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'Editor’s Note', José Rivas, Issue 1, pp. 1–2 |
infoJosé Rivas, 'Editor’s Note' (2005) 28 World Competition, Issue 1, pp. 1–2 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005001 | 
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'Passing-on Damages and Community Antitrust Policy – An Economic Background', Foad Hoseinian, Issue 1, pp. 3–23 |
infoFoad Hoseinian, 'Passing-on Damages and Community Antitrust Policy – An Economic Background' (2005) 28 World Competition, Issue 1, pp. 3–23 | | Basic economic tools of analysis imply that overcharges imposed by cartels or monopolists are not entirely, if at all, absorbed by their direct purchasers. The harm is instead inflicted upon actors in an indeterminable number of submarkets. The net effect varies depending on the time scope, the nature of competition in the downstream markets and on the proportion of demand-supply elasticity in those markets. Under EC antitrust law it is unclear whether this so-called passing-on reasoning should be accepted in private litigations. The eventual answer will constitute a major policy choice for EC antitrust law in general. Assuming that competition law ought to enhance overall social welfare, a theoretic model can be borrowed from relevant US literature to gain an understanding of how the damage remedy should be contemplated within the system of EC antitrust law and how the passing-on question should be dealt with. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005002 |
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'The Case of Unilateral Patent Ambush Under EC Competition Rules', Eliza G. Petritsi, Issue 1, pp. 25–42 |
infoEliza G. Petritsi, 'The Case of Unilateral Patent Ambush Under EC Competition Rules' (2005) 28 World Competition, Issue 1, pp. 25–42 | | Recent action in the United States signals that improper patent disclosure within a standard setting organisation could have antitrust consequences. Enforcement actions are underway to combat the so-called patent ambushing strategies under US unfair trading rules and allegations of monopolisation or attempted monopolisation. On the other hand the European Union has not yet addressed these issues. This article analyses patent ambushes under EC competition rules. It addresses the issues raised by unilateral patent ambush strategies under Articles 81 and 82 of the EC Treaty. It offers some thoughts on whether EC competition rules could be a viable tool to fight those strategies at EU level as well. It briefly presents a comparison with the situation in the United States and tries to draw some conclusions as to the best way to deal with the patent ambush scenarios, not necessarily through the antitrust avenue. It is argued that EC competition tools might not be useful in attacking patent ambushes as such, other than in exceptional circumstances. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005003 |
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'Who’s Afraid of Conglomerate Mergers? A Comparison of the US and EC Approaches', Richard Burnley, Issue 1, pp. 43–70 |
infoRichard Burnley, 'Who’s Afraid of Conglomerate Mergers? A Comparison of the US and EC Approaches' (2005) 28 World Competition, Issue 1, pp. 43–70 | | The GE/Honeywell decision exposed a fundamental difference of opinion between the US and the EC competition authorities in the assessment of conglomerate effects. Within the context of merger control, which is by nature speculative, it is no surprise that two different authorities could reach different conclusions about one and the same merger. What is striking is that the Commission appeared to rely on theories that were largely discredited in the US during the early 1980s. Given that both regimes place consumer welfare at the heart of competition law, is the EC’s approach outdated, even deficient? Analysis of the legal background to the GE/Honeywell decision reveals that the Commission’s reasoning is well founded in existing legal principles. In the absence of objective empirical evidence that beneficial effects derive from all conglomerate mergers, the author sees no reason for the Commission to conform to economic standards applied in other jurisdictions. The EC should not be afraid of its own unique objectives and legal culture. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005004 |
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'Innovation, Leveraging and Essential Facilities: Interoperability Licensing in the EU Microsoft Case', François Lévêque, Issue 1, pp. 71–91 |
infoFrançois Lévêque, 'Innovation, Leveraging and Essential Facilities: Interoperability Licensing in the EU Microsoft Case' (2005) 28 World Competition, Issue 1, pp. 71–91 | | This article provides an economic analysis of the European Commission’s decision against Microsoft’s refusal to supply information on interoperability. It surveys the exceptional circumstances examined by the Commission in applying the essential facility doctrine to the case. It analyses the Commission’s reasoning on Microsoft’s leveraging its market power from one market to another. It discusses the amount Microsoft can request as reasonable remuneration for the licensing of its property rights on interface. According to the author, the analysis of incentives to innovate, as proposed by the Commission, provides a sounder test for ordering compulsory licensing than the new product condition introduced in Magill. However, the author points out that the assessment of incentives to innovate in the whole industry cannot be conclusive in the absence of more guidance on what constitutes a reasonable, non discriminatory and non strategic license. Regarding leveraging, the author considers that the Commission proposes a convincing story. Prejudice to consumers remains however hypothetical. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005005 |
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'How Economists Can Help Courts Design Competition Rules: An EU and US Perspective', David S. Evans, Issue 1, pp. 93–99 |
infoDavid S. Evans, 'How Economists Can Help Courts Design Competition Rules: An EU and US Perspective' (2005) 28 World Competition, Issue 1, pp. 93–99 | | This article describes the use of practical tests for assessing whether particular business practices should be found anticompetitive. The courts have implemented such tests in many areas of competition policy including the recoupment test used in the United States for assessing aggressive pricing and the exceptional circumstances test used in the European Union for considering refusals to supply intellectual property. Economists can help the courts devise, refine, and reform such tests which, to be useful, must be capable of being implemented with available evidence and must minimise the cost of making mistaken inferences concerning competitive effects. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005006 |
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'Book Reviews', Issue 1, pp. 101–105 |
info'Book Reviews' (2005) 28 World Competition, Issue 1, pp. 101–105 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005007 |
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'Index to Volume 27', Issue 1, pp. 107–114 |
info'Index to Volume 27' (2005) 28 World Competition, Issue 1, pp. 107–114 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005008 |
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ISSUE 2 | |
'Editor’s Note', José Rivas, Issue 2, pp. 115–116 |
infoJosé Rivas, 'Editor’s Note' (2005) 28 World Competition, Issue 2, pp. 115–116 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005009 |
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'Is Criminalization of EU Competition Law the Answer?', Wouter P. J. Wils, Issue 2, pp. 117–159 |
infoWouter P. J. Wils, 'Is Criminalization of EU Competition Law the Answer?' (2005) 28 World Competition, Issue 2, pp. 117–159 | | This article, based on a paper with the same title presented at the Amsterdam Center for Law and Economics (ACLE) Conference on ``Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States’’ (Amsterdam, 17-18 February 2005) addresses five questions concerning criminalization of EU antitrust enforcement: First, what do we mean by "criminalization’’, or "criminal’’ enforcement (as opposed to public enforcement of a "civil’’ or "administrative’’ nature)? Second, is there a tendency in the EU Member States to criminalize antitrust enforcement (in comparison with US antitrust enforcement and with antitrust enforcement at the level of the EU institutions)? Third, is criminal antitrust enforcement, more specifically imprisonment, desirable (in general, irrespective of whether it takes place at the level of the Member States or of the EU institutions, or whether it is harmonized at EU level)? Fourth, is it problematic that antitrust enforcement is criminalized at the level of individual EU Member States without parallel criminalization at the level of the EU institutions or without EU harmonization? Fifth, would it be legally possible to criminalize antitrust enforcement at the level of the EU institutions, or to have EU harmonization of criminal antitrust enforcement in the Member States? Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005010 |
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'The Future of the Postal Monopoly: American and European Perspectives after the Presidential Commission and Flamingo Industries', Damien Geradin, J. Gregory Sidak, Issue 2, pp. 161–191 |
infoDamien Geradin, J. Gregory Sidak, 'The Future of the Postal Monopoly: American and European Perspectives after the Presidential Commission and Flamingo Industries' (2005) 28 World Competition, Issue 2, pp. 161–191 | | In December 2002, President Bush established the Presidential Commission on the United States Postal Service for the purpose of proposing how government provision of mail delivery services might be reformed or transformed. The Commission reported in July 2003 that the Postal Service should not be privatised but rather should remain a public entity that would increasingly be run like a commercial enterprise. In 2004, however, the Supreme Court moved the Postal Service farther away from being a true commercial enterprise when it held in the Flamingo Industries case that the agency is immune from antitrust law. In this article, we argue that the Postal Service already operates like a commercialised governmental enterprise and that pursuing that path even further would increase rather than decrease the problems faced by the US postal sector. Although we support privatisation, that option may not be politically feasible. Consequently, we examine how postal reform might proceed incrementally in the form of an improved government agency. That approach would entail two broad principles for postal reform. The first is to define the Postal Service’s mission in terms of remedying conditions of market failure. That goal encompasses universal service, quality of service, and reasonableness of rates. The second broad principle is to avoid competitive distortions through the pricing and product offerings of the Postal Service. This principle entails avoiding government production in markets that are or can be served satisfactorily by private firms, as well as avoiding discrimination among mailers and among competitors in secondary markets. We then present specific recommendations that would advance these two broad goals if the Postal Service remains an agency of the federal government. Those recommendations encompass costing, universal service, rate design and mail classification, the postal monopoly, and market entry and exit as well as legislative reversal of Flamingo Industries Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005011 |
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'Unilateral Effects: The Enforcement Gap under the Old EC Merger Regulation', Claus-Dieter Ehlermann, Sven B. Völcker, G. Axel Gutermuth, Issue 2, pp. 193–203 |
infoClaus-Dieter Ehlermann, Sven B. Völcker, G. Axel Gutermuth, 'Unilateral Effects: The Enforcement Gap under the Old EC Merger Regulation' (2005) 28 World Competition, Issue 2, pp. 193–203 | | The reform of the EC Merger Regulation was preceded by an animated debate about whether the traditional ``dominance’’ test allowed the Commission to challenge mergers that did not lead to single firm or collective dominance in the traditional sense, but nevertheless may have reduced competition to the detriment of consumers. The authors submit that the dominance test failed to reach such situations of ``unilateral’’ or ``non-coordinated’’ effects. The old Merger Regulation therefore suffered from a potential ``enforcement gap’’ that was closed only by the legislative change to the ``significant impediment of effective competition’’ test. National jurisdictions still using variants of the dominance test may want to consider this aspect in their legislative reform plans. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005012 |
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'God Forbid Bid-Riggers: Developments under the Hungarian Competition Act', Árpád Hargita, Tihamér Tóth, Issue 2, pp. 205–231 |
infoÁrpád Hargita, Tihamér Tóth, 'God Forbid Bid-Riggers: Developments under the Hungarian Competition Act' (2005) 28 World Competition, Issue 2, pp. 205–231 | | In this article we would like to share the recent experience of the Hungarian Competition Office (GVH) with the international antitrust community. First, the relevant provisions of public procurement and competition regulations are presented. The reader will note that these are not uniquely Hungarian rules, but show remarkable similarities with corresponding legislation at EU and Member State level. Next, the characteristics of the Hungarian construction sector are set out?here again it might be noted that most EU Member States have similar market structures. Before analysing the competition issues at stake, the stories of the cases are presented. This article examines the following competition issues related to cartel activities: types of bid-rigging; the importance of market definition; the calculation of fines; and the functioning of the leniency programme. Finally, some of the procedural issues that amount to a significant part of the defence put forward by companies are scrutinised. The article concludes with a look into the future, highlighting some of the consequences of EU membership. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005013 |
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'Competition in the Internet Backbone Market', Paolo Buccirossi, Laura Ferrari Bravo, Paolo Siciliani, Issue 2, pp. 233–252 |
infoPaolo Buccirossi, Laura Ferrari Bravo, Paolo Siciliani, 'Competition in the Internet Backbone Market' (2005) 28 World Competition, Issue 2, pp. 233–252 | | This article presents a competitive assessment of the global market for the provision of universal Internet connectivity (backbone market). We discuss the approach followed by the European Commission in two important merger cases. The main argument is for a restless evolution of the structure of the market, whereby a highly concentrated US-centric industry, with a strict vertical hierarchy between Internet Service Providers (ISPs) and a neat separation between first-level ISPs and the rest of the market, is going to be superseded by a more horizontal-shaped configuration. It is argued that as the landscape of the industry is subject to continuous change, the approach followed by the European Commission in assessing the competitive forces that drive the industry is likely to be no longer appropriate. New behavioural strategies, such as differentiation through the introduction of new enhanced Internet services based on the concept of Quality of Service and, related to that, new competitive threats seem to characterise the foreseeable future of the Internet. We then investigate the competitive concerns that might emerge in the new environment. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005014 |
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'Did Apple’s Refusal to License Proprietary Information enabling Interoperability with its iPod Music Player Constitute an Abuse under Article 82 of the EC Treaty?', Giuseppe Mazziotti, Issue 2, pp. 253–275 |
infoGiuseppe Mazziotti, 'Did Apple’s Refusal to License Proprietary Information enabling Interoperability with its iPod Music Player Constitute an Abuse under Article 82 of the EC Treaty?' (2005) 28 World Competition, Issue 2, pp. 253–275 | | This article concerns the decision taken in November 2004 by the French Competition Authority on Apple’s refusal to license its digital rights management (DRM) technology to a competitor in the downstream market for music downloads. The analysis here finds that neither the indispensability test spelled out in the Magill/IMS doctrine nor the new, controversial test advocated by the Commission for compulsory licensing of interoperability information in the 2004 Microsoft decision was applicable to the leveraging by Apple of its proprietary DRM technology into the music downloads market. The article draws on this analysis of the case to show that property rights and trade secrets in respect of DRM technologies have the potential to establish a "bottleneck’’ between content providers and media player manufacturers in the near future. To avoid such a bottleneck, the conclusions of the article suggest that interoperability and competition may be structurally supported and pursued either by more permissive "reverse-engineering’’ exceptions in the field of DRM software protection or, more effectively, by the collective establishment of an open DRM standard. In the absence of these structural remedies, compulsory licensing of proprietary DRM technology should remain subject to the "exceptional circumstances’’ doctrine made famous in the Magill judgment. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005015 |
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'Book Review', Michael A. Carrier, Issue 2, pp. 277–278 |
infoMichael A. Carrier, 'Book Review' (2005) 28 World Competition, Issue 2, pp. 277–278 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005016 |
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ISSUE 3 | |
'Editor’s Note', José Rivas, Issue 3, pp. 279–280 |
infoJosé Rivas, 'Editor’s Note' (2005) 28 World Competition, Issue 3, pp. 279–280 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005017 |
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'Refusal to Deal and ``Essential Facilities’’: Does Intellectual Property Require Special Deference Compared to Tangible Property?', Cyril Ritter, Issue 3, pp. 281–298 |
infoCyril Ritter, 'Refusal to Deal and ``Essential Facilities’’: Does Intellectual Property Require Special Deference Compared to Tangible Property?' (2005) 28 World Competition, Issue 3, pp. 281–298 | | This article is based on the twofold premise that (a) refusal to supply cases such as Commercial Solvents and later ``essential facility’’ cases belong to the same line of case-law, meaning that a ``first-time refusal’’ and the termination of an existing supply relationship should be treated under the same test; and (b) ECJ judgments such as Magill and IMS suggest that plaintiffs have to meet a stricter test in refusal to license cases than in cases involving a refusal to supply tangible products or to give access to a tangible facility. On this basis, I argue that it is unwise to treat refusal to license cases and refusal to supply cases under different tests. As part of the analysis, I confront the conventional view that a ``duty to license’’ necessarily has a negative impact on innovation. I provide several arguments to the effect that (a) the defendant’s innovation incentives are unlikely to be significantly affected by a legal rule on the duty to license; (b) industry-wide innovation may actually benefit from such a rule; and (c) in any event, one cannot assume that dynamic efficiency considerations always trump immediate gains in static efficiency Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005018 |
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'Recent Developments in US Antitrust', Joel Davidow, Issue 3, pp. 299–312 |
infoJoel Davidow, 'Recent Developments in US Antitrust' (2005) 28 World Competition, Issue 3, pp. 299–312 | | A major issue for US antitrust enforcement in the last year or so has been how to achieve maximum detection and deterrence of cartels, even at the cost of weakening certain sanctions. Thus, new legislation protects first-to-confess price fixers from criminal penalties and from trebling of damages owed to customers. To the same end, US enforcement agencies have sought to cut back the ability of foreign victims of the non-US aspects of worldwide cartels to obtain damage relief in American courts. This approach has been justified primarily as facilitating the operation of leniency policies by decreasing the scope, or uncertainty, of the private damage action consequences of confession. Closing US courts to foreign victims has also been justified in terms of the expressed wishes of the US allies (e.g. Germany, Japan, Canada) to fashion their own private remedy policies for their residents. In merger enforcement, trends are steady, but many litigated merger cases were decided against the Government, which could not always support its theories of probable consumer injury with hard facts. Cases involving misuse of intellectual property continue to be aggressively fought, particularly where dubious means are used to enshrine a patented invention as part of an industry standard. US efforts toward international cooperation and harmonisation have had a steady pattern of achievement, but some difficult issues of policy and practice seem intractable, particularly centralisation of merger control and harmonisation of approaches to private remedies. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005019 |
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'Cartels and Collusion: Failing Competition Policy in Hong Kong', Mark Williams, Issue 3, pp. 313–325 |
infoMark Williams, 'Cartels and Collusion: Failing Competition Policy in Hong Kong' (2005) 28 World Competition, Issue 3, pp. 313–325 | | Hard core cartels have received increased international attention since the 1990s from many developed nations and from international organisations, especially the OECD. Cartel-busting has become a priority for many competition authorities. Penalties have been substantially increased, with many jurisdictions introducing criminal sanctions including the possibility of imprisonment for individual executives who organise cartel activities. The general opprobrium visited upon cartels is not, however, universally accepted. The Hong Kong authorities have an ambivalent attitude to cartel activity that is driven by an ostensible ideological commitment to ``free markets’’ at all costs. The Hong Kong government has a politico-economic agenda that refuses to acknowledge the pernicious effects of cartel activity and, in any event, denies that cartels are a significant problem in the territory. This article seeks to briefly examine the recent trend towards tougher cartel enforcement internationally. Hong Kong’s cartel policy is then contrasted with international developments and critically analysed. Cartel activity in Hong Kong is described and explained. The future development of competition policy in Hong Kong is considered. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005020 |
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'Merger Simulation: A Crystal Ball for Assessing Mergers', Ioannis Kokkoris, Issue 3, pp. 327–348 |
infoIoannis Kokkoris, 'Merger Simulation: A Crystal Ball for Assessing Mergers' (2005) 28 World Competition, Issue 3, pp. 327–348 | | One of the most important trends in merger control in recent years has been a movement towards the use of empirical economic methods to study the likely anticompetitive effects of mergers. Unilateral effects simulation can predict price increases or decreases for a merger involving firms in the same market, depending on efficiencies and changes in market structure including repositioning and divestitures. Calibrated economic models provide concrete, quantitative analyses of the effects of mergers on competition. In order to be able to rely on merger simulation models for accurate predictions of the impact of the transaction in the post merger market, they must reflect critical features of the nature of competition in the market, such as whether the product is homogeneous or highly differentiated. The ability of a merger simulation model to explain the impact of mergers in the past in an industry may indicate its ability to accurately predict the impact of mergers in the future. The use of accurate demand specification models significantly enhances the focus, accuracy, and persuasiveness of merger simulation analysis. In this article we will address the importance of merger simulation models and the way that such models can be implemented in practice in the assessment of mergers. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005021 |
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'Competition Law Compliance Programmes: A Study of Motivations and Practice', Barry J. Rodger, Issue 3, pp. 349–376 |
infoBarry J. Rodger, 'Competition Law Compliance Programmes: A Study of Motivations and Practice' (2005) 28 World Competition, Issue 3, pp. 349–376 | | This article discusses the outcome of a recent empirical project which sought, via field studies with three major UK companies, to ascertain the extent to which a corporate culture of compliance has been developed within UK industry in recent years. The research has provided useful information on the development of competition law compliance culture. For instance, it confirmed the hypothesis that the experiences and perspectives of the particular company affects compliance. The research also provides some limited evidence to support the three key theoretical frameworks which are likely to underpin the establishment and maintenance of effective compliance: deterrence based on rational choice; moral corporate citizenship based on questions of legitimacy and sound corporate governance; and managerial competence based on operational effectiveness and adoption of sound management systems; although it is evident that the deterrent impact of competition law sanctions is the underlying and primary compliance motivation for each of the companies which participated in the research, at least at this stage in the development of UK competition law and UK corporate compliance culture. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005022 |
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'Beyond Leniency: Enhancing Enforcement in EC Antitrust Law', Alan Riley, Issue 3, pp. 377–400 |
infoAlan Riley, 'Beyond Leniency: Enhancing Enforcement in EC Antitrust Law' (2005) 28 World Competition, Issue 3, pp. 377–400 | | This article looks at two ways that the application and enforcement of Community competition law can be enhanced in the early years of the 21st Century. It argues first that the European cartel enforcement revolution, ushered in by the 2002 EC Leniency Notice provides the basis for the first time for a major development of European civil antitrust litigation. The flood of cartel prohibition decisions adopted by the Commission as a result of leniency applications permit victim-plaintiffs of cartel members to step over the most serious barrier to civil litigation: lack of effective discovery rules, and obtain redress in the national courts. Second, it makes the case for developing a second cartel-busting instrument to stand alongside the Leniency Notice. It identifies the US Civil False Claims Act, as a legal model than can be adapted into a powerful antitrust instrument to detect and prosecute many more cartels. The adoption of a second powerful cartel-busting antitrust instrument would in turn increase the number of cartel prohibition decisions and thereby increase the scope for many more civil antitrust cases in the national courts. It is contended that together these two American innovations, leniency and the CFCA, could lay the foundations for the rise of a powerful European antitrust litigation practice which would police the antitrust rules and ensure that victims were justly compensated. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005023 |
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'Book Reviews', Spencer Weber Waller, Valsamis Mitsilegas, Issue 3, pp. 401–404 |
infoSpencer Weber Waller, Valsamis Mitsilegas, 'Book Reviews' (2005) 28 World Competition, Issue 3, pp. 401–404 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005024 |
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ISSUE 4 | |
'Editor’s Note', José Rivas, Issue 4, pp. 405–406 |
infoJosé Rivas, 'Editor’s Note' (2005) 28 World Competition, Issue 4, pp. 405–406 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005025 |
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'State Action Defence in EC Competition Law', Fernando Castillo de la Torre, Issue 4, pp. 407–431 |
infoFernando Castillo de la Torre, 'State Action Defence in EC Competition Law' (2005) 28 World Competition, Issue 4, pp. 407–431 | | The State action defence doctrine arises in cases of possible conflict between regulation and competition law, i.e. when regulation restricts competition. Which rules prevail? Is the undertaking responsible for behaviour which has been required by public regulations? EC Courts have shown a readiness to apply competition prohibitions in the presence of regulatory measures that simply facilitate or encourage the very same forbidden conduct, but they may find that the issue falls outside the scope of competition provisions when the Court is satisfied that the Member State has left no room for autonomous decisions by market participants. However, Member States are bound not to render ineffective antitrust prohibitions, as this would be a violation of Article 10 in combination with Articles 81 or 82 EC, and primacy of EC law over national law requires a national competition authority (NCA), in the course of an investigation under Article 81 EC into the conduct of undertakings, to be able to declare a national measure contrary to those provisions and, consequently, to disapply it. As regards the penalties which may be imposed on the undertakings concerned, if a national law precludes undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition, the duty of NCAs to disapply such an anti-competitive law cannot expose the undertakings concerned to any penalties, either criminal or administrative, in respect of past conduct where the conduct was required by the law concerned. However, conduct after the NCA’s decision finding an infringement and disapplying such an anti-competitive national law has become definitive, can be penalised. If a national law merely encourages, or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC and may incur penalties, including in respect of conduct prior to the decision to disapply that national law. This case law still leaves a number of questions unanswered, and the scope of this defence is far from clear. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005026 |
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'Tetra Laval II: the Coming of Age of the Judicial Review of Merger Decisions', Matteo Bay, Javier Ruìz Calzado, Issue 4, pp. 433–453 |
infoMatteo Bay, Javier Ruìz Calzado, 'Tetra Laval II: the Coming of Age of the Judicial Review of Merger Decisions' (2005) 28 World Competition, Issue 4, pp. 433–453 | | The article examines the European Court of Justice’s (``ECJ’’) ruling in Commission v. Tetra Laval regarding the scope of judicial review by the Court of First Instance (``CFI’’) in the merger control area and the standard of proof incumbent on the European Commission (the ``Commission’’) to support its merger decisions. First, the article describes how the ECJ ruling confirms that the CFI must ensure a thorough judicial review and provides precise guidance on the tests to be applied by it. The authors suggest such guidance applies to all types of merger decisions, including those adopted under the new EC Merger Regulation. Additionally, the article acknowledges a perceptible convergence of the courts of several Member States on the need for meaningful judicial review, in line with the Community Courts’ case law. Then, the article examines the ECJ’s reasoning as regards the standard of proof, and how the Commission must carry out its prospective analysis and substantiate its decisions. Based on the ruling, the authors conclude that the standard of proof should be the same for all types of mergers and for both clearance and prohibition decisions. Finally, on the question of whether the ruling also applies to antitrust decisions, the authors suggest that the need to establish convincingly the merits of an argument is more significant than the type of decision. The Commission will have to be more convincing in complex cases, particularly where it relies on novel theories of competitive harm. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005027 |
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'The Defence of “Objective Justification” in the Application of Article 82 EC', Paul-John Loewenthal, Issue 4, pp. 455–477 |
infoPaul-John Loewenthal, 'The Defence of “Objective Justification” in the Application of Article 82 EC' (2005) 28 World Competition, Issue 4, pp. 455–477 | | As a general rule, an undertaking will not abuse its dominant position under Article 82 EC if it can provide an objective justification for its conduct. This rule has been stated by the European Commission and the European Courts on a number of occasions, but no systematic approach has ever been taken to its application. This article sets out to remedy this problem by providing a framework within which the defence of objective justification can be applied under Article 82. It does this, first, by examining how the defence fits within the overall analysis of Article 82. Second, by determining what types of objective justification a dominant undertaking may advance for its conduct and identifying the requirements which every defence must comply with in order to be effective. Third, it investigates how the defence of objective justification reacts to the anti-competitive effects of a dominant undertaking’s conduct. Finally, it concludes that a structured approach to the defence of "objective justification’’ ensures the uniform application of Article 82 post-modernisation. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005028 |
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'Procedural Aspects of Private Enforcement of EC Antitrust Law: Heading Toward New Reforms?', Maja Brkan, Issue 4, pp. 479–506 |
infoMaja Brkan, 'Procedural Aspects of Private Enforcement of EC Antitrust Law: Heading Toward New Reforms?' (2005) 28 World Competition, Issue 4, pp. 479–506 | | This article aims to examine the necessary requirements for an effective private antitrust enforcement from the point of view of the civil procedures of Member States. It elaborates on the question whether and how these requirements can be satisfied in different civil procedures and which procedural rules could present potential obstacles for effective private antitrust enforcement. It focuses on issues of jurisdiction, standing, class actions, burden, standard of proof and costs and examines certain private enforcement cases in Member States. It compares the situation in the European Union with private enforcement in the US courts. Finally, the article argues that a certain degree of harmonisation of Member States’ civil procedures is required for the purpose of promoting and facilitating private enforcement in the European Union and puts forward a substantive proposal for such harmonisation. Copyright © 2005 Kluwer Law International
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ID: WOCO2005029 |
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'EU Competition Policy, Vertical Restraints, and Innovation: An Analysis from an Evolutionary Perspective', Wolfgang Kerber, Simonetta Vezzoso, Issue 4, pp. 507–532 |
infoWolfgang Kerber, Simonetta Vezzoso, 'EU Competition Policy, Vertical Restraints, and Innovation: An Analysis from an Evolutionary Perspective' (2005) 28 World Competition, Issue 4, pp. 507–532 | | The EU competition policy in regard to vertical restraints is mainly based upon neoclassical efficiency-oriented reasonings, leading to a neglect of the innovation dimension. This article analyses to what extent evolutionary theories of competition and innovation economics can be used to derive additional new criteria for the assessment of vertical restraints. It is shown that Neo-Schumpeterian and Hayekian approaches to competition and innovation economics as well as knowledge-based theories of the firm are capable of providing a basis for a different framework for analysing the impact of vertical agreements. Specific evolutionary arguments, such as subjective and local knowledge, the heterogeneity of knowledge bases of firms, communication and learning problems, and the complementarity of knowledge (systemic innovations) can be used for deriving additional, new assessment criteria for vertical restraints. Particularly important is the consideration of the impact of vertical restraints on competition as a process of experimentation with new products, services, and retail formats. The analysis is made against the background of the most recent reforms of EU competition rules in regard to vertical restraints (especially the new Block Exemption Regulation in the motor vehicle industry). This article also shows how evolutionary approaches to competition and innovation might be used for deriving new, additional criteria for competition policy in general. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005030 |
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'Implementation of the International Competition Network’s Recommended Practices for Merger Review: Final Survey Report on Practices IV-VII', J. William Rowley, Neil Campbell, Issue 4, pp. 533–588 |
infoJ. William Rowley, Neil Campbell, 'Implementation of the International Competition Network’s Recommended Practices for Merger Review: Final Survey Report on Practices IV-VII' (2005) 28 World Competition, Issue 4, pp. 533–588 | | The International Competition Network has adopted thirteen Recommended Practices for Merger Notification and Review Procedures. The purpose of these non-binding Recommended Practices is to facilitate convergence among competition agencies around best merger review practices. To assess and promote progress in this regard, the Merger Streamlining Group commissioned two surveys of competition agencies and private law firms in all ICN member jurisdictions. The first, carried out in 2003, found very mixed levels of compliance with the ICN’s initial three Recommended Practices. In 2004 a second survey was undertaken to measure implementation of the ICN’s next four Recommended Practices relating to Review Periods, Requirements for Initial Notification, Transparency and Review of Merger Control Provisions. This article reports on the 2004 survey, which found that achieving implementation continues to be a significant challenge notwithstanding the momentum arising from the unanimous adoption of the Recommended Practices. The analysis points to numerous opportunities for ICN members to bridge the gap between adoption and implementation. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005031 |
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'Moving Towards a Template for Bilateral Antitrust Agreements', Jonathan Galloway, Issue 4, pp. 589–614 |
infoJonathan Galloway, 'Moving Towards a Template for Bilateral Antitrust Agreements' (2005) 28 World Competition, Issue 4, pp. 589–614 | | Bilateral antitrust co-operation agreements are gradually becoming more prevalent in international antitrust. These agreements arguably constitute the principal tool for avoiding conflict in international antitrust given the absence of international antitrust rules. The same motivation that drives countries to conclude bilateral antitrust agreements, such as efficient and effective enforcement, could also provide the stimulus for multilateral antitrust initiatives yet does not. Countries have consistently placed greater emphasis on bilateral agreements than on multilateral initiatives such as the OECD Recommendations; often arguing that bilateral agreements reflect the specific relationship between signatories and thereby facilitate greater co-operation than a multilateral agreement could. This article engages in a comparative analysis of the principal antitrust co-operation agreements to assess whether bilateral agreements do reflect specific relationships; i.e. whether there is such a justification for not pursuing multilateral initiatives. Immediately apparent is that most bilateral antitrust agreements implement key principles, i.e. notification; enforcement co-operation and co-ordination; and primacy of domestic law. The article assesses whether the substance of these principles varies between the agreements, and concludes that a large amount of convergence has already taken place. Indeed, the article argues that the convergence achieved suggests that international antitrust has moved very close to a template for co-operation in international antitrust, and questions the rationale for the lengthy negotiation periods and the reluctance to pursue multilateral initiatives. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005032 |
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'Butterworths Competition Law Handbook, Garth Lindrup', Valentine Korah, Issue 4, pp. 615–615 |
infoValentine Korah, 'Butterworths Competition Law Handbook, Garth Lindrup' (2005) 28 World Competition, Issue 4, pp. 615–615 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005033 |
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'EC Competition Law Handbook, 2004/2005 Edition, Jones and Van Der Woude', Valentine Korah, Issue 4, pp. 616–616 |
infoValentine Korah, 'EC Competition Law Handbook, 2004/2005 Edition, Jones and Van Der Woude' (2005) 28 World Competition, Issue 4, pp. 616–616 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005034 |
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'Competition Policy, Theory and Practice, Massimo Motta', Valentine Korah, Issue 4, pp. 617–617 |
infoValentine Korah, 'Competition Policy, Theory and Practice, Massimo Motta' (2005) 28 World Competition, Issue 4, pp. 617–617 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005035 |
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'An Introductory Guide to EC Competition Law and Practice, Valentine Korah', Josh Holmes, Issue 4, pp. 617–618 |
infoJosh Holmes, 'An Introductory Guide to EC Competition Law and Practice, Valentine Korah' (2005) 28 World Competition, Issue 4, pp. 617–618 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005036 |
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'EC Antitrust Procedure, C.S. Kerse and N Khan', Josh Holmes, Issue 4, pp. 618–619 |
infoJosh Holmes, 'EC Antitrust Procedure, C.S. Kerse and N Khan' (2005) 28 World Competition, Issue 4, pp. 618–619 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005037 |
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'Antitrust Law: Economic Theory and Common Law Evolution, Keith N. Hylton', Reza Dibadj, Issue 4, pp. 619–621 |
infoReza Dibadj, 'Antitrust Law: Economic Theory and Common Law Evolution, Keith N. Hylton' (2005) 28 World Competition, Issue 4, pp. 619–621 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005038 |
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'Antitrust and Competition Policy, Andrew Kleit, Editor and An Antitrust Anthology, Andrew I. Gavil, Editor', Spencer Weber Waller, Issue 4, pp. 621–622 |
infoSpencer Weber Waller, 'Antitrust and Competition Policy, Andrew Kleit, Editor and An Antitrust Anthology, Andrew I. Gavil, Editor' (2005) 28 World Competition, Issue 4, pp. 621–622 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005039 |
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'Competition Law of the European Community, Van Bael and Bellis', Josh Holmes, Issue 4, pp. 624–625 |
infoJosh Holmes, 'Competition Law of the European Community, Van Bael and Bellis' (2005) 28 World Competition, Issue 4, pp. 624–625 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2005041 |
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