LCompetition is always healthy, especially when it aims to fight against… monopolies. In recent years, the European Union (EU) has felt very lonely in its fight against the dominant positions of the American Internet giants. The legislation on digital services and markets announced in December 2020 came on top of a series of regulatory and legal initiatives in an attempt to bring Google, Apple, Facebook and Amazon (GAFA) into line. But as long as the United States, where these companies were born, did not seize the subject, the fight was announced tedious.
After years of blameworthy laissez-faire, the US Congress and now the White House are showing their will to make America “The world leader in the development of rules of conduct for the digital economy”, in the words of the chairman of the judicial committee of the House of Representatives, Jerrold Nadler, who has just examined no less than six laws to contain the power of GAFA. They are the result of sixteen months of investigation by the American antitrust. We ended up despairing of one day witnessing this healthy emulation with Europe.
These legislative initiatives are accompanied by two major appointments. Columbia University law professor Tim Wu was appointed to the White House National Economic Council on March 5. Author of a virulent plea to return to the sources of American antitrust, The Curse of Bigness (“The Curse of Greatness,” untranslated, Columbia Global Reports), he now advises Joe Biden on competitive technology issues.
Perpetual balance movement
Equally significant of the intentions of the President of the United States is the appointment on June 16 of Lina Khan, 32, as President of the US competition policeman, the Federal Trade Commission (FTC). In 2017, while completing her JD at Yale, she published a resounding article in The Yale Law Journal titled “Amazon’s Antitrust Paradox”, which denounces the inadequacy of antitrust legislation to seize the market power that Amazon really exercises.
Competition policy in the United States is a perpetual pendulum swing, oscillating between varying degrees of laxity towards the power of big business.
Louis Brandeis, a lawyer from Louisville (Kentucky), is at the origin of the base of this policy at the beginning of the XXe century. In the wake of the enactment in 1890 of the Sherman Antitrust Act, which marked the birth of modern competition law, he made a name for himself by attacking the New Haven Railroad, the railroad company of John Pierpont Morgan, accused of violating antitrust law.
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