Europe asserts its right to regulate

Legal experts said there are some important differences between US and EU competition law that could shape the Intel investigation.

In the past few years, EU antitrust enforcement has stood out primarily in the area of regulating "dominant" companies that hold a monopoly-like sway over a given market, according to Spencer Waller, director of the consumer antitrust program at Loyola University Chicago School of Law.

"Microsoft is the best example of that -- and perhaps Intel, depending on what they finally decide," he says. "The difference is that the EU has been more aggressive in placing restrictions on companies that dominate vertical markets. US regulators under the current administration have been reluctant to do that."

But he says the differences are easy to overstate. The EU is aligned with the United States on most major issues of competition policy, particularly in well-established areas, such as price-fixing cases and anticartel actions. Indeed, the EU's current competition commissioner, Mario Monti, has modelled many of his enforcement mechanisms on those pioneered first by the US Department of Justice, for example, offering cartel members immunity in exchange for their cooperation.

Europe's rise in global antitrust enforcement comes as United States-led regulation efforts under the Bush administration have slackened, compared with those of the Clinton regime -- a shift that has made the contrast between the two regions appear more stark than it has been in the past. But those differences could just as easily change with a new US administration or the appointment of a new competition commissioner in Europe.

"The debate is happening on the fringes," said Freshfields' Moltenbrey. "On major policy points, both essentially agree. But they disagree on the best way to get there." (Intel is a Freshfields client, though Moltenbrey said she does not represent the company personally.)