Tuesday, December 16, 2008
Posted by D. Daniel Sokol
Barry E. Hawk (Skadden and Fordham Law) provides his thoughts on Article 82 and Section 2: Abuse and Monopolizing Conduct. Barry is among those uniquely situated to provide this sort of comparative perspective. Barry taught EC Competition Law at Fordham long before all but a handful of European schools did. Reading through nearly all of the volumes of his annual international antitrust conference, which I recently did, provides an excellent snapshot as to what the key international issues were in antitrust in a given year. One can get an excellent sense of what issues have been central to discussion and which issues have gone out of fashion.
When I think of the early figures in international antitrust who remain active today, Barry and Eleanor Fox of NYU were the trailblazers who opened this field for the rest of us. We owe both of them and "newbie" Bill Kovacic (at least relative to Barry and Eleanor) a debt of gratitude for their contributions to establishing this field.
ABSTRACT: Differing historical contexts, such as the greater role of public companies and state-created monopolies in the EU, differing policy considerations such as the EU's traditional embrace of fairness, and differing underlying economic and juridical assumptions about, among others, market erosion and the capability of authorities and courts to identify and remedy anticompetitive conduct, all explain the traditionally broader scope of Article 82 compared with Section 2. However, the EU's increasing acceptance of mainstream economics, welfare analysis and an effects-oriented inquiry, together with the declining influence of the Ordoliberals, should narrow (but not eliminate) the present gap between Section 2 and Article 82.