Consumer welfare, standard of proof and the objectives of competition policy

Introduction:

"We proceed as follows: first, we briefly review the consumer welfare criterion and we show that its adoption has led to a wider use of the “Rule of Reason” based on economic analysis. We then highlight the issues represented by the standard of proof. Hence we review the application of the standard of proof in Europe and the US: we find a great deal of convergence, but we also find differences, especially with regard to the unilateral behaviour of a “dominant” company. We then discuss the treatment of unilateral behaviour in the US and in Europe in light of the recent decision of the Supreme Court in the Verizon v Curtis v Trinko case. We conclude by suggesting that Europe has gone a long way towards setting up a consumer welfare-based standard. However, the process has taken place at different speeds in different areas of the law, so that the European approach to unilateral behaviour may present the idea that dominant firms have a “special responsibility” towards their competitors."