling intellectual property with competition law. Finally the chapter examines the question of whether competition law should treat knowledge-based industries differently from traditional industries. (pages 161 - 196)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 10. A Summing Up - Daniel J. Gifford, Robert T. Kudrle
DOI: 10.7208/chicago/9780226176246.003.0010
[form-based, effects-based, post-Chicago, rivalry protection, convergence, cooperation]
Recent years have seen EU competition policy move markedly away from “form-based” towards “effects-based” application. At the same time, in some respects, U.S. policy has become more non-interventionist. Thus, while some convergence can be discerned, the picture is complex, and there are substantial remaining differences. Some have argued that the U.S. lags Europe by not incorporating a sufficient amount of “post-Chicago” learning. Some of that learning tends to tilt somewhat in the direction of rivalry protection, and this is the main continuing source of tension between the U.S. and the EU overall. Important differences remain between these two huge jurisdictions, and these are greater than often assumed. Nevertheless, the U.S. and the EU cooperate in antitrust more extensively than ever before, and the foundation for both further convergence and even greater cooperation is firmly in place. (pages 197 - 216)
This chapter is available at:
https://academic.oup.com/chica...
Notes
Bibliography
Index
