The Relationship between antitrust and regulation in the US and in the EU: an institutional assessment

Drawing inspiration from the 1998 OECD survey on the relationship between regulation and antitrust, this paper seeks to examine that relationship in the US and the EU, having particular regard to the role played by their distinctive constitutional and institutional arrangements. Part I will address the horizontal relationship between US federal antitrust law and federal regulation, focusing both on express statutory exemptions and judge-made antitrust immunities, as well as the vertical relationship between federal antitrust and state regulatory schemes, taking into account the doctrines of federal preemption and of state action. Part II will assess the relationship between antitrust and regulation in the EU, having particular regard to EU antitrust exemptions, the influence of regulatory goals on EU antitrust law, and the impact of EU antitrust law on EU and national regulatory schemes. Part III will conceptualize the findings of Parts I and II in terms, respectively, of a threefold supremacy of EU antitrust over regulation and, as to the US, of a shift from express statutory exemptions to a generalized judicial alternativism and of an overall deference vis-à-vis State sovereignty. Finally, a comparative analysis of select aspects of the relationship between antitrust and regulation in the two systems will be carried out and the potential for prospective convergence will be assessed.