Structure and Effects in EU Competition Law

Name: Structure and Effects in EU Competition Law | Studies on Exclusionary Conduct and State Aid
Brand: Kluwer Law International
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Studies on Exclusionary Conduct and State Aid

Jürgen Basedow Wolfgang Wurmnest(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 24. März 2011

366 Seiten

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Beschreibung

During the last decade the European Commission has progressively adopted what is called a 'more economic' approach towards competition policy. This approach, which draws on US antitrust policy, puts greater emphasis on possible welfare effects of business practices and is less concerned with competitive market structures. Under this school of thought, concentration cannot be said to impede effective competition to the extent that efficiency gains outweigh market distortions.

In order to stimulate the debate on this basic reorientation, in January 2009 the Max Planck Institute for Comparative and International Private Law in Hamburg convened economists, legal scholars, and practitioners for an exchange of views on these 'new' methodological foundations of EU competition policy and competition law. Two especially controversial elements were chosen for in-depth discussion: the prohibition of abuses of dominant positions and the review of State aid. This book reproduces fourteen papers from this conference, representing the considered views of prominent European lawyers, economists, academics, policymakers, and enforcement officials in the competition field on matters such as:

- - the objectives of EU competition law;

- - the current enforcement guidelines of the European Commission regarding Article 102 TFEU;

- - measuring market power;

- - abusive low pricing strategies;

- - the economics of competition law enforcement;

- - recent developments in EU State aid law;

- - economic justifications for State aid.

A critical assessment of the European Commission's State aid action plan by the German Monopolies Commission is appended in English.

Applying law and economics theory to competition law, this book shows that the 'more economic' approach is exerting a considerable impact on various sectors of competition law. The authors clearly demonstrate the progress that can be made when lawyers and economists take notice of and respect the characteristics of each other's discipline. Moreover, the authors show how new insights of economic theory may be integrated into the relevant legal analysis. The book will therefore be appreciated by academics, practitioners, and officials representing both fields.

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Inhalt

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
PREFACE
SUMMARY OF CONTENTS
TABLE OF CONTENTS
CONTRIBUTORS
PART I: THE MORE ECONOMIC APPROACH IN EU COMPETITION LAW
INTRODUCTION
I. Four stages of competition law development
II. The more economic approach
III. Programme and issues of the symposium
IV. Interdisciplinary research in economics and law
THE MORE ECONOMIC APPROACH PARADIGM - AN EFFECTS-BASED APPROACH TO EU COMPETITION POLICY
I. Introduction
II. The progressive adoption of an effects-based approach to EU competition law
A. Reform of vertical restraints policy
B. Guidelines on the application of Article 81(3) EC/101(3) TFEU
C. The new merger control regime
D. Turning towards an effects-based approach in abuse control
1. What is the Enforcement Communication about?
2. What is the focus of the Enforcement Communication?
III. The effects-based approach
IV. Effects-based approach vs. protecting competition
V. What next?
PROTECTION OF COMPETITION v. MAXIMIZING (CONSUMER) WELFARE
I. Legislative objectives
II. Assessment of the 'more economic approach'
III. Conclusion
IV. Prospects
THE EUROPEAN COMMISSION'S PRIORITIES FOR ENFORCEMENT OF ARTICLE 102 TFEU
I. Introduction
II. Market power and dominance
III. Anti-competitive foreclosure
IV. Specific forms of abuses
A. Exclusive dealing
B. Rebates having similar effects as exclusive dealing
C. Tying and bundling
D. Predation
E. Refusal to deal
DISCUSSION
PART II: STUDIES ON ARTICLE 102 TFEU
THE DOMINANCE THRESHOLD IN ARTICLE 102 TFEU
I. Introduction
II. Thresholds
A. What kind of threshold for abuse of dominance cases?
B. Threshold-scepticism
C. The Commission's approach
III. Dominance
A. The power to exclude versus the power to exploit
B. A shift in policy
C. Implications for the measurement of dominance and for enforcement
1. For the measurement of dominance
2. For enforcement
IV. Conclusions
THE DOMINANCE THRESHOLD: A COMMENT
I. Introduction
II. Economics as the route-map
III. The scalier between economics and law: policy discretion
IV. Legal 'regulating screws': standard of proof and the role of legal institutions
V. Conclusion
DISCUSSION
PREDATORY PRICING: FROM PRICE/COST-COMPARISONS TO POST-CHICAGO THINKING
I. Introduction
II. Brief outline of the case law on predatory pricing
A. The AKZO-rules
1. Basic concept
2. Refinements
a) Adjustments of the price/cost-comparisons
b) Proving predatory intent
B. Above-cost predation
C. Recoupment
1. Basic economic concept
2. US antitrust law
a) Background of the debate
b) Stringent liability standards to avoid false positives
c) Recoupment as a tool for cutting back the powers of the jury
3. European Competition law
a) Tetra Pak II: rejection of the recoupment requirement
b) France Télécom: recoupment as one factor to show predatory intent
III. The Enforcement Communication
A. Sacrifice
B. Anti-competitive foreclosure
1. Price/cost-considerations and recoupment of losses
a) General principle
b) No strict recoupment test
2. Market structure and context
a) Structural factors
b) Strategic considerations
C. Objective justifications
IV. Assessment
A. Sacrifice
1. Establishing AAC as a baseline-test for sacrificed profits
2. Sacrifice and above-cost predation
B. Anti-competitive foreclosure
1. Market structure and strategic theory
2. The as efficient competitor test
3. Recoupment
C. Pricing below AAC is not always anti-competitive
V. Conclusion
PREDATORY PRICING: A COMMENT
I. Introduction
II. Providing guidance on Article 102 TFEU enforcement: a challenging task
III. General standards for exclusionary conduct
IV. The central role of time
V. Cost tests as 'screening devices'
VI. Predation
VII. Squeeze and refusal to deal
VIII. Rebates
IX. Bundling
X. Conclusion
DISCUSSION
PART III: STUDIES ON STATE AID
EUROPEAN STATE AID CONTROL - THE STATE AID ACTION PLAN
I. Introduction
II. State aid control as an integral part of competition policy
A. Legal foundations of State aid control
B. Economic foundations of State aid control
C. Previous practice
III. The SAAP
A. Objectives of the SAAP
1. More effective procedures, better enforcement, higher predictability and enhanced transparency
2. Shared responsibility between European Commission and Member States
3. A refined economic approach
4. Form-based vs. effects-based approach
B. The balancing test
1. Positive effects of State aid (stages 1 and 2 of the test)
2. Adverse effects of State aid and balancing (stage 3 of the test)
3. The relevant welfare standard
IV. Conceptual problems of the refined economic approach
A. Financing of State aid
B. Second-best problems
V. The implementation of the SAAP - some examples
A. The de minimis Regulation
B. The GBER
C. The CFRDI
VI. Conclusion
THE GENERAL BLOCK EXEMPTION FOR STATE AID
I. Introduction
II. The State Aid Action Plan
III. The General Block Exemption Regulation
A. Introduction
B. Chapter I: Common provisions
C. Chapter II: Specific provisions for the different categories of aid
D. Chapter III: Transitional provisions
IV. Comment
DISCUSSION
PART IV: ROUND TABLE ON STATE AID
THE NEED FOR A MORE ECONOMIC APPROACH
I. Introduction
II. The notion of State aid
A. Case review by the Court and proof that there is an advantage - the necessity for a more economic approach at the level of the notion of State aid
B. A more economic reflection on the application of the criterion 'State resources'
C. A stricter and more economic approach to the criteria of 'distortion of competition' and 'trade between Member States'?
III. Exceptions from the prohibition of State aids
IV. Outlook
SOME REMARKS FROM A JUDICIAL POINT OF VIEW
I. Introduction
II. GC's scope of control
A. General remarks
B. Scope of judicial control in State aid matters
1. Variations according to the specific legal basis applied
2. Examples from recent case law
III. Possible future consequences of the 'new approach' for the judicial practice
TOWARDS A MORE ECONOMIC CONTROL OF STATE AID IN EUROPE
I. Introduction
II. SAAP and the 'aid balancing test'
III. The R&D&I Framework 2006
IV. The refined economic approach in regional aid
V. The General Block Exemption Regulation
VI. SAAP and the balancing test under Article 106(2) TFEU
VII. Outlook from a practitioner's perspective
VIII. Conclusion
EU STATE AID POLICY, ECONOMIC APPROACH, BAILOUTS, AND MERGER POLICY: TWO COMMENTS
I. Introduction
II. What do we want EU State aid policy do for us?
III. State aid, bailout problem, and merger policy
ANNEX: MONOPOLKOMMISSION: The "More Economic Approach" in European State Aid Control
INDEX
Back Cover

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