Competition Law and Consumer Protection

Name: Competition Law and Consumer Protection
Brand: Kluwer Law International
Price: 261.99 EUR
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Katalin Judit Cseres(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 23. Juni 2005

464 Seiten

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Beschreibung

The assumption that competition law and consumer protection are mutually reinforcing is rarely challenged. The theory seems uncontroversial. However, because a positive interaction between the two is presumed to be self-evident, the frequent conflicts that do in fact arise are often dealt with on an ad hoc basis, with no overarching legal authority. There is a clear need for a detailed and coherent understanding of exactly where the complements and tensions between the two policy areas exist.

Dr Cseres in-depth analysis provides that understanding. Proceeding from the dual perspective of law and economics that is, of justice, fairness, and reasonableness on the one hand, and of efficiency of the other she fully considers such underlying issues as the following:

the role of competition law and consumer law in a free market economy;
the notion of consumer welfare;
the effect of the modernisation of EC competition law for consumers;
economics theories of information, bounded rationality, and transaction costs;
the special significance of vertical agreements and merger control; and,
how consumers are affected by information asymmetries.

The ultimate focus of the book is on current and emerging EC law, in which a rapprochement between the two areas seems to be under way. Dr. Cseres provides a knowledgeable guide to the various strands of theory, policy, and jurisprudence that (she shows) ought to be taken into account in the process, including schools of thought and law and policy experience in both Europe and the United States. A special chapter on Hungary, where post-1989 law and practice reveal a fresh and distinctly forward-looking understanding of the matter, is one of the book's most extraordinary features. Competition Law and Consumer Protection stands alone as a committed contribution to bridging a gap in legal knowledge the significance of which grows daily. It will be of immeasurable value to a wide range of professionals from academics and researchers to officials, policymakers, and practitioners in competition law, consumer protection advocacy, economic theory and planning, business administration, and various pertinent government authorities.

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Inhalt

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
Table of Contents
Abbreviations
Introduction
DEFINITION OF THE RESEARCH PROBLEM
THE METHOD OF THE RESEARCH
THE PLAN OF THE BOOK
1 Law and economics
1.1 WHY LAW AND ECONOMICS?
1.2 WHAT IS LAW AND ECONOMICS?
1.2.1 The method of law and economics
1.2.2 The role of economic analysis
1.2.3 Economic efficiency
1.2.4 Standards of welfare economics
1.2.4.1 Efficiency trade-offs
1.2.4.2 Consumer welfare
1.2.4.3 Total welfare
1.3 BRIEF HISTORY OF LAW AND ECONOMICS
1.3.1 Chicago: the school established
1.3.2 Posner: the school accepted
1.3.3 The school challenged
1.4 EUROPE
1.4.1 European law
1.4.2 Centralisation or decentralisation in the EU?
1.4.3 Eastern Europe
1.4.4 Hungary
1.5 CONCLUSIONS
2 Schools of thought in law and economics
2.1 US SCHOOLS
2.1.1 The Harvard School
2.1.2 The Chicago School
2.1.2.1 The goal of antitrust policy: 'misleading' consumer welfare
2.1.2.2 Mergers
2.1.2.3 Policy implications
2.1.2.4 Vertical agreements
2.1.2.5 Tying arrangements
2.1.3 The Chicago-Harvard debate
2.1.4 Criticism of the Chicago school - the Post-Chicago School
2.1.5 Contestable markets
2.1.6 New Institutional Economics
2.1.7 Transaction costs theory
2.1.8 Modern industrial organisation: Game theory
2.2 ARE INFORMATION PROBLEMS ANTITRUST PROBLEMS?
2.2.1 Kodak
2.2.2 Information problems revisited
2.2.3 The aftermath of Kodak - Microsoft
2.3 CONCLUSIONS
3 European competition law and economics
3.1 EUROPEAN SCHOOLS
3.1.1 The Freiburg School
3.1.2 The influence of the Freiburg School: policy implications
3.1.3 The workability of competition
3.1.4 The Austrian School
3.1.5 Freedom of competition
3.2 THE EUROPEAN COMMUNITY
3.2.1 The foundations: the Freiburg School
3.2.2 The enforcement of European competition law
3.2.3 Departure from the Freiburg School
3.2.3.1 From an economic constitution to a political constitution
3.2.3.2 From the Ordoliberal framework to an economic framework
3.2.4 The role of economic theories in EC competition law
3.2.4.1 The Harvard influence in Europe
3.2.4.2 The attractiveness of Harvard for EC competition law
3.2.5 Modernisation of competition law
3.2.5.1 Modernisation in the narrow sense
3.2.5.2 Modernisation in the broad sense
3.2.5.3 The purpose of modernisation
3.3 INCREASING THE ROLE OF ECONOMICS IN COMPETITION LAW
3.3.1 The Commission's conceptual framework: a 'European School of thought'?
3.3.2 Economic analysis in the Commission's Notice on the definition of the relevant market
3.3.2.1 The SSNIP test
3.3.2.2 The shortcomings of the SSNIP test
3.3.2.3 The evaluation of the Notice
3.3.3 From economic freedom to consumer welfare: Article 81(1) and (3) EC
3.3.3.1 The narrow interpretation of EC Article 81 EC
3.3.3.2 Regulation 1/2003
3.3.3.3 Guidelines on the application of Article 81(3) EC
3.3.4 Economic analysis in vertical agreements
3.3.4.1 Forms
3.3.4.2 Effects
3.3.4.3 The old approach
3.3.4.4 The new approach
3.3.5 Economic analysis in merger control
3.3.5.1 The substantive test in the old Regulation
3.3.5.1.1 The dominance test
3.3.5.1.2 The Airtours judgement
3.3.5.1.3 Learning from defeat: Airtours, Schneider/Legrand and Tetra Laval/Sidel
3.3.5.2 The new substantive test
3.3.5.3 Efficiencies
3.3.5.3.1 The old approach
3.3.5.3.2 The new approach
3.3.5.3.3 Efficiency arguments under Article 81(3) EC and Article 2 (1) Merger Regulation
3.3.6 The new chief economist
3.4 CONCLUSIONS: THE NEW SHAPE OF EUROPEAN COMPETITION POLICY
4 Consumer protection
4.1 THE CONSUMERIST SOCIETY
4.2 THE NECESSITY FOR STATE INTERVENTION
4.3 WHAT IS CONSUMER LAW?
4.3.1 Consumer law as a separate branch of law
4.4 NATIONAL APPROACHES
4.4.1 Consumer protection in the US
4.4.2 Consumer protection in Western Europe
4.4.3 Germany
4.4.4 Nordic countries
4.4.5 Common law countries
4.4.6 Franco-Roman countries
4.4.7 Consumer protection in Eastern Europe
4.4.7.1 In centrally-planned economies
4.4.7.2 Moderate changes
4.4.7.3 Transition
4.4.7.4 Summary
4.5 THEORIES OF CONSUMER PROTECTION
4.5.1 Legal theories of consumer protection
4.5.1.1 The 'traditional' theory of consumer protection
4.5.1.2 German discussion
4.5.1.2.1 The information model
4.5.1.2.2 The alternative models
4.5.1.2.3 A synthesis
4.6 A LAW AND ECONOMICS APPROACH TO CONSUMER PROTECTION
4.6.1 Economics of information
4.6.2 Rationality and bounded rationality
4.6.3 Transaction costs
4.6.4 Information asymmetry
4.6.5 Designing consumer protection policies
4.6.6 Is regulation a necessary and feasible response?
4.7 CONCLUSIONS
5 Consumer protection in the European Community
5.1 THE FIRST PHASE: THE BEGINNING
5.2 THE SECOND PHASE: BECOMING AUTONOMOUS
5.2.1 Consumer protection and the internal market
5.2.1.1 The significance of consumer law
5.2.1.2 The tension between the internal market impetus and consumer protection
5.2.2 The European model of consumer protection
5.2.2.1 The EC concept of the consumer
5.2.2.2 The role of information in the EC model
5.3 THE THIRD PHASE: A NEW APPROACH
5.3.1 The rationale and the regulation technique of the new approach
5.3.2 Assessment of the new approach: systematic harmonisation v. 'a more fragmented Europeanisation'
5.3.3 Economic assessment of the new approach
5.3.3.1 Source of the problem: structural or informational
5.3.3.2 Necessity and feasibility of Community action
5.3.3.2.1 Why a market-based solution is unlikely to work
5.3.3.2.2 Why the different legal solutions do not work
5.3.3.2.3 Why the aims cannot be achieved at the national level
5.3.3.3 Costs and benefits
5.3.4 Problems related to the proposal on unfair commercial practices
5.3.5 Problems related to a future European contract law
5.4 CONCLUSIONS
6 Consumer interests and competition policy
6.1 THE GOALS OF EC COMPETITION POLICY
6.1.1 Market integration
6.1.2 Freedom of economic action
6.1.3 Consumer welfare
6.1.3.1 Consumer welfare considerations in Article 81 (3) EC
6.1.3.2 Efficiency-equity trade-off in merger control
6.2 CONFLICT OF GOALS
6.2.1 Freedom of action - consumer welfare: Article 81 (3) EC
6.2.1.1 Which consumer interests?
6.2.1.1.1 The Commission's decisions in the past
6.2.1.1.2 Future decisions
6.2.1.1.3 Short-term v. long-term benefits
6.2.1.1.4 Fair share
6.2.1.2 Freedom of action - consumer welfare: outside of Article 81 (3) EC
6.2.2 Market integration - competition and consumer welfare: vertical agreements
6.2.2.1 Europe v. US
6.2.2.2 Regulation 2790/1999
6.2.2.3 Consumer interests in vertical agreements
6.3 THE GOALS OF US ANTITRUST LAW V. EUROPE: 'WE PROTECT COMPETITION, YOU PROTECT COMPETITORS'
6.3.1 A disappointing experience of divergences through GE/Honeywell
6.3.2 Questionable arguments
6.3.3 In the light of Tetra Laval
6.3.4 Different approaches to mergers
6.3.5 Efficiencies
6.3.6 The differences between the US and EU competition systems
6.3.7 'We protect competition, you protect competitors'
6.4 WHICH WELFARE STANDARD COUNTS?
6.4.1 Which consumer welfare standard counts?
6.4.2 Whose consumer welfare counts?
6.4.3 How will the modernisation of competition law effect consumers?
6.5 CONCLUSIONS
7 The interface between consumer protection and competition: complementarities, conflicts and synergies
7.1. 'THE BATTLE FOR THE SOUL OF ANTITRUST'
7.1.1 The possible objectives of competition policy
7.1.2 What are the goals of competition policy?
7.1.3 Which welfare standard counts?
7.1.4 Does it matter which welfare standard is adopted?
7.1.5 Alternatives to the two welfare standards
7.1.5.1 'Long-term consumer interest'
7.1.5.2 The balancing weights approach
7.1.5.3 The 'rebalancing' model
7.2 WHAT ARE THE GOALS OF CONSUMER PROTECTION?
7.2.1 Paternalistic model
7.2.2 Liberal model
7.3 DO THE GOALS OF COMPETITION LAW CORRESPOND WITH THE GOALS OF CONSUMER PROTECTION?
7.3.1 Complements
7.3.2 Tensions
7.4 IS COMPETITION LAW AN EFFECTIVE TOOL TO PROTECT CONSUMERS?
7.4.1 Competitive market v. information problems
7.4.2 The true focus for consumer protection
7.4.3 The 'Chicago trap'
7.4.4 How to avoid the 'Chicago trap'?
7.4.5 A complicated 'love-hate' relationship
7.5 THE RELATIONSHIP BETWEEN COMPETITION LAW AND CONSUMER PROTECTION
7.5.1 The role of economics in the relationship between competition policy and consumer protection
7.5.2 Approaching the relationship between competition and consumer protection
7.5.2.1 Paternalistic approach
7.5.2.2 Liberal approach
7.5.3 The contrast between the two approaches
7.6 WHERE DOES THE EU FIT IN?
8 Hungary
8.1 INTRODUCTION
8.2 DEVELOPMENTS BEFORE 1989
8.3 TRANSITION
8.3.1 The role of competition in the transition period
8.3.2 The position of consumers during the transition
8.3.3 Development of consumer protection after the transition
8.3.3.1 Legislation on consumer protection
8.3.3.2 Institutions for consumer protection
8.4 COMPETITION ACT OF 1990
8.5 COMPETITION ACT OF 1996
8.5.1 General prohibition of agreements restricting competition: Article 11
8.5.2 Exemption from the prohibition of cartels: Article 17 (1) b
8.5.3 Vertical agreements
8.5.4 Dominance
8.5.4.1 Concentration control: a shift from the efficiency test to the dominance test?
8.5.4.2 Is this a step back from the efficiency test?
8.5.5 Further changes in the Act of 1996
8.6 THE EFFECT OF THE MODERNISATION OF EC COMPETITION LAW
8.7 THE OEC'S EX OFFICIO PROTECTION OF CONSUMERS
8.7.1 Notion of consumer
8.7.2 Protection of consumers in unfair competition law: 'Prohibition of unfair manipulation of consumer choice'
8.7.2.1 Deception of consumers: deception of consumers or harm to competitors?
8.7.2.2 Restriction of the freedom of consumer choice
8.7.2.3 Problem areas concerning consumer fraud
8.7.2.4 The OEC's competence in consumer protection issues
8.7.3 Protection of consumers in cartel law
8.7.3.1 Prohibition of cartels: Article 11 (2) c
8.7.3.2 Individual exemptions under Article 17 (1) b
8.7.3.3 Prohibition of abusing a dominant position: Article 21 (1) b
8.7.3.4 Concentration control
8.8 THE ROLE OF ECONOMICS
8.8.1 Personnel and economic analysis
8.8.2 Which welfare standard counts?
8.9 CONCLUSIONS
8.10 CAN THE EU LEARN FROM THE HUNGARIAN CASE?
9 Final conclusions
9.1 LAW AND ECONOMICS 'BEYOND THE GATES OF HELL'
9.2 THE INTERACTION BETWEEN COMPETITION LAW AND CONSUMER PROTECTION
9.3 EUROPEAN DEVELOPMENTS
9.4 THE MARRIAGE OF CONSUMER PROTECTION AND COMPETITION LAW: THE ADVANTAGES OF COMBINING THE ENFORCEMENT OF COMPETITION LAW AND CONSUMER PROTECTION UNDER ONE SINGLE AUTHORITY
9.5 IMPACT FROM THE WEST AND EAST: PROPOSALS FOR EUROPEAN POLICY-MAKERS
Bibliography
Table of cases
Index
Back Cover

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