Diritto e politica della concorrenza: a proposito di un libro recente in tema di fissazione orizzontale dei prezzi
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In some recent works, Louis Kaplow deals with a recurring antitrust question: what rules and remedies are necessary to prevent supracompetitive prices in oligopolies, that are markets with a few sellers? Under an economic and non-formalistic approach, Kaplow examines whether the term «agreement» is susceptible of an interpretation sufficiently broad to include situations of tacit parallelism (or pure interdependence) in absence of explicit agreements or concerted actions among the parties. His conclusion is very skeptical concerning current application of antitrust rules against anticompetitive agreements, and calls for a different competition policy towards price fixing. This article gives an overview of Kaplow’s scholarship and discusses its potential reception and application in the European and Italian legal systems. It is argued that two main problems affect Kaplow’s interesting model. First, reliance on economic theory can be even more problematic than requiring evidence of an agreement in order for illicit collusion to be proved. Second, the economic approach leads to a sort of strict liability for undertakings in oligopolistic markets, and that would be hardly acceptable without a proper amendment of current competition law. Moreover, were such a paradigm shift possible in Europe, it should consistently involve the application of art. 102 TFEU, which prohibits the abuse of an individual or collective dominant position. As a final point, a more practical problem is outlined. Since Kaplow’s thesis concerns the link between market structure and antitrust liability, it sheds light on the issue of optimal application of merger control as well: in accordance with such an economic approach, a potential problem affecting current Italian merger control system is highlighted in the last section of this paper.
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