construes the text in the sense that it should apply so as to prohibit only those practices deemed
“unreasonable”, failing to define what should be understood by “unreasonable practice”. With the
view to fill this gap, legal literature interpreted the concept as referring to any practice substantially
affecting free competition. This standpoint was accepted by the Supreme Court, which created two
rules designed to assess the degree of danger to free competition through the development of any
antitrust practice prohibited under the Sherman Act. These methods are: “per se rule” and “rule of
Section II of the Sherman Act condemns any person who monopolized or attempted to
monopolize any part of the trade or commerce, thus affecting free competition between different
federal states or between these and foreign ones
. Sanctions applied to persons violating provisions
of section hereby are the same as those applied in Section I. Section II deals with two issues. Firstly,
with monopolization, which in spite of literal writing of text that seems to sanction the mere
similar s ystem was applied over time in European countries, as well, among which France, Italy, Spain, Belgium or
Case law highlighted how shaded t he criterion of implementing this section is, in case of practices worthy of
double sanctions: by fine and imprisonment. T his is, for example, the cas e of concerted practices which c arry forth a
much greater threat to society when compared with unilateral actions. In terms of concerted practices, the Supreme
Court set f orth that these shall always be punished twic e because there is no doubt that the y entail more serious social
Section I of the Sherman Act applies to a ntitrust practices, such as: agreements obstructing free price fixing (this
includes both horizontal price fixing agreements, and vertic al, such as agreements that lead directly or indirectl y to
resale price fixing), the conclusion of contracts subject to acceptance by parties of supplementary obligations which, by
their nature or acc ording to commercial usage, are not related to the subject matter of such contracts, boycotts, division
of sales market on territorial criterion, sales and purchase volume or ot her criteria, etc. These practices were deemed
prohibited “per se” practices. It should be noted that, as shall be set out elsewhere in the article, this c riterion underwent
various amendments, worthy to be acknowledged.
In order to make a bri ef history of t he emergence and evol ution of antitrust pra ctices condemned as illegal under
Section I of the Sherman Act, the following should be specified. Foremost, the first antitrust practices which were found
in the U. S. in the eighteent h century in danger of being sanctioned were the so-called trust (currently known as cartel
cases). This situation constrained econo mic agents to invent other types of antitrust practices. Consequently, a new type
of antitrust practice occurred in New Jersey, which w as called “merger”. This figure ca me up with the incorporation of
a big company following conclusion of a merger agreement by various companies carrying out their business on the
same relevant market. Since the federal Governme nt failed to prevent implementation of this new practice, it opened the
door to a whole series of mergers created throughout the nineteenth century. In 190 3, the Supreme Court responded and
dissolved t he Northern Securi ties Company, which was to be f ormed through the merger of two railr oad companies.
The final ruling passed in this case, Northern Securities Co. v. United States, 193 U.S. 197 (1904) marked a new stage
in the implementation of antitrust law, because it fina lly ended the attitude of “laissez-faire” adopted by the federal
Government until that date.
Subsequent regulations approved in terms of antitrust law do not amend the general criteria set forth under the
Sherman Act, they just fill the existing gaps by listing various emerging practices that are dee med antitrust by applying
the rule “per se” or the “rule of reason”, as shall be pointed out below.
For this purpose, see: Neumann, M., Competition Policy. History, Theory and Practice, Edward Elgar Publishing,
Inc, Massachusetts, 2003; Anders on, M.C.; Self-regulation and league rules under the Sherman Act, in Capital
University Law Review, Florida, 2001; document available online on http://culsnet.law.
capital.edu/LawReview/BackIssues/30-1/Anderson14.pdf.; Foer, A.A. y Lande, R.H., The Evolution of United States
Antitrust Law: The past, present and future; American Antitrust Institute, EE.UU, 1999, article available online on
http://www.antitrustinstitute.org/files/64.pdf.; Álvarez Zenteno, R., Una visión de nuestro Derecho de la competencia;
in Revista del Abogado Nº 6; C olegio de Abogados, Chile, 1996; Rubin, J.E.; General Overview of United States
Antitrust Law; ed. por Library of Congress - Congressional Research Service, EE.UU., 2001; article available online on
http://www.competitionlaw.cn/upload/temp_05062801031227. pdf. or E ntrevista a Stephen Breyer, Juez del T.S.,
available online on http://www.cepchile.cl/dms/archivo_1529_ 866/rev80_breyer.pdf.
Harley J.E., The rule of reason; American Bar Associati on, Illinois, 1999, p. 1 and the following.
,,Every per son who shall monopolize, or attempt to mon opolize, or combine or conspire with any othe r person
or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be
deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a
corporation, or, if any other person, $350,0 00, or by imprisonment not exceeding three years, or by both said
punishments, in the discretion of the court”. § 2 Sherman A ct, 15 U.S.C. § 2.