Chapter 4 The Actor-Coverage of, Conduct-Coverage of, Tests of Illegality Promulgated by, and Defenses Recognized by U.S. Antitrust Law and E.C./E.U. Competition Law
This chapter has three sections. The first summarizes the conduct coverage of, the tests of legality promulgated by, and the defenses recognized by U.S. antitrust law and points out certain mistakes that U.S. courts and various scholars have made when addressing these issues. The second presents a parallel analysis of the E.C./E.U. competition law. And the third compares the above aspects of U.S. antitrust law and E.C./E.U. competition law. This chapter will not discuss (1) the approaches that U.S. and E.C./E.U. officials and scholars take to market definition, (2) the assumptions they make about the connection between a firm’s market share and its monopoly, oligopoly, and overall market power, or (3) the conclusions they have reached about the monopolizing character and/or likely competitive impact of various types of conduct or particular exemplars of specific types of conduct. These issues will be addressed respectively in Chaps. 8–15. This chapter will also not discuss the institutional framework of U.S. and E.C./E.U. antitrust law (i.e., the nature of their enforcement “agencies” and courts and the roles each such authority plays in the creation and enforcement of competition law), the procedures those various State actors are bound to follow (inter alia, the various notification requirements imposed on the law’s addressees and the time-constraints imposed on the “agencies” review of notified mergers), and the “remedial” options available to U.S. and E.C./E.U. antitrust decision-makers. Chapter 12 discusses the U.S. and E.C./E.U. notification and “agency”-review protocols for horizontal mergers.