SynthèseIntroduction
On September 22, 2016 the US Federal Trade Commissioner Maureen Ohlhausen during her speech offered an answer to the question “what are we talking about when we talk about antitrust ?” more simply, “what defines an antitrust violation ?” Ohlhausen opened her speech by clearing the oftentimes misunderstood nature of “antitrust violation,” which should be “the elimination or dilution of a demand- or supply-side market constraint on a rm’s power” instead of the “imperfect market outcomes” such as high prices, low output, reduced quality, limited choice, and compromised innovation incentives. Although these anticompetitive market outcomes are relevant in antitrust law – including in icting the antitrust injuries that allow private plaintiffs to sue – they do not de ne an antitrust violation, rather, it is “how the scrutinized conduct affects the universe of market constraints facing the relevant firm” that defines an antitrust violation. Ohlhausen warned that obscuring that point and “thinking of an antitrust offense in terms of anticompetitive effects” is dangerous and “has led to unfortunate interventions under the name of competition law, when the targeted problem is not one of antitrust, but of regulation.” Ohlhausen then supported her point by outlining the common theme that most antitrust agencies around the world adopt to prohibit unfairly high prices, which has led to problematic issues such as in Google-MMI and Robert Bosch in the US. The common theme, as Ohlhausen explained, would start with an antitrust agency identifying a market outcome that it deems unsatisfactory, and then moving to correct it “by condemning behavior that it traces to negative market outcomes.” The problem with this process, as Ohlhausen pointed out, is that “simply condem- ning a high price, a refusal to deal, or the use of a SEP without showing harm to supply- and demand-side limits on market power is not antitrust... it is a regulatory action meant to reengineer market outcomes to re ect enforcers’ preferences.” Moreover, requiring particular conduct or market results “abandons the core premise on which the Sherman Act rests,” which is the belief that “a market economy, free of private restraints and unneces- sarily burdensome regulations, produces ef cient outcomes over time.” Ohlhausen called on people to echo the Supreme Court’s call in National Society of Professional Engineers to trust in competition as “the best method of allocating resources in a free market” and asked antitrust enforcers to “intervene only when rms corrupt the competitive process.”