Book Review - Law and Competition in Twentieth Century Europe: Protecting Prometheus

Abstract

There are a number of baffling questions when thoughtful United States scholars and practitioners observe the way competition law and policy has evolved in Europe and elsewhere. These include: Why is the United States relatively alone in criminalizing hardcore cartel behavior? Why is the United States so isolated in allowing a private right of action, let alone a treble damage remedy? Why are private rights of actions so seldom utilized abroad even where permitted by local law? Should the European Union continue to be enforced by the European Commission or by a new independent European Cartel Authority? Why is the European Union so successful in gaining new adherents to its vision of competition law at the expense of the United States view of such laws?

There are also critical questions and assumptions about the origins of the concept of a European competition law. There is an often-expressed view that a "European" competition law is a misnomer, that EU competition law is either a pale reflection of an older and more mature U.S. antitrust law, a direct import from the United States, or merely a small portion of victor's justice imposed by the allies following World War II.

These questions cannot be answered as a matter of first principles or even theory. The answers lie deep within the law, history, politics, and economics of the EU and its member states as they wrestle with the importance of competition policy and how to craft the appropriate system of laws.

Professor David Gerber of lIT/Chicago-Kent College of Law has written Law and Competition in Twentieth Century Europe: Protecting Prometheus1 expressly to make the case for an indigenous competition law in Europe. He argues that there is a European competition law that stands independently of United States antitrust law and policy. He also argues that EU competition law and its national analogues all share common roots as a true pan-European competition law that developed on its own by policy makers aware of each other's efforts and consciously using developments in other nations to inform debates in their own arenas. No sensible reader can disagree with Gerber's first thesis and most will be convinced by the second and more intriguing part of his thesis as well.

Keywords: David Gerber, antitrust, EU, European Union, competition law, ordoliberalism, market integration, European Commission, Freiburg School, Federal Cartel Office, cartel, dominance, mergers, joint ventures, public enterprise

JEL Classification: B21, B25, D42, F15, L40, L41, l42, L43, L44, N14, N44