References in recent case law to a firm’s ‘anticompetitive malice’ and ‘dreams of monopoly’ or to documentary evidence purporting to show a firm’s malevolent plans to squash a rival and ‘pre-empt the market’ may sound puzzling in a modern antitrust world supposedly driven by the objectivity of economic theory. This article discusses the meaning of intent in antitrust analysis and whether this element should be given any role in abuse cases and, in the affirmative, what role should that be. To this effect, it carries out a comparative exercise on the relevance of intent evidence in abuse investigations under US and EU laws. Although it primarily focuses on predation, it also considers other forms of exclusionary conduct where appropriate. It then explores the interplay between the different uses of this standard, the notion of anticompetitive harm, and the goals of antitrust in the two jurisdictions. Finally, it examines the consequences of adopting a given intent rule in terms of policy enforcement.
World Competition