The aim of this session is to assess the claim/criticism that antitrust law at times manifests regulatory tendencies. As discussed earlier in the course, to a certain extent antitrust is part of the regulatory space which exists in the EU and US. But the specific accusation of ‘regulatory antitrust’ is that there are tasks that go beyond its remit, and there is a problem with antitrust agencies or courts that swing too far away from the core antitrust mission. I have picked three papers. the first two can be read against each other (Ibanez Colomo and Devlin). The third is a different type of piece that uses a very different method to make inquiries that go along similar lines.
Ibanez Colomo ‘On the Application of Competition Law as Regulation: Elements for a Theory’ (2010) Yearbook of European Law 261
Devlin ‘Antitrust as Regulation’ 49 San Diego Law Review 823 (2012) (also on ssrn)
Thatcher ‘European Commission merger control: Combining competition and the creation of larger European firms’ (2014) 53(3) European Journal of Political research 443