The Reform of EC Competition Law

Name: The Reform of EC Competition Law | New Challenges
Brand: Kluwer Law International
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New Challenges

Ioannis Lianos Ioannis Kokkoris(Editor)

Kluwer Law International (Publisher)

Published on 16. December 2009

624 pages

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978-90-411-4446-1 (ISBN)

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Content

Intro
Title Page
Copyright Page
Summary of Contents
Table of Contents
Foreword: The Reform of EC Competition Law: The Challenge of an Optimal Enforcement System
Preface
List of Abbreviations
Part I: Institutional Aspects
Section A: The Design of an Optimal Competition Law Enforcement Regime
Chapter 1: Welfare-Based Optimal Legal Standards: A Brief Review of Theory and Applications
I Introduction
A Decision Errors of Legal Rules
B Indirect (Deterrence) Effects of Legal Rules
C Procedural Effects of Decision Rules
II Choosing Legal Standards: Some Limitations of Existing Analyses
III Choosing Legal Standards: A Welfare-Based Approach
IV An Application to Refusals to License IPs and Microsoft
V Concluding Remarks
Chapter 2: Private Enforcement: Current Situation and Methods of Improvement
I Introduction
II The Basis for Damages Actions in EC Law
III The Situation in the Member States
IV Determining the forum
V Establishing the Claim
A Discovery
B Making Prior Decisions Binding
VI Fault
VII Damages
A Punitive Damages
B The Passing-on Defence
VIII Collective Actions
IX Costs
X Conclusion
Chapter 3: An EU Competition Court: The Continuing Debate
I The Last Twenty Years: How We Got Here
A Setting up of the CFI
B The Increasing Workload
C Changes to the Rules of Procedure
D Structural Reform: Judicial Panels and the European CST
E The House of Lords Report 2007
II Where Are We Now?
III Where Should We Go from Here?
A The House of Lords Report
B Specialized Chambers?
IV The Wider Picture
A Increasing Workload, Delay, Dilution?
B Judicial Review and Fundamental Rights
C Modernization: No Coherent Appellate Structure
V Looking Ahead: A Tentative Conclusion
Section B: Concurrent Proceedings in National and EC Competition Law
Chapter 4: Case Allocation in Antitrust and Collaboration between the National Competition Authorities and the European Commission
I Introduction
II Case Allocation within the Network
A Lack of Binding Allocation Rules
1 Centre of Gravity
2 Best-Placed v. Well-Placed Authority
B Initial Allocation Period
C Exchange of Information
III Conflicts of Jurisdiction under the Allocation System
A Positive and Negative Conflicts
B Unpredictability of Penalties
IV Procedural Rights of the Parties
A The Right to a Fair Hearing
B The Right to a Fair Administrative Procedure
C The Right to a Fair Trial
1 Review of Article 11, Paragraph 6 Decisions
2 Review of Article 13 Decisions
3 Review of Other Decisions
D Access to the File
E Legal Representation and the Protection of the Confidentiality of Lawyer-Client Communications
F The Protection Against Self-Incrimination
G The Principle of 'ne bis in idem'
V Conclusion
Chapter 5: The Role of Arbitration in Competition Disputes
I Introduction
II Competition between the Arbitrator and the National Judge
A Evolution in Law
1 Stability of the Conditions Required by National Arbitration Law
2 Amendment of the Limits Imposed by Competition Law
B Evolution in Practice
1 Limitation of Specialized Authorities' Intervention
2 The Contracting Parties' Wariness Towards Ordinary National Courts
III The Organization of Relationships between the Arbitrator and Other 'Competition Authorities'
A Cooperation Relationships
1 Autonomous Proceedings
2 Successive and Parallel Proceedings
B Scrutiny Relationships
1 Ignorance of Competition Law
2 Erroneous Application of Competition Law
IV Conclusions
Chapter 6: Modernization and the Role of National Courts: Institutional Choices, Power Relations, and Substantive Implications
I Introduction
II Decentralization Versus Uniform Application: A Delicate Trade-off
A The Shift to a Decentralized System and Its Counterbalances
B The Impact on Institutional and Procedural Autonomy
III The Relationship between Competition Authorities and National Courts: The Mixing of Roles
IV The Substantive Impact: The Standards of Application of Article 81 EC
V Conclusion
Section C: Optimal Sanctions and Their Limitations
Chapter 7: Optimal Antitrust Enforcement: From Theory to Policy Options
I Introduction
II The Economic Model of Law Enforcement
III Limitations of the Model
IV Insights from the Model
V Conclusion
Chapter 8: Tools for an Optimal Enforcement of European Antitrust Law: Examples of Guidelines on the Method of Setting Fines and on Commitment Proceedings. Is the European Commission Right?
I Introduction
II Guidelines on the Method of Setting Fines Imposed Pursuant to Article 23(2)(a) of Regulation No. 1/2003
A The Need for Transparency Countered by the Retention of Wide Discretion
1 The Need for Transparency
2 The Commission's Intention to Strengthen Its Discretion
3 The CFI and The ECJ's Position: Discretion v. Consistent Policy
B Uncertainties Resulting from the 2006 Guidelines
1 Methodology to Set the Fines
2 The Uncertainties Surrounding the Methodology of the 2006 Guidelines and Its Application
a Uncertainty Regarding Whether Application of the Methodology of the 2006 Guidelines is Appropriate
b Uncertainties Surrounding the Methodology Set Down by the 2006 Guidelines
III The Commission's Commitment Proceedings Policy
A The Commitment Proceedings Before the Commission: Theoretical Aspects
1 The Commitment Proceedings within the System of Community Proceedings
2 The Inherent Risks in the Commitment Proceedings
B The Commission's Jurisprudence
IV Conclusion
Chapter 9: Protecting Human Rights in the Context of European Antitrust Criminalization
I Introduction
A Background
B Aims and Layout
II The Normative Position of Human Rights in the Context of European Antitrust Criminalization
A Accommodating Human Rights within a Theoretical Model of Antitrust Criminalization
B Deterrence as an Objective of Criminalization
C Acknowledging a 'Plurality' of Values
D A Compromise Model
III The Principle of Legality and its Effect on the Substance of Criminal Antitrust Laws
A The Concept of Legality
B 'Sleeping giants' and Legality
C Legal Certainty in Definition
IV Due Process and European Antitrust Criminalization
A Due Process as a European Right
B Strengthening of Procedural Rights
1 Standard of Proof
2 Right against Self-incrimination
3 Consequences of Strengthening Rights
C Division of Functions
D Exchange of Information
E Ne Bis in Idem
V Conclusion
Part II: The Challenges of Economic Evidence
Chapter 10: 'Judging' Economists: Economic Expertise in Competition Law Litigation A European View
I Introduction
II Expert Evidence in the Courtroom: Origins and Problems
A The Origins of Expertise: Informational Asymmetry and Epistemic Competence
B Science, Objectivity, and the Specific Nature of Economic Expertise
1 The Evolution of Acceptable Methods of Observation as a Limit to the Demarcation Criterion of Empiricism
2 The Possibility of Deductive Science as a Criticism to the Demarcation Criterion of Induction
3 The Elusive Demarcation Criterion of Facts-Based Reasoning Versus Theory/Abstract Reasoning
4 Scientific Practice as a Limit to the Demarcation Criterion of Scientific Consensus
5 Pragmatism as a Limit to the Demarcation Criterion of Objectivity
C The Development of an Economic Science for Litigation: Implications for the Evolution of Research in Antitrust Economics
III Economic Expertise in Competition Law: Scope and Implications
A The Legal Relevance of Economic Expertise in EC Competition Law
B The Many Faces of Economic Evidence in Competition Law
1 Economic 'Facts'
2 Economic Transplants
3 Economic Authority
4 Economic 'Laws'
IV Points of Entry of Economic Expertise in the Courtroom: A Comparative Institutional Analysis
A Expert Witnesses
B Court-Appointed Experts
C Hybrid Options
1 Assessors and Special Juries
2 Amicus curiae or Advice from the Competition Authorities
3 Internal Economic Expertise (Clerks, Research, and Documentation Units in Courts Formed by Economists)
4 Specialized or Trans-Disciplinary Courts
V Substantive Assessment of Economic Expertise
A Admissibility of Economic Expertise: The Exclusionary Ethos
1 The Emergence of the Gatekeeping Role of the Judge
2 The Application of the Daubert Rules in Competition Law Litigation
3 A Critical Assessment of the Daubert Test
B Assessment and Sufficiency of Economic Expertise: The Discursive Ethos
1 Attaching Weight to Economic Evidence as a Filter for a More Extensive Competition Law Assessment
a The Development of Procedures Requiring the Weighing of Economic Evidence: Summary Judgments and the Expansion of the Plausible Economics Inquiry
b How to Determine the Evidential Weight of Economic Evidence?
2 The Determination of the Standard of Proof
a A Probabilistic Account of Standards of Proof (Persuasion) for Economic Evidence
b Relative Plausibility Theory and Standards of Proof (Persuasion)
VI Conclusion
Part III: Vertical Aspects
Section A: Competition Law Policy in Markets with Non-conventional Price-Formation Mechanisms
Chapter 11: Antitrust Issues in Dynamic Markets
I Introduction
II Endogenous Market Structures and Competition Policy
III Toward a Reform of Antitrust Policy for Dynamic Markets
IV Predatory Pricing
V Intellectual Property Rights Policy
VI An Application: The Dynamic Market for Online Advertising
VII Conclusions
Chapter 12: Antitrust Issues in Network Industries
I Introduction
II The Logic of Competition Law in the United States and the European Union
III Markets with Network Effects
A Sources of Network Effects and the Reversal of the Law of Demand
B Critical Mass
IV Features of Markets with Network Effects
A Ability to Charge Prices on Both Sides of a Network
B Network Effects may or may not be Internalized
C Fast Network Expansion
D Perfect Competition is Inefficient
E Incompatibility as a Strategic Weapon
F Inequality of Market Shares and Profits
G Monopoly may Maximize Total Surplus
H In Networks, Market Inequality can Exist without Anti-competitive Acts
I In Network Industries, Free Entry Does Not Lead to Perfect Competition
J Imposing an Egalitarian Market Structure Is Likely to be Counter productive
K Nature of Competition is Different in Network Industries
L Path-Dependence
V Competition Policy Issues in Network Industries
A Interconnection Issues in One-Sided Bottlenecks
B Interconnection Issues in Two-Sided Bottlenecks
C Market Power Creation Specific to Networks: The Importance of Technical Standards
D Vertical Integration and Vertical Control Issues in Network Industries
E Dynamic Efficiency Issues
F Innovation Issues
G Criteria to Be Used for Antitrust Intervention in Network Industries
H Criteria to Be Used for Remedies
VI Concluding Remarks
Chapter 13: EC Competition Law and Parallel Trade in Pharmaceutical Products
I Introduction
II The Factual Background: The Greek Example
III The Specific Legal and Economic Context of the Pharmaceutical Sector Sets it Apart from Other Industries
A State Regulation and Public Service Obligations
B The Benefits of Parallel Trade cannot be Presumed to Accrue to Customers and End Consumers
IV The GSK Cases
A Article 81 EC
B Article 82 EC
V Comment
A Article 81 EC
B Article 82 EC
1 The Definition of the Relevant Market and Dominance
2 Abuse
VI Conclusion
Section B: Abuse of a Dominant Position
Chapter 14: Exclusionary Abuses and the Justice of 'Competition on the Merits'
I Introduction
II The Exquisite Problem
III The Different Enforcement Approaches
IV Some Suggestions Based on Merit and Justice
Chapter 15: The Implementation of an Effects-Based Approach under Article 82: Principles and Application
I Introduction
II Different Approaches to Designing Rules for the Analysis of Exclusionary Conduct
III An Effects-Based Approach to Analyse Unilateral Conduct by Dominant Firms
IV Predation: The American Airlines Case
V Input Foreclosure
VI Rebates
VII Conclusion
Section C: Mergers
Chapter 16: Critical Analysis of the ECMR Reform
I Introduction
II Jurisdictional Reform
A Member State Referrals to the Commission
B Referrals to Member States
C Article 9 ECMR, Post-Notification Referrals upon Request by Member States
D Pre-Notification Referrals upon Request by the Merging Parties
E Company Requests for Pre-Notification Referral to the Commission
III Procedural Reform
A Pre-Notification Consultations
B State of Play and Triangular Meetings
C Discussion of Remedies
D Other Procedural Innovations
IV Substantive Reform
V Case Law Analysis
A Oracle/PeopleSoft
1 Analysis of the Case
2 A Gap Case?
B Sony/BMG
1 Analysis of the Case
2 A Gap Case?
VI Market Structure Conducive to 'Gap' Cases
VII Conclusion
Annex 1
Chapter 17: On the Economics of Non-horizontal Mergers
I Introduction
II Vertically-Related Firms and Markets
A Vertical Chains
B Pre- and Post-Chicago Views
III Main Economic Effects in Vertical Structures
A Double Marginalization: The Basic Vertical Externality and Solutions
B Equilibrium Pricing Incentives with Strategic Pricing
C Quality and Specific Investments
D Dynamics
E General Lessons from the Theoretical and Empirical Analyses
IV Non-horizontal and Non-vertical Cases
V Economic Analysis Behind Non-horizontal Merger Guidelines
VI The Possible Roles of the Non-horizontal Merger Guidelines
VII Conclusion
Section D: Cartels
Chapter 18: An Optimal Enforcement System against Cartels
I What is Special About Cartels?
II What is Special About the Enforcement of Cartel Rules?
III Detecting and Proving Secret Cartels
IV Timely Punishment: Sanctions
V Is There Such a Thing as an Optimal System to Enforce the Cartel Prohibition?
Chapter 19: The ECN and the Model Leniency Programme
I Introduction: Antitrust Enforcement in the Pre-modernization Era 505
II The European Competition Network and Its Functioning
A An Integrated and Flexible Enforcement System
B Exchange of Information
C Work Sharing
D Coherent Application of Antitrust Rules
E Achievements of the ECN Network
III The Model Leniency Programme
A The Implications of ECN Cooperation for National Leniency Programs
B Remedies Adopted in the Network Notice
C The Adoption of the Model Leniency Programme
D The Principles of Leniency Harmonization
E The Summary Application System
F The Results of the MLP
IV Conclusion
Section E: State Action and EC Competition Law
Chapter 20: The Community State Aid Action Plan and the Challenge of Developing an Optimal Enforcement System
I Introduction
II Enforcement of EU State Aid Control
A Less and Better Targeted State Aid
B Effective Procedures, Better Enforcement, Higher Predictability and Transparency
C Shared Responsibility between the Commission and the Member States
D Greater Emphasis on Economic Analysis
III State Aid Under the EU Treaty
A Transfer of State Resources
B Economic Advantage
C Selectivity
D Effects on Trade Between Member States
IV Assessment of State Aid Compatibility with the EU Market
A Negative Effects of State Aid
B Positive Effects of State Aid
V Concluding Remarks
Chapter 21: EU Competition Policy for Rescuing and Restructuring Companies
I Introduction
II Meaning of 'a Firm in Difficulty'
III Rescue or Restructuring?
IV Compatibility with the Common Market
A Application of Article 87(3) EC
B Rescue Aid
C Restructuring Aid
1 Restoration of Long-term Viability
2 Avoidance of Undue Distortions of Competition
3 Real Contribution of the Aid Beneficiary
4 Full Implementation of Restructuring Plan
D The 'One Time, Last Time' Principle
V Final Remarks
Chapter 22: State Aid Law Claims in Merger Control
I Introduction
II EC Case-Law
A The Matra Doctrine: Origins and Recent Developments
B The RJB Mining Case: The Matra Doctrine in a Merger Control Context
C The BaByliss Judgment: A Step Back from RJB Mining ?
III Commission Practice Post-RJB Mining
A RAG II
B The Hellenic Shipyard Cases
C Metronet/Infraco
D Deutsche Post/DHL(II) and Deutsche Post/Exel
E Iberdrola/Scottish Power
F ENEL/EMS
IV Concluding Remarks
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The Reform of EC Competition Law

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