{"title":"Book review: Principles of Competition Law, by David Unterhalter, Isabel Goodman, Patrick Smith, Paula Youens. (Oxford University Press. 2017)","authors":"D. M. Davis","doi":"10.54648/woco2019010","DOIUrl":"https://doi.org/10.54648/woco2019010","url":null,"abstract":"","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"33 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81631767","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 describes the approach which the Union Courts have taken in relation to the non bis in idem principle when it concerns dual proceedings by the Commission and National Competition Authorities (NCAs) or by different NCAs. The unity of the legal interest is used by the CJEU as a jurisdictional safeguard for the Commission. Conversely, the identity of the facts determined whether the accounting principle is applicable in dual proceedings. This principle is in dual proceedings by the Commission and an NCA the only applicable expression of the non bis in idem principle. This approach is different from that in other areas of law where Article 50 of the Charter or Article 54 CISA are applied. The application of the non bis in idem principle in the Union’s legal order can therefore be criticized on the basis of lack of unity. It will be argued that these diverging approaches can be aligned without losing the current outcome in competition law cases.
{"title":"Bringing Back Unity: Modernizing the Application of the Non Bis In Idem Principle","authors":"J. M. Veenbrink","doi":"10.54648/woco2019005","DOIUrl":"https://doi.org/10.54648/woco2019005","url":null,"abstract":"This article describes the approach which the Union Courts have taken in relation to the non bis in idem principle when it concerns dual proceedings by the Commission and National Competition Authorities (NCAs) or by different NCAs. The unity of the legal interest is used by the CJEU as a jurisdictional safeguard for the Commission. Conversely, the identity of the facts determined whether the accounting principle is applicable in dual proceedings. This principle is in dual proceedings by the Commission and an NCA the only applicable expression of the non bis in idem principle. This approach is different from that in other areas of law where Article 50 of the Charter or Article 54 CISA are applied. The application of the non bis in idem principle in the Union’s legal order can therefore be criticized on the basis of lack of unity. It will be argued that these diverging approaches can be aligned without losing the current outcome in competition law cases.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"44 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86405459","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 prohibition of cartels is enforced by both public and private legislation, which may interact in a way that reduces their effectiveness. This article investigates these interaction effects specifically for the leniency programme and civil damages claims, by means of a conjoint analysis. Dutch companies and competition lawyers were faced with different enforcement situations containing a mix of public and private enforcement elements and were asked in which case they were most likely to apply for leniency. Their answers are analysed with a nested logit model, allowing for the possibility that respondents would continue the cartel in either of the presented enforcement situation. For firms, the corporate and personal fine and the fine reduction mattered in deciding to apply for leniency. Competition lawyers took the fine reduction, disclosure of leniency and burden of proof into account when advising on self-reporting the agreement. Both groups of respondents answered that in 16–19% of the situations they would continue the agreement and not apply for leniency/advice to so do (The authors thank the participating economists of the Dutch Competition Authority for their input and suggestions. Special thanks to Dr Ron Kemp, the competition lawyers who were willing to discuss the research results with the authors, prof. Dr Barbara Baarsma and prof. Dr Bas ter Weel.).
对卡特尔的禁止是由公共和私人立法共同执行的，它们可能以一种降低其有效性的方式相互作用。本文采用联合分析的方法，专门对从宽程序和民事损害赔偿的相互作用进行了研究。荷兰公司和反垄断律师面临着不同的执法情况，其中包括公共和私人执法因素，并被问及在哪种情况下他们最有可能申请宽大处理。他们的回答是用一个嵌套的logit模型进行分析的，考虑到被调查者在目前的执法情况下继续卡特尔的可能性。对于公司来说，公司和个人的罚款以及罚款的减少在决定申请宽大处理时很重要。竞争律师在就自行报告协议提供建议时，考虑了罚款减免、披露宽免和举证责任。两组受访者都回答说，在16-19%的情况下，他们会继续协议，而不会申请宽大处理/建议(作者感谢荷兰竞争管理局参与的经济学家的投入和建议)。特别感谢Ron Kemp博士，他是愿意与作者Barbara Baarsma教授和Bas ter Weel教授讨论研究结果的竞争律师。
{"title":"The Interaction of Public and Private Cartel Enforcement","authors":"N. Rosenboom, D. I. '. Veld","doi":"10.54648/woco2019006","DOIUrl":"https://doi.org/10.54648/woco2019006","url":null,"abstract":"The prohibition of cartels is enforced by both public and private legislation, which may interact in a way that reduces their effectiveness. This article investigates these interaction effects specifically for the leniency programme and civil damages claims, by means of a conjoint analysis. Dutch companies and competition lawyers were faced with different enforcement situations containing a mix of public and private enforcement elements and were asked in which case they were most likely to apply for leniency. Their answers are analysed with a nested logit model, allowing for the possibility that respondents would continue the cartel in either of the presented enforcement situation. For firms, the corporate and personal fine and the fine reduction mattered in deciding to apply for leniency. Competition lawyers took the fine reduction, disclosure of leniency and burden of proof into account when advising on self-reporting the agreement. Both groups of respondents answered that in 16–19% of the situations they would continue the agreement and not apply for leniency/advice to so do (The authors thank the participating economists of the Dutch Competition Authority for their input and suggestions. Special thanks to Dr Ron Kemp, the competition lawyers who were willing to discuss the research results with the authors, prof. Dr Barbara Baarsma and prof. Dr Bas ter Weel.).","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"4 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87358316","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: A Critical Account of Article 106(2) TFEU: Government Failure in Public Service Provision, by Jarleth M Burke. (Hart Publishing. 1st ed. Oxford, 2018)","authors":"J. Buendía Sierra","doi":"10.54648/woco2019009","DOIUrl":"https://doi.org/10.54648/woco2019009","url":null,"abstract":"","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"50 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79803038","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 publication, in the name of transparency, of Commission decisions finding infringements of EU competition law is a powerful tool for enhancing the private enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’). Before publishing those decisions, the Commission must nonetheless be careful to afford ‘very special protection’ to the legitimate interest of the undertakings concerned in the protection of their business secrets and other confidential information. When preparing the non-confidential version of the decision to be published, the Commission involves those undertakings, which have the right to object and, where they consider it appropriate, to refer the matter to the Hearing Officer, whose decisions may in turn be challenged before the EU Courts. In such cases, interim relief is essential to safeguard the undertakings’ right to the protection of confidential information, as well as their right to effective judicial protection. The recent case law of both EU Courts on interim protection in this context is marked by a high degree of technicality and struggles to adapt the ordinary interpretation of the conditions required for the granting of interim measures to the specificities of this kind of case. This article examines several rather complex interlocutory orders in an attempt to extract the logic behind them.
{"title":"Interim Judicial Protection Against Publication of Confidential Information in Commission Antitrust Decisions","authors":"Paolo Iannuccelli","doi":"10.54648/woco2019004","DOIUrl":"https://doi.org/10.54648/woco2019004","url":null,"abstract":"The publication, in the name of transparency, of Commission decisions finding infringements of EU competition law is a powerful tool for enhancing the private enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’). Before publishing those decisions, the Commission must nonetheless be careful to afford ‘very special protection’ to the legitimate interest of the undertakings concerned in the protection of their business secrets and other confidential information. When preparing the non-confidential version of the decision to be published, the Commission involves those undertakings, which have the right to object and, where they consider it appropriate, to refer the matter to the Hearing Officer, whose decisions may in turn be challenged before the EU Courts. In such cases, interim relief is essential to safeguard the undertakings’ right to the protection of confidential information, as well as their right to effective judicial protection. The recent case law of both EU Courts on interim protection in this context is marked by a high degree of technicality and struggles to adapt the ordinary interpretation of the conditions required for the granting of interim measures to the specificities of this kind of case. This article examines several rather complex interlocutory orders in an attempt to extract the logic behind them.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"28 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77983472","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 UK introduced a new regime for opt-out ‘class’ or collective actions in 2015. These require certification before they proceed to trial to establish whether the members of the class have sufficient ‘common interest’. The certification of the first two collective actions – Gibson v. Pride Mobility Products and Merricks v. Mastercard – were dismissed by the Competition Appeal Tribunal (CAT). Here a critical assessment of the UK’s emerging collective certification process is undertaken focusing on the determination of common issues, pass on, distribution of damages, costs and funding. It is argued that the CAT has applied the test for certification too strictly and not in accordance with the case law surrounding the ‘Canadian model’ on which the UK certification procedure is based; and incorrectly treated the award of aggregate damages as the summation of individual damages. The way the CAT has handled these two factors threatens to undermine the purpose and effectiveness of the UK’s new collective action regime.
{"title":"Collective Certification in UK Competition Law: Commonality, Costs and Funding","authors":"C. Veljanovski","doi":"10.54648/woco2019007","DOIUrl":"https://doi.org/10.54648/woco2019007","url":null,"abstract":"The UK introduced a new regime for opt-out ‘class’ or collective actions in 2015. These require certification before they proceed to trial to establish whether the members of the class have sufficient ‘common interest’. The certification of the first two collective actions – Gibson v. Pride Mobility Products and Merricks v. Mastercard – were dismissed by the Competition Appeal Tribunal (CAT). Here a critical assessment of the UK’s emerging collective certification process is undertaken focusing on the determination of common issues, pass on, distribution of damages, costs and funding. It is argued that the CAT has applied the test for certification too strictly and not in accordance with the case law surrounding the ‘Canadian model’ on which the UK certification procedure is based; and incorrectly treated the award of aggregate damages as the summation of individual damages. The way the CAT has handled these two factors threatens to undermine the purpose and effectiveness of the UK’s new collective action regime.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"10 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89443616","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}
States are not only rule makers, they also are purchasers and often also suppliers of goods and services. However, the state is not a purchaser or supplier like any other. It may enjoy competitive advantages other market participants do not have. The concept of competitive neutrality addresses the problem of distortions of competition caused by state activity on markets. This article lists thirteen consecutive steps, which are clustered in three distinct groups, to improve the conditions of competition on markets where private enterprises are active as purchasers or suppliers next to the state.They reach from creating more awareness of competition-distorting state measures and the prevention of new distortions to the removal of distortions.
{"title":"Achieving Competitive Neutrality Step-By-Step","authors":"M. Albers","doi":"10.54648/woco2018028","DOIUrl":"https://doi.org/10.54648/woco2018028","url":null,"abstract":"States are not only rule makers, they also are purchasers and often also suppliers of goods and services. However, the state is not a purchaser or supplier like any other. It may enjoy competitive advantages other market participants do not have. The concept of competitive neutrality addresses the problem of distortions of competition caused by state activity on markets. This article lists thirteen consecutive steps, which are clustered in three distinct groups, to improve the conditions of competition on markets where private enterprises are active as purchasers or suppliers next to the state.They reach from creating more awareness of competition-distorting state measures and the prevention of new distortions to the removal of distortions.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"61 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76051955","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}
Difficulties of competition policy at the global level are widely debated by academics and policy-makers. However, recent discussions do not pay enough attention to those instruments of antitrust enforcement that target local companies in domestic markets. This type of antitrust price remedies becomes popular in Russian competition law enforcement towards large exporters that dominate in home markets. In this article we explain the circumstances under which antitrust price remedies imposed by national competition authorities on one exporter in a determined country may limit competition in global commodity markets. In particular, antitrust price remedies, which impose the cap on domestic prices using export or global prices of the commodity as a benchmark, increase the sustainability of collusion, either explicit or tacit. Being primarily designed to support domestic buyers, antitrust price remedies may also increase domestic welfare by facilitating collusion abroad and creating additional profits for large national producers.
{"title":"Antitrust Price Remedies May Facilitate Collusion in Global Commodity Markets","authors":"S. Avdasheva, D. Korneeva, T. Radchenko","doi":"10.54648/woco2018032","DOIUrl":"https://doi.org/10.54648/woco2018032","url":null,"abstract":"Difficulties of competition policy at the global level are widely debated by academics and policy-makers. However, recent discussions do not pay enough attention to those instruments of antitrust enforcement that target local companies in domestic markets. This type of antitrust price remedies becomes popular in Russian competition law enforcement towards large exporters that dominate in home markets. In this article we explain the circumstances under which antitrust price remedies imposed by national competition authorities on one exporter in a determined country may limit competition in global commodity markets. In particular, antitrust price remedies, which impose the cap on domestic prices using export or global prices of the commodity as a benchmark, increase the sustainability of collusion, either explicit or tacit. Being primarily designed to support domestic buyers, antitrust price remedies may also increase domestic welfare by facilitating collusion abroad and creating additional profits for large national producers.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"44 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79333071","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 the 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 the anticompetitive effects of fidelity rebates and how this clarification can be translated into concrete lessons for European case law. 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":"10.2139/SSRN.3297570","DOIUrl":"https://doi.org/10.2139/SSRN.3297570","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 the 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 the anticompetitive effects of fidelity rebates and how this clarification can be translated into concrete lessons for European case law. 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":"8 1","pages":"523-548"},"PeriodicalIF":0.4,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88348573","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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