Article 102 TFEU : The Case for a Remedial Enforcement Model Along the Lines of Section 5 FTC Act

In his writings, Bill Kovacic has made the case for applying more widely Section 5 of the FTC Act in US antitrust enforcement, and in particular vis-à-vis dominant firms. Among other things, Bill advocates that Section 5 should be enforced independently of Section 2 of the Sherman Act and applied to new types of anti-competitive conduct going beyond the Sherman Act as well as to “frontier” cases. Section 5 of the FTC Act presents many substantive similarities with Article 102 TFEU but, unlike Article 102 TFEU, is not enforced by fines but rather by cease-and-desist orders. This article argues that Article 102 TFEU calls for a different enforcement model patterned after that of Section 5 of the FTC Act in view of the increasing uncertainty introduced by the use of a more economic “effects-based” approach and the constraints imposed by the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)