Competition law in the European Union was not founded on the political principles of its counterpart in the United States (O'Donnell, 1997). Rather, the leading goal in promulgating it was to foster a more cohesive market with fewer barriers and a better, more affordable movement of goods and services. The focus is more on economic progress, efficiency, and overall material benefit than on the redistribution of power and corporate accountability. In effect, along with other provisions of the Treaty of Rome, the competition law was intended to play a role similar to the Commerce Clause58 and the Article IV Privileges and Immunities Clause of the United States Constitution.
Much like merger analysis in the United States, a significant part of the dominance inquiry in the EU entails definition of the relevant product and geographic markets. The Competition Commission looks to the supply and demand of products or services, which appears to be quite similar to the cross-elasticity analysis of the American counterpart (O'Donnell, 1997). It also looks to where competition is reasonably uniform and distinguishable from other markets.
The geographic and product markets appear to be more enmeshed than in the United States, each not being determined in isolation of the other, but consisting of a single inquiry of effective competition. Most importantly, the Competition Commission does not rely on cross elasticity alone (or other market data in isolation) to determine whether there is competition in the market, as opposed to a dominant position.
In sharp contrast to modern merger regulation in the U.S., the Competition Commission does not consider possible efficiencies that will result from a merger. It is generally thought that regardless of the definition of “dominant position,” there is no place for efficiency considerations in the inquiry. This doubtlessly saves time and expense in the litigation process......
