Remedies in EU Competition Law

Name: Remedies in EU Competition Law | Substance, Process and Policy
Brand: Kluwer Law International
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Substance, Process and Policy

Damien Gerard(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 10. Juli 2020

384 Seiten

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Inhalt

Intro
Half-Title Page
Title Page
Copyright Page
Editors
Contributors
About the Global Competition Law Centre
Summary of Contents
Table of Contents
Foreword
Preface
Part I Objectives and Limitations of Remedies
Chapter 1 Merger Remedies: Firm Incentives Versus Agency Objectives
§1.01 INTRODUCTION
§1.02 THE SIMPLE ECONOMICS OF MERGER REMEDIES
[A] The Firm and Its Incentives
[B] The Agency and Its Objectives
§1.03 THE ECONOMICS OF A MERGER REMEDY
[A] Regulation and Remedies
[B] Uncertainty and Remedies
[C] Contracting and Remedies
§1.04 IMPLICATIONS FOR MERGER REMEDIES
[A] The Rationale and Role for Conduct Remedies
[B] The Rationale and Role of Divestiture Remedies
§1.05 CONCLUSION
Chapter 2 The Role of Demand Side Remedies in Resolving Competition Concerns
§2.01 INTRODUCTION
§2.02 THE ROLE OF THE DEMAND SIDE IN DRIVING EFFECTIVE COMPETITION
§2.03 CONSUMER DECISION-MAKING AND BEHAVIOURAL BIASES
§2.04 TYPES OF DEMAND SIDE REMEDY
[A] The First A: 'Attending'
[B] The Second A: 'Accessing'
[C] The Third A: 'Assessing'
[D] The Fourth A: 'Acting'
§2.05 APPLICATION OF DEMAND SIDE REMEDIES TO CASES UNDER MERGER AND ANTITRUST LAW
[A] The Microsoft Browser Abuse Decision (2009)
[B] The Liberty Global/Corelio/W&W/De Vijver Media Phase II Merger Decision (2015)
§2.06 CONSIDERATIONS WHEN INTERVENING ON THE DEMAND SIDE OF THE MARKET
[A] Lesson 1: Clearly Identify the Underlying Problem
[B] Lesson 2: Consider All the Remedy Options
[C] Lesson 3: Support the Consumer
[D] Lesson 4: Consider Distributional Effects
[E] Lesson 5: Thoroughly Test the Remedy
[F] Lesson 6: Learn from the Private Sector
[G] Lesson 7: Implementation Matters
[H] Lesson 8: Review the Outcomes
§2.07 A CONCLUDING REMARK
Part II Types of Remedies
CHAPTER 3 EU Merger Control: How to Remove Anticompetitive Effects?
§3.01 INTRODUCTION
§3.02 DESIGN OF REMEDIES: STRUCTURAL SOLUTIONS PREFERRED
§3.03 DIVESTITURE REMEDIES
§3.04 IDENTIFYING A SUITABLE PURCHASER OF THE DIVESTITURE
§3.05 NON-DIVESTITURE REMEDIES
§3.06 NOT ALL MERGERS CAN BE CLEARED WITH REMEDIES
§3.07 GLOBAL MERGERS AND INTERNATIONAL COOPERATION
§3.08 CONCLUSION
CHAPTER 4 On the Consistency of the European Commission's Remedies Practice
§4.01 INTRODUCTION
§4.02 BACKGROUND ON REMEDIES
[A] Requirements for Remedies
[1] Effectiveness
[2] Proportionality
[B] Types of Remedies
[1] Structural Remedies
[2] Behavioural Remedies
[3] Access Remedies
§4.03 THE COMMISSION'S REMEDIES PRACTICE
[A] Remedies in Antitrust Decisions
[B] Remedies in Merger Decisions
[C] Comparison of Remedies in Antitrust and Merger Decisions
§4.04 CONCLUDING CONSIDERATIONS
CHAPTER 5 'Regulatory' and 'Antitrust' Remedies in EU Competition Law
§5.01 INTRODUCTION
§5.02 A TAXONOMY OF REMEDIES
[A] Between Reactive and Proactive Intervention
[B] What Explains Proactive Intervention?
§5.03 WHY REGULATORY REMEDIES ARE DIFFERENT
[A] The Design, Implementation and Monitoring of Remedies
[B] The Ex Ante and the Ex Post Dimensions of Competition
§5.04 SUBSTANTIVE TESTS AS A LIMIT TO REGULATORY INTERVENTION
[A] The (Proactive or Reactive) Nature of the Remedy Determines the Applicable Legal Test
[B] The Scope of the Legal Test(s)
[C] The Interpretation of the Legal Test(s)
§5.05 IMPLICATIONS
[A] A Legal Perspective
[1] Generalities
[2] Interim Measures
[B] A Policy Perspective
[1] Generalities
[2] A Principles-Based Approach to Remedies
§5.06 CONCLUSIONS
Chapter 6 Remedies in State Aid
§6.01 INTRODUCTION
§6.02 TYPOLOGY AND PROCEDURE OF STATE AID REMEDIES
[A] Prospective Remedies
[1] Typology of Prospective Remedies
[a] Structural Remedies
[i] Beneficiary
[ii] Member State
[b] Behavioural Remedies
[2] Procedure of Prospective Remedies
[B] Restorative Remedies
[1] Typology of Restorative Remedies
[2] Procedure of Restorative Remedies
[a] Recovery
[b] Judicial Remedies
[i] Cases Introduced by Member States
[ii] Cases Introduced by Competitors and Directly Affected Third Parties
[iii] Cases Introduced by Beneficiaries Against the Member State
§6.03 COMPARISON AND CRITICAL ANALYSIS
[A] State Aid Remedies as Compared to Other Competition Law Remedies
[1] Remedies in Mergers
[2] Remedies in Antitrust
[3] Remedies in State Aid
[B] Critical Analysis of State Aid Remedies
§6.04 CONCLUSION
Part III Implementation and Process
Chapter 7 Challenges in Designing and Implementing Remedies in Innovation Intensive Industries and the Digital Economy
§7.01 INTRODUCTION
§7.02 STRUCTURAL REMEDIES IN MERGER CONTROL
[A] Complexity
[B] Incentives to Innovate
[C] Urgency
[D] Independence
§7.03 BEHAVIOURAL REMEDIES IN THE DIGITAL ECONOMY
[A] Interoperability Remedies in EU Competition Law
[B] Data Portability, Data Interoperability and Data Sharing
[C] Proposals for Institutional and Procedural Reform
§7.04 CONCLUSIONS
CHAPTER 8 When the Clay Pot Meets the Iron Pot or How to Reconcile Negotiated Enforcement and Due Process in Antitrust Law
§8.01 TRANSPARENCY REQUIREMENTS
[A] The Need of Transparency so as to Ensure Proper Decision-Making
[B] The Need of Transparency so as to Ensure Due Process
[1] As to Commitment Decisions
[2] As to Direct Settlements
§8.02 VOLUNTARY NATURE OF THE SETTLEMENTS
[A] The Required 'Voluntary' Nature of Settlements
[B] The Need to Ensure That Parties Know the Alternatives If They Refuse to Settle
[1] As to Commitment Decisions
[2] As to Direct Settlements
§8.03 THE NEED FOR ADEQUATE JUDICIAL REVIEW
[A] The Absence of Judicial Involvement in the EU Settlement and Commitment Procedures
[B] Are Settlement and Commitment Decisions in the EU Subject to 'Adequate' Judicial Review?
[1] As to Commitments Decisions
[2] As to Direct Settlements
§8.04 CONCLUSION
Chapter 9 From Coercion to Cooperation: Settlement Within EU Competition Law
§9.01 INTRODUCTION
§9.02 A TAXONOMY OF SETTLEMENT IN EU COMPETITION ENFORCEMENT
[A] Informal Settlements
[B] Article 9 Commitment Decisions
[C] Article 7 Infringement Decisions
[1] Immunity and Discounts on Fines under the Leniency Notice
[2] Cartel Settlement Procedure
[3] 'Cooperation Outside the Leniency Notice'
[4] Quasi-Consent Decrees: Settlement under Paragraph 37 of the Fining Guidelines
[5] Article 9 Cases That Revert to Article 7 Dispositions
§9.03 WHAT INFORMS THE CHOICE BETWEEN COERCION AND COOPERATION?
[A] Voluntarism
[B] Nature of the Breach
§9.04 AFTER SETTLEMENT: BROADER IMPLICATIONS OF THE TRANSACTIONALISATION' OF ANTITRUST ENFORCEMENT
[A] Shift Towards Deference in Case Law of Court of Justice
[B] Expansion of Substantive Scope of EU Competition Law
§9.05 CONCLUSIONS
Chapter 10 Private Remedies and Digital Markets
§10.01 INTRODUCTION
§10.02 DIGITAL MARKETS
§10.03 PRIVATE ANTITRUST ENFORCEMENT IN DIGITAL MARKETS
[A] Public Enforcement Issues in Digital Markets
[B] Private Claims for Injunctive Relief
§10.04 INJUNCTIONS IN THE ENGLISH COURTS
[A] Injunctions in the High Court and CAT
[B] Injunctions Related to Digital Markets
§10.05 CONCLUSIONS
Part IV Ex Post Assessment and Lessons
Chapter 11 Ex Post Assessment of Merger Remedies: An Overview of the Recent Practice in the European Union
§11.01 INTRODUCTION
§11.02 MEASURING THE EFFECTIVENESS OF MERGER REMEDIES
[A] The Framework: Relevant Criteria in the Assessment of Merger Remedies
[B] Types of Evaluation
[C] Overview of the Existing Evidence
§11.03 MOBILE MERGERS: EX POST ASSESSMENT
[A] T-Mobile/Tele.ring
[B] Orange UK/T-Mobile
[C] Hutchison 3G/Orange Austria
[D] Hutchison 3G/O2
[E] Telefónica O2/E-Plus
[F] Hutchison 3G Italy/WIND JV
§11.04 CONCLUDING REMARKS
Chapter 12 Remedies for Violation of State Aid Rules under EU Law: Reasons for Reform and Its Scope
§12.01 INTRODUCTION
§12.02 THE BACKBONE OF THE RECOVERY SYSTEM: ESSENTIAL PRINCIPLES, ENFORCEMENT CRITERIA, AND BASIC SUBSTANTIVE AND PROCEDURAL RULES
[A] Substantive Rules and Principles
[1] Targeting the Abolishment of Unlawful and Incompatible Aid
[2] The Essential Features of the System of Recovery of Unlawful and Incompatible Aid
[B] Ancillary Remedies and Conceptual Flaws
§12.03 MODERNISATION OF THE COMMISSION'S 2007 RECOVERY NOTICE: ACHIEVEMENTS AND LIMITS
[A] The 2007 Recovery Notice
[B] The New Recovery Notice
§12.04 FINAL REMARKS
Part V Remedies in National and International Practice
Chapter 13 The Portuguese Legislative Framework Regarding Remedies: Overview
§13.01 BEHAVIOURAL REMEDIES
[A] Design Risks, Circumvention Risks, Monitoring
[B] Use of Behavioural Remedies in Antitrust Enforcement
[C] Use of Behavioural Remedies in Regulated Markets
[D] Broader Public Interest Issues
§13.02 STRUCTURAL REMEDIES
[A] Features, Advantages and Risks
[B] Use of Structural Remedies in Mergers
[C] Use of Structural Remedies in Antitrust Cases
§13.03 BROADER ISSUES WITH REMEDIES
[A] Remedies in the Digital Era: Challenges for Enforcers
[B] Use of Interim Measures
[C] Market Inquiry Remedies and Recommendations
[D] International Cooperation in Merger Remedies
[E] Merging Parties as a Decisive Factor
Chapter 14 Remedies in Practice Outside the EU: The Case of South Africa
§14.01 INTRODUCTION
§14.02 THE SOUTH AFRICAN COMPETITION LAW FRAMEWORK
§14.03 THE SOUTH AFRICAN APPROACH TO REMEDIES
[A] Prohibited Conduct (Enforcement) Remedies
[1] Telkom SA SOC Limited - Telecommunications
[2] Pioneer Food Group Limited - Bread
[3] Sasol Chemical Industries (Pty) Ltd - Fertilizer
[B] Mergers
[1] Competition Remedies
[2] Public Interest Remedies
[3] Market Inquiries
§14.04 CONCLUSION
BIBLIOGRAPHY
CASES

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