One field, two different worlds : the United States and Europe.
In the United States, competition law, or anti-trust law, appeared between the end of the 19th century and the 20th century, with the Sherman anti-trust act of 1890 and the Clayton act of 1914 which completed the legislation by regulating mergers. The Federal Trade Commission was created to control anti-competitive practices.
Competition law was born out of fears that certain industries, such as steel, railroads, or oil, would acquire excessive power, which would go beyond the merely economic sphere and into the political sphere.
This question, which was originally linked to the Supreme Court’s condemnation of the Standard Oil Company for abuse of dominant position on May 15, 1911, is still relevant today in the face of the excessive power of certain digital giants, which seems to go beyond the economic sphere and spill over into politics, as with President Trump’s suspension from Twitter. American competition law therefore raises many questions about its hold on these digital giants, at what point should it intervene to sanction abuses exceeding the economic sphere?
It was this fear of corporate political influence that led to the development of competition law in the United States. Today, this issue has resurfaced with social networks and the question is how to adapt competition law to their concerns.
The issue of mergers has also been in the news with Facebook’s takeover of WhatsApp.
In the United States, it is true that competition law is often disliked by lawyers because it seems to be able to interfere everywhere, and this is unpleasant…
On the other hand, in Europe, the choice of the Europeans was also ultimately to fight against anti-competitive practices, but the objective was broader than that of economic efficiency in the service of consumers. The idea, for the European treaties, was to ensure a market economy in the European community, and then in the European Union, to guarantee freedom of movement and competition.
The essential European texts in the field of competition are the Treaty on the Functioning of the European Union, resulting from the Treaty of Lisbon, which came into force on December 1, 2009, with the main provisions of Article 101 prohibiting restrictive agreements, Article 102 on the prohibition of abuses of dominant positions, and the provisions of Articles 103 to 109. And finally, the regulation of January 20, 2004 on the control of concentrations of undertakings.
It should be noted that the two models are not so different from each other since the rules of articles 101 and 102 are impregnated with ordo-liberalism, but since the 1990s, with a movement of modernization of European competition law, there has been an Americanization of European competition law with a decline of the initial German influence, to the benefit of the economic ascendancy…