Douglas H. Ginsburg and Daniel E. Haar (George Mason University School of Law and Antitrust Division, U.S. Department of Justice) have posted Resolving Conflicts between Competition and Other Values: The Roles of Courts and Other Institutions in the U.S. and the E.U. (European Competition Law Annual 2012: Public Policies, Regulation and Economic Distress, Philip Lowe & Mel Marquis eds., Hart Publishing, Forthcoming 2014) on SSRN. Here is the abstract:
In this essay we compare and contrast the methods used by courts and other institutions in the United States and in the European Union to resolve the conflicts that inevitably arise between competition law and other laws, policies, and values. In the U.S., because its generally-worded antitrust statutes give judges great interpretive freedom, the courts, in the course of deciding concrete disputes, play a large role in defining the boundary between antitrust and other bodies of law. In the E.U., competition law is effectively “constitutional” by virtue of its being part of the Treaty on the Functioning of the European Union, as a result of which the courts are more constrained in what they can do. At the same time, the Treaty permits the E.U.’s enforcement agency, the Directorate-General for Competition, to issue ex ante exemptions that serve to mediate between competition law and other laws and values. Flexibility is among the chief virtues of the U.S. approach to the reconciliation of conflicting concerns. The E.U. approach is less flexible but may provide greater predictability for private actors.