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'Editor’s Note', José Rivas, Issue 1, pp. 1–2 |
infoJosé Rivas, 'Editor’s Note' (2006) 29 World Competition, Issue 1, pp. 1–2 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006001 | 
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'Powers of Investigation and Procedural Rights and Guarantees in EU Antitrust Enforcement: The Interplay between European and National Legislation and Case-law', Wouter P.J. Wils, Issue 1, pp. 3–24 |
infoWouter P.J. Wils, 'Powers of Investigation and Procedural Rights and Guarantees in EU Antitrust Enforcement: The Interplay between European and National Legislation and Case-law' (2006) 29 World Competition, Issue 1, pp. 3–24 | | This article deals with the powers of investigation of the European Commission and of the competition authorities of the Member States for the enforcement of Articles 81 and 82 EC, and with the procedural rights and guarantees that circumscribe or limit these powers. It focuses in particular on the question which law governs these matters (EC or EU law, national law, and the European Convention on Human Rights), and by whom or how the content of this law is determined (by European and national legislation, and case-law of the EC Court of Justice and Court of First Instance, national courts, and the European Court of Human Rights). Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006002 |
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'Compulsory Insurance of Loss to Property caused by Natural Disasters: Competition or Solidarity?', Roger Van den Bergh, Michael Faure, Issue 1, pp. 25–54 |
infoRoger Van den Bergh, Michael Faure, 'Compulsory Insurance of Loss to Property caused by Natural Disasters: Competition or Solidarity?' (2006) 29 World Competition, Issue 1, pp. 25–54 | | There are three types of public intervention to make sure that property damage caused by natural disasters is compensated: ad hoc solutions, payments through compensation funds, and a compulsory catastrophe extension of property insurance contracts. The best known example of the latter approach is the French law, which imposes a mandatory catastrophe insurance on all owners of property (tying clause), fixes the premiums and arranges re-insurance by the State. This French scheme creates distortions that competition law is willing to prevent and it is also at odds with the principles of the group exemption for the insurance industry. However, both efficiency reasons and grounds of national solidarity may provide powerful arguments to justify a compulsory catastrophe extension of voluntarily subscribed property insurance contracts. The concerns about competitive distortions are legitimate but should be discussed in a broader social welfare context. Since pure forms of public intervention (ad hoc solutions and compensation funds) provide insufficient incentives for risk prevention and mitigation of losses, forms of public-private cooperation that avoid the latter efficiencies may generate benefits outweighing the costs of anti-competitive distortions. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006003 |
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'Innovation and Market Definition under the EU Regulatory Framework for Electronic Communications', Tambiama Madiéga, Issue 1, pp. 55–72 |
infoTambiama Madiéga, 'Innovation and Market Definition under the EU Regulatory Framework for Electronic Communications' (2006) 29 World Competition, Issue 1, pp. 55–72 | | This article provides a thorough analysis of market definition under the EU regulatory framework for electronic communications. Part I questions the implementation of the forward-looking approach to market definition in the context of the fast innovation process driving the electronic communications sector. Section I.A argues that demand-side substitution must address the competitive constraints imposed by the emerging services. Section I.B stresses that supply-side substitution is becoming a criterion increasingly relevant to delineate market boundaries given the convergence process in the communications industry. Section I.C points out that, in assessing supply substitution, regulators are required to take into account the likelihood of potential competitors to enter the market within a reasonable time frame. Accordingly, it is argued that potential competition must be addressed in defining the market (and not subsequently when assessing market power) whenever the financial ability and the profitability for potential competitors entering the market is established. Part II illustrates the challenges posed to market definitions by the rapid pace of innovation as the regulation of the emerging Voice over Internet Protocol (``VoIP’’) services comes under the EU policy spotlight. Section II.A argues that VoIP services put at risk the present definition of the relevant markets. In particular, regulators should carefully consider whether Voice over Broadband (``VoB’’) services are substitutable for traditional telephony. Section II.B stresses that addressing the constraints imposed by the substitutable VoIP services at the stage of the market definition is necessary to conduct a consistent market analysis and accurately apply ex ante regulation, especially given the development of bundling strategies. This article has been shortlisted for the 1st World Competition Young Writer Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006004 |
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'Delegation of State Regulatory Powers to Private Parties - Towards an Active Supervision Test', Judit Szoboszlai, Issue 1, pp. 73–87 |
infoJudit Szoboszlai, 'Delegation of State Regulatory Powers to Private Parties - Towards an Active Supervision Test' (2006) 29 World Competition, Issue 1, pp. 73–87 | | Even though Article 81 and 82 EC apply to private undertakings and not to State regulations, the European Court of Justice established in Van Eycke that State regulations can come under antitrust scrutiny. This will happen in particular when the State delegates decision-making powers to private actors, enabling them to adopt decisions affecting the economic sphere. The Court has developed coherent case-law to describe what delegation means but its test fails to address the main concern: whether regulatory acts resulting from such delegation in reality emanate from the State or whether State approval merely shields private anti-competitive behaviour. Thus the borderline between State acts and private measures remains unresolved. In a delegation situation there is a risk that market actors will act in pursuance of their own interests and restrict competition, whilst at the same time obtaining immunity for their behaviour on the basis that it constitutes ``State action’’. In the recent Mauri case the Court seems to be groping towards a stricter standard which requires that Member States ensure active supervision over ``delegated’’ decisions rather than merely approve them formally. Additionally, in CIF the Court articulated a strict interpretation of the effet utile principle placing a large responsibility on Member States to ensure the full effectiveness of EC law in the field of competition. It is still unclear whether these changes result in a considerably tighter delegation test but Member States and their competition authorities---especially after the CIF judgment---will face a higher threshold when drawing the line between private and State measures. This article has been shortlisted for the 1st World Competition Young Writer Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006005 |
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'Can State Aid Policy Become more Economic Friendly?', Pietro Crocioni, Issue 1, pp. 89–108 |
infoPietro Crocioni, 'Can State Aid Policy Become more Economic Friendly?' (2006) 29 World Competition, Issue 1, pp. 89–108 | | With the recent and ongoing reform of most areas of European competition law (mergers, Art. 81 and now Art. 82 of the EC Treaty) State aid rules appear more and more as an anomaly. This is both from the institutional point of view, where State aid remain the exclusive domain of the European Commission, and in being one of the few last areas of competition law where decisions are based on presumptions rather than competitive effects. This article argues that the two aspects are strictly linked. Because the European Commission has to review a large number of State aid cases every year it lacks the resources to go beyond an analysis based on presumptions. This suggests that a different system could improve the application of State aid rules. It is claimed here that a strong case for a supranational control of State aid is only warranted when the measure is likely to result in significant negative spillovers. It follows that the European Commission could focus only on cases where significant effects on trade are likely and delegate the analysis of cases where the effects are purely national to independent national authorities in each Member State. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006006 |
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'Cartels and Collusion in Developing Countries: Lessons from Empirical Evidence', Frédéric Jenny, Issue 1, pp. 109–137 |
infoFrédéric Jenny, 'Cartels and Collusion in Developing Countries: Lessons from Empirical Evidence' (2006) 29 World Competition, Issue 1, pp. 109–137 | | During the course of the debate at the WTO on the Singapore issues, a number of government officials from developing countries have suggested that their countries would derive little benefit from competition law enforcement. Some even argued that competition law enforcement would actually hinder the development of their country. To a large extent these views were based on the idea that domestic anticompetitive practices are not prevalent on developing economies or do not impose a large cost on their economies. This discussion on the relationship between trade competition and development, however, has remained fairly abstract in multilateral fora. This article attempts to look at the reality of anticompetitive practices around the turn of the century in developing countries by drawing from numerous public sources to identify the types of anticompetitive practices most frequently observed or alleged by type and sectors. The analysis shows that the economies of developing countries are subject to a wide array of anticompetitive practices, that such practices not only hurt consumers in developing countries but also affect the competitivity of the economies of these countries, and that they are often similar across countries. The policy implications of such findings are discussed in the last section. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006007 |
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'Buyer Power Assessment in Competition Law: A Boon or a Menace?', Ioannis Kokkoris, Issue 1, pp. 139–164 |
infoIoannis Kokkoris, 'Buyer Power Assessment in Competition Law: A Boon or a Menace?' (2006) 29 World Competition, Issue 1, pp. 139–164 | | In recent decades, the development of very large buyers in previously more fragmented industries makes buyer power a recurrent issue in competition law cases. Buyer power can simultaneously be a boon and a menace for markets and competition. It may provide a countervailing force to enhanced seller power, and unless it leads to successive power, it can lead to lower prices in the downstream market. However, buyer power may also be socially detrimental, when it is not in the presence of strong seller power. It may undermine the long-term viability of suppliers and their willingness for innovation. Thus, the impact of buyer power in the economy is ambiguous. Analysis of buyer power should be on a case-by-case basis and involve an assessment of the likely distortion in both the upstream and the downstream markets. There should be no presumption that buyer power per se is infringing competition law. This article will focus both on analysing countervailing buyer power and anticompetitive buyer power (or buyer market power). The article will address the issue of market definition and analyse the measures for assessing buyer power. It will also analyse cases involving buyer power under Articles 81 and 82 of the EC Treaty as well as under the European Control Merger Regulation (ECMR). This article has been shortlisted for the 1st World Competition Young Writer Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006008 |
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'Intellectual Property Licences and Technology Transfer, Duncan Curley', Valentine Korah, Issue 1, pp. 165–165 |
infoValentine Korah, 'Intellectual Property Licences and Technology Transfer, Duncan Curley' (2006) 29 World Competition, Issue 1, pp. 165–165 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006009 |
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'Competition Policy, Theory and Practice, Massimo Motta', Valentine Korah, Issue 1, pp. 165–166 |
infoValentine Korah, 'Competition Policy, Theory and Practice, Massimo Motta' (2006) 29 World Competition, Issue 1, pp. 165–166 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006010 |
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'Recent Books on the Law of State Aid', Okeoghene Odudu, Issue 1, pp. 166–169 |
infoOkeoghene Odudu, 'Recent Books on the Law of State Aid' (2006) 29 World Competition, Issue 1, pp. 166–169 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006011 |
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'Index to Volume 28', Issue 1, pp. 171–180 |
info'Index to Volume 28' (2006) 29 World Competition, Issue 1, pp. 171–180 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006012 |
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ISSUE 2 | |
'Editor’s Note', José Rivas, Issue 2, pp. 181–182 |
infoJosé Rivas, 'Editor’s Note' (2006) 29 World Competition, Issue 2, pp. 181–182 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006013 |
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'Optimal Antitrust Fines: Theory and Practice', Wouter P.J. Wils, Issue 2, pp. 183–208 |
infoWouter P.J. Wils, 'Optimal Antitrust Fines: Theory and Practice' (2006) 29 World Competition, Issue 2, pp. 183–208 | | This article discusses the use of fines imposed on companies or other corporate entities to enforce antitrust or competition law prohibitions such as Articles 81 and 82 of the EC Treaty or Sections 1 and 2 of the Sherman Act. The article addresses more specifically the questions in what ways these fines contribute to competition law enforcement, on the basis of which factors the amount of antitrust fines should be fixed in theory, and whether it is feasible in practice to calculate or measure such optimal fines. It is argued that the imposition of fines can contribute in three ways to the prevention of antitrust violations: through deterrent effects, through moral effects, and by raising the cost of setting up and running cartels. For violations committed by a single offender, a necessary condition for deterrence to work is that the expected fine, discounted for the probability of detection and punishment, exceeds the gain which the offender expected to obtain from the violation. Because of overconfidence bias, prospective offenders are likely to overestimate the gain and underestimate the probability of detection and punishment. Administrative costs could be saved by adopting an enforcement strategy of very high fines and low probability of punishment, but the possibility to impose high fines is limited by inability to pay, by the social and economic costs of high fines, and by requirements of proportional justice. Cooperation with the competition authority’s investigation should be rewarded through reduced fines. For collective violations, it is a sufficient but not a necessary condition for deterrence to work that the expected fine, discounted for the probability of detection and punishment, exceeds the expected gain, either for all the cartel members taken together or for each of them separately. The cost of setting up and running cartels can be raised by modulating the amount of the fine for each cartel member depending on the active role played in the functioning of the cartel, as well as through a leniency policy. To avoid a deterioration of the market structure as a result of the imposition of fines, where high fines are imposed and where there is a significant difference in the ability to pay of the various cartel members, the amount of the fines imposed on the different companies should be differentiated so as to reflect their respective ability to pay. In practice, it does not appear feasible to measure econometrically the theoretically optimal fine for a given antitrust violation. The theory on optimal fines remains however useful as general guidance for the practice of fixing the amount of antitrust fines. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006014 |
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'Commitment Decisions: The Law and Practice under Article 9', Christopher J. Cook, Issue 2, pp. 209–228 |
infoChristopher J. Cook, 'Commitment Decisions: The Law and Practice under Article 9' (2006) 29 World Competition, Issue 2, pp. 209–228 | | Article 9 of Regulation 1/2003 introduced a new kind of settlement decision, by which companies’ commitments to the Commission are made legally binding. The commitment decision is a welcome addition to the range of possible resolutions of Article 81 and 82 EC investigations: in principle, settlement represents a cheaper and faster way of addressing the harmful effects of anticompetitive conduct. Notwithstanding its attractions for companies and regulators, however, in the nearly two years since Regulation 1/2003 has been in force the Commission has issued only two final commitment decisions. The process thus remains novel, and significant questions have not been addressed. This article summarises the procedural and substantive rules governing Article 9 commitment decisions and offers some reflections on practical issues that have arisen or seem likely to arise in connection with the new settlement process. On the procedural side, it relates practical experience with the main steps of the Article 9 process and highlights the process’s relative lack of procedural safeguards for companies. On the substantive side, it explains the legal effects of a commitment decision on the decision’s addressees, on third parties, and on national competition authorities and courts. In particular: it outlines the extent to which commitment decisions may be appealed; details how far an EC commitment decision will protect the addressees against future challenge of related conduct by third parties or national authorities; and explains why commitment decisions must be treated with caution since they may tend to create a false impression of setting forth definitive legal rules, which they cannot do. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006015 |
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'R&D Cooperation, Licensing and Marketing in the Biotechnology Field - EC Competition Law Aspects', Christopher Norall, Rony Gerrits, Issue 2, pp. 229–245 |
infoChristopher Norall, Rony Gerrits, 'R&D Cooperation, Licensing and Marketing in the Biotechnology Field - EC Competition Law Aspects' (2006) 29 World Competition, Issue 2, pp. 229–245 | | The year 2004 saw the replacement of the notification procedure with a system of competition law self-evaluation, and the completion, with the adoption of the new Technology Transfer Block Exemption Regulation and related guidelines, of the Commission’s revamping of much of the substantive law under Article 81. Analysing, under the new rules, collaboration agreements regarding the development, production and marketing of new pharmaceutical products, and the licensing of the related IPRs, provides a useful opportunity to test the new rules as applied to a world of fast-paced, complex and sophisticated agreements in a particular sector. The result of this exercise is to highlight some important competition law issues raised by some common contractual provisions, and the need for clarification by the Commission of certain obscurities and inconsistencies in the new regulations, in particular the related Notices and Guidelines. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006016 |
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'Margin Squeeze in the Telecommunications Sector: An Economic Overview', Margarita Fernández Álvarez-Labrador, Issue 2, pp. 247–267 |
infoMargarita Fernández Álvarez-Labrador, 'Margin Squeeze in the Telecommunications Sector: An Economic Overview' (2006) 29 World Competition, Issue 2, pp. 247–267 | | Margin squeeze is a strategic behaviour of vertically integrated dominant firms in liberalized markets, where they have incentives to discriminate against new entrants in the downstream market. The discrimination that they perform is either in the form of refusals to grant access to the essential facilities, excessive prices for essential inputs, or as margin squeezes. The telecommunications industry, in which neighbouring (liberalized) markets are vertically linked, meets the suitable economic conditions for the ex-State owned incumbents to squeeze their rivals in the downstream market, as they control the essential input (access to networks), and simultaneously have an important presence in the retail market.Detecting a margin squeeze requires the application of a complex imputation test, which may not be straightforward and which may determine the final decision on the alleged existence of this abusive practice.The general purpose of this study is to carry out an economic overview of margin squeeze in the telecommunications sector, focusing on the conditions for its existence, the regulatory constraints, and to establish the adequate economic test to determine the existence of a margin squeeze. This article has been shortlisted for the 1st World Competition Young Writer Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006017 |
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'The Origins, Objectives and Structure of Competition Law in Singapore', Burton Ong, Issue 2, pp. 269–284 |
infoBurton Ong, 'The Origins, Objectives and Structure of Competition Law in Singapore' (2006) 29 World Competition, Issue 2, pp. 269–284 | | Singapore’s new Competition Law has introduced to the domestic legal landscape, through the substantive provisions of the Competition Act 2004, a brand-new set of prohibitions against anti-competitive agreements and commercial conduct which is abusive of an undertaking’s position of market dominance. Following a year-long public consultation process carried out by the newly-constituted Competition Commission of Singapore, these statutory prohibitions came into force on 1 January 2006. In keeping with Singapore’s law-making traditions in other areas of commercial law, the Competition Act 2004 was modelled substantially after a similar statutory instrument in the United Kingdom: The Competition Act 1998. This article identifies the broad structural similarities between the new Competition Law regime in Singapore and the Anglo-European Competition Law framework while highlighting the key differences between the two. Explanations for these deliberate departures from the legal architecture of the Anglo-European model, and the policy choice which underlie them, will also be offered. This article has been shortlisted for the 1st World Competition Young Writer Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006018 |
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'Are the Brazilian Competition Authorities being Responsive? An Analysis based on the Benign Big Gun Model', Leopoldo Ubiratan Carreiro Pagotto, Issue 2, pp. 285–313 |
infoLeopoldo Ubiratan Carreiro Pagotto, 'Are the Brazilian Competition Authorities being Responsive? An Analysis based on the Benign Big Gun Model' (2006) 29 World Competition, Issue 2, pp. 285–313 | | This article examines whether the Brazilian competition authorities are being responsive. Within this context, it answers the following questions: (i) whether the theoretical conditions for the use of responsive regulation and the benign big gun are present in Brazil and (ii) if they are present, how the authorities have been using the benign big gun. The model suggested by Ayres and Braithwaite in the book “Responsive Regulation---Transcending the Deregulation Debate” is used as a guideline for assessing the environment the Brazilian competition authorities operate within.The article describes the conditions necessary for the benign big gun to operate (presence of a hierarchy of sanctions and interventionism, adequate height of the enforcement pyramid, use of a TFT strategy) and concludes that the model can be applied to the competition system. Furthermore, the basic tools for the benign big gun are available to the Brazilian competition authorities but the use of TFT is inadequate.This condition impacts on the use of persuasion and negotiation techniques, the results of which are far from those predicted by the model. The failure to escalate convincingly has an adverse impact on the credibility to make threats and consequently, on using the benign big gun. This article has been shortlisted for the 1st World Competition Young Writer Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006019 |
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'Using Conjoint Analysis for Market Definition: Application of Modern Market Research Tools to Implement the Hypothetical Monopolist Test', Doris Hildebrand, Issue 2, pp. 315–335 |
infoDoris Hildebrand, 'Using Conjoint Analysis for Market Definition: Application of Modern Market Research Tools to Implement the Hypothetical Monopolist Test' (2006) 29 World Competition, Issue 2, pp. 315–335 | | Market definition is instrumental to the assessment of market power and central to competition policy. Until recently, the assessment of market boundaries has been primarily a qualitative judgemental process. However, the past years have not only seen the development of new quantitative methods of defining markets, but also a growing demand for these econometric methods. This article discusses some of the issues arising in the empirical implementation of the Hypothetical Monopolist Test by econometric tools. In particular, the article shows how a certain empirical methodology which has found broad acceptance in market research, Conjoint Analysis, can be applied to market definition Copyright © 2006 Kluwer Law International
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ID: WOCO2006020 |
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'Current Competition Law, vol III, Mads Andenas, Michael Hutchings and Philip Marsden (Eds); Current Competition Law, vol IV, Philip Marsden and Michael Hutchings (Eds); European Competition Journal, Philip Marsden and Simon Bishop (General Eds)', Valentine Korah, Issue 2, pp. 337–338 |
infoValentine Korah, 'Current Competition Law, vol III, Mads Andenas, Michael Hutchings and Philip Marsden (Eds); Current Competition Law, vol IV, Philip Marsden and Michael Hutchings (Eds); European Competition Journal, Philip Marsden and Simon Bishop (General Eds)' (2006) 29 World Competition, Issue 2, pp. 337–338 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006021 |
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'EC Competition Law Handbook 2005/2006 Edition, Christopher Jones and Marc Van Der Woude', Valentine Korah, Issue 2, pp. 338–339 |
infoValentine Korah, 'EC Competition Law Handbook 2005/2006 Edition, Christopher Jones and Marc Van Der Woude' (2006) 29 World Competition, Issue 2, pp. 338–339 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006022 |
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'Competition Policy and Development in Asia, Douglas H. Brooks, Simon J. Evenett (Eds)', Mark Williams, Issue 2, pp. 339–341 |
infoMark Williams, 'Competition Policy and Development in Asia, Douglas H. Brooks, Simon J. Evenett (Eds)' (2006) 29 World Competition, Issue 2, pp. 339–341 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006023 |
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'Telecommunications Law and Regulation, 2nd Edn, Ian Walden and John Angel', Ioannis Lianos, Issue 2, pp. 341–342 |
infoIoannis Lianos, 'Telecommunications Law and Regulation, 2nd Edn, Ian Walden and John Angel' (2006) 29 World Competition, Issue 2, pp. 341–342 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006024 |
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ISSUE 3 | |
'Editor’s Note', José Rivas, Issue 3, pp. 343–344 |
infoJosé Rivas, 'Editor’s Note' (2006) 29 World Competition, Issue 3, pp. 343–344 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006025 |
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'Settlements of EU Antitrust Investigations: Commitment Decisions under Article 9 of Regulation No. 1/2003', Wouter P.J. Wils, Issue 3, pp. 345–366 |
infoWouter P.J. Wils, 'Settlements of EU Antitrust Investigations: Commitment Decisions under Article 9 of Regulation No. 1/2003' (2006) 29 World Competition, Issue 3, pp. 345–366 | | Article 9 of Regulation (EC) No. 1/2003 provides for formal settlements of investigations by the European Commission into suspected infringements of Articles 81 or 82 EC. This article analyses the origin and optimal use of this provision, the procedure for the adoption of commitment decisions, the content and effect of such decisions, and the scope for judicial review. It also explores the possibilities of informal settlement, and of settlements that include the payment of a fine. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006026 |
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'Towards a Constructive Public-Private Partnership to Enforce Competition Law', Spencer Weber Waller, Issue 3, pp. 367–381 |
infoSpencer Weber Waller, 'Towards a Constructive Public-Private Partnership to Enforce Competition Law' (2006) 29 World Competition, Issue 3, pp. 367–381 | | Finding the right balance between public and private competition enforcement is a critical issue for almost all jurisdictions. This article surveys the forces that are producing an apparent contraction in private rights of actions in the United States, an expansion of such actions in the European Union, and the need for some form of private actions including aggregate claims and indirect purchaser actions for any jurisdiction seeking a system of viable private enforcement. The article concludes that some form of private enforcement is a necessary complement to public competition law enforcement and that public-private enforcement networks geared to local needs should be encouraged to create stable and effective competition law regimes. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006027 |
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'Economic Analysis and Antitrust Damages', Franklin M. Fisher, Issue 3, pp. 383–394 |
infoFranklin M. Fisher, 'Economic Analysis and Antitrust Damages' (2006) 29 World Competition, Issue 3, pp. 383–394 | | This article considers several economics-related issues in the theory of damages -- especially in private antitrust cases, drawing possible lessons for Europe from US experience. It begins with an overview of different rationales for such damages and their implications. Such rationales include: making the plaintiff whole; preventing unjust enrichment; and incentives to private plaintiffs. Problems from US experience include whether to allow recovery by indirect purchasers (Illinois Brick), and the creation by treble damages of incentives to bring meritless cases that can then be settled for profit Copyright © 2006 Kluwer Law International
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ID: WOCO2006028 |
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'Consolidating Antitrust Damages in Europe: A Proposal for Standing in Line with Efficient Private Enforcement', Jakob Rüggeberg, Maarten Pieter Schinkel, Issue 3, pp. 395–420 |
infoJakob Rüggeberg, Maarten Pieter Schinkel, 'Consolidating Antitrust Damages in Europe: A Proposal for Standing in Line with Efficient Private Enforcement' (2006) 29 World Competition, Issue 3, pp. 395–420 | | One of the lessons from US private antitrust practice is that limitation of defendants’ and plaintiffs’ rights should not be imposed lightly. Three Supreme Court decisions in Hanover Shoe, Illinois Brick and ARC America denying the pass-on defence and limiting standing to sue have resulted in a complex system of multi-district and multi-party litigation that achieves neither fair compensation nor efficient deterrence. Excluding the pass-on defence in Europe is a first step in a similarly irreversible sequence of further corollary requirements. We caution against taking this route and instead propose an alternative institutional design for the European Union. The proposal involves a centralised consolidation of fragmented individual antitrust damage claims. The assessment of damages is allocated to a central authority, which acts as amicus curiae upon a definitive infringement decision in an initiating action before a national court. This advisory position would most naturally be designated to a competition authority. It would conduct a public investigation and assess and specify the combined economic damages caused by the infringement. Its consolidated damage report is offered as an advice to the court, which subsequently apportions individual damages to the initiating plaintiff. Later related claims can refer to the report in consequential actions before national courts. The procedure provides an efficient, single, consistent and complete damage estimate, while still utilising the full detection potential of unrestricted private damage actions. This allows for an effective and efficient mechanism of private antitrust enforcement, whilst achieving compensation of actual damages for those injured by anti-competitive acts. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006029 |
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'State Aid Reform: Some Reflections on the Need to Revise the Notice on Guarantees', Luca Prete, Issue 3, pp. 421–439 |
infoLuca Prete, 'State Aid Reform: Some Reflections on the Need to Revise the Notice on Guarantees' (2006) 29 World Competition, Issue 3, pp. 421–439 | | In June 2005, the Commission launched the “State Aid Action Plan”, which is a roadmap for a comprehensive reform of EC State aid rules that the Commission intends to undertake in the 2005/2009 period. Among the texts which the Commission is planning to revise is its Notice on State aid in the form of guarantees, a communication published in 1999 with the aim of outlining the Commission’s approach to State aid awarded by means of public guarantees. The purpose of this article is to briefly illustrate some flaws and shortfalls of the current Notice, and how this has negatively affected the Commission’s past practice. In fact, in the last years the Commission has had to deal with a large number of cases which concerned aid granted through public guarantees or other equivalent forms of support, and these cases have highlighted the limits of this piece of legislation. It is therefore submitted that the Commission should not miss the momentum created by the publication of the State Aid Action Plan, in order to conduct a careful reflection on the rules laid down in the Notice on Guarantees, and to produce a new text, more in line with the fundamental principles of EC State aid law developed in the jurisprudence of the Community Courts. This article has been shortlisted for the 1st World Competition Young Writers Award. Copyright © 2006 Kluwer Law International
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ID: WOCO2006030 |
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'The Aggravating Circumstance of Recidivism and the Principle of Legality in the EC Fining Policy: Nulla Poena Sine Lege?', Juan Jorge Piernas López, Issue 3, pp. 441–457 |
infoJuan Jorge Piernas López, 'The Aggravating Circumstance of Recidivism and the Principle of Legality in the EC Fining Policy: Nulla Poena Sine Lege?' (2006) 29 World Competition, Issue 3, pp. 441–457 | | The European Commission takes into account several factors when it imposes fines for the violation of Competition Law. Amongst them, the aggravating circumstance of recidivism is usually considered. However, no explicit legal provision for recidivism can be found in the primary or secondary legislation of the European Union. This situation could infringe the fundamental right and principle of Community Law that states that criminal law must be legally foreseen: the so-called principle of nulla poena sine lege. It seems worth analysing to what extent that principle is fulfilled by the European Commission and the European Courts. As a result of this research, it can be concluded that the EC enforcement of Antitrust Law poses serious doubts in relation to the principle of legality. Certainly, the Commission enjoys a broad discretion in its justification of competition fines and this has even been extended by judicial review. Such a state of affairs may be justified politically, but it is not legally acceptable. The principles of legality and legal certainty require a more transparent system. The influence of the ECHR and of the new bias towards criminalisation may improve this situation. This article has been shortlisted for the 1st World Competition Young Writers Award Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006031 |
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'Behavioural Remedies in EC Merger Control - Scope and Limitations', Ariel Ezrachi, Issue 3, pp. 459–479 |
infoAriel Ezrachi, 'Behavioural Remedies in EC Merger Control - Scope and Limitations' (2006) 29 World Competition, Issue 3, pp. 459–479 | | Behavioural remedies provide the competition agency with flexibility and reversibility which are not usually found in structural remedies. On the other hand, behavioural remedies tend to generate uncertainty and costs, casting doubt upon their usefulness and reflecting their alleged inferiority. The following article explores the scope and limitations of behavioural remedies and questions whether they are used adequately in light of their potential role in conditional clearances of merger transactions. The discussion first focuses on the characteristics, benefits and drawbacks associated with behavioural remedies. It then moves on to consider which incentives may affect the negotiation of remedies and how the risk of “under-fixing” influences the competition agency’s position when assessing proposed commitments. Following this theoretical debate, the discussion shifts to the European merger regime and reviews the way in which the European Commission and Courts have shaped the scope of behavioural remedies. The range of behavioural remedies accepted by the European Commissions and their effectiveness are also considered together with the mechanisms used to facilitate their monitoring and enforcement. The article concludes with a discussion of the likelihood of behavioural remedies being used more prevalently in the future and the factors that could influence such direction. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006032 |
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'The Creative Regulation Process of the Mexican Competition Commission', Carlos Mena Labarthe, Issue 3, pp. 481–502 |
infoCarlos Mena Labarthe, 'The Creative Regulation Process of the Mexican Competition Commission' (2006) 29 World Competition, Issue 3, pp. 481–502 | | This article analyses how regulatory objectives are achieved by the Mexican Federal Competition Commission. An emphasis is laid on the analysis of the environmental and institutional settings and the implications they have in its enforcement process and regulatory activity. The analysis includes the issue of regulatory decision making, the stage of intervention, regulatory rules and different styles of enforcement in regulatory agencies in their relevance for regulatory enforcement. The article draws on the existing enforcement literature, especially the responsive regulation model and the regulatory space and dispersed regulatory action paradigms and reflects on similarities and differences in this specified case of a Mexican agency. While identifying a range of characteristics of the agency’s enforcement process, it also finds that there is a lack of studies of certain of the main characteristics identified. These differentiating characteristics are studied and analysed; its causes are explored in relation to the specific environment of a developing civil law background and other environmental features that directly affect the possibility of achieving competition regulatory objectives. The article analyses the agency’s experience through time and space with special attention to the study of how it has been trying to adapt to a scenario that looks adverse to its objectives. The identification is made of an original style of enforcement which is characterised as “Creative Regulation” as a result of its adaptation process and the agency’s drive to achieve certain objectives. This article has been shortlisted for the 1st World Competition Young Writers Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006033 |
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'Weinberg and Blank, on Take-overs and Mergers, chapter 3 on Merger Control, by Paul Lasok', Valentine Korah, Issue 3, pp. 503–503 |
infoValentine Korah, 'Weinberg and Blank, on Take-overs and Mergers, chapter 3 on Merger Control, by Paul Lasok' (2006) 29 World Competition, Issue 3, pp. 503–503 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006034 |
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'Economics of Regulation and Antitrust, W. Kip Viscusi, Joseph E. Harrington, Jr., and John M. Vernon', Spencer Weber Waller, Issue 3, pp. 504–504 |
infoSpencer Weber Waller, 'Economics of Regulation and Antitrust, W. Kip Viscusi, Joseph E. Harrington, Jr., and John M. Vernon' (2006) 29 World Competition, Issue 3, pp. 504–504 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006035 |
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'The Antitrust Enterprise: Principle and Execution, Herbert Hovenkamp', Spencer Weber Waller, Issue 3, pp. 505–506 |
infoSpencer Weber Waller, 'The Antitrust Enterprise: Principle and Execution, Herbert Hovenkamp' (2006) 29 World Competition, Issue 3, pp. 505–506 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006036 |
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ISSUE 4 | |
'Editor’s Note', José Rivas, Issue 4, pp. 509–510 |
infoJosé Rivas, 'Editor’s Note' (2006) 29 World Competition, Issue 4, pp. 509–510 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006037 |
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'Standardization and Technological Innovation: Some Reflections on Ex-ante Licensing, FRAND, and the Proper Means to Reward Innovators', Damien Geradin, Issue 4, pp. 511–533 |
infoDamien Geradin, 'Standardization and Technological Innovation: Some Reflections on Ex-ante Licensing, FRAND, and the Proper Means to Reward Innovators' (2006) 29 World Competition, Issue 4, pp. 511–533 | | In today’s technology-driven world, industry standardization, device interoperability, and product-compatibility have become critical to promoting innovation and competition. Under the current system applied in most standard-setting organizations (SSOs), firms holding patents that they deem essential to a standard considered by an SSO commit to license these patents on fair, reasonable and non-discriminatory (FRAND) terms. This system, which has allowed standardization to proceed in a wide range of sectors, is currently under attack by firms suggesting that it may lead to opportunistic behaviour on the part of essential patent holders. Proposals have thus been made in a variety of fora to replace the current FRAND regime. They include the development of a regime of ex ante auctions run by SSOs, which would allow SSO members to choose among the various bids made by essential patent holders (the Swanson-Baumol model) or a system of joint negotiations by essential patent holders and standard implementers of licensing terms. Proposals have also been made by some members of ETSI that its current IPR policy be revised in order to introduce the principles of “aggregated reasonable terms” and “proportionality” into the definition of FRAND. This paper argues that these proposals are flawed because they are based on a series of misconceptions. Their implementation would also be highly impractical, raise antitrust concerns, and harm innovation. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006038 |
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'Enforcement of Articles 81 and 82 EC under Regulation 1/2003: The Case of Spain and Portugal', Helmut Brokelmann, Issue 4, pp. 535–554 |
infoHelmut Brokelmann, 'Enforcement of Articles 81 and 82 EC under Regulation 1/2003: The Case of Spain and Portugal' (2006) 29 World Competition, Issue 4, pp. 535–554 | | The purpose of this article is to provide an overview of the most relevant enforcement practice of Articles 81 and 82 EC by the Spanish and Portuguese competition authorities and courts since the entry into force of Regulation (EC) 1/2003 on 1 May 2004 and the coming into operation of the European Competition Network (ECN). The cases analysed show the interplay between national procedural rules and those of Regulation 1/2003 and the problems companies are facing as regards the coherent and uniform application of the EC competition rules. Particularly in Spain, private enforcement of the EC competition rules is clearly gaining momentum as can be seen in a series of judgments awarding damages and applying Articles 81 and 82 in contractual disputes, which the newly created commercial courts have delivered in the last two years. The article also provides a brief description of the legislative amendments already enacted as well as the reform proposals envisaged in both countries to adapt national legislation to the legal exception system introduced by Regulation (EC) 1/2003. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006039 |
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'When Parents Pay for their Children’s Wrongs: Attribution of Liability for EC Antitrust Infringements in Parent-Subsidiary Scenarios', Aitor Montesa, Angel Givaja, Issue 4, pp. 555–574 |
infoAitor Montesa, Angel Givaja, 'When Parents Pay for their Children’s Wrongs: Attribution of Liability for EC Antitrust Infringements in Parent-Subsidiary Scenarios' (2006) 29 World Competition, Issue 4, pp. 555–574 | | A correct attribution of liability for EC antitrust infringements is an essential part of the European Commission’s enforcement policy. This issue has become increasingly critical for companies involved in cartels and other antitrust violations. In particular, the potential consequences of the parent company being found liable for infringements by its subsidiary might represent a difference of several millions of euros in the final fine that the Commission might impose in its decision penalizing the antitrust infringements. This article provides a succinct legal analysis of the elements taken into account by the Commission when deciding whether to attribute liability to parent companies for infringements by their subsidiaries, as well as the stance taken on this matter by the Court of First Instance and the European Court of Justice. Despite this body of case law, there are still a number of issues that have been left unresolved, and the kind of (negative) evidence that a parent company must adduce in order to be relieved from the unlawful conduct of its subsidiary is far from clear. This article has been shortlisted for the 1st World Competition Young Writer Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006040 |
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'Optimal Fines in Cartel Cases and the Actual EC Fining Policy', Enrico Leonardo Camilli, Issue 4, pp. 575–605 |
infoEnrico Leonardo Camilli, 'Optimal Fines in Cartel Cases and the Actual EC Fining Policy' (2006) 29 World Competition, Issue 4, pp. 575–605 | | Based on the main results of the economics of punishment, an analysis of the elements necessary to set the optimal fine is carried out with specific reference to the hard-core cartels. Even though the lack of data hinders the exact application of the theoretical framework in the real world, it can still provide useful guidelines. Fining policies may be evaluated with regard to the achievement of the highest deterrent effect at the lowest possible costs In particular, with regard to the EC practice on fines, a possible source of inefficiencies could have been the “qualitative approach” lying behind the 1998 Guidelines. Once a deterrent sanction has to be set within the legal ceilings, the actual effect of the infringement (or a proxy of it) has to be taken into account, leaving aside the tendency to stick to legal categories. Moreover, if the methodology of such an assessment is clearly made public, the danger of uncertainty is wiped away, whereas legal categories have to be stretched in order to achieve results consistent with the deterrent aim and the proportionality constraint, with a consequent loss of transparency. The recent 2006 Guidelines on fines represent a major step forward on that matter. This article has been shortlisted for the 1st World Competition Young Writers Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006041 |
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'Abuse of Protected Position? Minority Shareholdings and Restriction of Markets’ Competitiveness in the European Union', Francesco Russo, Issue 4, pp. 607–633 |
infoFrancesco Russo, 'Abuse of Protected Position? Minority Shareholdings and Restriction of Markets’ Competitiveness in the European Union' (2006) 29 World Competition, Issue 4, pp. 607–633 | | In corporate governance minority shareholders deserve particular protection in order to guarantee their rights in the companies’ management and to avoid their passive submission to the majority’s decisions. This article stresses that the protection granted to them could be used as an instrument to circumvent Competition Law. More generally it is argued that participation in companies’ equity, even when it does not grant control over the same companies, can in particular circumstances generate effects restrictive of competition. The article shows that there is a substantial lack of European Courts jurisprudence and that the Commission’s approach to the issue is inconsistent. The article calls for a substantive, systematic and economically based analysis of minority shareholdings by the Commission to guarantee legal certainty, uniformity of interpretation and the resolution of some unexplained structural questions. Furthermore the article calls for a legislative revision of the actual set of Competition rules. There is, in fact, a vacuum legis that needs to be filled because there are some circumstances in which market operations involving minority shareholdings, although outside of the scope of application of both Art.81 and Art.82 and of the Merger Regulation, can generate anticompetitive effects. In the absence of proper normative measures, these situations are ultimately undetectable by the European Competition authorities. These circumstances are described and a possible solution to the mentioned predicaments---in line with the United States approach to the question---is suggested. This article has been shortlisted for the 1st World Competition Young Writers Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006042 |
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'Converge? Diverge? A Comparison of Horizontal Merger Laws in the United States and European Union', Shilei Zhu, Issue 4, pp. 635–651 |
infoShilei Zhu, 'Converge? Diverge? A Comparison of Horizontal Merger Laws in the United States and European Union' (2006) 29 World Competition, Issue 4, pp. 635–651 | | This article summarizes the similarities and dissimilarities of horizontal merger laws in the United States and the European Union focusing on legislative regulations, horizontal guidelines, internal measures and available remedies.The article examines substantive and procedural dimensions of US and EU horizontal merger laws. In addition it considers important constituent factors of their horizontal guidelines, basic models and levels of their economic analyses, judicial review and due process as well as two types of remedies. This article has been shortlisted for the 1st World Competition Young Writers Award. Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006043 |
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'Delimitation and Exercise of Competence between the West African Economic and Monetary Union (WAEMU) and its Member States in Competition Policy', Mor Bakhoum, Issue 4, pp. 653–681 |
infoMor Bakhoum, 'Delimitation and Exercise of Competence between the West African Economic and Monetary Union (WAEMU) and its Member States in Competition Policy' (2006) 29 World Competition, Issue 4, pp. 653–681 | | WAEMU’s competition policy has been orientated towards an increasing centralization of competence within the Union by means of unified rules regarding agreements, abuse of dominant position and State aids. Accordingly, Member States have been deprived of all their competence in these fields. When legislating in the field of competition law, WAEMU Member States must respect the scope of the Union’s exclusive competence. Centralization is also to be seen with regard to procedures, which are an exclusive competence of the WAEMU Commission.A critical glance at WAEMU’s competition policy, both in material and procedural terms, reveals that even if this policy is justified, given both the relative infancy of the organization and the lack of a “competition culture” on the part of Member States, centralization nevertheless endangers the effectiveness of WAEMU competition law. Whereas a certain degree of harmonizing legislation may be justified in the framework of WAEMU, it remains doubtful whether an exclusive competence on the part of the WAEMU Commission would contribute to better achieving the goals of Community competition law.<abs>ƒAccordingly, the distribution of competences between the WAEMU Commission and the WAEMU Member States calls for a redefinition which should seek to increase the involvement of Member States as far as decision-making is concerned. In this respect, a proposal is put forward according to which WAEMU Member States would be accorded a number of competences which would coexist with the competences vested in the WAEMU Commission.<?tf> Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006044 |
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'Vertical Agreements in EC Competition Law, Frank Wijckmans, Filip Tuytschaever and Alain Vanderelst', Valentine Korah, Issue 4, pp. 683–683 |
infoValentine Korah, 'Vertical Agreements in EC Competition Law, Frank Wijckmans, Filip Tuytschaever and Alain Vanderelst' (2006) 29 World Competition, Issue 4, pp. 683–683 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006045 |
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'The EC Public Procurement Case Law and Regulation, Christopher Bovis', Ioannis Lianos, Issue 4, pp. 684–684 |
infoIoannis Lianos, 'The EC Public Procurement Case Law and Regulation, Christopher Bovis' (2006) 29 World Competition, Issue 4, pp. 684–684 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006046 |
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'EC Competition Procedure, 2nd Edn, edited by Luis Ortiz Blanco', José Rivas Andrés, María Canal Fontcuberta, Issue 4, pp. 685–686 |
infoJosé Rivas Andrés, María Canal Fontcuberta, 'EC Competition Procedure, 2nd Edn, edited by Luis Ortiz Blanco' (2006) 29 World Competition, Issue 4, pp. 685–686 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006047 |
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'An Introduction to Competition Law, Piet Jan Slot and Angus Johnston', Ioannis Lianos, Issue 4, pp. 686–686 |
infoIoannis Lianos, 'An Introduction to Competition Law, Piet Jan Slot and Angus Johnston' (2006) 29 World Competition, Issue 4, pp. 686–686 | | Copyright © 2006 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2006048 |
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