Cristoforo Osti

Antitrust: a Heimlich manoeuvre

The Chicago Revolution has transformed antitrust into a highly complex, impenetrable if not impracticable area of law, all but extinguishing its traction with the public at large. Under the pretense of scientificity, furthermore, its efficiency-based mantra appears to be, under scrutiny, more a product of ideology than anything else. Not to mention a rather striking volte-face with respect to the political origin and the judicial history of US antitrust as it had developed till then: a path where the emphasis on rivalry was motivated also by the desire to protect the democratic process from the reach of big business. In the European framework, where antitrust derived more from US pressure than any internal political debate, while the European Commission has at times tried to embrace the new US-style approach, the Court of justice has maintained its emphasis on competition and rivalry per se, sometimes indirectly referring to ordoliberal ideas and concerns. In the meantime, however, antitrust has become a training field for another roughly 120 jurisdictions all over the globe. Briefly reviewing enforcement in such countries, with particular focus on BRICS, reveals that an emphasis on rivalry as such and a close attention to the non-efficiency-based goals actually seem to be key in such up-and-coming legal systems. Having completed a review of the legal approach in such three different areas, the article first suggests new enforcement priorities as, e.g., in the areas of mergers and monopolisation, divestiture remedies, and oligopolies. Finally, it reviews the massive collateral benefits that a rivalry-based, politically non-oblivious antitrust enforcement may carry on innovation, economic and social growth, and inclusive institutions.

Trinko e l'antitrust come declamazione

The article is a review of the recent U.S. Supreme Court Trinko judgment, and touches upon such controversial issues as the essential facility and the leverage doctrines, the standard under which refusal to deal should be reviewed for the purposes of the monopolization offence, the relationship between regulatory and competition law and between judicial and regulatory enforcement. The message which the author conveys is that, while the Chicago school was right in denouncing the blunders and naiveties of pre-Chicago days, the strongly Chicago-oriented Court is falling prey these days to a possibly even higher degree of unscientific, unproven free-market ideology, which does not come out of close scrutiny much better than the old judgments did.