The working paper includes a collection of the case notes written by the national judges who attended the European Networking and Training for National Competition Enforcers (ENTraNCE 2012). The training program was organized by the RSCAS between September 2012 and June 2013 with the financial contribution of DG Competition of the European Commission. The case notes included in the working paper summarize judgments of new EU Member States and candidate countries related to different aspects of competition law enforcement. The working paper thus aims at increasing the understanding of the challenges faced by the national judiciary in enforcing national and EU competition in the context of the decentralized regime of competition law enforcement introduced by Reg. 1/2003.
{"title":"European Networking and Training for National Competition Enforcers (ENTraNCE 2012). Selected Case Notes","authors":"G. Monti, P. Parcu","doi":"10.2139/SSRN.2445974","DOIUrl":"https://doi.org/10.2139/SSRN.2445974","url":null,"abstract":"The working paper includes a collection of the case notes written by the national judges who attended the European Networking and Training for National Competition Enforcers (ENTraNCE 2012). The training program was organized by the RSCAS between September 2012 and June 2013 with the financial contribution of DG Competition of the European Commission. The case notes included in the working paper summarize judgments of new EU Member States and candidate countries related to different aspects of competition law enforcement. The working paper thus aims at increasing the understanding of the challenges faced by the national judiciary in enforcing national and EU competition in the context of the decentralized regime of competition law enforcement introduced by Reg. 1/2003.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121698285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Antitrust prohibits cartels from charging monopoly prices but does not prohibit monopolies from charging monopoly prices. Antitrust does not ban monopoly pricing by monopolies because it thinks that unless a monopoly takes affirmative action to exclude competitors, competitors will enter the market to drive prices back down to competitive levels. Curiously, antitrust does not explain why the same effect should not drive cartel prices to competitive levels. This article argues that this inconsistency in antitrust arises because antitrust has failed to realize that mere ownership of essential inputs is itself enough to exclude competitors. This is what permits both cartels and monopolies to maintain high prices and exclude competitors without taking affirmative steps to exclude. This article argues that one response to this inconsistency would be to extend the ban on monopoly pricing to include monopolies.
{"title":"Inconsistency in Antitrust","authors":"Ramsi Woodcock","doi":"10.2139/ssrn.2514030","DOIUrl":"https://doi.org/10.2139/ssrn.2514030","url":null,"abstract":"Antitrust prohibits cartels from charging monopoly prices but does not prohibit monopolies from charging monopoly prices. Antitrust does not ban monopoly pricing by monopolies because it thinks that unless a monopoly takes affirmative action to exclude competitors, competitors will enter the market to drive prices back down to competitive levels. Curiously, antitrust does not explain why the same effect should not drive cartel prices to competitive levels. This article argues that this inconsistency in antitrust arises because antitrust has failed to realize that mere ownership of essential inputs is itself enough to exclude competitors. This is what permits both cartels and monopolies to maintain high prices and exclude competitors without taking affirmative steps to exclude. This article argues that one response to this inconsistency would be to extend the ban on monopoly pricing to include monopolies.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"137 10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131361291","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In developing countries, legal provisions that prohibit abusive behavior often have a wider application than in the EU or in the US. China ‘s law is also concerned with abuse of administrative power, Russia’s law overstresses unequal contracts conditions, India’s law takes over the idea of “unfair” pricing and often considers leveraging an abuse. These wider in scope provisions are meant to discipline dominant firms that are strong and connected. However also an independent enforcer is necessary. Independence may be strengthened by introducing binding presumptions for opening a proceeding. The chapter ends with enforcement examples from China, India , Russia, South Africa and a number of other developing countries from Africa and Latin America.
{"title":"Monopolization in Developing Countries","authors":"A. Heimler, Kirtikumar Mehta","doi":"10.2139/ssrn.2335653","DOIUrl":"https://doi.org/10.2139/ssrn.2335653","url":null,"abstract":"In developing countries, legal provisions that prohibit abusive behavior often have a wider application than in the EU or in the US. China ‘s law is also concerned with abuse of administrative power, Russia’s law overstresses unequal contracts conditions, India’s law takes over the idea of “unfair” pricing and often considers leveraging an abuse. These wider in scope provisions are meant to discipline dominant firms that are strong and connected. However also an independent enforcer is necessary. Independence may be strengthened by introducing binding presumptions for opening a proceeding. The chapter ends with enforcement examples from China, India , Russia, South Africa and a number of other developing countries from Africa and Latin America.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131812045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although many have come to regard the collection of models that predict anticompetitive consequences from strategic conduct by dominant firms as a “post-Chicago” revolution, the canonical post-Chicago “Naked Exclusion” theory of exclusive dealing maintains the fundamental Chicago structure where exclusive dealing is modeled as a contract driven quid pro quo. However, in the highly influential case U.S. v. Dentsply, the Third Circuit analyzed exclusive dealing in terms of a discriminatory refusal to deal where buyers received no compensation for exclusivity. This article develops a model of exclusive dealing consistent with Dentsply and many other major antitrust cases.
尽管许多人开始将预测主导企业战略行为的反竞争后果的模型集视为“后芝加哥”革命，但典型的后芝加哥“裸排斥”排他交易理论维持了芝加哥的基本结构，其中排他交易被建模为契约驱动的交换条件。然而，在极具影响力的U.S. v. Dentsply案中，第三巡回法院从歧视性拒绝交易的角度分析了排他性交易，买方没有获得排他性赔偿。本文发展了一个与Dentsply和许多其他主要反垄断案件相一致的排他性交易模式。
{"title":"Beyond Naked Exclusion: Exclusive Dealing after Dentsply","authors":"Robert B. Kulick","doi":"10.2139/ssrn.2333859","DOIUrl":"https://doi.org/10.2139/ssrn.2333859","url":null,"abstract":"Although many have come to regard the collection of models that predict anticompetitive consequences from strategic conduct by dominant firms as a “post-Chicago” revolution, the canonical post-Chicago “Naked Exclusion” theory of exclusive dealing maintains the fundamental Chicago structure where exclusive dealing is modeled as a contract driven quid pro quo. However, in the highly influential case U.S. v. Dentsply, the Third Circuit analyzed exclusive dealing in terms of a discriminatory refusal to deal where buyers received no compensation for exclusivity. This article develops a model of exclusive dealing consistent with Dentsply and many other major antitrust cases.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115824153","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is a case for reorienting many antitrust investigations -- and more generally regulatory approaches -- to focus on how control of personal data by corporations can entrench monopoly power in an economy shaped increasingly by the power of "big data." The core source of value being delivered to advertisers by a company like Google (as with many "new media" companies) is the ability to target users with ads because of its dominant control of databases of user personal data. As section II of this article will argue, what is largely missed in analyses defending Google from antitrust action is how that ever expanding control of user personal data and its critical value to online advertisers creates an insurmountable barrier to entry for new competition. And, contra the idea that Google just inherited that business advantage through its innovation in search engine technology, section III of this article will detail how Google has aggressively expanded its control of user data through expanding into new product sectors to collect additional user data with the intent to use its presence in those other markets to reinforce its core search advertising monopoly. Beyond the general expansion into tied markets for user data, Google’s "bad acts" have included multiple violations of the law through invading user privacy in pursuit of control of user data. In section IV, the article proposes remedies that can address Google’s dominance in three major ways, separately and in combination: (1) reduce Google’s control of overall user data, (2) create a real market for user data by empowering users, and (3) impose public interest obligations on Google to restrain damage to consumer welfare. In section V, the article concludes by noting how issues raised by the article present some fundamental challenges to the Chicago School approach, including highlighting how the lock-in of monopoly in online markets calls for earlier intervention in technology markets and a much broader recognition of how expanding information asymmetry due to data mining undermines the hope that the market itself will curb monopoly abuses in the economy.
{"title":"Search, Antitrust and the Economics of the Control of User Data","authors":"Nathaniel Newman","doi":"10.2139/ssrn.2309547","DOIUrl":"https://doi.org/10.2139/ssrn.2309547","url":null,"abstract":"This article is a case for reorienting many antitrust investigations -- and more generally regulatory approaches -- to focus on how control of personal data by corporations can entrench monopoly power in an economy shaped increasingly by the power of \"big data.\" The core source of value being delivered to advertisers by a company like Google (as with many \"new media\" companies) is the ability to target users with ads because of its dominant control of databases of user personal data. As section II of this article will argue, what is largely missed in analyses defending Google from antitrust action is how that ever expanding control of user personal data and its critical value to online advertisers creates an insurmountable barrier to entry for new competition. And, contra the idea that Google just inherited that business advantage through its innovation in search engine technology, section III of this article will detail how Google has aggressively expanded its control of user data through expanding into new product sectors to collect additional user data with the intent to use its presence in those other markets to reinforce its core search advertising monopoly. Beyond the general expansion into tied markets for user data, Google’s \"bad acts\" have included multiple violations of the law through invading user privacy in pursuit of control of user data. In section IV, the article proposes remedies that can address Google’s dominance in three major ways, separately and in combination: (1) reduce Google’s control of overall user data, (2) create a real market for user data by empowering users, and (3) impose public interest obligations on Google to restrain damage to consumer welfare. In section V, the article concludes by noting how issues raised by the article present some fundamental challenges to the Chicago School approach, including highlighting how the lock-in of monopoly in online markets calls for earlier intervention in technology markets and a much broader recognition of how expanding information asymmetry due to data mining undermines the hope that the market itself will curb monopoly abuses in the economy.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123909321","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
E. Sullivan, Herbert Hovenkamp, Howard A. Shelanski, Christopher Leslie
Because it is taught infrequently, the full text of Chapter 8 of our antitrust casebook, on the Robinson-Patman Act, is now posted online and free for anyone to use. This chapter covers all issues related to secondary-line enforcement, the "cost justification," "meeting competition," and other defenses, as well as buyers' liability. Primary-line enforcement is still covered with the materials on predatory pricing in Chapter 6.
{"title":"Chapter 8: Secondary-Line Differential Pricing and the Robinson-Patman Act","authors":"E. Sullivan, Herbert Hovenkamp, Howard A. Shelanski, Christopher Leslie","doi":"10.2139/SSRN.2319067","DOIUrl":"https://doi.org/10.2139/SSRN.2319067","url":null,"abstract":"Because it is taught infrequently, the full text of Chapter 8 of our antitrust casebook, on the Robinson-Patman Act, is now posted online and free for anyone to use. This chapter covers all issues related to secondary-line enforcement, the \"cost justification,\" \"meeting competition,\" and other defenses, as well as buyers' liability. Primary-line enforcement is still covered with the materials on predatory pricing in Chapter 6.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115730808","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-08-17DOI: 10.4172/2168-9458.1000109
Thomas D. Jeitschko
The Intercontinental Exchange’s current attempted acquisition of NYSE-Euro next is the third takeover proposal in as many years. In this article the two previous attempts are reviewed and lessons are drawn from an antitrust and competition policy perspective concerning the evolving competitive landscape of exchanges.
{"title":"NYSE Changing Hands: Antitrust and Attempted Acquisitions of an Erstwhile Monopoly","authors":"Thomas D. Jeitschko","doi":"10.4172/2168-9458.1000109","DOIUrl":"https://doi.org/10.4172/2168-9458.1000109","url":null,"abstract":"The Intercontinental Exchange’s current attempted acquisition of NYSE-Euro next is the third takeover proposal in as many years. In this article the two previous attempts are reviewed and lessons are drawn from an antitrust and competition policy perspective concerning the evolving competitive landscape of exchanges.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123607005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The analysis of unilateral effects in horizontal mergers — especially on markets for differentiated goods — can take into consideration the extent to which the merging firms are close competitors. The elimination of a close competitor can result in an upward pricing pressure (UPP) on the merged firm which can harm consumers. Although a quantitative UPP analysis is an important enhancement of substantive merger appraisal, it should not be considered sufficient in itself for the finding of a significant impediment to effective competition in terms of Article 2 of the EU Merger Regulation (EUMR). Rather, market definition and the analysis of the market structure including market shares should generally constitute the backbone of any theory of harm.
{"title":"Close Competitors in Merger Review","authors":"Stefan Thomas","doi":"10.1093/JECLAP/LPT024","DOIUrl":"https://doi.org/10.1093/JECLAP/LPT024","url":null,"abstract":"The analysis of unilateral effects in horizontal mergers — especially on markets for differentiated goods — can take into consideration the extent to which the merging firms are close competitors. The elimination of a close competitor can result in an upward pricing pressure (UPP) on the merged firm which can harm consumers. Although a quantitative UPP analysis is an important enhancement of substantive merger appraisal, it should not be considered sufficient in itself for the finding of a significant impediment to effective competition in terms of Article 2 of the EU Merger Regulation (EUMR). Rather, market definition and the analysis of the market structure including market shares should generally constitute the backbone of any theory of harm.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131344712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Trolls are a significant feature of the patent system. They account for a large number of suits, now a majority of all patent assertions in the country and an even higher percentage in the information technology (IT) industries. They win both larger judgments and larger settlements than do “practicing entities” (“PEs”) -- those that practice patents and are not principally in the business of collecting money from others that practice them. And they do so despite complaints that trolls assert weak patents and some evidence that troll patents are more likely to lose in court.Nonetheless, we think the focus on patent trolls obscures a more complex set of challenges confronting the patent system. In this paper, we make three points. First, patent trolls are not a unitary phenomenon. We see at least three different troll business models developing, and those models have different effects on the patent system. Second, patent assertions by practicing entities can create just as many problems as assertions by patent trolls. The nature of many industries obscures some of the costs of those assertions, but that does not mean they are cost-free. In addition, practicing entities are increasingly engaging in “patent privateering,” in which product-producing companies take on many of the attributes of trolls. Put differently, while trolls exploit problems with the patent system, they are not the only ones that do so. Third, many of the problems associated with trolls are in fact problems that stem from the disaggregation of complementary patents into too many different hands. That in turn suggests that groups like Intellectual Ventures might be reducing, not worsening, these problems (though, as we will see, the overall effects are ambiguous), while “patent privateers” that spin off patents in order for others to assert them might make things worse. For this reason, patent reformers and antitrust authorities should worry less about aggregation of patent rights and more about disaggregation of those rights, sometimes accomplished by spinning them out to others.Understanding the economics of patent assertions by both trolls and practicing entities allows us to move beyond labels and the search for “bad actors,” focusing instead on aspects of the patent system itself that give rise to the problems and on specific, objectionable conduct in which both trolls and practicing entities sometimes engage. Patent trolls alone are not the problem; they are a symptom of larger problems with the patent system. Treating the symptom will not solve the problems. In a very real sense, critics have been missing the forest for the trolls. Exposing the larger problems allows us to contemplate changes in patent law that will actually tackle the underlying pathologies of the patent system and the abusive conduct they enable.
{"title":"Missing the Forest for the Trolls","authors":"Mark A. Lemley, A. Melamed","doi":"10.2139/SSRN.2269087","DOIUrl":"https://doi.org/10.2139/SSRN.2269087","url":null,"abstract":"Trolls are a significant feature of the patent system. They account for a large number of suits, now a majority of all patent assertions in the country and an even higher percentage in the information technology (IT) industries. They win both larger judgments and larger settlements than do “practicing entities” (“PEs”) -- those that practice patents and are not principally in the business of collecting money from others that practice them. And they do so despite complaints that trolls assert weak patents and some evidence that troll patents are more likely to lose in court.Nonetheless, we think the focus on patent trolls obscures a more complex set of challenges confronting the patent system. In this paper, we make three points. First, patent trolls are not a unitary phenomenon. We see at least three different troll business models developing, and those models have different effects on the patent system. Second, patent assertions by practicing entities can create just as many problems as assertions by patent trolls. The nature of many industries obscures some of the costs of those assertions, but that does not mean they are cost-free. In addition, practicing entities are increasingly engaging in “patent privateering,” in which product-producing companies take on many of the attributes of trolls. Put differently, while trolls exploit problems with the patent system, they are not the only ones that do so. Third, many of the problems associated with trolls are in fact problems that stem from the disaggregation of complementary patents into too many different hands. That in turn suggests that groups like Intellectual Ventures might be reducing, not worsening, these problems (though, as we will see, the overall effects are ambiguous), while “patent privateers” that spin off patents in order for others to assert them might make things worse. For this reason, patent reformers and antitrust authorities should worry less about aggregation of patent rights and more about disaggregation of those rights, sometimes accomplished by spinning them out to others.Understanding the economics of patent assertions by both trolls and practicing entities allows us to move beyond labels and the search for “bad actors,” focusing instead on aspects of the patent system itself that give rise to the problems and on specific, objectionable conduct in which both trolls and practicing entities sometimes engage. Patent trolls alone are not the problem; they are a symptom of larger problems with the patent system. Treating the symptom will not solve the problems. In a very real sense, critics have been missing the forest for the trolls. Exposing the larger problems allows us to contemplate changes in patent law that will actually tackle the underlying pathologies of the patent system and the abusive conduct they enable.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115186898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This is an interim report on what has been called “the largest criminal investigation the Antitrust Division has ever pursued.” It provides preliminary information on the nature of the allegations, the global scope of the investigations, and the magnitude of damages.
{"title":"Multiple Prosecutions Point to Huge Damages from Auto-Parts Cartels","authors":"J. Connor","doi":"10.2139/ssrn.2190200","DOIUrl":"https://doi.org/10.2139/ssrn.2190200","url":null,"abstract":"This is an interim report on what has been called “the largest criminal investigation the Antitrust Division has ever pursued.” It provides preliminary information on the nature of the allegations, the global scope of the investigations, and the magnitude of damages.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124348388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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