EU Competition Law and the Rule of Reason revisited

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In 1987, Richard Whish and Brenda Sufrin published an important comparison of EU and US antitrust law as applied to restrictive practices. They concluded that it would be unhelpful for the EU to borrow the language and the analytical framework developed in the US: the rule of reason is a phrase and a method suitable for the US only. This paper reviews the developments in EU and US antitrust law since then and, while sharing the same reluctance to describe EU competition law using US-based terminology, suggests that there are parallels between the two systems in that both have had to contend with similar challenges in calibrating antitrust enforcement. Comparing the two approaches to this problem allows us to view these efforts more clearly. In particular, it helps understand the significance of the paradigm shift found in Cartes Bancaires, Intel and Generics. While both systems have developed a comparable analytical framework, they continue to diverge when it comes to the interests protected by the two legal orders.