Alternative Title

Regulating Information Exchange in EU and U.S. Antitrust Law

Publication Type

Journal Article

Version

acceptedVersion

Publication Date

3-2020

Abstract

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under the EU competition regime. Using economic theories of harm concerning information exchange to understand the imposition of liability in relation to “stand‐alone” instances of information exchange, we argue that such liability must be grounded on the conception of a prophylactic rule. We characterize this rule as a form of ex ante regulation and explain why it has no ex post counterpart in antitrust law. In contrast to the U.S. antitrust regime, we argue that the implementation of such a rule pursuant to EU competition law leads to higher error costs without a significant reduction in regulatory costs. As a majority of jurisdictions have competition law regimes that resemble EU competition law more closely than U.S. antitrust law, our thesis has important implications for competition regimes around the world.

Keywords

Antitrust Law, Comparative Law, Law and Economics

Discipline

Antitrust and Trade Regulation | Law and Economics

Research Areas

Corporate, Finance and Securities Law

Publication

American Business Law Journal

Volume

57

Issue

1

First Page

45

Last Page

111

ISSN

0002-7766

Identifier

10.1111/ablj.12155

Publisher

Wiley

Copyright Owner and License

Authors

Additional URL

https://doi.org/10.1111/ablj.12155

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