Once it concluded that the Sherman Act did not apply to the states, the United States Supreme Court apparently found it necessary to hold that the Act did not reach agents of the state or those whose action was compelled by the state. The state action defense to an antitrust proceeding was thus created. In Cantor, at least four Justices decided they did not like the results of this experiment, and they virtually put an end to the state action defense. The Court of Justice of the European Communities was not similarly pressured to find a state action defense to proceedings under articles 85 and 86 of the Treaty, but, nonetheless, did so in the Sugar Cases. Having pronounced the doctrine in 1942, the United States Supreme Court remained silent on the subject until 1975, when in Goldfarb it decided the doctrine was inapplicable to a minimum fee schedule promulgated by a state bar association. One year later in Cantor the doctrine was completely emasculated. Hopefully, the Court of Justice will not wait so long to define the parameters of the EEC state action defense. In making its next pronouncement on the issue the Court of Justice can benefit from United States experience, which manifests the difficulty of articulating criteria for the availability of the defense. The Court of Justice might mind the lesson of Cantor and conclude that the state action defense should not be allowed in an article 85 or 86 proceeding, particularly since those articles apply equally to the conduct of Member States and their agents. If the Court of Justice does establish the state action defense as a permanent feature of EEC policy, United States experience suggests that it should adopt a state agency rather than a state action analysis.
Gilbert P. Verbit,
EEC Antitrust: Community Adoption of the Parker Doctrine,
10 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol10/iss2/1