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'Editor’s Note', José Rivas, Issue 1, pp. 1–2 |
infoJosé Rivas, 'Editor’s Note' (2008) 31 World Competition, Issue 1, pp. 1–2 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008001 | 
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'European Antitrust in Search of the Perfect Fine', Pietro Manzini, Issue 1, pp. 3–17 |
infoPietro Manzini, 'European Antitrust in Search of the Perfect Fine' (2008) 31 World Competition, Issue 1, pp. 3–17 | | This article sets out to verify if and to what extent the 2006 Guidelines allow the Commission to set fines that effectively deter firms from engaging in anticompetitive practices. The first two sections present a standard economic analysis of the optimal sanction. The results of this analysis are then compared with the fine setting methods of the 1998 Guidelines and, to a deeper extent, the 2006 Guidelines. Thereafter three main conclusions deriving from this analysis are discussed. First, the method adopted in the new Guidelines seems more economically oriented in comparison to the previous one but does not completely follow the optimal sanction approach. Moreover, the new Guidelines now use a gain based fine as opposed to a harm based one. Second, the 2006 Guidelines regard factors such as the offender’s personal behaviour and psychological attitude as relevant to determining the fine as well as objective factors such as the offender’s gain or harm to society. Third, the 2006 Guidelines are capable of setting a fine at the optimal level of deterrence, even though they apply a different method. This level, however, is not possible when a fine exceeds 10 per cent of a firm’s total turnover, which is the fine’s legal maximum as provided by Regulation 17 and reconfirmed by Regulation No. 1/2003. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008002 |
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'Competition and Efficiency in Payment Cards: Which Options for SEPA?', Alberto Heimler, Sean F. Ennis, Issue 1, pp. 19–35 |
infoAlberto Heimler, Sean F. Ennis, 'Competition and Efficiency in Payment Cards: Which Options for SEPA?' (2008) 31 World Competition, Issue 1, pp. 19–35 | | Payment card networks face a challenge in convincing consumers, merchants and card issuers to use their networks. Overcoming this challenge requires networks to introduce complex rules and prices. However, certain rules and common practices reduce a merchant’s ability to communicate relative cost information of different networks to consumers, prevent steering towards low-cost payment mechanisms and reduce merchants’ bargaining options with card networks. Under these conditions, competition between networks can have the perverse effect of raising total cost to the users (jointly consumers and merchants) because consumers select high-cost systems over low-cost systems. The current initiative to create a Single Euro Payment Area (SEPA) by 2010 provides an excellent opportunity to eliminate unjustified restraints on merchant behaviour, promote alternative suppliers of retail payment services and enhance price transparency, potentially lowering payment costs to the users in many European countries. But there is a substantial risk that instead of improving efficiency, SEPA may promote payment systems with higher costs for users, notably if low-cost national systems are supplanted by high-cost international networks. Policymakers should not only ensure that payment systems comply with SEPA standards, but more importantly ensure the net effects of new regimes are beneficial. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008003 |
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'Market Power in Bidding Markets: An Economic Overview', Koen T’Syen, Issue 1, pp. 37–62 |
infoKoen T’Syen, 'Market Power in Bidding Markets: An Economic Overview' (2008) 31 World Competition, Issue 1, pp. 37–62 | | Undertakings often claim to operate on a bidding market, where it is impossible to have market power (“bidding market defence”). This defence is only valid under four conditions: winner-takes-all, lumpy demand, absence of lock-in effects and easy entry. If fulfilled, one speaks of an ideal bidding market. Non-compliance with at least one condition invalidates the defence, and “ordinary” antitrust problems resurge: firms may exercise market power. The feasibility thereof depends, firstly, on whether the bidding process is better qualified as an ascending or a sealed-bid auction and, secondly, on whether it is a private or a common value auction. Three common ways of exercising market power in impure bidding markets are collusion, predation and entry deterrence. These strategies can be effectively tackled under Articles 81 or 82, except for tacit collusion. Therefore, competition authorities should use their powers under the Merger Regulation to avoid that mergers between bidders facilitate coordinated behaviour. Consequently, markets with bidding contests do not always lead to competitive outcomes. To avoid confusion, these markets should not be referred to as “bidding markets” but as “markets with a bidding process”. The concept “bidding market” is better reserved for ideal bidding markets. This article has been shortlisted for the 3rd Young Writer’s Competition Award. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008004 |
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'The Role of Investments in Refusals to Deal', Ashwin Van Rooijen, Issue 1, pp. 63–88 |
infoAshwin Van Rooijen, 'The Role of Investments in Refusals to Deal' (2008) 31 World Competition, Issue 1, pp. 63–88 | | Under the “essential facilities” doctrine, dominant firms may have a duty to deal with competitors. A principal objection to imposing a duty to deal is uncertainty as to whether a firm can recoup its investments in the facility that the competitor seeks access to. This article discusses the role of investments in essential facility cases. The purpose of this article is twofold. First, it observes that many “essential facility” cases seem to originate from allocation of rights rather than from anticompetitive conduct. Second, it proposes that courts attribute a more significant role to the analysis of investments underlying these facilities. It is expected that greater emphasis on the investments at stake can limit the chilling effects caused by mandatory sharing. This article has been shortlisted for the 3rd Young Writer’s Competition Award. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008005 |
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'Taking Care of Modernisation After the Startup: A View from a Member State', Ginevra Bruzzone, Marco Boccaccio, Issue 1, pp. 89–111 |
infoGinevra Bruzzone, Marco Boccaccio, 'Taking Care of Modernisation After the Startup: A View from a Member State' (2008) 31 World Competition, Issue 1, pp. 89–111 | | A complex architecture, based on multi-channel and multi-level enforcement of Articles 81 and 82 requires special care to ensure the internal consistency of the regime. This article, based on the Italian experience, identifies some challenges that must be met to ensure an effective operation of the modernisation system after its start-up. As for private antitrust enforcement, the authors suggest national rules of jurisdiction limiting the number of competent courts, as well as keeping a strict conceptual distinction between the roles of fines and damages. Modernisation was accompanied by emphasis on priority-setting, with an increasing focus on consumer protection. An accurate jurisdictional review of competition authorities’ decisions may help to avoid the risk of a goal-oriented competition policy going beyond the boundaries and changing antitrust law into something different, with a more regulatory flavour. Finally, since the system does not provide for national decisions in application of Articles 81 and 82 to be challenged before Community courts, the effectiveness of the internal mechanisms for ensuring legal certainty and consistency is of the utmost importance. The arrangements provided in the modernisation package may require some refinement. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008006 |
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'Grant-Backs and No Challenge Clauses in Europe: What Lessons from the MedImmune v. Genentech Case?', P. Sean Morris, Issue 1, pp. 113–126 |
infoP. Sean Morris, 'Grant-Backs and No Challenge Clauses in Europe: What Lessons from the MedImmune v. Genentech Case?' (2008) 31 World Competition, Issue 1, pp. 113–126 | | This article will discuss the provisions of Article 5 of the new Technology Transfer Block Exemption Regulation (“TTBER”) in Europe and analyse whether the provisions in the Article are anti competitive. Article 5 of the TTBER concerns grant-backs and no challenge clauses. The article will examine the MedImmune v. Genentech case of the US Supreme Court to find out whether there is any likely impact for no challenge clauses in Europe. The case concerned a patent validity dispute in which a pharmaceutical company, MedImmune, Inc., manufactured a drug Synagis, which Genentech, another pharmaceutical company, alleged to have violated its “Cabilly II” patent. The case was brought before the US Supreme Court, which held on 9 January 2007 that a patent licensee is not required to terminate or be in breach of its licence agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed. The article first discusses the interaction of competition and intellectual property law in Europefollowed by an examination of the TTBER grant-backs and no challenge provisions in Article 5. In the final part, a brief discussion on patent licensing and the doctrine of licensee estoppel is discussed to unravel any likely impact of MedImmune on no challenge clauses in licensing contracts in Europe. This article has been shortlisted for the 3rd Young Writer’s Competition Award. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008007 |
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'Downloading Competition Law from a Regional Trade Agreement (RTA) - A Strategy to Introduce Competition Law in Bolivia and Ecuador', Francisco Marcos, Issue 1, pp. 127–143 |
infoFrancisco Marcos, 'Downloading Competition Law from a Regional Trade Agreement (RTA) - A Strategy to Introduce Competition Law in Bolivia and Ecuador' (2008) 31 World Competition, Issue 1, pp. 127–143 | | Bolivia and Ecuador have proved resistant to the adoption of competition laws. Despite several drafts having been discussed in the last few years, to date no competition rules have been enacted in these countries. Notwithstanding, both are members of the Andean Community (CAN) which in 2005 adopted new rules aimed at fighting anticompetitive practices at supranational level. These new rules mirror Articles 81 and 82 of the EC Treaty and provide Andean institutions with investigation and sanction powers; however, no merger review is provided. The CAN competition rules foresee the possibility that Ecuador and Bolivia use them in their domestic settings as if they were national rules until national competition laws are adopted (i.e. they can download them into their national legal system). Although this provision is well-intended and it may help overcome the impasse in the processes leading to the adoption of national competition laws in both countries, this article will argue that it may have undesirable effects. Not only may it undermine the competition rules contained in the Regional Trade Agreement, but may also worsen the prospect of domestic competition rules being adopted. Besides, the transfer of Andean rules to the national system requires considerable effort to adapt them to a national institutional background, and even in that case some conflicts and interferences may arise afterwards. Notwithstanding all these difficulties and problems, downloading CAN competition rules may be a good alternative in preparing the Bolivian and Ecuadorian legal systems for the adoption of their own domestic competition rules. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008008 |
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'Antitrust Developments in Europe', Valentine Korah, Issue 1, pp. 145–145 |
infoValentine Korah, 'Antitrust Developments in Europe' (2008) 31 World Competition, Issue 1, pp. 145–145 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008009 |
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'Dynamic Competition and Public Policy, Technology, Innovation and Antitrust issues', Valentine Korah, Issue 1, pp. 145–146 |
infoValentine Korah, 'Dynamic Competition and Public Policy, Technology, Innovation and Antitrust issues' (2008) 31 World Competition, Issue 1, pp. 145–146 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008010 |
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'International Trade and U.S. Antitrust Law', Andre Fiebig, Issue 1, pp. 146–148 |
infoAndre Fiebig, 'International Trade and U.S. Antitrust Law' (2008) 31 World Competition, Issue 1, pp. 146–148 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008011 |
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'Review of Shipping Conferences under EC Antitrust Law: Criticism of a Legal Paradox', Aleka Mandaraka Sheppard, Issue 1, pp. 148–149 |
infoAleka Mandaraka Sheppard, 'Review of Shipping Conferences under EC Antitrust Law: Criticism of a Legal Paradox' (2008) 31 World Competition, Issue 1, pp. 148–149 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008012 |
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'The Interface Between Intellectual Property Rights and Competition Policy', Valentine Korah, Issue 1, pp. 149–150 |
infoValentine Korah, 'The Interface Between Intellectual Property Rights and Competition Policy' (2008) 31 World Competition, Issue 1, pp. 149–150 | | Copyright © 2008 Kluwer Law International
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ID: WOCO2008013 |
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'Litigating Conspiracy: An Analysis of Competition Class Actions', Carolyn N. Naiman, T. Dela Avle, Issue 1, pp. 150–152 |
infoCarolyn N. Naiman, T. Dela Avle, 'Litigating Conspiracy: An Analysis of Competition Class Actions' (2008) 31 World Competition, Issue 1, pp. 150–152 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008014 |
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'The European Commission’s Jurisdiction to Scrutinise Mergers', Yannis Virvils, Issue 1, pp. 153–153 |
infoYannis Virvils, 'The European Commission’s Jurisdiction to Scrutinise Mergers' (2008) 31 World Competition, Issue 1, pp. 153–153 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008015 |
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ISSUE 2 | |
'Editor’s Note', José Rivas, Issue 2, pp. 175–176 |
infoJosé Rivas, 'Editor’s Note' (2008) 31 World Competition, Issue 2, pp. 175–176 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008016 |
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'“Publicly Distancing” Oneself from a Cartel', David Bailey, Issue 2, pp. 177–203 |
infoDavid Bailey, '“Publicly Distancing” Oneself from a Cartel' (2008) 31 World Competition, Issue 2, pp. 177–203 | | Article 81(1) EC prohibits a competitor from, directly or indirectly, disclosing information to another competitor that could influence its behaviour on the market. On a number of occasions, firms have argued that they publicly distanced themselves from such cartel activity. Such claims are rarely accepted however. This article first considers how the European Commission and the Community Courts have applied Article 81(1) to participation in cartel meetings: in essence, a firm’s presence at a meeting with a manifestly anti–competitive purpose implies, in the absence of explanation, participation in the cartel alleged. The article suggests that there are six requirements for a firm to publicly distance itself from a cartel, but argues that the law does not insist on a firm “blowing the whistle” to a competition authority. Finally, the article examines why the law sets the bar so high for proof of public distancing. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008017 |
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'Criminalising Cartels: Australia’s Slow Conversion', Caron Beaton–Wells, Issue 2, pp. 205–233 |
infoCaron Beaton–Wells, 'Criminalising Cartels: Australia’s Slow Conversion' (2008) 31 World Competition, Issue 2, pp. 205–233 | | Australia is set to become the latest in a growing number of countries to join the United States’ “coalition of the willing” with respect to the criminalisation of serious cartel conduct. However, there are emerging questions as to whether criminalisation has sufficient support amongst key stakeholders in countries outside of the United States so as to guarantee its effective implementation. This article argues that for any new criminal regime to be successful in deterring serious cartel conduct such support, from the regulator, government, business sector, general public, judiciary and academia, will be vital. It considers the extent to which cartel criminalisation enjoys the support of each of these groups currently in Australia and finds that with the exception of the regulator and the new government, it may be questionable, at best. The findings reported in the article provide insight into the impetus for, and process of, the criminalisation initiative in Australia and have important practical consequences for the effectiveness of the future regime. Of international concern, they also suggest the need for caution in assuming the successful exportation of the American model of anti–cartel law enforcement. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008018 |
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'The French Competition Council and Parallel Trade in the Pharmaceutical Industry: A Step Ahead of EU Case Law?', Fleur Herrenschmidt, Issue 2, pp. 235–257 |
infoFleur Herrenschmidt, 'The French Competition Council and Parallel Trade in the Pharmaceutical Industry: A Step Ahead of EU Case Law?' (2008) 31 World Competition, Issue 2, pp. 235–257 | | This article focuses on the French competition authorities’ analysis of the validity, from a competition law perspective, of various distribution policies implemented by pharmaceutical companies in France which aimed to reduce parallel trade. In France, the pharmaceutical sector is notably characterised by: the existence of a specific “export–only” wholesaler status; numerous but imprecise public service obligations on “fullline” wholesalers which in particular require that they permanently supply all pharmacists with all products in a given time period; a strict capping of end retail prices and also of financial advantages (margins, rebates, etc.) which operators on the national market may grant or benefit from; and a quasitotal market transparency (in terms of both prices and volume). In this context, the French competition authorities have considered to be legitimate some of the policies which unilaterally limit parallel trade, in some cases by discriminating between export–only and full–line wholesalers. Although none of the pharmaceutical companies concerned had actually implemented dual pricing policies in France, the Court of Appeal went as far (in anticipation) as validating such policies in principleÐthus following before the issue was even dealt with at European level, the direction that the European Court of Justice has invited the Commission to follow in its recent Glaxo Dual Pricing judgment. The Competition Council, through its various decisions, has now in fact regulated the relationships between the various operators in the market. Its final commitment decisions raise, however, the question of to what extent a competition should be entitled to use commitment procedures as a preventive regulatory tool. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008019 |
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'A League of Their Own: Landmark Supreme Court Judgment Clears Irish League of Credit Unions of Abuse of Dominance', Patrick Massey, Issue 2, pp. 259–277 |
infoPatrick Massey, 'A League of Their Own: Landmark Supreme Court Judgment Clears Irish League of Credit Unions of Abuse of Dominance' (2008) 31 World Competition, Issue 2, pp. 259–277 | | In a unanimous judgment handed down on 8 May 2007, Ireland’s Supreme Court upheld an appeal by the Irish League of Credit Unions (ILCU) against a High Court judgment that ILCU had abused a dominant position. The Irish Competition Authority had alleged that ILCU had abused its dominant position in the market for savings protection services (SPS) by limiting access to SPS services to its own members. The Authority claimed that this amounted to tying as credit unions wishing to obtain SPS services were required to also purchase credit union representation services from ILCU and that such tying amounted to an abuse of dominance by ILCU. This was the first abuse of dominance case brought by the Competition Authority to go to a full hearing, the first to be appealed to the Supreme Court and the first Irish case under EC Regulation 1/2003. The judgment clarified a number of important issues. The case raised a number of economic issues, which are of interest in the context of the debate on the need for a more economics based approach to Article 82. It has led to some significant innovations in the hearing of competition cases by the Irish courts. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008020 |
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'Competition Law Enforcement and Incentives for Revelation of Private Information', Michael Harker, Morten Hviid, Issue 2, pp. 279–298 |
infoMichael Harker, Morten Hviid, 'Competition Law Enforcement and Incentives for Revelation of Private Information' (2008) 31 World Competition, Issue 2, pp. 279–298 | | The past and current reluctance of firms and individuals to use private enforcement suggests that there are limited incentives for self–help. The key contribution of private enforcement to overall deterrence derives from cases which would not otherwise be brought, not simply because of resource constraints, but also because relevant information would not otherwise have come to light. In terms of revealing such private information, cases initiated and pursued by private litigants add much more to the equation than do cases merely following–on from decisions made by competition authorities. In this article we use a simple model to highlight what features of the private enforcement system promote and hamper the use of these two different types of private enforcement. A key finding is that that to encourage new cases, it is essential that it is quicker to get a decision in a stand–alone case than the time it takes to get a decision in a follow–on case. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008021 |
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'Driving Competition — The Impact of Regulation 1400/2002 on Motor Vehicle Distribution', Rita Aleixo Gregório, Issue 2, pp. 299–325 |
infoRita Aleixo Gregório, 'Driving Competition — The Impact of Regulation 1400/2002 on Motor Vehicle Distribution' (2008) 31 World Competition, Issue 2, pp. 299–325 | | The purpose of this article is to analyse the effectiveness of the measures established at the distribution level by the Commission Regulation (EC) No. 1400/2002 of 31 of July 2002, on the application of Article 81(3) of the EC Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (Regulation 1400/2002)1 in order to (i) introduce innovation in motor vehicle distribution and (ii) reinforce the Single Market. Such an analysis is helpful in assessing whether the European Commission should maintain such measures or find different solutions when Regulation 1400/2002 expires. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008022 |
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'Unfair Competition Law: European Union and Member States', Holger Buck, Issue 2, pp. 327–328 |
infoHolger Buck, 'Unfair Competition Law: European Union and Member States' (2008) 31 World Competition, Issue 2, pp. 327–328 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008023 |
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'The International Handbook of Competition & Cartels', Ioannis Lianos, Issue 2, pp. 328–329 |
infoIoannis Lianos, 'The International Handbook of Competition & Cartels' (2008) 31 World Competition, Issue 2, pp. 328–329 | | Copyright © 2008 Kluwer Law International
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ID: WOCO2008024 |
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'An Introductory Guide to EC Competition Law and Practice', Michal S. Gal, Issue 2, pp. 329–330 |
infoMichal S. Gal, 'An Introductory Guide to EC Competition Law and Practice' (2008) 31 World Competition, Issue 2, pp. 329–330 | | Copyright © 2008 Kluwer Law International
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ID: WOCO2008025 |
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'Competition in Energy Markets, Law and Regulation in the European Union & Energy Law in Europe, National, EU and International Regulation', Donogh Hardiman, Issue 2, pp. 330–332 |
infoDonogh Hardiman, 'Competition in Energy Markets, Law and Regulation in the European Union & Energy Law in Europe, National, EU and International Regulation' (2008) 31 World Competition, Issue 2, pp. 330–332 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008026 |
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'The EC Law of Competition', Josh Holmes, Issue 2, pp. 332–332 |
infoJosh Holmes, 'The EC Law of Competition' (2008) 31 World Competition, Issue 2, pp. 332–332 | | Copyright © 2008 Kluwer Law International
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ID: WOCO2008027 |
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ISSUE 3 | |
'Editor’s Note', José Rivas, Issue 3, pp. 333–334 |
infoJosé Rivas, 'Editor’s Note' (2008) 31 World Competition, Issue 3, pp. 333–334 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008028 |
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'The Use of Settlements in Public Antitrust Enforcement: Objectives and Principles', Wouter P.J. Wils, Issue 3, pp. 335–352 |
infoWouter P.J. Wils, 'The Use of Settlements in Public Antitrust Enforcement: Objectives and Principles' (2008) 31 World Competition, Issue 3, pp. 335–352 | | This article discusses two general questions concerning the use of settlements in public antitrust enforcement,namely under which conditions the use of settlements contributes to optimal antitrust enforcement, and under which conditions self–incrimination and waivers of procedural rights by settlement candidates are compatible with fundamental rights of defence. The discussion of these general questions will be illustrated with the specific example of the two settlement procedures for the enforcement by the European Commission of the antitrust prohibitions contained in Articles 81 and 82 EC, namely the commitment procedure under Article 9 of Regulation 1/2003, and the new settlement procedure in cartel cases. This online article has updated information in the printed version. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008029 |
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'“National Champions” Rhetoric in European Law — Or the many faces of protectionism', António Goucha Soares, Issue 3, pp. 353–368 |
infoAntónio Goucha Soares, '“National Champions” Rhetoric in European Law — Or the many faces of protectionism' (2008) 31 World Competition, Issue 3, pp. 353–368 | | The article aims to debate the issue of national champions regarding merger operations with a Community dimension. It starts with a brief overview of the legal framework for merger review in European Union law, as well as a reference to the division of competences between the Union and the Member States in this field. Then, it analyses the scope of Member State action regarding merger operations with a Community dimension, namely the clause to protect national legitimate interests. After some illustrations of recent cases concerning Member States’ defence of national champions, the article devotes the last part to a reflection of two related issues: the concept of industrial policy and the new challenges raised by sovereign wealth funds. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008030 |
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'Are Monetary Incentives Enough to Boost Actions for Damages in the European Union? On the Relevance of Incompleteness of Laws and Evidentiary Requirements', Alessandro Sarra, Alessandro Marra, Issue 3, pp. 369–384 |
infoAlessandro Sarra, Alessandro Marra, 'Are Monetary Incentives Enough to Boost Actions for Damages in the European Union? On the Relevance of Incompleteness of Laws and Evidentiary Requirements' (2008) 31 World Competition, Issue 3, pp. 369–384 | | In this article we intend to contribute to the public debate regarding the lack of private antitrust enforcement in the European Union. The European Commission suggests to concentrate on monetary incentives to boost actions for damages (among them, granting full compensation, promoting aggregate actions, reducing the costs associated with antitrust claims, and so on). We argue that monetary incentives are not sufficient to create an efficient regime of private enforcement of law. In particular, we develop the thesis that to increase the number of effective damages actions is useful to better contemplate the incompleteness of antitrust laws and the relevance of evidentiary requirements needed to initiate a successful lawsuit. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008031 |
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'Unilateral Conduct in an Oligopoly according to the Discussion Paper on Art. 82: Conscious Parallelism or Abuse of Collective Dominance?', Teresa Vecchi, Issue 3, pp. 385–400 |
infoTeresa Vecchi, 'Unilateral Conduct in an Oligopoly according to the Discussion Paper on Art. 82: Conscious Parallelism or Abuse of Collective Dominance?' (2008) 31 World Competition, Issue 3, pp. 385–400 | | Oligopolies are characterised by the presence of few strong players and a high level of transparency that allow undertakings to monitor each other’s conduct and to unilaterally adapt their behaviour to that of the other undertakings. The unilateral conduct of oligopolists may have anticompetitive effects. Since EC Courts have concluded that the peculiar interdependence between oligopolists can lead to a position of collective dominance, it is important to determine whether such unilateral conducts is a legitimate reaction to the other members’ behaviours, or to the exploitations of a collective market power, which would represent an abuse prohibited under Article 82. In the absence of clear guidance from the Discussion Paper on Article 82, distinguishing features of abuses of collective dominant positions can be derived from the principles previously elaborated by the Courts for complex agreements under Article 81 in light of the similarities between the two legal institutes. If applied by analogy, these principles lead to the conclusion that unilateral conduct should be considered as an abuse of collective dominance only when it is the manifestation of a collective dominant position, when the other members of the oligopoly are aware of them and, most importantly, when they benefit from them. Copyright © 2008 Kluwer Law International
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ID: WOCO2008032 |
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'Private v. Public Interest: the Strategic Use of Competition Law in Ireland by Private Interests', Paul K. Gorecki, Issue 3, pp. 401–420 |
infoPaul K. Gorecki, 'Private v. Public Interest: the Strategic Use of Competition Law in Ireland by Private Interests' (2008) 31 World Competition, Issue 3, pp. 401–420 | | This article considers two major issues. First, what is strategic behaviour by firms and what incentives do firms have for engaging in such behaviour with respect to the Irish Competition Authority (“the Authority”)? Second, since firms are an important source of information about breaches of competition law, how should the Authority encourage such pro–competitive complaints, while, at the same time, discouraging anti–competitive complaints from firms that reflect the normal workings of the market? These questions were examined by a review of complaints received by the Authority between 2002 and 2006. Anti–competitive complaints are primarily concerned with firms that are disadvantaged in the competitive process. They have an incentive to appeal to the Authority to intervene on their behalf to provide some sort of insurance against market forces. However, the role of the Authority is to promote consumer, not producer, welfare. Pro–competitive strategic behaviour is made by firms that want to promote change, entry and innovation. However, incumbent suppliers wish to preserve their market power and in the process may breach competition law. The article discusses various ways in which the Authority encourages more pro– and less anti– competitive complaints. Copyright © 2008 Kluwer Law International
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ID: WOCO2008033 |
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'Public Financing of Urban Transport: The Application of EC State Aid Rules', Mihalis Kekelekis, Phedon Nicolaides, Issue 3, pp. 421–448 |
infoMihalis Kekelekis, Phedon Nicolaides, 'Public Financing of Urban Transport: The Application of EC State Aid Rules' (2008) 31 World Competition, Issue 3, pp. 421–448 | | This article provides an overview of the relevant legislation concerning the granting of State aid to transport and considers how Articles 87 and 73 of the EC Treaty apply. It outlines in detail the main provisions of Regulations Nos 1191/69 and 1107/70 which lay down the main rules on State aid for urban transport and analyses how they have been interpreted and applied in the Commission’s decisions and Courts’ jurisprudence. Consideration is given to the concept of services of general economic interest and how public service obligations may be compensated by the State. The link between transport services and infrastructure and how the acquisition or replacement of rolling stock is treated under various State aid rules is also examined, as well as the relationship between structural funds and State aid and the concept of “internal operator”, which plays a predominant role in the context of RegulationNo. 1370/2007. The article outlines the main provisions of the new regulation and concludes by introducing the steps to be followed by Member States that wish to provide public support via the discharge of public service obligations to transport operators. Copyright © 2008 Kluwer Law International
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ID: WOCO2008034 |
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'Recent Economics at the Japanese Fair Trade Commission — Revision of the Business Combination Guidelines and Case Analysis', Koki Arai, Issue 3, pp. 449–472 |
infoKoki Arai, 'Recent Economics at the Japanese Fair Trade Commission — Revision of the Business Combination Guidelines and Case Analysis' (2008) 31 World Competition, Issue 3, pp. 449–472 | | This article describes the revision of the business combination guidelines of Japan and activities of the mergers and acquisitions division of the Japanese Fair Trade Commission during 2006–2007 in detail. The revision of the guidelines is based on three factors: (i) international consistency; (ii) historical experiences; and (iii) economic theory, and these factors are effective and efficient for a rapidly changing and globalized market. The main contribution of this article includes a comparison with the US and EU merger guidelines on not only a set of specific standards, but also the ideas that the United States and European Union adopted or the reason why these standards were selected. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008035 |
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'EC Competition Law—an Analytical Guide to the Leading Cases; Bellamy & Child, European Community Law of Competition; Innovation and Incentives, Suzanne Scotchmer & EC Competition Law Handbook, 2007/2008 edition', Valentine Korah, Issue 3, pp. 473–477 |
infoValentine Korah, 'EC Competition Law—an Analytical Guide to the Leading Cases; Bellamy & Child, European Community Law of Competition; Innovation and Incentives, Suzanne Scotchmer & EC Competition Law Handbook, 2007/2008 edition' (2008) 31 World Competition, Issue 3, pp. 473–477 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008036 |
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'Efficiency and Justice in European Antitrust Enforcement', Florian Wagner–von Papp, Issue 3, pp. 477–478 |
infoFlorian Wagner–von Papp, 'Efficiency and Justice in European Antitrust Enforcement' (2008) 31 World Competition, Issue 3, pp. 477–478 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008037 |
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'The International Handbook of Competition; Cartels, Margaret; The Emerging Principles of International Competition Law & Competition Law of the EC and UK, Mark Furse', Ioannis Lianos, Issue 3, pp. 478–480 |
infoIoannis Lianos, 'The International Handbook of Competition; Cartels, Margaret; The Emerging Principles of International Competition Law & Competition Law of the EC and UK, Mark Furse' (2008) 31 World Competition, Issue 3, pp. 478–480 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008038 |
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'The Microsoft Case: Antitrust, High Technology, and Consumer Welfare & Prophet of Innovation: Joseph Schumpeter and Creative Destruction', Spencer Weber Waller, Issue 3, pp. 480–482 |
infoSpencer Weber Waller, 'The Microsoft Case: Antitrust, High Technology, and Consumer Welfare & Prophet of Innovation: Joseph Schumpeter and Creative Destruction' (2008) 31 World Competition, Issue 3, pp. 480–482 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008039 |
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ISSUE 4 | |
'Editor’s Note', José Rivas, Issue 4, pp. 483–484 |
infoJosé Rivas, 'Editor’s Note' (2008) 31 World Competition, Issue 4, pp. 483–484 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008040 |
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'Constraining Drug Supply: Product Positioning, Patent Protection and Regulatory Standards', Ralf Boscheck, Issue 4, pp. 485–498 |
infoRalf Boscheck, 'Constraining Drug Supply: Product Positioning, Patent Protection and Regulatory Standards' (2008) 31 World Competition, Issue 4, pp. 485–498 | | On both sides of the Atlantic, fast growing drug expenditures and an apparent slow–down in the introduction of new pharmaceutical compounds and generics had rekindled antitrust concerns. Yet while the EU Commission was entering largely uncharted territory, US authorities seemed guided by relevant legislation and case law that has no equivalent in Europe. Still, the US experience so far also shows that public outcries over high–profi le cases are no substitute for a dispassionate assessment of conflicting incentives, inconsistent regulatory standards and essential welfare trade–offs. In fact, it suggests the need to reconsider fundamental policy options and to establish efficient rules so as to ensure a competitive supply of innovative drugs. Contemplating the US experience, this article is organised in five parts. By way of introduction, Part I links US healthcare expenditures, drug research costs and elements of drug regulation and reimbursement to identify four corporate imperatives for product positioning and life–cycle management. Part II focuses on the economics of innovation and intellectual property rights and the need to challenge patents. Part III outlines the structure of the Hatch–Waxman Act, intended to speed up generic substitution, and discusses the evolution of US court decisions on patent settlements in the wake of it. Part IV offers some considerations for modifying the application of Hatch–Waxman rules as well as the processes for contesting patents and pharmaceutical product markets. Part V sums up and links back to the current EU initiative Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008041 |
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'Assessment of Mergers Inducing Coordinated Effects in the Presence of Explicit Collusion', Dr. Ioannis Kokkoris, Issue 4, pp. 499–522 |
infoDr. Ioannis Kokkoris, 'Assessment of Mergers Inducing Coordinated Effects in the Presence of Explicit Collusion' (2008) 31 World Competition, Issue 4, pp. 499–522 | | This article will analyse the issue of the assessment of the likelihood of a merger in a cartelised market inducing or enhancing coordinated effects. Although there is decisional practice on the impact of past coordination on the assessment of a merger’s likelihood of inducing coordinated effects, such decisional guidance is very rare as regards the assessment of mergers in cartelised markets. Mergers in cartelised markets should be assessed on a case–by–case basis. A presumption of illegality for such mergers should be avoided. A case–by–case analysis focusing on the pre–merger and post–merger market structure as well as on the incentives for continuing the collusion in the post–merger market has significantly more merit. Mergers in cartelised industries are not the cause of the adverse impact on competition. What should be assessed is the harm of the merger itself in the already anticompetitive market. If the merger induces a significant impediment to the existing level of reduced competition, then the merger should not be cleared (at least not without remedies). The concept of “significant” assumes great importance in such circumstances, as the merger may lead to an impediment but such impediment is not always significant in a market where explicit collusion occurs. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008042 |
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'Direct versus Indirect Proof of the Airtours Criterion in Impala', Félix E. Mezzanotte, Issue 4, pp. 523–540 |
infoFélix E. Mezzanotte, 'Direct versus Indirect Proof of the Airtours Criterion in Impala' (2008) 31 World Competition, Issue 4, pp. 523–540 | | In this article I look at the legal notion of pre–existing collective dominance (PCD) following the Impala case. More particularly, I examine the theory of indirect proof of the Airtours criterion and analyse the implications it has on the test of pre–existing collective dominance (PCD test). I argue that this theory offers an alternative yet behavioural avenue for the Commission to establish the existence of a position of PCD. Yet a behavioural PCD test need not be easier to enforce, and can blur the line that separates the existence of PCD from instances of Article 82’s abusive conduct. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008043 |
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'In Pursuit of an Innovation Policy Rationale: Stakes and Limits under Article 82 TEC', Inge Govaere, Issue 4, pp. 541–556 |
infoInge Govaere, 'In Pursuit of an Innovation Policy Rationale: Stakes and Limits under Article 82 TEC' (2008) 31 World Competition, Issue 4, pp. 541–556 | | This article addresses the topical question of whether or not one may discern a clear and coherent innovation policy rationale underlying the modernisation process of Article 82 TEC in recent policy statements and practice of the European Commission. From this perspective it first briefly reviews the impact of the Article 82 Review Discussion Paper and considers what modifications could be expected from the Lisbon Reform Treaty if it were to enter into force. In a second step the article gives an appraisal of the stakes posed for the IP–competition debate in Europe by recent cases, such as inter alia Microsoft, Rambus, Qualcomm and AstraZeneca. In so–doing it goes in search of the stakes and limitations of the Article 82 TEC remedy. The concluding part tries to identify a new course of action aspiring to combine dynamic competition and innovation in furtherance of the Lisbon Strategy. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008044 |
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'New Paradigm for Recovery of Unlawful Aid in the EU – National Judges and the ‘Exception of Compatibility’', Benjamin Cheynel, Adrien Giraud, Issue 4, pp. 557–573 |
infoBenjamin Cheynel, Adrien Giraud, 'New Paradigm for Recovery of Unlawful Aid in the EU – National Judges and the ‘Exception of Compatibility’' (2008) 31 World Competition, Issue 4, pp. 557–573 | | The Court of Justice recently disrupted the few certainties that one could entertain as to the treatment by national courts of recovery requests targeting unlawful State aids. The Court now admits that an unlawful aid, which has been declared compatible by the European Commission by way of a decision that acquired a definitive status, may benefit from an exception to the reimbursement rule, save for the obligation imposed to national courts of ordering the recovery of interest for the period of unlawfulness. Not only does this new exception seem to contradict the Court’s recent case law in the field, but it may also entail significant and undesirable effects in terms of State aid policy. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008045 |
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'Global Antitrust Prosecutions of International Cartels: Focus on Asia', John M. Connor, Issue 4, pp. 575–605 |
infoJohn M. Connor, 'Global Antitrust Prosecutions of International Cartels: Focus on Asia' (2008) 31 World Competition, Issue 4, pp. 575–605 | | International cartelists today face antitrust investigations and possible fines in a score of national and supranational jurisdictions. This article aims at providing quantitative information about the size and impacts of international cartel activity in Asia and uses a sample of modern private cartels to evaluate the relative effectiveness of three prominent Asian antitrust authorities. The sample consists of legal and economic information on 433 international cartels detected in Asia and the rest of the world during 1990–2007.The need for assertive anti–cartel enforcement in Asia is demonstrated by the large affected commerce and economic injuries of known international cartels. Affected sales of detected Asian–region cartels combined with global cartels that fixed prices in Asia totals at least US$1.1 trillion in 1990–2007. The losses imposed on Asian consumers were at least $500 billion. While more than $45 billion in penalties has been imposed world wide, it is doubtful that such monetary sanctions can deter modern international cartels. Optimal cartel deterrence is frustrated by the failure of compensatory private suits to take hold outside of North America, a reluctance to act against global cartels, and the low fines in most Asian jurisdictions. Of the three selected jurisdictions, the Korean FTC has the best record of anti–cartel enforcement in Asia, but even the KFTC?s surcharges are recouping less than 15 percent of damages to its citizens. Without significant increases in cartel detection, in the levels of expected fines or civil penalties, or expansion of the standing of buyers to seek compensation,international price fixing will remain rational business conduct. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008046 |
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'Revisiting Competition Law of India: Changing Dimensions in the Era of Globalized Economy', Avinash Sharma, Issue 4, pp. 607–628 |
infoAvinash Sharma, 'Revisiting Competition Law of India: Changing Dimensions in the Era of Globalized Economy' (2008) 31 World Competition, Issue 4, pp. 607–628 | | Competition law is a classical example wherein the government wants to meet the compelling needs of the changing times. The Indian Monopolies and Restrictive Trade Practices Act was enacted in the era of restrictive economy. With the opening up of the economy in 1991, and subsequently the advent of the WTO in 1995, it was felt that the MRTP Act had outlived its utility and no longer served its purpose in the changed environment. While the new open market economy would ensure adequate competition,at the same time, experience in other countries had indicated that some enterprises do try to undermine the market by resorting to anti–competitive practices. Hence, it was felt that such practices could nullify the gains from competition, which could be answered only by having a new competition law. Accordingly,the Competition Act 2002 was enacted. However, only some parts of the Act are in force and the entire Act is yet to become operative. This article will make a modest attempt to discuss this new competition regime, its scope, ambit and various dimensions, and to explain whether it will face further new challenges due to dynamism in international trade and economic laws in the era of irreversible globalisation. Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008047 |
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'Competition Cases from the European Union: The ultimate guide to leading cases of the EU and all 27 Member States', Allan F. Tatham, Issue 4, pp. 629–630 |
infoAllan F. Tatham, 'Competition Cases from the European Union: The ultimate guide to leading cases of the EU and all 27 Member States' (2008) 31 World Competition, Issue 4, pp. 629–630 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008048 |
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'The Evolution of European Law — Whose Regulation, Which Competition?', Valentine Korah, Issue 4, pp. 631–631 |
infoValentine Korah, 'The Evolution of European Law — Whose Regulation, Which Competition?' (2008) 31 World Competition, Issue 4, pp. 631–631 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008049 |
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'United States Antitrust Law and Economics', Spencer Weber Waller, Issue 4, pp. 631–632 |
infoSpencer Weber Waller, 'United States Antitrust Law and Economics' (2008) 31 World Competition, Issue 4, pp. 631–632 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008050 |
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'Handbook of Antitrust Economics', Spencer Weber Waller, Issue 4, pp. 632–633 |
infoSpencer Weber Waller, 'Handbook of Antitrust Economics' (2008) 31 World Competition, Issue 4, pp. 632–633 | | Copyright © 2008 Kluwer Law International
All rights reserved ISSN: 1011-4548
ID: WOCO2008051 |
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