Capturing the Transplant: U.S. Antitrust Law in the European Union

The scholarly literature on the movement of legal norms focuses almost exclusively on transfers from one jurisdiction to another. It largely ignores transfers into new regulatory regimes. Drawing on a case study of the transplantation of U.S. antitrust law into the nascent entity that was to become the European Community, and analyzing its evolution from a public choice perspective, this Article suggests that transfers into new regulatory regimes are more likely to be effective when the lack of established institutions creates opportunities for stakeholders. The endorsement of a new law will enable stakeholders to influence its application and to capture positions of the regulatory agency in charge of its administration.

An enhanced understanding of this transplant and the impact of a German stakeholder on the development of EU competition law explains why, if today the European Union and the United States investigate the same transaction, the competition law standards set by the European Union will prevail.