On the other hand, consistency in the interpretation of antitrust rules and legal certainty for market players are also important values for effective enforcement. The presence of various enforcers can create frictions in the short term regarding the substantive interpretation of antitrust rules and the imposition of remedies. When one enforcer seeks to impose behavioral remedies to stop certain illegal practices, this could limit the ability of another enforcer to successfully claim in a different case against the same company that a structural remedy is needed to address the identified anticompetitive effects. Thus, diverging approaches between antitrust enforcers for the same matters could risk undermining the effectiveness of the antitrust laws.
Although the U.S. and EU antitrust enforcement systems both incorporate federalist elements, they strike a different balance between entrusting enforcement to a plurality of largely independent enforcers and integrating mechanisms in the system that contribute to coordination. In the European Union, for example, the European Commission retains a strong level of control over the overall interpretation and implementation of EU antitrust law, even though the NCAs in the EU Member States are becoming increasingly active as enforcers. The European Commission can even relieve NCAs of their jurisdiction to apply EU antitrust rules by opening its own antitrust proceedings into a given practice. In contrast, in the United States, individual states and often private parties can enforce federal antitrust laws without the consent of the federal government.
Unlike the European Union, where the European Commission is the dominant central enforcer, U.S. federal antitrust enforcement is spearheaded by both the Federal Trade Commission and the Antitrust Division of the Department of Justice. The U.S. model of dual federal enforcement has led to situations where the two federal agencies expressed conflicting opinions on the same matters.
Another distinct feature contributing to the higher degree of plurality of antitrust enforcement in the United States is the more prominent role of private enforcement in both state and federal courts. The initiative for, and the scope of, private actions is largely beyond the control of the antitrust agencies. Moreover, outcomes of private enforcement cases can shape the contours of antitrust law, which in turn can also impact public enforcement. At least historically, however, private actions have played only a minor role in the European Union.
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