Antitrust Enforcement in the US and the EU: A Comparison of The Two Federal Systems
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(and regulatory authority more generally) be centralized and to what extent should the authority be delegated to lower levels of government? While this question has implications worldwide, I will use the European Union and the US as the focal point of my analysis. The underpinnings of the antitrust enforcement structure are different in the two federal systems. In the US, the driving force is the state action exemption doctrine, based on the common law, which spells out instances in which the center can enforce its federal antitrust statutes against anticompetitive state and local regulation. In the EU, however, the driving force is the principle of subsidiarity, which delegates powers to Member States unless a strong case can be made that the externalities are so substantial as to require actions from the center. Fortunately, the normative question at issue here has been analyzed previously by a number of authors, the primary of whom is my colleague Eleanor Fox. No one is better situated to analyze this issue than Professor Fox, since she has devoted a substantial part of her academic career to the study of comparative antitrust analysis. While seeing pros and cons, Eleanor claims that the EU has it (more or less) right. In the EU, federalism trumps the Member States – Member State authorities have a duty to take on Member State laws that run counter to the interests of the Union. Whereas, in the US, we must rely on a less than clear set of guidelines that flow from state action case law and the dormant commerce clause of the US Constitution. Moreover, as Professor Fox has pointed out, the US gives too much weight to state sovereignty (e.g., the Eleventh Amendment prohibits suits in federal courts by citizens against states). In her view, the federal government should have greater authority to intercede when state actions affect national interests. I offer a somewhat different perspective. While it may require a further statutory intervention, the US, as a fully formed political and economic system, has the ability to improve its federalism antitrust oversight. The same cannot be said of the EU, which is neither fully formed politically (witness the problems of Greece and Italy, Brexit, and a failure to deal coherently with the immigration problem) nor economically (witness the inability of the EMU to deal with the downturn of the European economy and a series of significant economic shocks). It has, however, had a relatively integrated/federal EU antitrust policy for decades and antitrust enforcement has one through various reforms, chiefly with decentralization and the adoption of Regulation 1/2003. In the section that immediately follows, I briefly review the principle of subsidiarity and the state action exemption doctrine. Following that, I describe several of the important differences between the US and the EU; I explain why the two enforcement systems are unlikely to achieve convergence with respect to the antitrust enforcement of regulatory activities; I conclude with several suggestions for possible reform.
Source Publication
Reconciling Efficiency and Equity: A Global Challenge for Competition Policy
Source Editors/Authors
Damien Gerard, Ioannis Lianos
Publication Date
2019
Recommended Citation
Rubinfeld, Daniel L., "Antitrust Enforcement in the US and the EU: A Comparison of The Two Federal Systems" (2019). Faculty Chapters. 1815.
https://gretchen.law.nyu.edu/fac-chapt/1815
