BRIDGING EU CONCERTED PRACTICES WITH U.S. CONCERTED ACTIONS

Abstract

The recent analysis developed by William Page on the U.S. notion of concerted actions raised the idea to develop an article that parses in depth the EU meaning of concerted practices and that skein of U.S. doctrines that focuses on phenomena from invitations to collude to multilateral facilitating practices. According to Page, the current definition of concerted actions in the U.S. legal system misses the opportunity to use inter-firm communications to differentiate cases of collusive pricing practices and cases of interdependent parallel behavior that results in the same market price. On the contrary, the current EU definition of concerted practices accomplishes this purpose. By characterizing strategic inter-firm contacts as one of its building blocks, the EU definition supplies antitrust enforcers with a theoretical tool that distinguishes unlawful collusive conduct from oligopolistic non-coordinated behavior. Yet the current EU definition of concerted practices does something more. By encompassing a very strong presumption—that firms exchanging strategic information cannot do anything else but accordingly shape their internal pricing decisions—this notion catches cartels that emerge only from these strategic inter-firm contacts, regardless of firms' actual pricing conduct. The current EU notion of concerted practices is thus a powerful prosecuting tool that deserves to be compared with the U.S. case law about interdependence, parallelism, and exchanges of information.