Monday, February 23, 2009
Posted by D. Daniel Sokol
Gunnar Niels of Oxera offers insights into Abuse and Monopolization: Unilateral Conduct by Two Competition Authorities?
ABSTRACT: Within the space of a few months, two pre-eminent competition authorities issued widely publicized reports on unilateral conduct, one of the hotly debated topics in modern competition law. Both reports followed years of extensive review and consultation processes among practitioners and experts in each jurisdiction. Great expectations had been created. So, with these reports, have the two authorities laid down a marker for how unilateral conduct cases will be assessed in years to come?
Well, let's imagine we're in the year 2019. What would a competition practitioner at that point in time make of the Department of Justice's ("DOJ") report on single-firm conduct under Section 2 of the Sherman Act—published in September 2008—and of the European Commission's guidance on enforcement priorities in applying Article 82 EC Treaty, published in December 2008? In this article I explore the answer to this question. I anticipate that, in short, the future reader will be confused by both reports because the context in which they were produced is not made clear in either, but he or she will be even more confused by the European report than by the U.S. one.