Michael-Alexander VolksThe Applicability of a US-Type Rule of Reason under Article 101 (1) TFEU

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This work deals with the applicability of a US-type rule of reason under Art. 101 (1) TFEU. It compares EU with US competition law, in particular § 1 of the Sherman Act and Art. 101 TFEU. The analysis essentially deals with the question whether the rule of reason assessment as developed in US antitrust law under § 1 of the Sherman Act could be applied under Art. 101 (1) TFEU. It is based on the assumption that an efficient competition law regime would be one that achieves its objectives at the lowest possible costs, i.e. error costs and direct costs. In the end anti-competitive conduct should not go undiscovered, but pro-competitive conduct should not be hindered either.

The analysis starts with a brief overview about economic theories. Then turning to the US antitrust law and its enforcement, before moving on to the EU competition law regime and its application. In this context the work particularly focuses on the lead cases somehow related to the rule of reason, both in US and EU case law. In the end it is further elaborated why and how the current EU competition law approach under Article 101 (1) TFEU should be refined, in order to render the EU competition law regime more efficient and thus foster innovation, which eventually may enhance consumer welfare.

In spite of the announcement of the so-called “more economic approach? of the European Commission, the current EU competition law regime is found to be over-reliant on the “by object? concept under Art. 101 (1) TFEU. Consequently, undertakings lack legal certainty, which implies the risk of severe fines – of quasi criminal nature – with limited legal protection and judicial review. The procedural economies that may be achieved through the current application of Art. 101 TFEU cannot outweigh the negative impact on undertakings, which according to Council Regulation (EC) No. 1/2003 are required to self-assess their compliance with Art. 101 TFEU.

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