Economics in Antitrust Policy: Freedom to Compete Vs. Freedom to Contract

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Universal-Publishers, 2007 - 191 páginas
In the field of antitrust, the freedoms to contract and compete can and do contradict. Profit-maximizing companies desire perfectly competitive input markets to minimize their costs, but want monopolistic markets for their outputs to maximize their profits. Consequently, they have strong incentives to undermine competition in their output markets. In a world without antitrust laws, many companies would thus eliminate competition by using their freedom to contract, either by entering into legally enforceable agreements which fix prices or divide up markets, or by merging and acquiring rivals to gain market control. Therefore, guaranteeing and safeguarding companies' abilities to compete comes at the cost of restricting their freedoms to contract. The states role in this task is a delicate one though: government intervention itself necessarily limits the economic freedom of individuals and firms, and limiting the freedom of contract has potentially detrimental effects on economic activity as well. Hence, antitrust policy must find the right balance between the two freedoms of competition and contract, allowing competition to flourish while upholding the contractual freedoms necessary for a functioning market. The policies in the U.S. and Europe used to protect competition with per se rules, setting clear boundaries for the freedom to contract where it interfered with the freedom to compete. Over the past decades, improvements in economic analysis provided measurable dimensions for 'competition' through measures like efficiency and welfare. With these new and complex economic tools, the aim of an antitrust policy moved away from an 'indirect' mechanism which provided and enforced a strict framework of negative per se rules within which the competitive process was allowed to happen. The current policies directly aim at promoting welfare by attempting to 'balance' the welfare effects of individual business practices, permitting contracts or mergers with benign effects and prohibiting contracts with detrimental effects on welfare in potentially every case. These economic insights have promoted a better understanding of the competitive process and contributed to improved antitrust rules. However, in the actual enforcement of antitrust laws, recent developments caused by the influence of economic analysis have had a detrimental impact on antitrust policy in both the U.S. and the EU. First, it increased the discretion of competition authorities, lowering legal certainty for companies and increasing the potential for wrong decisions. Second, it gave companies incentives to waste resources on rent seeking activities by using economic analyses to demonstrate efficiencies in complicated and timely investigations and litigation. And third, the predominant use of economic analysis has massively increased the costs of enforcement. This thesis is the first one to depict these negative effects caused by recent developments and shows that a policy with clear limitations through proposed per se rules would be superior for it would eliminate the illustrated negative effects.

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Página 1 - 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.
Página 12 - It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice.
Página 8 - ... the interest of the public. The interest of the dealers, however, in any particular branch of trade or manufactures, is always in some respects different from, and even opposite to, that of the public. To widen the market and to narrow the competition is always the interest of the dealers. To widen the market may frequently be agreeable enough to the interest of the public; but to narrow the competition must always be against it and can...
Página 13 - The public have an interest in every person's carrying on his trade freely: so has the individual. All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void.
Página 25 - The following shall be prohibited as incompatible with the common market : all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market...
Página 55 - Congress' desire to promote competition through the protection of viable, small, locally-owned businesses. Con82 The Regulated Consumer gress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision.
Página 19 - Agreements which create such potential power may well be held to be in themselves unreasonable or unlawful restraints, without the necessity of minute Inquiry whether a particular price is reasonable or unreasonable as fixed...
Página 61 - ... substantially" lessen competition or tend toward monopoly, Congress indicated plainly that a merger had to be functionally viewed, in the context of its particular industry.
Página 25 - ... applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
Página 19 - Moreover, in the absence of express legislation requiring it, we should hesitate to adopt a construction making the difference between legal and illegal conduct in the field of business relations depend upon so uncertain a test as whether prices are reasonable—a determination which can be satisfactorily made only after a complete survey of our economic organization and a choice between rival philosophies.

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