Thursday, September 12, 2013
Posted by D. Daniel Sokol
Federico Ghezzi, Bocconi University - Department of Law and Mariateresa Maggiolino, Bocconi University - Department of Legal Studies have written EU Concerted Practices & US Concerted Actions: Beyond William H. Page’s Proposal.
ABSTRACT: The recent analysis developed by professor William H. Page on the US notion of concerted actions raised the idea to develop an article that exams in-death the EU meaning of concerned practices and that skein of US doctrines that focus on several phenomena running from facilitating practices to invitations to collude, plus factors and agreements to exchange information. According to professor Page, the current definition of concerted actions misses the opportunity to use inter-firm communications as the discriminating factor between cases of collusive pricing practices and cases of interdependent parallel behaviors that result in the same market price. To the contrary, the current EU definition of concerted practices accomplishes this purpose. By characterizing strategic inter-firm contacts as one of its building blocks, this notion supplies antitrust enforcers with a theoretical tool that tells lawful oligopolistic interdependence apart from unlawful collusive conduct. Yet, the current EU definition of concerted practices does something more. By encompassing a very strong presumption — that firms exchanging strategic information cannot do anything else but accordingly shape their internal decisions as to prices — this notion catches cartels that appear only from these strategic inter-firm contacts, regardless of their price market conduct. Therefore, the current EU notion of concerted practices is a very powerful prosecuting tool that, as such, deserves to dialog with the US antitrust tradition. Having analyzed the US case law about interdependence, parallelism and exchanges of information, we hence discus whether and how to bridge the EU and US experiences.