{"title":"Book Review: Misuse of Market Power: Rationale and Reform, by Katharine Kemp. (Cambridge University Press. 2018)","authors":"Tjarda van der Vijver","doi":"10.54648/woco2018035","DOIUrl":"https://doi.org/10.54648/woco2018035","url":null,"abstract":"","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"101 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72916444","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}
Since the first EU case in 2013, pay-for-delay agreements have been considered a restriction of competition by object under Article 101 TFEU. However, according to parties to these agreements, the harm caused to consumers can be balanced out by efficiencies in terms of increased incentives to innovate. The aim of this thesis is to assess this efficiency argument by studying the effect of pay-fordelay agreements on innovation. It appears from the analysis that this effect partly depends on the innovation cycle it relates to: either first-generation innovation or subsequent innovation. The impact on first-generation innovation is studied sequentially, by reference to the literature, for three dimensions of innovation: returns on innovation, R&D investments and the innovative output. We conclude that first-generation innovation is either promoted or nonaffected. Subsequent innovation is then studied from both a theoretical and an empirical point of view. The theoretical analysis focuses on two distinct issues: the incentives for first-generation innovators to invest in an improved version of their patented invention, and the ability of follow-on innovators to use existing knowledge. Based on this theoretical analysis, we put forward the revocation of a patent as a proxy for pay-for-delay agreements. We further use this assumption to design an empirical model whose objective is to estimate these agreements’ effect on innovation. We conclude that second-generation innovation is either unaffected or hindered.
{"title":"Do Pay-for-Delay Agreements Promote Innovation?: The Effects Across Innovation Cycles","authors":"Laureen de Barsy","doi":"10.54648/woco2018030","DOIUrl":"https://doi.org/10.54648/woco2018030","url":null,"abstract":"Since the first EU case in 2013, pay-for-delay agreements have been considered a restriction of competition by object under Article 101 TFEU. However, according to parties to these agreements, the harm caused to consumers can be balanced out by efficiencies in terms of increased incentives to innovate. The aim of this thesis is to assess this efficiency argument by studying the effect of pay-fordelay agreements on innovation. It appears from the analysis that this effect partly depends on the innovation cycle it relates to: either first-generation innovation or subsequent innovation. The impact on first-generation innovation is studied sequentially, by reference to the literature, for three dimensions of innovation: returns on innovation, R&D investments and the innovative output. We conclude that first-generation innovation is either promoted or nonaffected. Subsequent innovation is then studied from both a theoretical and an empirical point of view. The theoretical analysis focuses on two distinct issues: the incentives for first-generation innovators to invest in an improved version of their patented invention, and the ability of follow-on innovators to use existing knowledge. Based on this theoretical analysis, we put forward the revocation of a patent as a proxy for pay-for-delay agreements. We further use this assumption to design an empirical model whose objective is to estimate these agreements’ effect on innovation. We conclude that second-generation innovation is either unaffected or hindered.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"39 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85084077","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}
Despite the increasing number of countries opting for a criminal antitrust enforcement, outside the US, the implementation of criminal penalties has been quite deficient. Among the main arguments provided by the relevant literature to explain such deficiency, in addition to the procedural obstacles, there is a belief that the criminalization of cartels is often the product of a top-down process led by transnational enforcement interests rather than domestic bottom up pressures. And, as such, it bears the original sin of missing the required enforcement culture and support of the decisive stakeholders. Against this background, the present article provides an empirical investigation exploring the law making processes that led to the criminalization of cartels in Chile. We observe that, when the policy decision is highly politicized, i.e. the consensus building motive is predominant, even if the decision making is not driven by transnational interests but by purely domestic pressures, a regulatory populism might still overcome important balancing policy considerations, with the risk of jeopardizing the results’ effectiveness.
{"title":"Cultural and Political Forces in the Criminalization of Cartels: A Case Study on the Chilean Experience","authors":"Chiara Muraca","doi":"10.54648/woco2018031","DOIUrl":"https://doi.org/10.54648/woco2018031","url":null,"abstract":"Despite the increasing number of countries opting for a criminal antitrust enforcement, outside the US, the implementation of criminal penalties has been quite deficient. Among the main arguments provided by the relevant literature to explain such deficiency, in addition to the procedural obstacles, there is a belief that the criminalization of cartels is often the product of a top-down process led by transnational enforcement interests rather than domestic bottom up pressures. And, as such, it bears the original sin of missing the required enforcement culture and support of the decisive stakeholders. Against this background, the present article provides an empirical investigation exploring the law making processes that led to the criminalization of cartels in Chile. We observe that, when the policy decision is highly politicized, i.e. the consensus building motive is predominant, even if the decision making is not driven by transnational interests but by purely domestic pressures, a regulatory populism might still overcome important balancing policy considerations, with the risk of jeopardizing the results’ effectiveness.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"36 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87734327","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}
{"title":"Book Review: Competition Enforcement and Procedure, by Nazzini, R. (Oxford University Press. 2016).","authors":"M. Ferro","doi":"10.54648/woco2018034","DOIUrl":"https://doi.org/10.54648/woco2018034","url":null,"abstract":"","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"50 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77045917","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}
It is accepted that the treatment of fidelity rebates is one of the most controversial topics in European Union competition law. It remains an outstanding issue despite the clear position of the Court of Justice in both the Intel and Post Danmark II judgments to depart from the strict form-based approach and to endorse an approach based on an evaluation of the possible anticompetitive effects of fidelity rebates. In particular, it remains unclear whether a price-cost test should be deployed. The conditions when a price-cost test should be applied to fidelity rebates as opposed to alternative approaches is a central issue in recent US case law of fidelity rebates and associated scholarly debate. This article examines the academic debate in US and compares the treatment of fidelity rebates on both sides of the Atlantic in an attempt to clarify under which circumstances a price-cost test should be used as a tool to determine anticompetitive effects of fidelity rebates and how this clarification can be translated into concrete lessons for European caselaw. It reveals that the economic theory of raising rival’s cost explains that the assessment of a strategy to exclude an as efficient competitor does not require a price-cost test.
{"title":"What Can We Learn About the Application of the as Efficient Competitor Test in Fidelity Rebate Cases from the Recent US Case Law?","authors":"Miroslava Marinova","doi":"10.54648/woco2018029","DOIUrl":"https://doi.org/10.54648/woco2018029","url":null,"abstract":"It is accepted that the treatment of fidelity rebates is one of the most controversial topics in European Union competition law. It remains an outstanding issue despite the clear position of the Court of Justice in both the Intel and Post Danmark II judgments to depart from the strict form-based approach and to endorse an approach based on an evaluation of the possible anticompetitive effects of fidelity rebates. In particular, it remains unclear whether a price-cost test should be deployed. The conditions when a price-cost test should be applied to fidelity rebates as opposed to alternative approaches is a central issue in recent US case law of fidelity rebates and associated scholarly debate. This article examines the academic debate in US and compares the treatment of fidelity rebates on both sides of the Atlantic in an attempt to clarify under which circumstances a price-cost test should be used as a tool to determine anticompetitive effects of fidelity rebates and how this clarification can be translated into concrete lessons for European caselaw. It reveals that the economic theory of raising rival’s cost explains that the assessment of a strategy to exclude an as efficient competitor does not require a price-cost test.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"9 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83112206","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}
{"title":"Book Review: The Normative Foundations of European Competition Law: Assessing the Goals of Antitrust through the Lense of Legal Philosophy, by Oles Andriychuk. (Edward Elgar. 2017)","authors":"I. Lianos","doi":"10.54648/woco2018033","DOIUrl":"https://doi.org/10.54648/woco2018033","url":null,"abstract":"","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"57 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80437584","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 discusses the law, policy and procedure of legal professional privilege in EU antitrust enforcement. It focuses primarily on the enforcement of Articles 101 and 102 TFEU [Treaty on the Functioning of the European Union] by the European Commission, but also touches briefly on the enforcement of EU antitrust law by the competition authorities of the EU Member States (addressing in particular the question whether those EU Member States that extend legal professional privilege to in-house lawyers are in breach of EU law), as well as on private enforcement.
{"title":"Legal Professional Privilege in EU Antitrust Enforcement: Law, Policy & Procedure","authors":"W. Wils","doi":"10.54648/woco2019003","DOIUrl":"https://doi.org/10.54648/woco2019003","url":null,"abstract":"This article discusses the law, policy and procedure of legal professional privilege in EU antitrust enforcement. It focuses primarily on the enforcement of Articles 101 and 102 TFEU [Treaty on the Functioning of the European Union] by the European Commission, but also touches briefly on the enforcement of EU antitrust law by the competition authorities of the EU Member States (addressing in particular the question whether those EU Member States that extend legal professional privilege to in-house lawyers are in breach of EU law), as well as on private enforcement.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"93 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80494611","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}
As other fields of law, competition law is put to the test by new technologies in general and algorithmic market activity in particular. This article takes a holistic approach by looking at areas of law, namely financial regulation and data protection, which have already put in place rules and procedures to deal with issues arising from algorithms. Before making the bridge and assessing whether the application of regulatory tools from these areas might be fruitful for competition law as well, the article discusses some recent competition cases involving algorithmic market activity. It concludes with policy recommendations.
{"title":"Framing Algorithms: Competition Law and (Other) Regulatory Tools","authors":"Peter Georg Picht, Gaspare Tazio Loderer","doi":"10.2139/SSRN.3275198","DOIUrl":"https://doi.org/10.2139/SSRN.3275198","url":null,"abstract":"As other fields of law, competition law is put to the test by new technologies in general and algorithmic market activity in particular. This article takes a holistic approach by looking at areas of law, namely financial regulation and data protection, which have already put in place rules and procedures to deal with issues arising from algorithms. Before making the bridge and assessing whether the application of regulatory tools from these areas might be fruitful for competition law as well, the article discusses some recent competition cases involving algorithmic market activity. It concludes with policy recommendations.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"16 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78819983","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 explores the recent cases Sainsbury’s v. Mastercard and Asda v. Mastercard and uses them to demonstrate how the decentralization of Article 101 TFEU enforcement is creating legal uncertainty due to national courts being unequipped to apply complex Ex Post counterfactuals consistently. It considers the distinction between restriction of competition by object and restriction of competition by effect to show that EU and national courts now apply the latter. It then considers the requirements for effects-based analysis, focussing on the mandatory use of Ex Post counterfactuals, highlighting their emergence as a legal mechanism in Article 101 application. This article argues that Ex Post counterfactuals’ basis in vague economic theory creates significant difficulties for national courts attempting to enforce Article 101 consistently and evidences these difficulties by considering the courts’ composition, their overreliance on expert economic witnesses, the standard of proof, complex court interplay and referral for preliminary ruling. Ultimately, it argues that despite procedural tools being provided to national courts to ensure consistent application of Article 101 at national and EU levels, the courts are failing to utilize them, resulting in the creation of significant legal uncertainty as evidenced by the polaropposite judgments reached in the Mastercard cases.
{"title":"Polar Opposites: Judgments and Counterfactuals in Sainsburys V. Mastercard and Asda V. Mastercard","authors":"James Hotchkiss","doi":"10.54648/woco2018023","DOIUrl":"https://doi.org/10.54648/woco2018023","url":null,"abstract":"This article explores the recent cases Sainsbury’s v. Mastercard and Asda v. Mastercard and uses them to demonstrate how the decentralization of Article 101 TFEU enforcement is creating legal uncertainty due to national courts being unequipped to apply complex Ex Post counterfactuals consistently. It considers the distinction between restriction of competition by object and restriction of competition by effect to show that EU and national courts now apply the latter. It then considers the requirements for effects-based analysis, focussing on the mandatory use of Ex Post counterfactuals, highlighting their emergence as a legal mechanism in Article 101 application. This article argues that Ex Post counterfactuals’ basis in vague economic theory creates significant difficulties for national courts attempting to enforce Article 101 consistently and evidences these difficulties by considering the courts’ composition, their overreliance on expert economic witnesses, the standard of proof, complex court interplay and referral for preliminary ruling. Ultimately, it argues that despite procedural tools being provided to national courts to ensure consistent application of Article 101 at national and EU levels, the courts are failing to utilize them, resulting in the creation of significant legal uncertainty as evidenced by the polaropposite judgments reached in the Mastercard cases.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"132 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75037747","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}
J. García-Verdugo, Carlos Merino Troncoso, L. G. Cruz
Fines remain an essential mechanism of competition enforcement and should deter anticompetitive practices. This article quantifies the deterrent power of fines imposed by the Spanish competition authority from 2011 to 2015. First, we compare the evolution of fines over three sub-periods: From January 2011 to the creation of the CNMC on October 2013, since then until the Supreme Court’s judgment on fines on January 2015, and for the rest of 2015. The average fine per firm is similar in the first two periods but significantly lower in the third period, and now fines are more concentrated around the mean than before. Second, we define three scenarios – according to low, average or high values of the relevant parameters – for which we compute deterrence ratios to compare actual and optimal deterrent fines. The results show that most of the fines were under deterrent – a deterrence ratio lower than one – even when using the lower optimal fines of the lower scenario. More specifically, 80% of the actual fines are under deterrent in that scenario (close to 100% in the other two scenarios), and the average value of the fines imposed to these companies was on average 64% below the optimal deterrent fine, with slight changes across subperiods. We conclude that the fining policy of the Spanish competition authority between 2011 and 2015 should be considered significantly under deterrent.
{"title":"An Economic Assessment of Antitrust Fines in Spain","authors":"J. García-Verdugo, Carlos Merino Troncoso, L. G. Cruz","doi":"10.54648/woco2018020","DOIUrl":"https://doi.org/10.54648/woco2018020","url":null,"abstract":"Fines remain an essential mechanism of competition enforcement and should deter anticompetitive practices. This article quantifies the deterrent power of fines imposed by the Spanish competition authority from 2011 to 2015. First, we compare the evolution of fines over three sub-periods: From January 2011 to the creation of the CNMC on October 2013, since then until the Supreme Court’s judgment on fines on January 2015, and for the rest of 2015. The average fine per firm is similar in the first two periods but significantly lower in the third period, and now fines are more concentrated around the mean than before. Second, we define three scenarios – according to low, average or high values of the relevant parameters – for which we compute deterrence ratios to compare actual and optimal deterrent fines. The results show that most of the fines were under deterrent – a deterrence ratio lower than one – even when using the lower optimal fines of the lower scenario. More specifically, 80% of the actual fines are under deterrent in that scenario (close to 100% in the other two scenarios), and the average value of the fines imposed to these companies was on average 64% below the optimal deterrent fine, with slight changes across subperiods. We conclude that the fining policy of the Spanish competition authority between 2011 and 2015 should be considered significantly under deterrent.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"61 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84574721","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：