Competition law

Short description: Law maintaining market competition

"Antitrust" and "Anti-Monopoly Law" redirect here. For the film, see Antitrust (film).

Competition law

Basic concepts

* History of competition law
* Monopoly and oligopoly
* Coercive monopoly
* Natural monopoly
* Tacit collusion
* Barriers to entry
* Herfindahl–Hirschman Index
* Market concentration
* Market power
* SSNIP test
* Relevant market
* Merger control

Anti-competitive practices

* Monopolization
* Collusion
* Formation of cartels
* Price fixing
* Bid rigging
* Product bundling and tying
* Refusal to deal
* Group boycott
* Essential facilities
* Exclusive dealing
* Dividing territories
* Conscious parallelism
* Predatory pricing
* Misuse of patents and copyrights

Enforcement authorities and organizations

* International Competition Network
* List of competition regulators

* v
* t
* e

Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies.[1][2] Competition law is implemented through public and private enforcement.[3] It is also known as antitrust law (or just antitrust[4]), anti-monopoly law,[1] and trade practices law; the act of pushing for antitrust measures or attacking monopolistic companies (known as trusts) is commonly known as trust busting.[5]

The history of competition law reaches back to the Roman Empire. The business practices of market traders, guilds, and governments have always been subject to scrutiny, and sometimes severe sanctions. Since the late 20th century, competition law has become increasingly global.[6] The two largest and most influential systems of competition regulation are United States antitrust law and European Union competition law. National and regional competition authorities across the world have formed international support and enforcement networks.

Modern competition law has historically evolved on a national level to promote and maintain fair competition in markets principally within the territorial boundaries of nation-states. National competition law usually does not cover activity beyond territorial borders unless it has significant effects at the nation-state level.[2] Countries may allow for extraterritorial jurisdiction in competition cases based on so-called "effects doctrine".[2][7] The protection of international competition is governed by international competition agreements. In 1945, during the negotiations preceding the adoption of the General Agreement on Tariffs and Trade (GATT) in 1947, limited international competition obligations were proposed within the Charter for an International Trade Organization. These obligations were not included in GATT, but in 1994, with the conclusion of the Uruguay Round of GATT multilateral negotiations, the World Trade Organization (WTO) was created. The Agreement Establishing the WTO included a range of limited provisions on various cross-border competition issues on a sector specific basis.[8]

## Contents

* 1 Elements
* 2 History
* 2.1 Roman legislation
* 2.2 Middle Ages
* 2.3 Early competition law in Europe
* 3 Enforcement
* 3.1 Public support
* 4 Theory
* 4.1 Classical perspective
* 4.2 Neo-classical synthesis
* 4.3 Chicago school
* 4.4 Modern developments
* 5 Practice
* 5.1 Dominance and monopoly
* 5.1.1 Collusion
* 5.1.2 Cartel
* 5.2 Mergers and acquisitions
* 5.3 Intellectual property, innovation and competition
* 6 By country
* 6.1 United States antitrust
* 6.2 Armenia
* 6.3 European Union law
* 6.4 Canada
* 6.5 India
* 6.6 China
* 6.7 ASEAN member states
* 7 See also
* 8 Notes
* 9 References
* 10 Further reading
* 11 External links

## Elements

Competition law, or antitrust law, has three main elements:

* prohibiting agreements or practices that restrict free trading and competition between business. This includes in particular the repression of free trade caused by cartels.
* banning abusive behavior by a firm dominating a market, or anti-competitive practices that tend to lead to such a dominant position. Practices controlled in this way may include predatory pricing, tying, price gouging, and refusal to deal.
* supervising the mergers and acquisitions of large corporations, including some joint ventures. Transactions that are considered to threaten the competitive process can be prohibited altogether, or approved subject to "remedies" such as an obligation to divest part of the merged business or to offer licenses or access to facilities to enable other businesses to continue competing.

Substance and practice of competition law varies from jurisdiction to jurisdiction. Protecting the interests of consumers (consumer welfare) and ensuring that entrepreneurs have an opportunity to compete in the market economy are often treated as important objectives. Competition law is closely connected with law on deregulation of access to markets, state aids and subsidies, the privatization of state owned assets, and the establishment of independent sector regulators, among other market-oriented supply-side policies. In recent decades, competition law has been viewed as a way to provide better public services.[9] Robert Bork argued that competition laws can produce adverse effects when they reduce competition by protecting inefficient competitors and when costs of legal intervention are greater than benefits for the consumers.[10]

## History

### Roman legislation

An early example was enacted during the Roman Republic around 50 BC.[11] To protect the grain trade, heavy fines were imposed on anyone directly, deliberately, and insidiously stopping supply ships.[12] Under Diocletian in 301 A.D., an edict imposed the death penalty for anyone violating a tariff system, for example by buying up, concealing, or contriving the scarcity of everyday goods.[12] More legislation came under the constitution of Zeno of 483 A.D., which can be traced into Florentine municipal laws of 1322 and 1325.[13] This provided for confiscation of property and banishment for any trade combination or joint action of monopolies private or granted by the Emperor. Zeno rescinded all previously granted exclusive rights.[14] Justinian I subsequently introduced legislation to pay officials to manage state monopolies.[14]

### Middle Ages

Legislation in England to control monopolies and restrictive practices was in force well before the Norman Conquest.[14] The Domesday Book recorded that "foresteel" (i.e. forestalling, the practice of buying up goods before they reach market and then inflating the prices) was one of three forfeitures that King Edward the Confessor could carry out through England.[15] But concern for fair prices also led to attempts to directly regulate the market. Under Henry III an act was passed in 1266[16] to fix bread and ale prices in correspondence with grain prices laid down by the assizes. Penalties for breach included amercements, pillory and tumbrel.[17] A 14th-century statute labelled forestallers as "oppressors of the poor and the community at large and enemies of the whole country".[18] Under King Edward III the Statute of Labourers of 1349[19] fixed wages of artificers and workmen and decreed that foodstuffs should be sold at reasonable prices. On top of existing penalties, the statute stated that overcharging merchants must pay the injured party double the sum he received, an idea that has been replicated in punitive treble damages under US antitrust law. Also under Edward III, the following statutory provision outlawed trade combination.[20]

> ... we have ordained and established, that no merchant or other shall make Confederacy, Conspiracy, Coin, Imagination, or Murmur, or Evil Device in any point that may turn to the Impeachment, Disturbance, Defeating or Decay of the said Staples, or of anything that to them pertaineth, or may pertain.

In continental Europe, competition principles developed in lex mercatoria. Examples of legislation enshrining competition principles include the constitutiones juris metallici by Wenceslaus II of Bohemia between 1283 and 1305, condemning combination of ore traders increasing prices; the Municipal Statutes of Florence in 1322 and 1325 followed Zeno's legislation against state monopolies; and under Emperor Charles V in the Holy Roman Empire a law was passed "to prevent losses resulting from monopolies and improper contracts which many merchants and artisans made in the Netherlands". In 1553, Henry VIII of England reintroduced tariffs for foodstuffs, designed to stabilize prices, in the face of fluctuations in supply from overseas. So the legislation read here that whereas,

> it is very hard and difficult to put certain prices to any such things ... [it is necessary because] prices of such victuals be many times enhanced and raised by the Greedy Covetousness and Appetites of the Owners of such Victuals, by occasion of ingrossing and regrating the same, more than upon any reasonable or just ground or cause, to the great damage and impoverishing of the King's subjects.[21]

Around this time organizations representing various tradesmen and handicrafts people, known as guilds had been developing, and enjoyed many concessions and exemptions from the laws against monopolies. The privileges conferred were not abolished until the Municipal Corporations Act 1835.

### Early competition law in Europe

Judge Coke in the 17th century thought that general restraints on trade were unreasonable.

The English common law of restraint of trade is the direct predecessor to modern competition law later developed in the US.[22] It is based on the prohibition of agreements that ran counter to public policy, unless the reasonableness of an agreement could be shown. It effectively prohibited agreements designed to restrain another's trade. The 1414 Dyer's is the first known restrictive trade agreement to be examined under English common law. A dyer had given a bond not to exercise his trade in the same town as the plaintiff for six months but the plaintiff had promised nothing in return. On hearing the plaintiff's attempt to enforce this restraint, Hull J exclaimed, "per Dieu, if the plaintiff were here, he should go to prison until he had paid a fine to the King". The court denied the collection of a bond for the dyer's breach of agreement because the agreement was held to be a restriction on trade.[23] English courts subsequently decided a range of cases which gradually developed competition related case law, which eventually were transformed into statute law.[24]

Elizabeth I assured monopolies would not be abused in the early era of globalization.

Europe around the 16th century was changing quickly. The New World had just been opened up, overseas trade and plunder was pouring wealth through the international economy and attitudes among businessmen were shifting. In 1561 a system of Industrial Monopoly Licenses, similar to modern patents had been introduced into England. But by the reign of Queen Elizabeth I, the system was reputedly heavily abused and used merely to preserve privileges. It did not promote innovation or help improve manufacturing.[25] In response English courts developed case law on restrictive business practices. The statute followed the unanimous decision in Darcy v. Allein 1602, also known as the Case of Monopolies,[26] of the King's Bench to declare void the sole right that Queen Elizabeth I had granted to Darcy to import playing cards into England.[24] Darcy, an officer of the Queen's household, claimed damages for the defendant's infringement of this right. The court found the grant void and that three characteristics of monopoly were (1) price increase, (2) quality decrease, (3) the rise in unemployment and destitution among artificers. This put an end to granted monopolies until King James I began to grant them again. In 1623 Parliament passed the Statute of Monopolies, which for the most part excluded patent rights from its prohibitions, as well as guilds. From King Charles I, through the civil war and to King Charles II, monopolies continued, especially useful for raising revenue.[27] Then in 1684, in East India Company v. Sandys it was decided that exclusive rights to trade only outside the realm were legitimate, on the grounds that only large and powerful concerns could trade in the conditions prevailing overseas.[28]

The development of early competition law in England and Europe progressed with the diffusion of writings such as The Wealth of Nations by Adam Smith, who first established the concept of the market economy. At the same time industrialization replaced the individual artisan, or group of artisans, with paid laborers and machine-based production. Commercial success became increasingly dependent on maximizing production while minimizing cost. Therefore, the size of a company became increasingly important, and a number of European countries responded by enacting laws to regulate large companies that restricted trade. Following the French Revolution in 1789 the law of 14–17 June 1791 declared agreements by members of the same trade that fixed the price of an industry or labor as void, unconstitutional, and hostile to liberty. Similarly, the Austrian Penal Code of 1852 established that "agreements ... to raise the price of a commodity ... to the disadvantage of the public should be punished as misdemeanors". Austria passed a law in 1870 abolishing the penalties, though such agreements remained void. However, in Germany laws clearly validated agreements between firms to raise prices. Throughout the 18th and 19th centuries, ideas that dominant private companies or legal monopolies could excessively restrict trade were further developed in Europe. However, as in the late 19th century, a depression spread through Europe, known as the Panic of 1873, ideas of competition lost favor, and it was felt that companies had to co-operate by forming cartels to withstand huge pressures on prices and profits.[29]

While the development of competition law stalled in Europe during the late 19th century, in 1889 Canada enacted what is considered the first competition statute of modern times. The Act for the Prevention and Suppression of Combinations formed in restraint of Trade was passed one year before the United States enacted the Sherman Act of 1890. Likely the most famous legal statute on competition law, it was named after Senator John Sherman who argued that the Act "does not announce a new principle of law, but applies old and well recognized principles of common law".[30]

## Enforcement

See also: Organization:World Trade Organization and International Competition Network

There is considerable controversy among WTO members, in green and blue, whether competition law should form part of the agreements.

Competition law is enforced at the national level through competition authorities, as well as private enforcement. The United States Supreme Court explained:[31]

> Every violation of the antitrust laws is a blow to the free-enterprise system envisaged by Congress. This system depends on strong competition for its health and vigor, and strong competition depends, in turn, on compliance with antitrust legislation. In enacting these laws, Congress had many means at its disposal to penalize violators. It could have, for example, required violators to compensate federal, state, and local governments for the estimated damage to their respective economies caused by the violations. But, this remedy was not selected. Instead, Congress chose to permit all persons to sue to recover three times their actual damages every time they were injured in their business or property by an antitrust violation.

In the European Union, the so-called "Modernization Regulation",[32] Regulation 1/2003,[33] established that the European Commission was no longer the only body capable of public enforcement of European Union competition law. This was done to facilitate quicker resolution of competition-related inquiries. In 2005 the Commission issued a Green Paper on Damages actions for the breach of the EC antitrust rules,[34] which suggested ways of making private damages claims against cartels easier.[35]

Some EU Member States enforce their competition laws with criminal sanctions. As analyzed by Whelan, these types of sanctions engender a number of significant theoretical, legal and practical challenges.[36]

Antitrust administration and legislation can be seen as a balance between:

* guidelines which are clear and specific to the courts, regulators and business but leave little room for discretion that prevents the application of laws from resulting in unintended consequences.
* guidelines which are broad, hence allowing administrators to sway between improving economic outcomes and succumbing to political policies to redistribute wealth.[37]

Chapter 5 of the post-war Havana Charter contained an Antitrust code[38] but this was never incorporated into the WTO's forerunner, the General Agreement on Tariffs and Trade 1947\. Office of Fair Trading Director and Richard Whish wrote skeptically that it "seems unlikely at the current stage of its development that the WTO will metamorphose into a global competition authority".[39] Despite that, at the ongoing Doha round of trade talks for the World Trade Organization, discussion includes the prospect of competition law enforcement moving up to a global level. While it is incapable of enforcement itself, the newly established International Competition Network[40] (ICN) is a way for national authorities to coordinate their own enforcement activities.

Economic foundations of competition policy

The economical analysis that is heavily used in competition law enforcement is based on the industrial organisation theory which studies the interaction of market structure, firm behaviour, and performance to determine the outcome of the competition. One of the major issues of antitrust economics is the evaluation of market power: the ability of a company or a group of companies to increase prices above the competitive rates or to decrease production without losing so many sales that it becomes unprofitable to pay a price above the existing one. Depending on whether the efficiency gains which the conduct will cause exceed the amount of harm on consumers caused by an increase in price or a decrease in output, the welfare implications of such conduct will be determined, a paradigm formalised by Williamson, who established that mergers which decrease competition could actually increase total welfare provided that sufficiently large cost savings are produced, exceeding the allocative losses associated with a higher price or lower output level [41]

Barriers to entry is a major structural factor in competition analysis because they dictate whether or not the incumbent firms are able to maintain supracompetitive prices without new entrants coming in. Competitive harm caused by a merger or exclusionary practice could be restricted where entry is timely, probably, and adequate, as new entrants would cancel any effort to employ market power. However, empirical studies show that most industries have lasting obstacles such as scale economies and network effects and dominance of access to vital inputs that enable existing firms to charge high prices over a protracted timeframe without successful new entrants entering the marketplace [42]. These results confirm the opinion that the market structure is still a significant element of the antitrust policy since highly concentrated markets that have barriers to entry provide a setting where anticompetitive behaviors possess the opportunity to thrive.

The consumer welfare standard has risen to the leading paradigm of contemporary competition policy, interpreted as the need that the enforcement measures must be grounded by their impact on consumer surplus, as opposed to protecting competitors or the spread of economic power. By this criterion low price practices, high output practices, or quality of product, tend to be regarded as desirable, although harmful to certain competitors, whereas high price practices or output restriction practices are looked at carefully unless they have countervailing efficiencies. Nevertheless, it is still inconclusive whether the consumer welfare criterion can capture longer-term dynamic impacts, in particular, how market concentration and dominant firm behavior influences innovation incentives and the competitive process itself [43][44].

Digital marketplaces and competition law

The growth of large-scale digital platforms has brought competition and antitrust legal economics questions in regard to the applicability to market structures that exhibit material differences from the assumed market structure of the traditional theory of industrial organization. The key point of analysis is that major digital platforms are multi-sided, catering to different groups of users, including manufacturers, wholesalers, and international buyers, in business-to-business settings, and create value by lowering the cost of transactions and enhancing efficiency in search, matching, and contracting of these various groups. The classic two-sided market research by Rochet and Tirole established the principle that platforms of this type cannot operate without attracting multiple groups of users simultaneously, and that the pricing structures that arise under such conditions often differ substantially from those in conventional one-sided markets, with significant implications for how market power and competitive harm are assessed [45].

Both the European policy organs and the United Kingdom have looked into the complications of such characteristics in the application of standard competition analysis. The competition policy report published by the European Commission in the digital era observed that online platforms oftentimes have a heavy network effect and data-driven benefits that do entrench market leaders and create barriers to entry in a manner that cannot be effectively defined using conventional market definition tools [46]. Network effects, economies of scale, and high switching costs are also mentioned by the Digital Competition Expert Panel in the UK as structural characteristics of digital markets that limit competition even in industries where several platforms can be observed to co-exist [47].

Regarding governance, studies on platform boundary decisions reveal that digital platforms engage in interdependent strategic choices across the scope of firm, user-group formation and data interface design, and choices that differ significantly across platform types and developmental levels, a complexity that complicates the efforts of regulators to have consistent analytical frameworks of platform decisions guiding regulation [48]. Big business to business platforms like Amazon and Alibaba are cited in academic and regulatory literature as examples of how digital intermediaries can change market structure by connecting geographically dispersed buyers and suppliers through centralised infrastructure, and call into question the terms of participation imposed by the platform as a way of privately regulating the market structure as well as the governance of the platform itself [46][48].

### Public support

In the United States, most voters support competition laws and more voters say competition law is not strict enough compared to too strict, according to an opinion poll in 2023.[49]

## Theory

Main article: Philosophy:Competition law theory

### Classical perspective

See also: Finance:Classical economics

Under the doctrine of laissez-faire, antitrust is seen as unnecessary as competition is viewed as a long-term dynamic process where firms compete against each other for market dominance. In some markets, a firm may successfully dominate, but it is because of superior skill or innovation. However, according to laissez-faire theorists, when it tries to raise prices to take advantage of its monopoly position it creates profitable opportunities for others to compete. A process of creative destruction begins, in which the monopoly is eroded. Therefore, government should not try to break up monopoly but should allow the market to work.[50]

John Stuart Mill believed the restraint of trade doctrine was justified to preserve liberty and competition.

The classical perspective on competition was that certain agreements and business practice could be an unreasonable restraint on the individual liberty of tradespeople to carry on their livelihoods. Restraints were judged as permissible or not by courts as new cases appeared and in the light of changing business circumstances. Hence the courts found specific categories of agreement, specific clauses, to fall foul of their doctrine on economic fairness, and they did not contrive an overarching conception of market power. Earlier theorists like Adam Smith rejected any monopoly power on this basis.

> A monopoly granted either to an individual or to a trading company has the same effect as a secret in trade or manufactures. The monopolists, by keeping the market constantly under-stocked, by never fully supplying the effectual demand, sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.[51]

In The Wealth of Nations (1776) Adam Smith also pointed out the cartel problem, but did not advocate specific legal measures to combat them.

> People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice. But though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less to render them necessary.[52]

By the latter half of the 19th century, it had become clear that large firms had become a fact of the market economy. John Stuart Mill's approach was laid down in his treatise On Liberty (1859).

> Again, trade is a social act. Whoever undertakes to sell any description of goods to the public, does what affects the interest of other persons, and of society in general; and thus his conduct, in principle, comes within the jurisdiction of society... both the cheapness and the good quality of commodities are most effectually provided for by leaving the producers and sellers perfectly free, under the sole check of equal freedom to the buyers for supplying themselves elsewhere. This is the so-called doctrine of Free Trade, which rests on grounds different from, though equally solid with, the principle of individual liberty asserted in this Essay. Restrictions on trade, or on production for purposes of trade, are indeed restraints; and all restraint, qua restraint, is an evil...[53]

### Neo-classical synthesis

See also: Finance:Neoclassical synthesis

Paul Samuelson, author of the 20th century's most successful economics text, combined mathematical models and Keynesian macroeconomic intervention. He advocated the general success of the market but backed the American government's antitrust policies.

After Mill, there was a shift in economic theory, which emphasized a more precise and theoretical model of competition. A simple neo-classical model of free markets holds that production and distribution of goods and services in competitive free markets maximizes social welfare. This model assumes that new firms can freely enter markets and compete with existing firms, or to use legal language, there are no barriers to entry. By this term economists mean something very specific, that competitive free markets deliver allocative, productive and dynamic efficiency. Allocative efficiency is also known as Pareto efficiency after the Italian economist Vilfredo Pareto and means that resources in an economy over the long run will go precisely to those who are willing and able to pay for them. Because rational producers will keep producing and selling, and buyers will keep buying up to the last marginal unit of possible output – or alternatively rational producers will be reduce their output to the margin at which buyers will buy the same amount as produced – there is no waste, the greatest number wants of the greatest number of people become satisfied and utility is perfected because resources can no longer be reallocated to make anyone better off without making someone else worse off; society has achieved allocative efficiency. Productive efficiency simply means that society is making as much as it can. Free markets are meant to reward those who work hard, and therefore those who will put society's resources towards the frontier of its possible production.[54] Dynamic efficiency refers to the idea that business which constantly competes must research, create and innovate to keep its share of consumers. This traces to Austrian-American political scientist Joseph Schumpeter's notion that a "perennial gale of creative destruction" is ever sweeping through capitalist economies, driving enterprise at the market's mercy.[55] This led Schumpeter to argue that monopolies did not need to be broken up (as with Standard Oil) because the next gale of economic innovation would do the same.

Contrasting with the allocatively, productively and dynamically efficient market model are monopolies, oligopolies, and cartels. When only one or a few firms exist in the market, and there is no credible threat of the entry of competing firms, prices rise above the competitive level, to either a monopolistic or oligopolistic equilibrium price. Production is also decreased, further decreasing social welfare by creating a deadweight loss. Sources of this market power include the existence of externalities, barriers to entry of the market, and the free rider problem.[56][57][58] Markets may fail to be efficient for a variety of reasons, so the exception of competition law's intervention to the rule of laissez faire is justified if government failure can be avoided. Orthodox economists fully acknowledge that perfect competition is seldom observed in the real world, and so aim for what is called "workable competition".[59][60] This follows the theory that if one cannot achieve the ideal, then go for the second best option[61] by using the law to tame market operation where it can.

### Chicago school

Robert Bork

A group of economists and lawyers, who are largely associated with the University of Chicago, advocate an approach to competition law guided by the proposition that some actions that were originally considered to be anticompetitive could actually promote competition.[62] The U.S. Supreme Court has used the Chicago school approach in several recent cases.[63] One view of the Chicago school approach to antitrust is found in United States Circuit Court of Appeals Judge Richard Posner's books Antitrust Law[64] and Economic Analysis of Law.[65]

Robert Bork was highly critical of court decisions on United States antitrust law in a series of law review articles and his book The Antitrust Paradox.[66] Bork argued that both the original intention of antitrust laws and economic efficiency was the pursuit only of consumer welfare, the protection of competition rather than competitors.[67] Furthermore, only a few acts should be prohibited, namely cartels that fix prices and divide markets, mergers that create monopolies, and dominant firms pricing predatorily, while allowing such practices as vertical agreements and price discrimination on the grounds that it did not harm consumers.[68] The common theme linking the different critiques of US antitrust policy is that government interference in the operation of free markets does more harm than good.[69] "The only cure for bad theory," writes Bork, "is better theory."[67] Harvard Law School professor Philip Areeda, who favors more aggressive antitrust policy, in at least one Supreme Court case challenged Robert Bork's preference for non-intervention.[70] The consumer welfare standard, influenced by the Chicago School and Robert Bork, has become a dominant antitrust enforcement principle since the 1980s.[71]

### Modern developments

Modern directions include increased focus on enforcement speed, dynamic models of competition, competitive harms beyond the consumer, network effects, winner-take-all markets, market dominating firms harming rivals and monopsony powers.[72] Modern movements include the New Brandeis movement.[71]

Trade with zero monetary transaction costs can result in non-monetary costs due to the value of information or attention costs.[73]

## Practice

### Dominance and monopoly

Main articles: Finance:Dominance (economics) and Monopoly

The economist's depiction of deadweight loss to efficiency that monopolies cause

When firms hold large market shares, consumers risk paying higher prices on goods and services and getting lower quality products when compared to competitive markets. However, the existence of a very high market share does not always mean consumers are paying excessive prices since the threat of new entrants to the market can restrain a high-market-share firm's price increases. Competition law does not make merely having a monopoly illegal, but rather abusing the power that a monopoly may confer, for instance through exclusionary practices. Market dominance is linked with decreased innovation and increased political connection.[74]

One of the deciding factors on determining an abusive monopoly is if the firm behaves "to an appreciable extent independently of its competitors, customers and ultimately of its consumer".[75] Under EU law, very large market shares raise a presumption that a firm is dominant,[76] which may be rebuttable.[77] If a firm has a dominant position, then there is "a special responsibility not to allow its conduct to impair competition on the common market".[78] Similarly as with collusive conduct, market shares are determined with reference to the particular market in which the firm and product in question is sold. Although the lists are seldom closed,[79] certain categories of abusive conduct are usually prohibited under the country's legislation. For instance, limiting production at a shipping port by refusing to raise expenditure and update technology could be abusive.[80] Another example of abuse is the act of tying one product into the sale of another, causing a restriction of consumer choice and depriving competitors of outlets. This was the alleged case in Microsoft v. Commission[81] which led to an eventual fine of €497 million for including its Windows Media Player with the Microsoft Windows platform. Abuses can also be constituted as a refusal to supply, when the facility is essential to all competing businesses. One example was in a case involving a medical company named Commercial Solvents.[82] When it set up its own rival in the tuberculosis drugs market, Commercial Solvents was forced to continue supplying a company named Zoja with the raw materials for the drug. Zoja was the only market competitor, so without the court forcing supply, all competition would have been eliminated.

Forms of abuse relating directly to pricing include price exploitation. It is difficult to prove at what point a dominant firm's prices become "exploitative" and this category of abuse is rarely found. In one case however, a French funeral service was found to have demanded exploitative prices, and this was justified on the basis that prices of funeral services outside the region could be compared.[83] A more tricky issue is predatory pricing. This is the practice of dropping prices of a product so much that one's smaller competitors cannot cover their costs and fall out of business. The Chicago school considers predatory pricing to be unlikely.[84] However, in France Telecom SA v. Commission[85] a broadband internet company was forced to pay $13.9 million for dropping its prices below its own production costs. It had "no interest in applying such prices except that of eliminating competitors"[86] and was being cross-subsidized to capture the lion's share of a booming market. One last category of pricing abuse is price discrimination.[87] An example of this could be a company offering rebates to industrial customers who export their sugar, but not to customers who are selling their goods in the same market.[88]

Certification bodies can engage anti-competitive actions.[89] Reduced competition in health care can worsen health economics and health care quality.[90]

#### Collusion

This section is an excerpt from Collusion[ edit ]

Collusion is a deceitful agreement or secret cooperation between two or more parties to limit open competition by deceiving, misleading or defrauding others of their legal right. Collusion is not always considered illegal. It can be used to attain objectives forbidden by law; for example, by defrauding or gaining an unfair market advantage. It is an agreement among firms or individuals to divide a market, set prices, limit production or limit opportunities.[91]

It can involve "price or wage fixing, kickbacks, or misrepresenting the independence of the relationship between the colluding parties".[92] In legal terms, all acts effected by collusion are considered void.[93]

#### Cartel

This section is an excerpt from Cartel[ edit ]

Scottish Enlightenment philosopher Adam Smith was an early enemy of cartels.

### Mergers and acquisitions

Main article: Social:Mergers and acquisitions

In competition law, a merger or acquisition involves the concentration of economic power in the hands of fewer than before.[94] Typically, this means that one firm buys out the shares of another. Oversight of economic concentrations by the state are done for the same reasons as restricting firms who abuse a position of dominance. The difference regarding the regulation of mergers and acquisitions is that this attempts to deal with the problem before it arises, ex ante prevention of market dominance.[95] In the United States, merger regulation began under the Clayton Act, and in the European Union, under the Merger Regulation 139/2004 (known as the "ECMR").[96] Competition law requires that firms proposing to merge gain authorization from the relevant government authority. The theory behind mergers is that transaction costs can be reduced compared to operating on an open market through bilateral contracts.[97] Concentrations can increase economies of scale and scope. In practice, firms often take advantage of their increase in market power and increased market share. The resulting decrease in number of competitors can adversely affect the value that consumers get. The central provision regarding mergers under EU law asks whether a concentration would, if allowed to merge, "significantly impede effective competition... in particular as a result of the creation or strengthening off a dominant position...".[98] The corresponding provision under US antitrust law similarly states,

> No person shall acquire, directly or indirectly, the whole or any part of the stock or other share capital... of the assets of one or more persons engaged in commerce or in any activity affecting commerce, where... the effect of such acquisition, of such stocks or assets, or of the use of such stock by the voting or granting of proxies or otherwise, may be substantially to lessen competition, or to tend to create a monopoly.[99]

The question of what amounts to a substantial lessening of, or significant impediment to competition is usually answered through empirical study. The market shares of the merging companies can be assessed and added, although this kind of analysis only gives rise to presumptions, not conclusions.[100] The Herfindahl-Hirschman Index is used to calculate the "density" of the market, or what concentration exists. It is also important to consider the product in question and the rate of technical innovation in the market.[101] A further problem of collective dominance, or oligopoly through "economic links"[102] can arise, whereby the new market becomes more conducive to collusion. It is relevant how transparent a market is, because a more concentrated structure could make it easier for firms to coordinate their behavior. Transparency also allows for informed predictions of whether firms can deploy effective deterrents and are safe from a reaction by their competitors and consumers.[103] The entry of new firms to the market and any barriers that they might encounter should also be considered.[104] In the US, if firms are observed to be creating a concentration leading to a noncompetitive environment, a defensible stance is that they create efficiencies enough to outweigh any detriment. This is of similar reference to the "technical and economic progress" as mentioned in Art. 2 of the ECMR.[105] Another possible defense might be that the firm which is being taken over is about to fail or go insolvent, and the resulting competitive state would not be lessened.[106] This is known as the "failing firm defense" and has been a regular feature of the U.S. Horizontal Merger Guidelines since 1982.[107] Mergers vertically in the market are rarely of concern, although in AOL/Time Warner[108] the European Commission required that a joint venture with a competitor Bertelsmann be ceased beforehand. The EU authorities have also focused on the effect of conglomerate mergers, where companies acquire a large portfolio of related products, though without necessarily dominant shares in any individual market.[109]

### Intellectual property, innovation and competition

Competition law has become increasingly intertwined with intellectual property, such as copyright, trademarks, patents, industrial design rights and in some jurisdictions trade secrets.[110] It is believed that promotion of innovation through enforcement of intellectual property rights may both promote and limit competitiveness. The question then relies on whether it is legal to acquire monopoly through accumulation of intellectual property rights, In which case the judgment decides between giving preference to intellectual property rights or to competitiveness:

* Should antitrust laws accord special treatment to intellectual property.
* Should intellectual rights be revoked or not granted when antitrust laws are violated.

Concerns also arise over anti-competitive effects and consequences due to:

* Intellectual properties that are collaboratively designed with consequence of violating antitrust laws (intentionally or otherwise).
* The further effects on competition when such properties are accepted into industry standards.
* Cross-licensing of intellectual property.
* Bundling of intellectual property rights to long-term business transactions or agreements to extend the market exclusiveness of intellectual property rights beyond their statutory duration.
* Trade secrets, if they remain a secret, having an eternal length of life.

Some scholars suggest that a prize instead of patent would solve the problem of deadweight loss, when innovators got their reward from the prize, provided by the government or non-profit organization, rather than directly selling to the market, see Millennium Prize Problems. However, innovators may accept the prize only when it is at least as much as how much they earn from patent, which is a question difficult to determine.[111]

## By country

By 2008, 111 countries had enacted competition laws, which is more than 50 percent of countries with a population exceeding 80,000 people. 81 of the 111 countries had adopted their competition laws in the past 20 years, signaling the spread of competition law following the collapse of the Soviet Union and the expansion of the European Union.[112] Currently competition authorities of many states closely co-operate, on everyday basis, with foreign counterparts in their enforcement efforts, also in such key area as information / evidence sharing.[113]

In many of Asia's developing countries, including India, Competition law is considered a tool to stimulate economic growth. In Korea and Japan, the competition law prevents certain forms of conglomerates. In addition, competition law has promoted fairness in China and Indonesia as well as international integration in Vietnam.[1] Hong Kong's Competition Ordinance came into force in the year 2015.[114]

### United States antitrust

Senatorial Round House by Thomas Nast, 1886

The Sherman Act of 1890 attempted to outlaw the restriction of competition by large companies, who co-operated with rivals to fix outputs, prices and market shares, initially through pools and later through trusts. Trusts first appeared in the US railroads, where the capital requirement of railroad construction precluded competitive services in then scarcely settled territories. This trust allowed railroads to discriminate on rates imposed and services provided to consumers and businesses and to destroy potential competitors. Different trusts could be dominant in different industries. The Standard Oil Company trust in the 1880s controlled several markets, including the market in fuel oil, lead and whiskey.[30] Vast numbers of citizens became sufficiently aware and publicly concerned about how the trusts negatively impacted them that the Act became a priority for both major parties. A primary concern of this act is that competitive markets themselves should provide the primary regulation of prices, outputs, interests and profits. Instead, the Act outlawed anticompetitive practices, codifying the common law restraint of trade doctrine.[115] Rudolph Peritz has argued that competition law in the United States has evolved around two sometimes conflicting concepts of competition: first that of individual liberty, free of government intervention, and second a fair competitive environment free of excessive economic power. Since the enactment of the Sherman Act enforcement of competition law has been based on various economic theories adopted by Government.[116]

Section 1 of the Sherman Act declared illegal "every contract, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations." Section 2 prohibits monopolies, or attempts and conspiracies to monopolize. Following the enactment in 1890 US court applies these principles to business and markets. Courts applied the Act without consistent economic analysis until 1914, when it was complemented by the Clayton Act which specifically prohibited exclusive dealing agreements, particularly tying agreements and interlocking directorates, and mergers achieved by purchasing stock. From 1915 onwards the rule of reason analysis was frequently applied by courts to competition cases. However, the period was characterized by the lack of competition law enforcement. From 1936 to 1972 courts' application of antitrust law was dominated by the structure-conduct-performance paradigm of the Harvard School. From 1973 to 1991, the enforcement of antitrust law was based on efficiency explanations as the Chicago School became dominant, and through legal writings such as Judge Robert Bork's book The Antitrust Paradox. Since 1992 game theory has frequently been used in antitrust cases.[117]

With the Hart–Scott–Rodino Antitrust Improvements Act of 1976, mergers and acquisitions came into additional scrutiny from U.S. regulators. Under the act, parties must make a pre-merger notification to the U.S. Department of Justice and Federal Trade Commission prior to the completion of a transaction. As of February 2, 2021, the FTC reduced the Hart-Scott-Rodino reporting threshold to $92 million in combined assets for the transaction.[118]

### Armenia

According to The World Bank's "Republic of Armenia Accumulation, Competition, and Connectivity Global Competition" report which was published in 2013, the Global Competitiveness Index suggests that Armenia ranks lowest among ECA (Europe and Central Asia) countries in the effectiveness of anti-monopoly policy and the intensity of competition. This low ranking somehow explains the low employment and low incomes in Armenia.[119]

### European Union law

Competition law gained new recognition in Europe in the inter-war years, with Germany enacting its first anti-cartel law in 1923, followed by Sweden and Norway adopting similar laws in 1925 and 1926, respectively. However, with the Great Depression of 1929 competition law disappeared from Europe and was only revived following the Second World War. During this period, the United Kingdom and Germany, following pressure from the United States, became the first European countries to adopt fully fledged competition laws. At a regional level EU competition law has its origins in the European Coal and Steel Community (ECSC) agreement between France, Italy, Belgium, the Netherlands, Luxembourg and Germany in 1951 following the Second World War. The agreement aimed to prevent Germany from re-establishing dominance in the production of coal and steel as it was felt that this dominance had contributed to the outbreak of the war. Article 65 of the agreement banned cartels and article 66 made provisions for concentrations, or mergers, and the abuse of a dominant position by companies.[120] This was the first time that competition law principles were included in a plurilateral regional agreement and established the trans-European model of competition law. In 1957 competition rules were included in the Treaty of Rome, also known as the EC Treaty, which established the European Economic Community (EEC). The Treaty of Rome established the enactment of competition law as one of the main aims of the EEC through the "institution of a system ensuring that competition in the common market is not distorted". The two central provisions on EU competition law were article 85, which prohibited anti-competitive agreements, subject to some exemptions, and article 86 prohibiting the abuse of a dominant position. The treaty also established principles on competition law for member states, with article 90 covering public undertakings, and article 92 making provisions on state aid. Regulations on mergers were not included, as member states could not establish consensus on the issue at the time.[121]

Today, the Treaty of Lisbon prohibits anti-competitive agreements in Article 101(1), including price fixing. According to Article 101(2) any such agreements are automatically void. Article 101(3) establishes exemptions, if the collusion is for distributional or technological innovation, gives consumers a "fair share" of the benefit and does not include unreasonable restraints that risk eliminating competition anywhere (or compliant with the general principle of European Union law of proportionality). Article 102 prohibits the abuse of dominant position,[122] such as price discrimination and exclusive dealing. Regulation 139/2004/EC governs mergers between firms.[123] The general test is whether a concentration (i.e. merger or acquisition) with a community dimension (i.e. affects a number of EU member states) might significantly impede effective competition. Articles 106 and 107 provide that member states' right to deliver public services may not be obstructed, but that otherwise public enterprises must adhere to the same competition principles as companies. Article 107 lays down a general rule that the state may not aid or subsidize private parties in distortion of free competition and provides exemptions for charities, regional development objectives and in the event of a natural disaster. Leading ECJ cases on competition law include Consten & Grundig v Commission and United Brands v Commission.

### Canada

Main articles: The Competition Bureau and Competition Act

Canada's competition laws are primarily governed by the Competition Act, a federal statute that regulates business practices to maintain fair competition in the marketplace. The Act includes both criminal and civil provisions aimed at preventing anti-competitive behavior such as conspiracies, bid-rigging, abuse of dominance, and deceptive marketing.[124] The Competition Bureau, an independent law enforcement agency, administers and enforces the Act, with cases adjudicated by the Competition Tribunal and courts.[125]

The evolution of competition law in Canada dates back to the Anti-Combines Act of 1889, one of the earliest antitrust laws worldwide, which prohibited business conspiracies and agreements that restrained trade. Over time, this early law was replaced and updated by various laws including the Combines Investigation Acts of the early 20th century. The modern Competition Act replaced the Combines Investigation Act in 1986, introducing provisions for civil review of mergers and anti-competitive practices under a balance of probabilities standard, along with maintaining criminal sanctions for serious offenses like conspiracy and bid-rigging.

Since then, the Act has undergone multiple amendments to improve enforcement, clarify provisions, and adapt to new market challenges. While initially enforcement was exclusive to government authorities, more recent amendments have allowed for limited private rights of action. The Competition Act and its enforcement framework emphasize preventing undue lessening of competition while balancing economic efficiency and consumer protection.

### India

India responded positively by opening up its economy via the removal of existing controls during the Economic liberalization. In quest of increasing the efficiency of the nation's economy, the Government of India acknowledged the Liberalization Privatization Globalization era. As a result, the Indian market faces competition from within and outside the country.[126] The history of competition law in India dates back to 1969, when the Monopolies and Restrictive Trade Practices Act (MRTP) was enacted. However, after the economic reforms in 1991, this legislation was found to be obsolete. A new competition law, in the form of the Competition Act, 2002 was enacted in 2003. The Competition Commission of India, is the quasi judicial body established for enforcing provisions of the Competition Act.[127] The Draft Digital Competition Bill, 2024 proposed an ex-ante regulatory framework to curb anti-competitive conduct by Systemically Significant Digital Enterprises (SSDEs), ensuring fairness, transparency, and contestability in digital markets. However, amid strong industry pushback over compliance burdens and regulatory overreach, the government withdrew the draft for reconsideration and further stakeholder consultation.[128]

### China

The Anti Monopoly Law of China came into effect in 2008. For years, it was enforced by three different branches of government, but since 2018 its enforcement has been the responsibility of the State Administration for Market Regulation. The People's Daily reported that the law had generated 11 billion RMB of penalties between 2008 and 2018.[129]

### ASEAN member states

As part of the creation of the ASEAN Economic Community, the member states of the Association of South-East Asian Nations (ASEAN) pledged to enact competition laws and policies by the end of 2015.[130] Today, all ten member states have general competition legislation in place. While there remains differences between regimes (for example, over merger control notification rules, or leniency policies for whistle-blowers),[131] and it is unlikely that there will be a supranational competition authority for ASEAN (akin to the European Union),[132] there is a clear trend towards increase in infringement investigations or decisions on cartel enforcement.[133]

## See also

* Consumer protection
* Cartel theory
* The History of the Standard Oil Company (book)
* Institute for Consumer Antitrust Studies
* Irish Competition law
* List of competition regulators
* List of countries' copyright length
* Relevant market
* Resale price maintenance
* Sherman Antitrust Act
* SSNIP
* Megacorporation

## Notes

1. ↑ 1.0 1.1 1.2 Man Li, Rita Yi; Lut Li, Yi (June 1, 2013). "The Role of Competition Law: An Asian Perspective". Asian Social Science 9 (7). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2281756.
2. ↑ 2.0 2.1 2.2 Taylor, Martyn D. (2006). International competition law: a new dimension for the WTO?. Cambridge University Press. pp. 1. ISBN 978-0-521-86389-6. https://books.google.com/books?id=wTsfwxMvz_MC. Retrieved 22 March 2023.
3. ↑ Cartel Damage Claims (CDC). "Cartel Damage Claims (CDC)". http://www.carteldamageclaims.com/.
4. ↑ "Antitrust: Overview – Competition – European Commission". http://ec.europa.eu/competition/antitrust/overview_en.html.
5. ↑ "Trust Busting - Ohio History Central". https://ohiohistorycentral.org/w/Trust_Busting.
6. ↑ Topping, Simon; Tweedale, Patrick. "UAE Competition Law: New Regulations and Potential Effect on M&A Transactions". Transaction Advisors. ISSN 2329-9134. https://www.transactionadvisors.com/insights/uae-competition-law-new-regulations-and-potential-effect-ma-transactions. Retrieved 25 September 2015.
7. ↑ JG Castel, 'The Extraterritorial Effects of Antitrust Laws' (1983) 179 Recueil des Cours 9
8. ↑ Taylor, Martyn D. (2006). International competition law: a new dimension for the WTO?. Cambridge University Press. p. 2. ISBN 978-0-521-86389-6. https://books.google.com/books?id=wTsfwxMvz_MC. Retrieved 22 March 2023.
9. ↑ see, Organisation for Economic Co-operation and Development's Regulation and Sectors page.
10. ↑ Bork (1993), p. 56
11. ↑ This is Julius Caesar's time according to Babled in De La Cure Annone chez le Romains.
12. ↑ 12.0 12.1 Wilberforce (1966) p. 20
13. ↑ Wilberforce (1966) p. 22
14. ↑ 14.0 14.1 14.2 Wilberforce (1966) p. 21
15. ↑ Pollock and Maitland, History of English Law Vol. II, 453
16. ↑ 51 & 52 Hen. 3, Stat. 1
17. ↑ 51 & 52 Hen. 3, Stat. 6
18. ↑ Wilberforce (1966) p. 23
19. ↑ 23 Edw. 3.
20. ↑ 27 Edw. 3, Stat. 2, c. 25
21. ↑ 25 Hen. 8, c. 2.
22. ↑ "... the modern common law of England [has] passed directly into the legislation and thereafter into the judge-made law of the United States." Wilberforce (1966) p. 7
23. ↑ (1414) 2 Hen. 5, 5 Pl. 26
24. ↑ 24.0 24.1 Papadopoulos, Anestis S (2010). The International Dimension of EU Competition Law and Policy. Cambridge University Press. p. 7. ISBN 978-0-521-19646-8. https://books.google.com/books?id=BpCqNMPNxeoC&q=eu+competition+law. Retrieved 22 October 2020.
25. ↑ according to William Searle Holdsworth, 4 Holdsworth, 3rd ed., Chap. 4 p. 346
26. ↑ (1602) 11 Co. Rep. 84b
27. ↑ For example one John Manley paid p.a. from 1654 to the Crown for a tender on the "postage of letters both inland and foreign" Wilberforce (1966) p. 18
28. ↑ (1685) 10 St. Tr. 371
29. ↑ Papadopoulos, Anestis S (2010). The International Dimension of EU Competition Law and Policy. Cambridge University Press. pp. 8–9. ISBN 978-0-521-19646-8. https://books.google.com/books?id=BpCqNMPNxeoC&q=eu+competition+law. Retrieved 22 October 2020.
30. ↑ 30.0 30.1 Papadopoulos, Anestis S (2010). The International Dimension of EU Competition Law and Policy. Cambridge University Press. pp. 9–10. ISBN 978-0-521-19646-8. https://books.google.com/books?id=BpCqNMPNxeoC&q=eu+competition+law. Retrieved 22 October 2020.
31. ↑ Hawaii v. Standard Oil Co. of California, 405 U.S. 251 (1972), 262.
32. ↑ Office of Fair Trading, Modernisation: Understanding competition law , p. 4, published December 2004, accessed 27 November 2023
33. ↑ Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty
34. ↑ Green Paper - Damages actions for breach of the EC antitrust rules {SEC(2005) 1732}
35. ↑ "European Commission – PRESS RELEASES – Press release – European Commission Green Paper on damages actions for breach of EC Treaty antitrust rules – frequently asked questions". http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/05/489&format=HTML&aged=0&language=EN&guiLanguage=en.
36. ↑ Peter Whelan, The Criminalization of European Cartel Enforcement: Theoretical, Legal and Practical Challenges , Oxford University Press, 2014
37. ↑ McEwin, R Ian (2003). "COMPETITION LAW IN A SMALL OPEN ECONOMY". University of New South Wales Law Journal 15: 246. http://www.austlii.edu.au/au/journals/UNSWLawJl/2003/15.html. Retrieved 9 October 2009.
38. ↑ see a speech by Wood, The Internationalisation of Antitrust Law: Options for the Future 3 February 1995, at http://www.usdoj.gov/atr/public/speeches/future.txt
39. ↑ Whish (2003) p. 448
40. ↑ see, http://www.internationalcompetitionnetwork.org/
41. ↑ Williamson, O. E. (1972), Rowley, Charles K., ed., "Economies as an Anti-Trust Defense: The Welfare Tradeoffs" (in en), Readings in Industrial Economics: Volume Two: Private Enterprise and State Intervention (London: Macmillan Education UK): pp. 111–135, doi:10.1007/978-1-349-15486-9_7, ISBN 978-1-349-15486-9, https://doi.org/10.1007/978-1-349-15486-9_7, retrieved 2026-03-12
42. ↑ Gilbert, Richard J. (13 September 2023). "Antitrust Reform: An Economic Perspective" (in en). Annual Review of Economics 15: 151–175. doi:10.1146/annurev-economics-082222-070822. ISSN 1941-1383.
43. ↑ Federico, Giulio; Morton, Fiona Scott; Shapiro, Carl (December 2020). "Antitrust and Innovation: Welcoming and Protecting Disruption". Innovation Policy and the Economy 20: 125–190. doi:10.1086/705642. ISSN 1531-3468. https://www.journals.uchicago.edu/doi/10.1086/705642.
44. ↑ Vickers, John (1 March 2025). "Competition policy and the consumer welfare standard" (in en). Journal of Antitrust Enforcement 13 (1): 6–16. doi:10.1093/jaenfo/jnae038. ISSN 2050-0688. https://academic.oup.com/antitrust/article/13/1/6/7709431.
45. ↑ Rochet, Jean-Charles; Tirole, Jean (2003). "Platform Competition in Two-Sided Markets" (in en). Journal of the European Economic Association 1 (4): 990–1029. doi:10.1162/154247603322493212. ISSN 1542-4766. https://academic.oup.com/jeea/article/2280902/Platform.
46. ↑ 46.0 46.1 Crémer, Jacques; De Montjoye, Yves-Alexandre; Schweitzer, Heike (2019). Competition policy for the digital era. Europäische Kommission. Luxembourg: Publications Office of the European Union. ISBN 978-92-76-01946-6.
47. ↑ Furman, J.; Coyle, D.; Fletcher, A.; McAuley, D.; Marsden, P. (2019). "Unlocking digital competition, Report of the Digital Competition Expert Panel". UK Government. HM Treasury. doi:10.17639/WJCS-JC14. https://nottingham-repository.worktribe.com/output/3958111.
48. ↑ 48.0 48.1 Gawer, Annabelle (2021). "Digital platforms' boundaries: The interplay of firm scope, platform sides, and digital interfaces". Long Range Planning. Strategizing in a digital world: Overcoming cognitive barriers, reconfiguring routines and introducing new organizational forms 54 (5). doi:10.1016/j.lrp.2020.102045. ISSN 0024-6301. https://www.sciencedirect.com/science/article/pii/S0024630120302442.
49. ↑ Orth, Taylor (6 November 2023). "Most Americans oppose monopolies and support antitrust laws". https://today.yougov.com/economy/articles/47798-most-americans-oppose-monopolies-and-support-antitrust-laws.
50. ↑ Campbell R. McConnell, Stanley L. Brue. Economics: Principles, Problems, and Policies. McGraw-Hill Professional, 2005. pp. 601–02
51. ↑ Smith (1776) Book I, Chapter 7, para 26
52. ↑ Smith (1776) Book I, Chapter 10, para 82
53. ↑ Mill (1859) Chapter V, para 4
54. ↑ for one of the opposite views, see Kenneth Galbraith, The New Industrial State (1967)
55. ↑ Joseph Schumpeter, The Process of Creative Destruction (1942)
56. ↑ "Monopoly Efficiency and Deadweight Loss Explained: Definition, Examples, Practice & Video Lessons" (in en). https://www.pearson.com/channels/microeconomics/learn/brian/ch-12-monopoly/efficiency-and-deadweight-loss.
57. ↑ "Deadweight Loss - Definition, Monopoly, Graph, Calculation" (in en). https://www.wallstreetmojo.com/deadweight-loss/.
58. ↑ "Reasons for Market Failure (7.3.6) | CIE A-Level Economics Notes | TutorChase" (in en). https://www.tutorchase.com/notes/cie-a-level/economics/7-3-6-reasons-for-market-failure.
59. ↑ Whish (2003), p. 14.
60. ↑ Clark, John M. (1940). "Towards a Concept of Workable Competition". American Economic Review 30 (2): 241–56.
61. ↑ cf. Lipsey, R. G.; Lancaster, Kelvin (1956). "The General Theory of Second Best". Review of Economic Studies 24 (1): 11–32. doi:10.2307/2296233.
62. ↑ Hovenkamp, Herbert (1985). "Antitrust Policy after Chicago". Michigan Law Review (The Michigan Law Review Association) 84 (2): 213–84. doi:10.2307/1289065. https://scholarship.law.upenn.edu/context/faculty_scholarship/article/2926/viewcontent/SSRN_id1396788.pdf. Retrieved 12 December 2023.
63. ↑ Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977); Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979); National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U.S. 85 (1984); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993); State Oil Co. v. Khan, 522 U.S. 3 (1997); Verizon v. Trinko, 540 U.S. 398 (2004); Leegin Creative Leather Products Inc. v. PSKS Inc., 551 U.S. ___ (2007).
64. ↑ Posner, R. (2001). Antitrust Law (2nd ed.). Chicago: University of Chicago Press. ISBN 978-0-226-67576-3. https://archive.org/details/antitrustlawecon00posn.
65. ↑ Posner, R. (2007). Economic Analysis of Law (7th ed.). Austin, TX: Wolters Kluwer Law & Business. ISBN 978-0-7355-6354-4. https://archive.org/details/economicanalysis00posn.
66. ↑ Bork, Robert H. (1978). The Antitrust Paradox. New York: Free Press. ISBN 978-0-465-00369-3. https://archive.org/details/antitrustparadox00bork.
67. ↑ 67.0 67.1 Bork (1978), p. 405.
68. ↑ Bork (1978), p. 406.
69. ↑ Easterbrook, Frank (1984). "The Limits of Antitrust". Texas Law Review 63: 1. ISSN 0040-4411.
70. ↑ Brooke Group v. Williamson, 509 U.S. 209 (1993).
71. ↑ 71.0 71.1 Samuel, Leah; Morton, Fiona Scott; Morton, Leah Samuel and Fiona Scott (2022-02-16). "What Economists Mean When They Say "Consumer Welfare Standard"" (in en-US). https://www.promarket.org/2022/02/16/consumer-welfare-standard-antitrust-economists/.
72. ↑ Cowan, Simon; Ormosi, Peter; Perkins, Joe (2024). "New directions in competition policy: an overview". Oxford Review of Economic Policy 40 (4): 687–695. doi:10.1093/oxrep/graf001. ISSN 0266-903X. https://academic.oup.com/oxrep/article/40/4/687/7990562. Retrieved 2026-03-30.
73. ↑ Newman, John M. (2015). "Antitrust in Zero-Price Markets: Foundations". University of Pennsylvania Law Review (The University of Pennsylvania Law Review) 164 (1): 149–206. ISSN 0041-9907. http://www.jstor.org/stable/24752847. Retrieved 9 July 2025.
74. ↑ Akcigit, Ufuk; Baslandze, Salomé; Lotti, Francesca (2023). "Connecting to Power: Political Connections, Innovation, and Firm Dynamics". Econometrica 91 (2): 529–564. doi:10.3982/ECTA18338. http://www.nber.org/papers/w25136.pdf.
75. ↑ C-27/76 United Brands Continental BV v. Commission [1978] ECR 207
76. ↑ C-85/76 Hoffmann-La Roche & Co AG v. Commission [1979] ECR 461
77. ↑ AKZO [1991]
78. ↑ Michelin [1983]
79. ↑ Continental Can [1973]
80. ↑ Art. 82 (b) Porto di Genova [1991]
81. ↑ Order of the President of the Court of First Instance of 22 December 2004. Microsoft Corp. v Commission of the European Communities. Proceedings for interim relief - Article 82 EC. Case T-201/04 R, Template:ECLI
82. ↑ Commercial Solvents [1974]
83. ↑ Judgment of the Court (Sixth Chamber) of 4 May 1988. Corinne Bodson v SA Pompes funèbres des régions libérées. Reference for a preliminary ruling: Cour de cassation - France. Competition - Funeral services - Exclusive special rights. Case 30/87., Template:ECLI
84. ↑ see, e.g. Posner (1998) p. 332; "While it is possible to imagine cases in which predatory pricing would be a rational stragy, it should be apparent by now why confirmed cases of it are rare."
85. ↑ Case T-340/03 France Telecom SA v. Commission
86. ↑ AKZO [1991] para 71
87. ↑ in the EU under Article 82(2)c)
88. ↑ Irish Sugar [1999]
89. ↑ Daskalova, Victoria I.; Heldeweg, Michiel A. (2019), Rott, Peter, ed., "Challenges for Responsible Certification in Institutional Context: The Case of Competition Law Enforcement in Markets with Certification" (in en), Certification – Trust, Accountability, Liability (Cham: Springer International Publishing): pp. 23–71, doi:10.1007/978-3-030-02499-4_3, ISBN 978-3-030-02499-4, https://doi.org/10.1007/978-3-030-02499-4_3, retrieved 2025-08-15
90. ↑ Sage, William M.; Hyman, David A.; Greenberg, Warren (March–April 2003). "Why Competition Law Matters To Health Care Quality". Health Affairs 22 (2): 31–44. doi:10.1377/hlthaff.22.2.31. ISSN 0278-2715. PMID 12674406. https://www.healthaffairs.org/doi/10.1377/hlthaff.22.2.31.
91. ↑ O'Sullivan, Arthur; Sheffrin, Steven M. (2003). Economics: Principles in Action. Upper Saddle River, New Jersey: Pearson Prentice Hall. pp. 171. ISBN 0-13-063085-3. https://archive.org/details/economicsprincip00osul.
92. ↑ Collusion Law & Legal Definition
93. ↑ Collusion [1]. .
94. ↑ Under EC law, a concentration is where a "change of control on a lasting basis results from (a) the merger of two or more previously independent undertakings... (b) the acquisition... if direct or indirect control of the whole or parts of one or more other undertakings". Art. 3(1), Regulation 139/2004, the European Community Merger Regulation
95. ↑ In the case of [T-102/96] Gencor Ltd v. Commission [1999] ECR II-753 the EU Court of First Instance wrote merger control is there "to avoid the establishment of market structures which may create or strengthen a dominant position and not need to control directly possible abuses of dominant positions"
96. ↑ The authority for the Commission to pass this regulation is found under Art. 83 TEC
97. ↑ Coase, Ronald H. (November 1937). "The Nature of the Firm". Economica 4 (16): 386–405. doi:10.1111/j.1468-0335.1937.tb00002.x. http://www.cerna.ensmp.fr/Enseignement/CoursEcoIndus/SupportsdeCours/COASE.pdf. Retrieved 2007-02-10.
98. ↑ Art. 2(3) Reg. 129/2005
99. ↑ Clayton Act Section 7, codified at 15 U.S.C. § 18
100. ↑ see, for instance para 17, Guidelines on the assessment of horizontal mergers (2004/C 31/03)
101. ↑ C-68/94 France v. Commission [1998] ECR I-1375, para. 219
102. ↑ Italian Flat Glass [1992] ECR ii-1403
103. ↑ T-342/99 Airtours plc v. Commission [2002] ECR II-2585, para 62
104. ↑ Mannesmann, Vallourec and Ilva [1994] CMLR 529, OJ L102 21 April 1994
105. ↑ see the argument put forth in Hovenkamp H (1999) Federal Antitrust Policy: The Law of Competition and Its Practice, 2nd Ed, West Group, St. Paul, Minnesota. Unlike the authorities however, the courts take a dim view of the efficiencies defense.
106. ↑ Kali und Salz AG v. Commission [1975] ECR 499
107. ↑ Conner, Ian (May 27, 2020). "On 'Failing' Firms - and Miraculous Recoveries". Federal Trade Commission. https://www.ftc.gov/enforcement/competition-matters/2020/05/failing-firms-miraculous-recoveries.
108. ↑ Time Warner/AOL [2002] 4 CMLR 454, OJ L268
109. ↑ e.g. Guinness/Grand Metropolitan [1997] 5 CMLR 760, OJ L288; Many in the US disapprove of this approach, see W. J. Kolasky, Conglomerate Mergers and Range Effects: It's a long way from Chicago to Brussels 9 November 2001, Address before George Mason University Symposium Washington, DC.
110. ↑ ﻿Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition﻿ (Report). U.S. Department of Justice and Federal Trade Commission. April 2007. http://www.usdoj.gov/atr/public/hearings/ip/222655.pdf. Retrieved 9 October 2009.
111. ↑ Suzanne Scotchmer: "Innovation and Incentives" the MIT press, 2004 (Chapter 2).
112. ↑ Papadopoulos, Anestis S (2010). The International Dimension of EU Competition Law and Policy. Cambridge University Press. p. 15. ISBN 978-0-521-19646-8. https://books.google.com/books?id=BpCqNMPNxeoC&q=eu+competition+law.
113. ↑ Marek Martyniszyn, Inter-Agency Evidence Sharing in Competition Law Enforcement , 19(1) International Journal of Evidence and Proof 11 (2015)
114. ↑ "Competition Commission – The Competition Ordinance (Cap 619)". http://www.compcomm.hk/en/legislation_guidance/legislation/legislation/comp_ordinance_cap619.html.
115. ↑ Papadopoulos, Anestis S (2010). The International Dimension of EU Competition Law and Policy. Cambridge University Press. p. 11. ISBN 978-0-521-19646-8. https://books.google.com/books?id=BpCqNMPNxeoC&q=eu+competition+law. Retrieved 22 October 2020.
116. ↑ Papadopoulos, Anestis S (2010). The International Dimension of EU Competition Law and Policy. Cambridge University Press. p. 12. ISBN 978-0-521-19646-8. https://books.google.com/books?id=BpCqNMPNxeoC&q=eu+competition+law. Retrieved 22 October 2020.
117. ↑ Papadopoulos, Anestis S (2010). The International Dimension of EU Competition Law and Policy. Cambridge University Press. pp. 11–12. ISBN 978-0-521-19646-8. https://books.google.com/books?id=BpCqNMPNxeoC&q=eu+competition+law. Retrieved 22 October 2020.
118. ↑ "FTC Announces Reduced Hart-Scott-Rodino Act Thresholds For 2021" (in en). https://www.seyfarth.com/news-insights/ftc-announces-reduced-hart-scott-rodino-act-thresholds-for-2021.html.
119. ↑ The World Bank. Republic of Armenia Accumulation, Competition, and Connectivity Global Competition. The World Bank. http://documents.worldbank.org/curated/en/367551468207280159/pdf/811370revision0Box0379837B00PUBLIC0.pdf. Retrieved 7 May 2019.
120. ↑ Papadopoulos, Anestis S (2010). The International Dimension of EU Competition Law and Policy. Cambridge University Press. pp. 12–13. ISBN 978-0-521-19646-8. https://books.google.com/books?id=BpCqNMPNxeoC&q=eu+competition+law.
121. ↑ Papadopoulos, Anestis S (2010). The International Dimension of EU Competition Law and Policy. Cambridge University Press. p. 14. ISBN 978-0-521-19646-8. https://books.google.com/books?id=BpCqNMPNxeoC&q=eu+competition+law.
122. ↑ Vandenborre, Ingrid; Goetz, Thorsten; Dionnet, Stephane. "EU Nonmerger Antitrust Enforcement Gets Stricter". Transaction Advisors. ISSN 2329-9134. https://www.transactionadvisors.com/insights/eu-nonmerger-antitrust-enforcement-gets-stricter. Retrieved 29 April 2015.
123. ↑ Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation)
124. ↑ "Consolidated federal laws of Canada, Competition Act". 2025-06-20. https://laws.justice.gc.ca/eng/acts/C-34/index.html.
125. ↑ "Government of Canada, Innovation, Science and Economic Development Canada, Office of the Deputy Minister, Competition Bureau Canada" (in en). 2025-02-17. https://competition-bureau.canada.ca/.
126. ↑ Warrier VS, Conflict between Competition Law and Intellectual Property Rights Citation: 2010 (1) LW 2 The Lex-Warrier: Online Law Journal, ISSN 2319-8338
127. ↑ "CCI formation". CCI. http://www.cci.gov.in/index.php?option=com_content&task=view&id=18.
128. ↑ Khan, Rafique (2025-11-03). India's antitrust crossroads: Rethinking competition law after the draft bill withdrawal. Concurrences. https://www.concurrences.com/en/review/issues/no-11-2025/international/india-s-antitrust-crossroads-rethinking-competition-law-after-the-draft-bill. Retrieved 22 March 2026.
129. ↑ "China's updated Anti-monopoly Law criticised for not doing enough" (in en). South China Morning Post. 9 January 2020. https://www.scmp.com/economy/china-economy/article/3045224/chinas-updated-anti-monopoly-law-aimed-further-protecting.
130. ↑ "Overview" (in en-US). ASEAN | ONE VISION ONE IDENTITY ONE COMMUNITY. http://asean.org/asean-economic-community/sectoral-bodies-under-the-purview-of-aem/competition-policy/overview/.
131. ↑ "Competition Law in ASEAN: Where Are We Now, And Where Are We Headed?" (in en). 19 June 2016. http://www.conventuslaw.com/report/competition-law-in-asean-where-are-we-now-and/.
132. ↑ "EU Competition Law: A Roadmap for ASEAN?" (in en-US). http://www.eucentre.sg/?p=11358.
133. ↑ "A new era for competition law in the ASEAN region" (in en-gb). https://www.expertguides.com/articles/a-new-era-for-competition-law-in-the-asean-region/arezehbk.

## References

* Bork, Robert H. (1978) The Antitrust Paradox, New York Free Press ISBN 0-465-00369-9
* _____ (1993). The Antitrust Paradox (second edition). New York: Free Press. ISBN 0-02-904456-1.
* Friedman, Milton (1999) "The Business Community's Suicidal Impulse", Cato Policy Report, 21(2), pp. 6–7 (scroll down & press +).
* Galbraith Kenneth (1967) The New Industrial State
* Harrington, Joseph E. (2008). "antitrust enforcement". The New Palgrave Dictionary of Economics (2nd ed.). http://www.dictionaryofeconomics.com/article?id=pde2008_A000223&edition=current&q=antitrust&topicid=&result_number=1.
* Mill, John Stuart (1859) On Liberty
* Posner, Richard (2001) Antitrust Law, 2nd ed., ISBN 978-0-226-67576-3 Preview.
* _____ (2007) Economic Analysis of Law 7th ed., ISBN 978-0-7355-6354-4
* Prosser, Tony (2005) The Limits of Competition Law, ch.1
* Rubinfeld, D.L. (2001), "Antitrust Policy", International Encyclopedia of the Social & Behavioral Sciences, pp. 553–560, doi:10.1016/B0-08-043076-7/02299-3, ISBN 9780080430768
* Schumpeter, Joseph (1942) The Process of Creative Destruction
* Smith, Adam (1776) An Enquiry into the Nature and Causes of the Wealth of Nations online from the Adam Smith Institute
* Wilberforce, Richard, Alan Campbell and Neil Elles (1966) The Law of Restrictive Practices and Monopolies, 2nd edition, London: Sweet and Maxwell LCCN 66-70116
* Whish, Richard (2003) Competition Law, 5th Ed. Lexis Nexis Butterworths
* https://anali.rs/the-klobuchar-bill-is-something-rotten-in-the-us-antitrust-legislative-reform/

## Further reading

* Competition Policy International, ISSN 1554-6853, available at https://web.archive.org/web/20071127034131/http://www.globalcompetitionpolicy.org/
* Elhauge, Einer, Geradin, Damien (2007) Global Competition Law and Economics, ISBN 1-84113-465-1
* Faull, Jonathan, Nikpay, Ali (eds) (2007) "Faull & Nikpay : The EC Law of Competition", ISBN 978-0-19-926929-7
* Georg Erber, Georg, Kooths, Stefan, '"Windows Vista: Securing Itself against Competition?'", in: DIW Weekly Report, 2/2007, Vol.3, 7–14.
* Hylton, Keith N., et al., "Antitrust World Reports".

## External links

* United Nations set of principles on competition (The UN Set)
* Intergovernmental Group of Experts on Competition Law and Policy

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