14 April 2008

Georgiev on Comparative Antitrust Law and Legal Transplants

George S. Georgiev has posted 'Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law' on SSRN (Utah Law Review 2007, 971-1037; winner of the Third Annual Swope Antitrust Prize (via Antitrust & Competition Policy Blog). This is the abstract:

This Article analyzes the impact of the introduction of U.S.-style antitrust settlement procedures in EU law, which occurred in 2004 as part of an ambitious antitrust modernisation program. After documenting the lack of a settlement tradition in the EU legal system or the legal systems of EU member states, I argue that the new procedures were transplanted from U.S. law and that this was done without sufficient tailoring. Relying on lessons from the longstanding U.S. experience with antitrust settlements and on emerging evidence about the EU's own approach since 2004, I analyze the effects from the introduction of settlements at three interconnected levels of antitrust enforcement: the EU level, the member-state level, and the level of transatlantic antitrust cooperation. I demonstrate that when compared to the standard prohibition decision procedure, the conclusion of cases by settlement is more attractive both to the antitrust authority and to companies under investigation. The resulting reliance on settlements can lead to distortions in enforcement incentives and a reduction in the degree of legal certainty and accountability within the EU antitrust system. Most importantly, the growing use of settlements threatens to shift the system towards further bureaucratization and could interfere with many of the original goals of the antitrust modernisation program. I suggest that the EU should revisit those goals and evaluate whether the U.S. cost/benefit calculus for antitrust settlements is compatible with the EU's own legal regime and societal preferences. The immediate practical and theoretical insights of the Article relate primarily to EU antitrust law; viewed more broadly and from the vantage point of comparative administrative law, the Article also represents a detailed case study of the negative effects stemming from the untailored transplantation of legal rules and regulatory approaches across dissimilar legal systems.

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