SOURCE: EUROPA - EUROPEAN UNION [http://europa.eu/pol/comp/overview_en.htm]

Antitrust

Overview

Competition is a basic mechanism of the market economy and encourages companies to provide consumers products that consumers want. It encourages innovation, and pushes down prices. In order to be effective, competition needs suppliers who are independent of each other, each subject to the competitive pressure exerted by the others.

The antitrust area covers two prohibition rules set out in the EC Treaty.

• First, agreements between two or more firms which restrict competition are prohibited by Article 81 of the Treaty, subject to some limited exceptions. This provision covers a wide variety of behaviours. The most obvious example of illegal conduct infringing Article 81 is a cartel between competitors (which may involve price-fixing or market sharing); For more information on cartels see the cartels section.
• Second, firms in a dominant position may not abuse that position (Article 82 of the EC Treaty). This is for example the case for predatory pricing aiming at eliminating competitors from the market.

The Commission is empowered by the Treaty to apply these prohibition rules and enjoys a number of investigative powers to that end (e.g. inspection in business and non business premises, written requests for information, etc). It may also impose fines on undertakings who violate EU antitrust rules. Since 1 May 2004, all national competition authorities are also empowered to apply fully the provisions of the Treaty in order to ensure that competition is not distorted or restricted. National courts may also apply these prohibitions so as to protect the individual rights conferred to citizens by the Treaty.

Cartels

Overview

What is a cartel?

It is an illegal secret agreement concluded between competitors who in coordination fix or increase their prices, restrict supply by limiting their sales or their production capacities, and/or divide up their markets or consumers.

Why are cartels harmful to consumers, businesses and to the economy in general?

Cartels shield their participants from competition. This allows the participants to charge higher prices and to remove the pressure on them to improve the products they sell or find more efficient ways in which to produce them. Their customers (companies and consumers) end up paying higher prices for lower quality and narrower choice. This also adversely affects the competitiveness of the economy as a whole.

What legal basis underpins the Commission’s action to combat cartels?

Article 81 of the Treaty establishing the European Community prohibits agreements and concerted practices between firms that distort competition within the Single Market. Fines of up to 10% of their worldwide turnover may be imposed on the guilty parties.

What happens to the proceeds from fines?

The amount of the fines is paid into the Community budget. The fines therefore help to finance the European Union and reduce the tax burden on citizens.

Does the Commission have the last word?

No. All cartel decisions by the Commission may be appealed against before the Court of First Instance (CFI) and then before the Court of Justice of the European Communities in Luxembourg. These two courts are empowered to annul decisions in whole or in part and to reduce or increase fines, where this is deemed appropriate.

What action is open to consumers and companies who feel that they have been victims of such illegal agreements?

Any firm or individual that has suffered damage due to the existence of a cartel can seek compensation before a court in a Member State of the European Union. Compensations awarded by national courts are different from fines imposed by the Commission. While action for damages before a court also acts as a deterrent, its main purpose is to compensate victims of anti-competitive behaviour or to secure compensation for damage suffered. For more information on actions for damages click here.

Information on infringements and complaints

ACT

Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty (Text with EEA relevance) [Official Journal C 101, 27.4.2004] [ PDF ].

SUMMARY

Without prejudice to Regulation EC No 1/2003 and Regulation EC No 773/2004, the Notice intends to provide guidance to citizens and undertakings that are seeking relief from suspected infringements of the competition rules. In addition to recalling the principles related to work-sharing between the Commission and the national competition authorities in the enforcement system established by Regulation 1/2003 that are explained in the Notice on cooperation within the network of competition authorities , the Notice also explains the procedure for the treatment of complaints pursuant to Article 7(2) of Regulation EC No 1/2003 by the Commission.

Under this Article, natural or legal persons who can show a legitimate interest are entitled to lodge a complaint to ask the Commission to find an infringement of Articles 81 and 82 of the EC Treaty. The complaint (see complaints form C ) should be submitted in three paper copies as well as, if possible, an electronic copy. In addition, the complainant must provide a non-confidential version of the complaint. The information which could be the starting point for an investigation by the Commission, can be sent by electronic mail to COMP-MARKET-INFORMATION@ec.europa.eu or by post to the following address: European Commission DG Competition B - 1049 Brussels, Belgium.

Correspondence to the Commission that does not comply with the requirements laid down will be considered by the Commission as general information that, where it is useful, can lead to an own-initiative investigation. Persons who wish to inform the Commission of suspected infringements of Articles 81 and 82 of the EC Treaty without revealing their identity to the undertakings concerned may do so; the Commission is bound to respect an informant’s request for anonymity. This special arrangement enables undertakings or citizens to provide market information to the Commission informally and to prompt the Commission to take action.

If a case does not display sufficient Community interest to justify (further) investigation, the Commission can reject the complaint.

This summary is compiled from the various sources: On February 19^th, 1991 the European Commission (Commission) decided a case Screensport vs. EBU pursuant to article 85 of the EEC Treaty (IV/32.524).  The European Broadcasting Union (EBU), established in 1950 from members of the International Telecommunications Union (ITU) acquires broadcasting rights to events (including sports events) in various countries. It is based on reciprocity; whenever a broadcasting organization covers an event that is of potential interest to other members of EBU, it offers the signal free of charge to the other members, provided they will do the same in return. 

Screensport, a transnational satellite television sports channel, registered a complaint with the European Commission objecting EBU refusal of granting Screensport sublicenses to sports events. Screensport claimed being deprived from fair competition by EBU and its members. Screensport also complained about Eurosport, a transnational satellite television sports channel, a joint venture between EBU and News International. The complaint raised the issue of EBU business practices of holding the exclusive rights to a number of major international events; which being exclusively broadcasted on the EBU owned Eurosport channel but discriminating the Screensport and other commercial broadcasters from business and prevented them from a fair competition. The Commission identified that at the time of the complaint was launched there were only two transnational commercial television channels, Screensport and Eurosport. Both using the same satellite therefore they were directly competing for the same geographic audience, programmes, sponsors and advertisers. Third parties (EBU non-members), may acquire access to EBU programmes, in particular sports programmes, only by means of sublicenses. Sublicenses, under the provisions adopted by EBU, were only available for deferred transmissions, subject to embargo and other various restrictions regarding the timing and volume of transmissions. Eurosport, the EBU venture, however, has unconditional access to materials.  The Commission found that EBU business practice restricts competition and trade within the common market. Furthermore, the Commission found that the joint venture agreement between EBU (Eurosport Consortium) and News International c.s. infringed Article 85(1) EEC Treaty. 

This decision can be seen as a nuance on the previous EBU decision, concerning the Screensport complaint. The Commission states that the Eurovision system falls under the exemption of Article 85(3), as long as EBU complies with the indispensability. Most importantly, EBU must assure that (some form of) third party access shall be maintained. If restrictions are imposed upon non members, it must be done in a favorable manner. In May 2000 Commission granted EBU exemption from 85(3). The Commission acknowledged the improvement in the production and distribution of goods and promotional technical and economic progress, and benefits to consumers. By imposing a number of restrictions and conditions securing third party access, the European Broadcasting Union is also granted an exemption from article 81 regarding Eurovision.  In October 8, 2002, the Commission Decision was appealed to the Court of Justice (in the combined cases T-185/00, T-216/00, T-299/00 en T-300/00) by a French television station Metropole Television c.s. EBU allowed non member to get access to sportsevents, but only for those programmes which members had declined to broadcast. If a member had made a reservation to an event, or only intended to broadcast part of the event, the acquisition by a non member was barred. Moreover, if the non member was a non commercial broadcasting organization, it was only allowed delayed transmission (i.e. no live coverage).  In practice rights to live coverage that are not used by members, are not offered to non-members. Sublicenses for delayed transmission and highlights are available, but only at the conditions set by EBU (for instance minimum one hour after the event and no earlier than 22:30). This practice in effect hampers competition.  The Commission erred in granting the exemption and the Court of Justice declared the Decision to be void.  EBU Sports Sublicensing Agreement

THE SPORT TV BIZ IS A GROWING GAME

From Video Age International (EU preferential antitrust treatment to EBU in 1996):

“The TV rights to major sporting events are now big business Germany’s Kirch Group [already bankrupted in 2007] bought the rights to broadcast World Cup soccer from 2002 to 2006 for $2.27 billion. BSkyB bought the rights to the English Premiership soccer championships from 1997 to 2001 for an estimated $1 billion.

The European Commission (EC) has been eyeing these big deals with concern, scrutinizing the changing sports rights environment for signs of monopoly violations. Karel Van Miert, European Union (EU) antitrust commissioner, is heading a series of probes that will investigate the BSkyB deal and probably the Kirch deal as well. The probes may also target Sport 7, a new channel launched by Endemol and Philips in August. Sport 7 acquired the rights to all Dutch First Division soccer games from 1996 to 2004, as well as preferential renewal rights, for $650 million.

MEDIA DAVIDS vs. GOLIATH

 Article by David Lindsey (Reprint from DW 19 August 2004) 

With government funding and hefty advertising revenues, public broadcasters in Germany and Europe have astronomically high budgets for buying Olympic rights. Private broadcasters claim it has shut them out of the market.

A lot has changed since the Olympics in Rome were first fully televised in 1960. Today, bidding for the exclusive broadcast rights has become a billion euro international business that pits public broadcasters against private broadcasters as each compete to land the premier global sporting event.

In the United States, the Olympic Games are almost exclusively the domain of private broadcasters, which have deeper pockets than public broadcasters, which rely on paltry government funding and desperate telephone pledge drives to attract donors.

But in Europe, where public broadcasting is funded by hefty and mandatory television licensing fees for all residents, broadcasters like Germany’s ARD and ZDF or Britain’s BBC have an unmatchable arsenal when it comes to fighting for the rights to the Olympics.

It’s an advantage that angers private broadcasters, who say they are virtually locked out.

“It’s not fair at all,” said Jörg Krause, spokesman for the private German sports broadcaster DSF. “The situation is made worse by the fact that ARD is now buying up the rights to all of the ‘a’ and ‘b’ category sporting events. They’re able to finance this through the licensing fee and selling advertisements like private companies. There’s no clear division there.”

In other words, public broadcasters not only compete for advertising euros with private broadcasters but they also have a guaranteed budget that comes from fees they legally require of all residents of Germany.

With their war chest of cash, ARD and ZDF have snapped up the rights to most of the major European sporting events this year — including the Euro 2004 European soccer championships, the Tour de France, the Olympic Games and the start of the Bundesliga season.

But Krause said prohibitively high Olympic licensing fees make it virtually impossible for Europe’s private broadcasters to make a serious bid. But he also concedes private companies would never be able to recover the amount of money spent on the fees.

Unlike the US, where private broadcasters enjoy the highest ratings and all the advertising revenues (PBS is prohibited from selling commercial advertising), public broadcasters consistently score the highest ratings, with their only serious private competition coming from RTL, which peddles such fare as Big Brother to viewers.

The problem lies largely in the fact that the licensing fees have been pushed so high that advertising and sponsorship agreements aren’t enough to recover the costs. For the public broadcasters, which draw in about €7 billion a year in licensing fees, hundreds of millions in licensing fees poses few problems.

But for private broadcasters, who in Germany draw a combined €4 billion in advertising annually, three-digit million licensing fees represent a massive strain on bottom lines. By pushing up the prices of licenses in bidding, the public broadcasters “basically buy us out of the market,” said Hartmut Schultz of the German Association of Private Broadcasters.

Europeans pay €394 million for Athens

Historically, Olympic broadcasting rights for just about the entire continent have been negotiated by the European Broadcasting Union, an alliance of public broadcasters that is also responsible for the wildly popular Eurovision Song Contest.

This year, the organization paid €394 million for the rights to Athens games. EBU’s director of legal affairs, Werner Rumphorst, defends the sums of money paid by public broadcasters for the right to air the Olympics’ golden moments.

“We’ve been getting these attacks from commercial broadcasters for ages,” he said. “They claim we have what they call ‘double funding,’ but the reality is that we have mixed funding. Double implies you have twice as much as you need. Overall, the funding is there to allow public broadcasting to fill its public broadcast remit, which is checked by various independent bodies.”

Rumphorst noted that many complaints have been filed by private broadcasters against public behemoths, but that all of the cases have been thrown out in Brussels except one. “There is no substance to the claims,” he said.

Most of the sports at the Olympics are smaller events, like canoeing or archery, and ultimately draw few viewers. They lack the draw of big ticket sporting events like pro soccer or Formula One racing, whose licenses are largely in the hands of the privates.

In other words, according to Rumphorst’s argument, the publics take the sports the privates won’t touch. But the private broadcasting association’s Schultz questioned EBU’s position. He noted that DSF regularly broadcasts the less-popular games of Germany’s Bundesliga second league as well as other sports that are less commercially viable than big ticket events like the Tour de France or the Bundesliga.

He also questioned the role of sports in the public broadcasting mandate. Public broadcasting, he said, has a mandate to show programs that promote “political and educational” public dialogue — the kinds of programming that would be un-economical for private broadcasters.

“There is no reason why (broadcasting) a big entertainment program like the Olympics should be paid for by the public,” Schultz said.

A festival of ’small sports’

“We have this festival of small sports and when it comes to the Olympics we have acquainted audiences with sportsmen in these sports,” he said. “Ratings for the Olympics are quite modest and in many cases the commercial broadcasters don’t want them. But we’ve been broadcasting the games from the beginning without interruption. If that were to discontinue, the press would jump on public broadcasters and ask why people should bother paying their license fees.”

Besides, the money from the licensing fees is needed to keep the games running, he said. The hundreds of millions in fees don’t just go to IOC salaries — they also go to funding the games themselves, international sports federations and to some of the teams from poorer countries who couldn’t compete in the games without the financial aid.

“These sports are only shown on public broadcasting, they’re not football or Formula One racing — events we have nothing to do with, since they’re in the hands of private broadcasters,” Rumphorst said. He also noted that German public broadcasters have also failed in some of their bids to land major sporting events — including the 2002 and 2006 World Cup football matches.

Fair use?

Public broadcasting goliaths aren’t the only hurdle in the way of the privates: they must also navigate the Byzantine media rules enforced by the International Olympic Committee.

IOC strictly regulates how much coverage television and radio stations that haven’t licensed the rights can give to the Olympics. Images or sound from the Olympics can only be broadcast in news programs that are not promoted as Olympic specials and it can’t appear more than three times in one day.

Nor can the amount of image or sound material included in a news program exceed two minutes. The maximum limit for using sound or images from a single Olympic event is 30 seconds.

Those broadcasters that do provide the brief Olympic coverage are also banned by the IOC from carrying advertising during the program with any apparent link to the Olympic Games. Even if it didn’t include the Olympic logo or rings or any mention of the games, an image of a gymnast mounting a balance beam could be deemed a violation.

Combined with their inability to acquire a broadcasting license and the stringent limitations placed upon them afterwards, many private broadcasters don’t even bother with the Olympics.

“It’s not exactly a new thing for us that we can’t do much with the Olympics,” Krause said.

And with public broadcasters airing different events on up to eight different channels in Germany, Krause said he didn’t think audiences would even turn to private broadcasters for supplementary coverage. But given the opportunity, he says DSF would give more airtime to Athens.

Note to readers: Though Deutsche Welle is an independent media organization funded by the German government, it is also part of the ARD public broadcasting network.

 Daryl Lindsey 

The European Broadcasting Union (EBU) President Mr. Jean Bernard Münch related in 2000 to Video Age International, that “As the European Union has grown [it] has necessitated the creation of an EBU office in Brussels which is in a position to maintain continuous personal contact with EU decision-makers.” Eventually the Article 85(3) EU Antitrust Code exemption was granted to EBU. Mr. Münch affirms that “The solidarity of members in holding together and negotiating for the good of all has been impressive in the past, and we hope that in spite of market pressure, it will remain so in the future.”

Indeed.

According to Video Age International, “With more than 100,000 transmissions per year, the EBU’s Eurovision controls more than 30 percent of the European television market.” [http://www.allbusiness.com/technology/565399-1.html] Mr. Münch explained that “The acquisition of sports rights has been important for the EBU right from the start. EBU members came together for the first time to negotiate rights to the 1954 World Cup.”  

Come together to negotiate rights ”has been impressive in the past” Mr. Münch added.

In factng EBU paid for the exclusive right to broadcast the World Cup soccer matches in 1990, 1994, and 1998 only $344 million.  [See Shailagh Murray, Show of Strength: EBU Sees Competition from Commercial TV Erode Its Buying Power—Union of Public Broadcasters Faces More Rivals in Battle for Programs and Viewers, Wall St. J. Eur., July 3, 1996, available in 1996 WL-WSJE 10746653.]

According to Allbusiness.com the recent World Cup put the focus on the European Broadcasting Union, which provided at a bargain price the full worldwide coverage of the 52 matches played in the U.S. The ratings results were nothing short of phenomenal. In Germany, for instance, the Germany-Bolivia match on June 17 drew an audience of more than 19 million. In countries like Denmark, Ireland, Italy, The Netherlands and Belgium, one of five viewers tuned in. In Italy, average audiences for the Italian matches ran to 13.5 million, in France close to 7 million and in Spain more than 5 million.

How much commercial broadcaster paid? Germany’s Kirch Group, a commercial media company had to pay $2.36 billion U.S., one-thousand, (1000), more for what EBU paid, for the broadcast rights to the 2002 and 2006 World Cups. [See William Echikson, Goodbye Hoodlums, Hello Big Money, Bus. Wk., Sept. 23, 1996, available in 1996 WL 10770679.]

Just recently, on April 08, 2007, German Embassy Washington D.C. press release informs that Kirch Group  files for bankruptcy. [http://www.germany.info/relaunch/business/new/bus_kirch.html]  Whether dominant position of a business exempted from Article 85(3) Antitrust Code, and empowered by additional exemptions, e.g. no taxation for ”not-for-profit” played any role in a recent commercial company demise?

On March 23, 2007, also Switzerland based and the very powerful international sports federation, Fédération Internationale de Football Association (FIFA) released that ” The executive agreed to allocate the TV rights in Germany for the 2014 FIFA World Cup™ to ARD/ZDF, the pair of public broadcasters who already hold these rights for the 2010 tournament. FIFA’s partnership with the European Broadcasting Union (EBU) was extended to include the 2014 FIFA World Cup™.”  [http://www.fifa.com/en/media/index/0,1369,134250,00.html?articleid=134250]

FIFA Media Department revealed that “European television rights for 2010 FIFA World Cup™ to be marketed by FIFA and EBU” awarding the business to EBU from the “total of 22 applications had been received in response to the tender announced on 21 December 2004.”  

EBU versus the EBU.By Mascarenhas, Mark
Publication: Video Age International
Date: Oct 1992
Subject: Television broadcasting (Europe)

The European Broadcasting Union (EBU) appears to have reacted effectively to the new competition in Europe for sporting events. But in this process, as a collective organization, they have made one strategic mistake–their efforts have been reactionary to private bids–they have not been able to value individual sports from a ratings/income point of view. Many EBU members don’t sell advertising and a great many have TV sponsorship restrictions. Because of the dramatic (nearly 300 per cent) increases in rights fees paid for some events (i.e. the 1996 Summer Olympics), their budgets will decrease for other viable but less high profile events. Sports organizers will expect more money from the EBU for their respective events, and if these rights are not judged on theft potential revenue from audience ratings, the EBU will lose more ground to the private networks in the sports arena.

Buying television sports rights is a business of profit and loss and not one where an individual member’s desire drives the EBU to acquire the TV rights to the event at any cost.The most significant difference between entertainment and sports is sports’ common interest factor among Europe’s 140 million TV households. All of them love soccer, and fans across Europe watch sports like formula one motor racing, track and field and tennis in high numbers. Because of this common thread, public broadcasters across Europe have been able to maintain their alliance–EBU, which is one of the biggest and most powerful buyers of sports programming in the world.

Until recently, a sports event organizer had no terrestrial TV network to go to in his country except the EBU member–this is still the case in Switzerland, Austria and, even though TV networks are competitive, all terrestrial networks in the U.K. and France are EBU members. The EBU member in most cases cannot sell advertising; therefore on the basis of perceived audience interest they offer the organizer “free” television coverage of the event. The only source of revenue for the organizer is to sell signage.

The events’ TV ratings success does not affect the price of TV rights, but the prices charged to signage sponsors increase. It took a visionary like Horst Dassler, founder of Adidas, to see this opportunity many years ago and his company, ISL, which sells signage sponsors, is now a multimillion dollar enterprise.

Nearly every international sports federation is based in Switzerland. The federations have deals with signage sellers like ISL and CWL, which is also headquartered in Switzerland. ISL, CW L, etc. sell signage for a commission fee to advertisers in Europe and the rest of the world, and the federations receive this signage money. With the advent of private television, the EBU forged firm alliances with the various federations, signing multi-year agreements for no rights fees and when impossible they kept prices down to a minimum through leverage of the TV audience coverage provided. The federations went along because of signage revenue and signage sellers like ISL’s very existence depended on selling audience coverage provided by the EBU. There are no private TV stations in Switzerland and cable penetration is at 76 per cent. The federation bosses who don’t deal with the EBU risk not seeing their events in their own homes.

Individual federation chiefs are in some way connected to the EBU. As a result, the EBU uses this very judiciously.Only one European marketer has been successful in breaking the EBU stranglehold. Bernie Ecclestone did this with Formula One–a TV rating winner; he was able to keep signage sponsors on board while he found the highest television bid, on a country by country basis. In most countries he ended up selling Formula One to an EBU member, but he was successful in avoiding the EBU as a collective organization.

Since then, companies like UFA, which owns the European TV rights to Wimbledon and the U.S. Open, have entered the picture but they are primary market buyers–they bought these tennis tournaments because their TV station (RTL Plus in Germany) had much to gain in the ratings with Becker and Graf in the games. What appeared to be an astronomical sum for Wimbledons European TV rights in 1988 was covered in great part by RTL Plus.

The EBU has several problems with respect to monopolistic trade practices, i.e. the Eurosport/TESN issue where through terrestrial leverage it keeps cable/satellite rights for its subsidiary, Eurosport. This case is currently being fought in the EC courts in Brussels.This cartel strategy of the EBU to keep all for nothing is their biggest enemy. This approach overpays some event organizers like the 1996 Olympic games because of pressure not to lose to a competitive bid and penalizes other worthy event organizers who are deprived of their share of the rights fee pie because of such action.

The future of the EBU approach is even more bleak when new technologies take over. In nearly all cases EBU members are public trusts and, unlike their private competitors, are not profit driven operations. Pay TV is now flourishing in France, England and Scandinavia. Germany, Italy and Spain are on the way. These pay TV broadcasters have already established winners in sports like boxing. Pay-per-view is on the horizon. Watch EBU signage allies like ISL and the rest jump ship as soon as private broadcasters are on an even footing covering the European audience.

“An open, competitive Single Market is Europe’s biggest asset, unique in the world. Competition policy and effective enforcement will secure a level playing field – so all operators in the Single Market compete and win on merit alone. This is what generates investment, efficiency and innovation.”

– Neelie Kroes
EU Competition Commissioner

EU antitrust (competition) policy is essential for the functioning of the EU’s Internal (or Single) Market with its free movement of goods, services, people and capital. The philosophy underpinning the Single Market is to allow firms to compete on a level playing field throughout all of the EU Member States, and competition policy sets out to encourage economic efficiency by creating a climate favorable to innovation and technical progress.

How does the EU regulate competition?

The European Union’s antitrust policy, much like its US counterpart, ensures that healthy competition is not hindered by anticompetitive practices by companies.

In addition, the European Commission has jurisdiction over large-scale mergers and acquisitions affecting more than one EU Member State and exceeding certain thresholds. The Commission can fine antitrust violators. Like the US government, it is entitled to review mergers between non-EU companies with certain revenue thresholds that conduct significant business in the EU. The EU’s July 3, 2001, decision blocking GE-Honeywell’s merger is the only instance to date involving an American company where the EU blocked a US-approved merger. On the other hand, the EU has approved 906 mergers involving at least one US company.

Moreover, unlike US antitrust law, EU law also ensures that competition is not hindered by the intervention of national authorities. In that respect, EU law prohibits state aid granted by EU members that distorts competition in the Internal Market.

EU-US Cooperation

The European Commission cooperates with US authorities, such as the Department of Justice and the Federal Trade Commission. Principal elements of cooperation are mutual information about enforcement activities (notifications), coordination of enforcement activities and exchange of non-confidential information. The intensity of cooperation is increased if the parties to a case have granted a waiver allowing the exchange of otherwise protected information.

Currently, the EU and the US are exploring a second-generation agreement, which would allow for the exchange of confidential information and facilitate cooperation in the fight against cartels.

Written by European Commission Delegation, Washington, DC http://www.eurunion.org/policyareas/antitrust.htm

Loyola University Law Center Professor’s Spencer Weber Waller noted an existing conflict between the European Union (EU) advocated position in favor of a true international antitrust code, and the United States of America cautious approach emphasizing bilateral cooperation, slow harmonization and search for consensus, and, the “preference for further study in lieu of action at this time.” The United States objected delegation of the antitrust rules enforcement to the WTO, and was seeing this organization role in promoting competition in global markets and resolving competition disputes without having to create a full international antitrust code. [“An International Common Law of Antitrust” New England Law Review Vol.34 February 18, 2000]

Stressing bureaucratic political concerns as a powerful explanation of the U.S. ambivalence on international antitrust issues, Professor Weller presented a comprehensive the United States objections to an international antitrust code enforced by the WTO:

1. There is no present consensus on substantive competition rules, making the negotiation of any code a waste of effort in comparison to a more practical focus on ensuring that existing antitrust rules are enforced world-wide;
2. A code, even if enacted, would necessarily reflect a lowest common denominator approach and have no real significant impact;
3. A code, even if enacted, would be a rigid and static set of rules that could not be adapted to the rapidly changing circumstances of the global market or future developments in competition law and policy;
4. A code approach has the potential to distort the normatively desirable pro-consumer/efficiency evolution of the United States and global policy in antitrust field;
5. The United States would be subject to the whims of a majoritarian organization and certain hostile members only nominally interested in resolving competition disputes and rather more interested in advancing non-competition goals through competition channels and dispute resolutions.

Whether the United States cautious approach was fully warranted in light of the UE standards and facts of legal applications dissonances? Arguing with Professor Weller we will uncover the apparent dichotomous standard EU applied in the individual case of European Broadcasting Union (EBU) granting the EBU dominant position in the television media market defacto legalizing the EBU’s market monopoly.