Single Firm Conduct: EU / US convergences and divergences Michel Debroux November 28, 2007 Brussels

" " " " Who said « divergences » ? … “We are concerned that the standard applied to unilateral conduct (…) may have the unfortunate consequence of harming consumers by chilling innovation and discouraging competition” " " “In the US, the antitrust laws are enforced to protect consumers by protecting competition, not competitors ..” "

Convergences In the EU, antitrust enforcement remains primarily a matter of State (or EC) authorities, with limited –although increasing – role of (a) criminal penalties and (b) private damage actions. But on some major issues, even though enforcement tools, procedures or priorities may differ, there is no divergence on the basic principles : Cartel enforcement and tools Horizontal mergers Need for international cooperation

Single Firm Conduct Approach: Divergences ? Different legal ground: EU: « abuse of dominant position » and importance of the achievement of the Single Market US: Monopolization or Attempted Monopolization

Single Firm Conduct Approach: Divergences ? Stated similar objective: preventing harm to consumer But the devil is in the details: how to assess actual or potential harm to consumers? Which test? Example: should the ability of a dominant firm to recoup losses be taken into account in the predation test?

Single Firm Conduct Approach: Divergences ? Innovation and Antitrust Is the Microsoft ruling an invitation to “chill innovators”? « Bundling » and « fostering innovation »: the ruling’s lessons

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