ARTICLE: USA - ANTITRUST - BILL KOVACIC - SECTION 5 FTC ACT - DOMINANT FIRMS - NEW TYPES OF ANTI-COMPETITIVE CONDUCTS - ECHR

Article 102 TFEU: The case for a remedial enforcement model along the lines of Section 5 FTC Act

In his writings, Bill Kovacic has made the case for applying more widely Section 5 of the FTC Act in US antitrust enforcement, and in particular vis-à-vis dominant firms. Among other things, Bill advocates that Section 5 should be enforced independently of Section 2 of the Sherman Act and applied to new types of anti-competitive conduct going beyond the Sherman Act as well as to “frontier” cases. Section 5 of the FTC Act presents many substantive similarities with Article 102 TFEU but, unlike Article 102 TFEU, is not enforced by fines but rather by cease-and-desist orders. This article argues that Article 102 TFEU calls for a different enforcement model patterned after that of Section 5 of the FTC Act in view of the increasing uncertainty introduced by the use of a more economic “effects-based” approach and the constraints imposed by the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR).

I. Introduction This article draws its inspiration from the contribution by Bill Kovacic to the recent debate about the role of Section 5 of the Federal Trade Commission Act (“FTC Act”) in US antitrust enforcement. In his article entitled “Competition policy and the application of section 5 of the Federal Trade Commission Act,” [1] Bill Kovacic makes the case for applying more widely Section 5 of the FTC Act in US antitrust enforcement, and in particular vis-à-vis dominant firms. Among other things, Bill advocates that Section 5 should be enforced independently of Section 2 of the Sherman Act and applied to new types of anti-competitive conduct going beyond the Sherman Act as well as to “frontier” cases. As it will be discussed in this article, the debate about the role of Section 5 of the

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Jean-François Bellis, Article 102 TFEU: The case for a remedial enforcement model along the lines of Section 5 FTC Act, February 2013, Concurrences N° 1-2013, Art. N° 50358, pp. 54-61

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