Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007001

The article gives an overview of the cooperation between antitrust enforcers in the European Competition

Network (ECN) three years after it coming into existence. It recalls the main principles behind this unique

cooperation form and gives an insight into its working methods, achievements and challenges. The authors,

working within the dedicated ECN unit in DG Competition, explain how the work-sharing and

information exchanges between the enforcers have resulted in an enhanced, strategic and coherent

application of Community competition rules throughout Europe. Focus is given to ECN’s increasing role

in influencing policy reflections beyond the legal obligations in Regulation 1/2003. This new era of ECN

cooperation is illustrated by work undertaken in the leniency field. The authors give a detailed account of

the ECN Model Leniency programme, unanimously endorsed by all ECN members in September 2006

as a solution for the multiple parallel leniency filing issue in Europe. The authors explain the background

and the status of this ground-breaking project and reveal the reflections behind its individual provisions.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007002

This article discusses the theory and practice of leniency in antitrust enforcement, i.e. the granting of

immunity from penalties or the reduction of penalties for antitrust violations in exchange for cooperation

with the antitrust enforcement authorities. After a description of the practice of leniency in the United

States and in the European Union, and of its history, the article analyses the positive effects and the

possible negative effects of leniency on optimal antitrust enforcement, and the extent to which these effects

can be measured. Objections of principle and institutional problems that may constitute obstacles to the

introduction of leniency policies are discussed, as well as some further issues, namely the impact on the

effectiveness of leniency of criminal penalties on individuals, of follow-on private damages actions, and of

penalties in other jurisdictions, ’’Amnesty Plus’’, and positive financial rewards or bounties.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007003

This article examines the law, practice and evidence on fines for price-fixing under European competition

law. It undertakes the first comprehensive quantitative analysis of fines imposed on cartels by the European

Commission. Based on an analysis of 30 fully reported cartel decisions, and appeals against many of these,

the article looks at how fines were calculated in practice under the 1998 Penalty Guidelines, leniency

notices and appeals, and whether they reflected consumers’ losses and were likely to deter price-fixing. It

also examines the impact of the 2006 Penalty Guidelines by recalculating fines for the decided cartel cases.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007004

The March 2006 decision by the EU Commission in respect of broadcast rights for FA Premier League

(FAPL) football matches is the latest in a series of decisions in which the Commission has permitted

collective selling of such rights. The decision precludes the sale of all rights to live FAPL football matches

to a single broadcaster. The Commission had initially objected that the joint selling arrangements were

anti-competitive and ’’tantamount to price fixing’’. Given that price fixing is generally regarded as a

serious breach of competition law, the acceptance of such arrangements in the case of sports broadcasting

raises some serious issues. A subsequent UK Government report on football recommended the

introduction of a block exemption permitting collective selling of football broadcasting rights. Three main

arguments have been advanced in support of collective selling of sports broadcast rights?that it is

necessary because of the unique characteristics of sports leagues; that it improves competitive balance

within sports leagues; and that it permits the redistribution of some of the revenues from the sale of

broadcast rights to lower level clubs. The present article analyses these arguments and concludes that they

are not supported by the evidence.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007005

Sector-specific regulation of the electronic communications sector is one of the policy tools aimed at

promotion of competition and correction of market failures resulting from the high levels of market power

possessed by former telecoms monopolists. While, in principle, academics and policy makers concur on the

value added of regulation for increasing social welfare and efficient allocation of resources, their analysis of

past regulatory experience shows that under a number of circumstances regulation can be flawed and lead to

welfare harm rather than benefit. Inappropriately designed sector-specific remedies and regulatory delays in

the introduction of new telecommunications services can hold up the development of the market towards

effective competition and instead might incur considerable welfare losses.1 This article has been shortlisted

for the 2nd World Competition Young Writer’s Award.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007006

Competition legislation is soon to be enacted in the People’s Republic of China. It will cover the three

’’classic’’ pillars of competition law: prohibition of anti-competitive horizontal or vertical agreements,

prohibition of the abuse of a dominant market position and merger control. The new law will considerably

alter the legal landscape for the business operations of domestic and foreign undertakings in China. In

addition, it is another milestone on the way to the transformation of the structure of the Chinese economy

from a planned economy to a market economy. In the following article, the core areas of the new provisions

are discussed and comparisons drawn with EU competition law. This article has been shortlisted for the

2nd World Competition Young Writer’s Award.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007007

Whether or not state compensation for the performance of public service obligations constitutes aid is a

question to which consistent answers have not been forthcoming.

In its Altmark Trans judgment the Court made an attempt to definitely settle this issue when it held that

state compensation for the undertaking of public service obligations does not confer an advantage on

undertakings if the four criteria set out in that judgment are fulfilled. However, this conditional answer

provided by the Court to this question opened a different can of worms. The Altmark criteria overlap with

those found in Article 86(2) EC begging the question; did Altmark incorporate the Article 86(2) EC

derogation into the Article 87(1) EC concept of advantage? The Commission’s position is clearly set out in

its Monti package; it considers that the exception may be applied after the Altmark criteria. By permitting

the application of the same legal criteria twice, the Commission runs the risk of applying these criteria in an

inconsistent manner. This article sets out to examine the ramifications the Altmark judgment has had on the

legal certainty of the Community’s state aid regime. In this regard, particular emphasis will be put on the

Commission’s recent ’’Monti package’’ to examine whether it has cleared up any remaining confusion post-

Altmark.This article has been shortlisted for the 2nd World Competition Young Writer’s Award.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007008

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007009

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007010

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007011

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007012

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007013

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007014

On 1 September 2006, the European Commission published new Guidelines on the method it will use when setting fines for undertakings that have infringed the competition rules laid down in Articles 81 and 82 of the EC Treaty. This article discusses the questions what the purpose of the guidelines is, and how foreseeable the amount of fines should be, and analyses the method set out in the new Guidelines in the light of the Commission’s past practice, the case-law of the Community Courts and the theory on optimal fines.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007015

The European Commission handed down its first decision relating to a pure information exchange in 1992 with UK Agricultural Tractor Registration Exchange. France’s competition authority recently referred to that decision when it found against seven Parisian luxury hotels and three mobile telephony operators. The companies shared sales information with each other on a regular basis for several years. This article discusses the UK Tractors case from an economic standpoint and its application to the French competition authority’s recent two decisions. The author calls for a clarification in the enforcement of Article 81 of the EC Treaty between evidence of tacit collusion and evidence of static anticompetitive effects of information exchanges.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007016

The purpose of this article is to examine the question to what extent private undertakings can be immunized from European competition law responsibility by relying on influence exerted on them by regulatory or non-regulatory Member State actions. Hereafter, I will use the term “State action defence”. It is very important to distinguish this issue from the question of the Member State responsibility for the above actions. Such responsibility, based on Articles 3, 10 and 81/82 of the EC-Treaty, will only briefly be mentioned in this article in so far as necessary for the purposes of discussion.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007017

This article seeks to examine from a public law perspective some of the problems of the executive-driven system of competition enforcement as it operates in the United Kingdom. The problems experienced in this jurisdiction provide lessons for other countries that employ executive enforcement. The author believes that the complexity of competition proceedings has a tendency to lead to the undermining of important constitutional and public law values. The practice of the Office of Fair Trading and the review of its competition decisions by the Competition Appeal Tribunal are assessed. The problems for litigants and courts caused by persistent and serious defects at the executive stage are emphasised. The current practice leads to too many poorly reasoned decisions. A comparison between US, EU and British practice demonstrates that models exist which better reconcile constitutional values with executive enforcement. The article proposes methods of improving the relationship between courts and executive agencies to improve practice. There are three main suggestions. First, that executive bodies must use internal referees, rather like the Administrative Law Judges at the Federal Trade Commission, to achieve higher standards of public administration in their decision-making. Second, that courts should move towards a speedy, cheap but searching judicial review of executive decisions to ensure they comply with good administrative law standards. Third, only where executive decisions satisfy these standards should courts then engage in detailed consideration of the economic merits of the case. Courts should not attempt to reconstruct executive decisions or processes that have failed because to do so merely perpetuates the problem and undermines the guarantee of good administration at the executive level.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007018

In September 2006, the Court of First Instance of the European Union (CFI) issued its judgment in the case opposing GlaxoSmithKline (GSK) to the European Commission. The Commission had found that the dual pricing system introduced by GSK violated the European antitrust rules (Article 81 of the EC Treaty), because it constituted an agreement with wholesalers whose object was to restrict competition by blocking parallel imports of pharmaceuticals. For the Commission, the agreement could not be exempted and was therefore to be prohibited.

The CFI disagreed with the Commission and found that the agreement could qualify for an exemption. More importantly, the CFI ruled that, at least in the pharmaceutical sector, an agreement whose object is to prevent parallel imports by imposing a dual pricing system is not automatically contrary to Article 81, as it cannot be automatically inferred that the end consumer is harmed. This holding is highly questionable in view of the prior EU case law, prohibiting per se agreements with anticompetitive objects. Therefore, the change brought about by the CFI’s judgment could have major ramifications on the innovative pharmaceutical industry which is vigorously opposed to the principle of parallel imports.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007019

This article analyses the structure of the federal merger regime of the United States. and the options selected by the Antitrust Modernization Commission to improve the allocation of enforcement responsibilities between the federal antitrust authorities and the State Attorneys General. Emphasising the complexity of policy enforcement in multi-jurisdictional settings, it offers the theory of regulatory competition as revised by regulatory co-opetition, alongside the theory of policy networks as a theoretical benchmark of effectiveness of policy enforcement in such systems. In the light of the political theory and empirical data, it finds that the US federal merger regime seems to suffer from bad network structuring stemming from information block rather than the allocation of enforcement responsibilities. The article concludes that improved information sharing mechanisms between the federal antitrust authorities and the State Attorneys General could bring about a major improvement to the system without more dramatic amendments being necessary. Consequently, it suggests that the US authorities might find it plausible to examine the mechanisms of cooperation and coordination which the European Competition Network incorporates if policy learning from the European Community is desirable.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007020

China is in the process of introducing a new comprehensive competition law, which will replace a disjointed and ill-enforced set of laws that apply to some, but not all, competitive constraints. In shaping its new law China has taken advice from international organisations and from regimes, notably the United States and the European Community, with mature competition law systems. This article argues that while much can be learned from such international comparisons competition law is not necessarily a standard that can be applied in a one-size-fits-all formulation to any jurisdiction, and that some sensitivity to local market conditions and economic development may be required. However, the law as presently drafted is an uneasy amalgam of competition law standards and wider political and industrial agendas. There exists a danger that the law may be inconsistent and non-transparent in application, undermining the attainment of competition objectives.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007021

The People’s Republic of China is undergoing a very impressive and interesting phase of economic, political and social transformation. Communist thought and ideology is gradually giving way to a new economic approach and thinking, which many people would argue are among the indicators of emerging “capitalism” in the country. Among the key laws and policies being developed in the Republic, competition law and policy occupy central stage. To date, no concrete system of competition law has been fully instituted in China, but such a system is expected to emerge in due course. China needs a rigorous, independent system of competition law in order to protect its economy and consumers and to foster a healthy economic environment in which productivity and enterprise may be encouraged. The Republic is currently in the process of adopting its much-anticipated anti-monopoly law.

This article examines China’s efforts towards adopting a specific competition law and the implications of that. The article first provides a critical analysis of the context in which competition law and policy are being developed in China, focusing on the unique and intricate political and socio-economic landscape of the country (Parts I, II and III). This will be followed by a brief review of the existing legal and regulatory framework of competition in China, highlighting the problems and difficulties within this framework (Part IV). The article will discuss the proposed anti-monopoly law in Part V. The conclusions are offered in Part VI.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007022

Mobile communications has been the most dynamic sector in the Ukrainian telecommunications industry. The number of customers and revenues of operators have been growing rapidly. The market experienced the recent entry of a new firm and currently there are six active mobile operators. The mobile telecommunications market was once monopolistic, and its concentration is still rather high, since two main players, UMC and Kyivstar, cover most of the market.

The fact that these two major companies have been so far ahead of all other operators since 2000, has attracted the attention of the competition authorities. In September 2004, the Antimonopoly Committee of the Ukraine (AMC) announced it was ready to recognise UMC and Kyivstar as jointly dominant firms. These allegations, if proven, could have dramatic consequences for the two operators, including possible fines and price regulation. The analysis in this article shows the accusations to be groundless and proves there exists intense competition in the marketplace for mobile communications. However, there are competition concerns that should attract the attention of the AMC. After a series of public hearings, the AMC finally decided that the operators are not monopolists.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007023

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007024

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007025

The Draft Guidelines on the assessment of non-horizontal mergers released by the Commission in February 2007 provides academia, industry and the larger public with an opportunity to comment on the treatment of non-horizontal concentrations under the new substantive test of the 2004 EC Merger Regulation. The Draft Guidelines is one of the continuous steps towards clarification of both substantive and procedural aspects of the reformed EC merger control. One of the issues that was expected to be clarified in the future Non-Horizontal Guidelines is the treatment of the efficiencies and incorporation of the efficiency defence in merger assessment process. As economic theory demonstrates, vertical and conglomerate concentrations are more likely to generate efficiencies that reduce costs and improve production or distribution processes and quality of the products thus ultimately benefiting the final consumer. As the efficiency defence was recognized in principle, but not yet applied by the Commission or Community courts, the future Non-Horizontal Guidelines have special importance in clarifying this legal concept and its practical application. Present work analyses the Draft Guidelines in the light of the preceding administrative guidelines issued by the Commission and recent case law developments in the area of EC merger control. The author submits that the Draft Guidelines fall short of improving the chances of the efficiency defence being effectively applied by the merging parties in view of the increasing standard of proof and judicial review. The article advocates the elaboration of more detailed and specific rules concerning the efficiency defence that would provide the parties with a functioning procedural mechanism giving a chance for efficiency claims to be considered against the alleged competitive harm.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007026

This article analyses how the concept of collective dominance is applied in the case law of the European Control Merger Regulation and how the assessment criteria have been developed through this case law precedence. In spite of the extensive development of the notion of collective dominance accompanied by the improvement of the checklist of the criteria on which the European Commission founds its assessment of collective dominance, legal uncertainty still remains.

The CFI judgment in the Airtours case constitutes a clear indication that legal uncertainty is not likely to fade. In the aftermath of Airtours, reforms were adopted that included the adoption of the SIEC test as a more efficient tool in assessing collective mergers. The Airtours judgment outlined three criteria for the assessment of collective dominance, namely transparency, retaliation and countervailing power by customers and competitors. The IMPALA judgment, the first annulment of a clearance decision, implies a lower threshold for collective dominance than the Airtours judgment set.

This article will present an extensive account of the development of the concept of collective dominance under the ECMR. It will assess the factors that make a market conducive to collective dominance and determine the criteria that need to be applied by authorities in the assessment of mergers leading to collective dominance.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007027

A new guiding principle in the EC competition rules is the so-called “more economics based approach”. This refined economic approach is based on an effects analysis. The question is now whether this successful modernisation in antitrust and merger control will spill over to State aid. The Commission has already started implementing the refined economic approach to some areas of the State aid provisions. The balancing test in Article 87(3) EC Treaty is one example. However, the economic analysis in Article 87(1) EC Treaty analysis is still rudimentary. The authors think through the potential and consequences of a refined economic approach in Article 87(1) EC Treaty in accordance with the new interpretation of Article 81(1) EC Treaty. An appropriate economic procedure will be developed by applying the lessons learned form antitrust.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007028

Although US and EU competition law offers a well established framework for regulating commercial conduct, its main focus—the behaviour of dominant companies—is still unsettled. Legislators and regulators are asked to distinguish and, for the purpose of rule making, pre-judge which types of conduct are likely to lead, or have led, to superior offers as opposed to the building up and abuse of market power. In reality, they often end up mixing assessments of conduct with beliefs in the intrinsic ability of markets to adjust to the prevailing circumstances. The EU’s review of the application of Article 82 to exclusionary conduct intends to move beyond such arguments as to form and belief. Intended to provide an effect-based economic approach to dominant firm regulation, the Commission’s discussion paper largely replaces formal characterisation of conduct with, instead, principles and methods for assessing the ability of businesses to foreclose markets and lock out equally efficient competitors. In the process, the Commission avoids prejudging actual behaviour and, by allowing for an efficiency-defence, in actual fact shifts the burden of proof to the dominant firm. Yet even if this could be made compatible with prior regulation, to be useful in regulatory practice and judicial review, the standards for assessing dominance and exclusionary conduct would need to be clarified and data requirements reduced.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007029

This article reviews the legal and economic structure of the class action litigation model in the United States, as set forth by rule 23 of US civil procedure, exploring the requirements for obtaining class certification and maintaining a class action. I analyse a number of critical issues and inefficiencies connected to the adoption of class action as a tool for adjudicating controversies. The article, then, takes into consideration the issue of private antitrust litigation in the European Union, at the moment still underdeveloped. A Green Paper recently published by the EU Commission includes proposals for the adoption of private antitrust damages litigation in the EU, but, even suggesting the possible adoption of a collective action model, never mentions class action as a viable solution. I consider some of the questions raised by the EU Commission in the Green Paper. Relying on the fact that US courts have repeatedly stated that antitrust controversies are suitable for class action treatment, I consider whether the US model of class action litigation might provide, although in an amended version, a satisfactory answer to the problematic issues raised by the Green Paper and represent an efficient tool for the private enforcement of antitrust law in the European Union.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007030

Competition law has seen very active development in Asia in recent years. Ironically, Hong Kong and Singapore, as two of the freest and most competitive economies in the region, long held a sceptical attitude towards competition law. Singapore enacted its first cross-sector competition law in 2004, some say only due to American pressure. For years, the Hong Kong government defended its sectoral model and insisted that the city had no need for a cross-sector competition law. However, that obstinate attitude shifted in March 2007, when the government announced that Hong Kong would follow Singapore’s footsteps. Until the new law is passed, however, telecommunications remain one of the two sectors in both economies that are subject to active competition law enforcement. The telecom-sector regimes hence may provide useful examples for the new general competition regulator in Singapore, and for Hong Kong as it drafts its new cross-sector law. These telecom-sector regimes also carry independent significance. They are part of the two governments’ effort to liberalize their respective telecom sectors. This article evaluates these two regimes in light of their avowed objective of facilitating liberalization, and draws lessons from their experience to shed light on Hong Kong’s effort to adopt a cross-sector competition law.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007031

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007032

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007033

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007034

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007035

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007036

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007050

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007037

The European Commission has made clear in a number of recent publications that undertakings that collude to fix prices or share markets should expect fines based on affected commerce, as well as private antitrust damage claims. Research on discovered cartels characterises a modern international cartel in terms of illegal gains, duration of the infringement and success on appeal. This article offers a back-of-the-envelope calculation into the net effective (expected) liability of a representative modern international cartel in Europe. To that end, the history of European cartel enforcement is surveyed in summary statistics. The exercise leads to the conclusion that the European Commission’s recent commitments to punishing cartels are likely to remain insufficient to deter collusion, unless European enforcement also produces a high (perceived) probability of discovery across the board. This calls for active cartel detection.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007038

On 1 July 2005, the German legislator amended 33 GWB [Act against Restrictions of Competition] and introduced a specific statutory basis for the private enforcement of European Competition Law.

This article focuses on damages claims for the infringement of Art. 81 EC by cartel agreements in German courts and highlights the legal changes to the eligibility to damages. Previously, German courts were forced to utilize general tort law when awarding damages for the infringements of Art. 81 EC. However, some German courts were very reluctant to award damages. Only a person who was the direct target of cartel was considered to be eligible for damages. The article establishes that this jurisdiction, to which some courts might still resort when judging on damages claims for cartel agreements prior to 1 July 2005, is inconsistent with European Law principles and irreconcilable with the ECJ’s decision in Courage Ltd. v. Crehan.

Furthermore, the article addresses the statutory exclusion of the “passing on“ defence. Cartel members are now prevented from arguing that applicants passed higher prices on to their customers and did not suffer any economic loss. Yet, as far as cartel-inflicted prices of processed goods are concerned the exclusion of the “passing on“ defence can prove to be irrelevant depending on the method of assessing damages.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007039

This article will assess the proposal made by the Confederation of British Industry (CBI) for the establishment of an “EU Competition court”, responsible primarily for the fast and effective review of merger decisions, and its implications for the judicial architecture and the wider institutional structure of the EU. It will argue that, rather than for merger control, the introduction of more exacting degree of judicial scrutiny, entrusted with a specialised court, may be necessary to secure the compliance of the EU antitrust enforcement proceedings with the notion of “administrative due process” enshrined in the European Convention on Human Rights.

However, the article will demonstrate that the creation of this judicial body, endowed with the necessary powers to ensure consistency with the Convention requirements, despite being an appropriate solution, might constitute too wide a departure from the judicial and overall institutional structure of the EU and could thus require a Treaty amendment, which could lack political support. It will suggest that instead of altering the judicial structure of the EU the whole system for the enforcement of the competition rules should be rethought to reconcile the need for speedy and final judicial scrutiny with the observance of “fairness” principles.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007040

In the high-tech sector innovative behaviour may have exclusionary effects: In both the Microsoft III and IV cases exclusionary practices centred on innovation were deemed generating both anti- and pro-competitive effects—with the latter overcoming the former—to the extent of requiring an antitrust law intervention. Such intervention presents two problems though. Firstly, the question arises as to when innovation becomes detrimental to competition thereby requiring antitrust remedies to be applied. Secondly, it is to assess how antitrust remedies should be designed in order not to stifle the pro-competitive effects that innovative behaviour, although exclusionary, still generate.

This article addresses both issues above mentioned. The potentially exclusive nature of innovation is the starting point to explore the interface between remedies on the one hand, and (incentives to) innovation on the other, in order to offer considerations on a sound remedies policy.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007041

Frequent flyer programmes (FFPs) are ubiquitous marketing tools used by airlines all over the world. Many airline passengers are members of FFPs, and most of them probably perceive FFPs as something positive.

This article examines the status of FFPs under EU competition law. More precisely, the article analyses the FFPs of dominant airlines under the law on loyalty rebates in implementation of Article 82 of the EC Treaty. Five particular characteristics of FFPs are closely scrutinized: the duration of the reference period, the retrospective nature, the multiplicity of reward levels, their character as bundled rebates and the particular efficiencies which FFPs can create.

The conclusion of this analysis is that the FFPs’ characteristics may conflict with the current law, to various degrees. Based on this finding, the article advances a number of propositions on how the law on rebates could be improved.

Finally, the article goes beyond the law on rebates, and examines the effects on competition of a particular feature of FFPs—the so-called principal-agent relationship.

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007042

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007043

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007044

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007045

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007046

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007047

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007048

Copyright © 2007 Kluwer Law International
All rights reserved

ISSN: 1011-4548
ID: WOCO2007049