George L. Priest, professor de direito concorrencial e análise econômica do direito em YALE, está intrigado com a mudança de rumo das autoridades de concorrência norte-americanas após a posse do Presidente Barack Obama. Ele acha que está havendo tentativa bisonha de aproximar a política antitruste norte-americana do padrão europeu de concorrência. Abaixo, parte do artigo denominado The Justice Department’s Antitrust Bomb e publicado no Wall Street Journal de 02 de junho de 2009. A íntegra, aqui.
As if commandeering the banking, finance and auto industries weren’t enough, a couple of weeks ago the Obama administration decided to throw a bomb at modern antitrust law.
Assistant Attorney General for Antitrust Christine Varney claims that the Justice Department can aid economic recovery by prosecuting businesses that have been successful in gaining large market shares. In her announcement last month she argued that “many observers agree” that our current recession reflects “a failure of antitrust” and “inadequate antitrust oversight.”
This is news to most economists. The cause of the recession is not easy money by the Fed, or the bursting of the housing bubble, or excessive risk-taking through complicated financial instruments? It’s insufficient antitrust prosecution? The claim is hardly plausible. Prosecuting successful businesses will help the recovery? Again, hard to believe.
Why prosecute firms whose products large majorities of consumers have found most valuable? Ms. Varney gives no principled reason. She defends the change in policy on the grounds that it contradicts recommendations of a Justice Department report issued during the Bush administration, and because it appears consistent with the European approach to antitrust.
On her first point, the Justice department, aided by the Federal Trade Commission, issued a report in 2008 addressing the appropriate antitrust approach to potential monopoly behavior. It’s fair enough for a succeeding administration to reject policies of its predecessor. But the Justice Department report was not authored by John Yoo or Alberto Gonzales. It was the work of a year-long study that considered recommendations from 29 panels and 119 witnesses, most of them critical of the minimalist Chicago School approach to antitrust law. The report’s conclusions basically track Supreme Court law with modest extensions in areas where the Supreme Court has not ruled. Ms. Varney denounced the report in its entirety.
What does Ms. Varney propose as an alternative approach? Not much. Her basic proposal is to transform American antitrust law to more closely resemble that of Europe. She states that American antitrust policies have “diverged too frequently” from those of the Europe, and that “[w]e will focus our efforts on working through our previously divergent policies regarding single-firm conduct and pursuing vigorous enforcement on the [monopolization] front.”
This is a huge mistake. The principal reasons American and European approaches to antitrust diverge are that the operative legal standards are different and that the Europeans have not adopted a tradition of rigorous economic analysis.
U.S. antitrust laws condemn practices that are “in restraint of trade,” which has been interpreted to mean harm to competition. The European Union, in contrast, condemns practices that constitute “abuse of a dominant position.”
The European emphasis on “dominance” has consistently led to confusion. A good example is the way the proposed GE-Honeywell merger was treated in 2001. It was uncontested both in the U.S. and in Europe that the proposed merger would create economic efficiencies, lowering product costs to the benefit of consumers. In the U.S. this was reason to approve — if not applaud — the merger. But in Europe the expected cost savings would make the merged firms even more dominant. The EU blocked the merger, to the harm of U.S. and European consumers.