American Influences on EEC Competition Law: Two Paths, How Much Dependence?

Abstract

Using historical and legal analysis, the authors investigate indicia of influence exerted by the US antitrust tradition on the early decades of the European experience with competition law and policy. With regard to policy discourse, the authors find essentially continuous transatlantic interaction and dialogue throughout the 1960s and 1970s. By contrast, EEC law as interpreted by the European Court of Justice appears to have developed along a more distinct trajectory. The US approach to monopolization did seem to influence intellectual constructions on Article 86 of the EEC Treaty. But within the Court of Justice the 'reception' of US-born ideas and their transposition in the context of Article 86 was not a direct but an indirect process. While the relative indifference of the Court in the relevant period is rather remarkable in light of the already-vast antitrust experience of the US, it is suggested that the reasons for the Court's approach are linked to an identity-building imperative and to the distinctive functions assigned to the law of the EEC and to its judges.

Keywords: European competition law, Comparative competition law, History of competition law