EU Competition Law

• Semester: Spring 2020
• Course ID: 279M
• Credit Hours: 2
• Unique: 28430

Description

Meets 10:30-11:40am on Mondays and Wednesdays through March 9th plus three additional class meetings, 10:30-11:40am on March 23, March 30 and April 6.

For obvious reasons, this course is less comprehensive than the 4-unit course I teach on U.S. antitrust law—Economic Analysis and the Interpretation of U.S. Antitrust Law.  However, it has much in common with its U.S.-antitrust-law counterpart: both courses (1) use economic concepts to elucidate the conduct-coverage of and tests of illegality promulgated by the relevant jurisdiction’s competition/antitrust laws, (2) develop refined conceptual systems that define the various components of the gap between a firm’s price and marginal cost and use those systems to identify legally-appropriate protocols for answering such questions as “have defendants engaged in price-fixing” or “will a proposed horizontal concentration (in U.S. terminology, merger or acquisition) prevent or restrict competition or significantly impede effective competition, (3) develop conceptual systems that can be used to predict the impact of choices on the extent to which product-rivals compete away their potential profits by introducing additional or superior product-variants or distributive outlets or by adding to their capacity or inventory in a specified area of product-space (though the E.U. Competition Law course pays much less attention to this subject than does its U.S.-antitrust-law counterpart), (3) explain why definitions of both classical economic markets and so-called antitrust markets are inevitably arbitrary not just at their peripheries but comprehensively and examines the implications of this reality for the legal appropriateness of market-oriented approaches to predicting the competitive impact of horizontal concentrations, for the claim that one can infer a firm’s “dominance” (and hence its being covered by what is now Article 102 of the 2009 Treaty of Lisbon) from its share of a relevant market, and of various judicial doctrines and European Commission “pronouncements” that declare that the legality of various types of vertical conduct depends on the perpetrator’s market share, and (4) explain the legitimate economic functions of various types of vertical conduct and analyze the conditions that would have to be satisfied for them to have as a (critical) object or effect preventing, restricting or distorting competition or their constituting an exclusionary or exploitative abuse of a dominant position.

The course on E.U. Competition Law differs from its U.S.-antitrust-law counterpart in two important respects: (1) many of the economic analyses it executes (not only its analysis of what I call quality-or-variety-increasing-investment competition) are far less detailed than their counterparts in the U.S.-antitrust-law course and (2) far less attention is devoted to E.U.-court decisions and European Commission “pronouncements” than the U.S.-antitrust-law course pays to U.S.-court decisions and U.S. Antitrust Division/Federal Trade Commission Guidelines.  These differences are attributable to the fact that this E.U. Competition Law course is a two-unit rather than a four-unit course.