Archive for the ‘Book Reviews’ Category
EUROPEAN COMPETITION JOURNAL
Volume 9 . Number 3 . December 2013
The 3rd issue of the 2013 volume of European Competition Journal is now available online.
To access this issue online and purchase individual papers please click here.
For further information about European Competition Journal, please click here.
Antitrust Marathon V: When in Rome Public and Private Enforcement of Competition Law
A discussion led by Philip Marsden, Spencer Weber Waller and Philipp Fabbio
Topic 1: Public–Private Partnerships for Effective Enforcement
Public–Private Partnerships for Effective Enforcement: Some “Hybrid” Insights?
Topic 2: Effective Injunctive Relief
Effective Injunctive Relief
Spencer Weber Waller
Topic 3: Private Actions for Damages
Private Actions for Damages
Topic 4: Criminal Enforcement
Real Crime: Criminal Competition Law
Susan Beth Farmer
Abstract: The Antitrust Marathon is a long-running series of roundtable discussions sponsored by the Institute for Consumer Antitrust Studies of Loyola University Chicago School of Law and the Competition Law Forum of the British Institute of International and Comparative Law, focusing on enduring issues of comparative competition law. These discussions always take place the day before or after the great marathon races of the world which some of the participants also endure. However, no running is required for the roundtable discussion itself. Past Antitrust Marathons have focused on Abuse of Dominance, Antitrust and the Rule of Law; Competition and Consumer Protection, and other topics, and have been held in Chicago, London, Boston and Dublin. We are grateful to the Italian Competition Authority and the University of Rome I (Sapienza) for hosting and being co- sponsors of the 2013 Antitrust Marathon.
Note: The new release of Competition Law Journal features a book review that I wrote this past summer about Pinar Akman’s interesting book: The Concept of Abuse in EU Competition Law: Legal and Economic Approaches. I took advantage of the opportunity to voice out some perhaps not-so-frequent views on competition law in general and Article 102 in particular, mainly casting doubt on the convenience of upholding efficiency as its single, sacred, overarching goal and raison d’être. It is reproduced below:
The interest, apparent complexity and the peculiar nature of competition law stem to a great extent from the abstract nature and impreciseness of its main concepts. Most other areas of law have settled and well understood central notions. Competition law, by contrast, is premised upon particularly nebulous or malleable concepts (fortunately for those of us that make a living out of it, and perhaps not so much for those directly subject to it). Ask most lawyers about what a ‘restriction of competition’ is and you will get a surprising variety of theories, and most likely some striking silences. And whereas competition law concepts are open enough to accommodate different – often conflicting – interpretations, no other concept gives rise to the same level of controversy as the notion of ‘abuse of dominance’.
Indeed, despite longstanding efforts – including some notable recent ones by enforcers on both sides of the Atlantic – we still lack a precise idea of what an abuse of dominance is. Moreover, it has become common for partisans of different schools or viewpoints to point at the obvious irrationality of their counterparts: those ‘irrational ordoliberals’ on the one side, or those ‘irrational neoliberals’ on the other, both cross-criticized for obviously lacking any merit in their arguments. Article 102 elicits passions that move discussions away from ideally Cartesian legal debates and closer to those touching on more profound and vital issues such as religion, politics and football.
Our inability to come up with satisfactory rules to distinguish legitimate and illegitimate unilateral conduct by dominant firms has provided fertile ground for the creativity of both practicing lawyers and academics (and, to be sure, of competition enforcers as well). Focusing only on the academic domain, Pinar Akman’s book is preceded by an endless list of publications having as their object – but perhaps not as their effect – the clarification of Art 102 TFEU.
Against this background, Pinar Akman’s book stands out as a particularly original contribution to this debate, and one that is definitely worth reading. The book is very innovative in its approach, it is well written, and it visibly is the result of thorough research, reflection and drafting. Akman’s work is deliberately theoretical; it is not aimed at providing a systematic and thorough account of cases; it stays true to its stated purpose of proposing a ‘completely fresh approach’ to Art 102 TFEU, and it does indeed submit thought-provoking ideas.
The Concept of Abuse in EU Competition Law is grounded on the author’s arguable assumption that “the approach that has been adopted by EU authorities to date is far from desirable or appropriate and sometimes is even far from rational“. Consistent with this critical stance, the book seeks not to provide an analysis of the case law and decisional practice, but rather to propose its radical overhaul. This is boldly announced in its very first paragraph:
“The reader of this book is invited to put to one side her preconceptions of the prohibition of abuse of a dominant position in Article 102 TFEU, in particular those directly resulting from the judgments of the Court of Justice (ECJ). Fortunately, this is not asking for too much; after all, the ECJ is not legally bound by precedent.”
It is often said that the first phrase in any literary work should create a tension prompting the reader to continue the story. I acknowledge that the bold view of precedents as preconceptions made me read the rest of the book with increased interest.
Then the Antitrust Writing Award (thanks, btw, to the campaign I so well managed… ; see here).
And now (actually, last Saturday) Nico got the “Prix du livre juridique” to the best legal book published in France (see here), for his new textbook Droit européen de la concurrence.
The prize was awarded at the Constitutional Court in Paris; prestigious setting for a prestigious prize (see pic above; in case you were wondering, Nicolas is the one posing).
Judging by his mother’s comment on his Facebook wall, the prize has made the family happy. You know, there haven’t been so many ocassions to feel proud of the chap
Congrats to Nico for the prize and for his contribution to spreading the competition gospel in France. Hopefully new generations of French will gain a better understanding of competition law and,
unlike the jury in this case, will be able to tell what’s sound legal competition reasoning and what’s not !
P.S. Contrary to what you might think, I’m not writing this simply to promote my co-blogger’s achievement. I’m doing it because the a****** said he won’t give me a free copy, so I’m hoping that some advertisement will earn me one from the publisher.
The 3rd edition of EU Competition Procedure (Oxford University Press) is out.
I’m the least objective reviewer, because its editor is Luis Ortiz Blanco, who, among many other things, is the person because of whom I work in competition law (he essentialy planned my whole professional career the very first day he interviewed me for an internship, when I was only 20).
For this third edition Luis has brought together a truly exceptional team. In addition to my colleagues Konstantin Jorgens, Marcos Araujo and José Luis Buendía, who, together with Kieron Beal, Gordon Blanke and Jean Paul Keppenehad already contributed to the 2nd edition, there have been very notable additions from the Commission’s Legal Service and DG Comp, namely: Carlos Urraca, Ralf Sauer, Corneliu Hodlmeyr, Manuel Kellerbauer, Nicolas von Lingen and Maria Luisa Tierno Centella.
The book (a short read of over 1,200 pages) deals in more depth than any other source with procedural issues in antitrust, merger control, State aid, public undertakings and exclusive/special rights, competition enforcement in the EEA and arbitration. It’s a must-have.
I’ll do my best to get you an invite for the launching party, like last time.
Oana Stefan (HEC Paris) has kindly sent us a copy of her book on soft law in competition and state aid law.
This book is the first monograph ever devoted to this issue.
Amongst other things, the book uses quantitative data to confirm that the judgments of the EU Courts abundantly refer to soft law instruments.
It also argues that the distinction between binding and non binding effects is too crude.
Lastly, it shows that the EU courts have created legal hybrids when endorsing soft law instruments on the ground that they are the expression of general principles of law. This generates, in the author’s words, a “judicialization” of soft law.
A must read. Apparently, Oana will in the future focus on how national courts deal with soft law instruments.
A full description of the book can be found here.
Two final remarks. First, I’d love to read Oana’s views on the appalling Expedia judgment (Expedia Inc v Autorité de la concurrence and Others C-226/11). Second, this book review does not mean that we are “sokolizing” this blog. Our tacit understanding with Dan is that he focuses on the scholarship reviews, we concentrate on the rest (including the nonsense).
Hart has offered us a book in exchange of some advertisement on this blog.
So here we go: their latest competition law volume is a book by David McFadden entitled ”The Private Enforcement of Competition Law in Ireland”.
Abstract: Competition is recognised as a key driver of growth and innovation. Competition ensures that businesses continually improve their goods and services whilst striving to reduce their costs. Anti-competitive conduct by businesses, such as price-fixing, causes harm to the economy, to other businesses and to consumers. It is small businesses and the consumer who ultimately pay the price for anti-competitive conduct. A coherent competition policy that is both effectively implemented and effectively enforced is essential in driving growth and innovation in a market economy. The importance of competition was recently emphasised when the EU/ECB/IMF ‘Troika’ included a number of competition specific conditions to the terms of Ireland’s bailout. Both Irish and Community law recognise the right for parties injured by anti-competitive conduct to sue for damages. This right to damages, in theory allows those that have suffered loss to recover that loss whilst helping to deter others from taking the illegal route to commercial success. However private actions for damages in Ireland are rare.
This book asks what the purpose of private competition litigation is and questions why there has been a dearth of this litigation in Ireland. The author makes a number of suggestions for reform of the law to enable and encourage private competition litigation. The author takes as his starting point the European Commission’s initiative on damages actions for breach of the EC antitrust rules and compares the position in Ireland to that currently found in the UK and US.
David McFadden is Legal Adviser and solicitor to the Irish Competition Authority and has published extensively on competition law and other regulatory issues in Ireland.
April 2013 302pp Hbk 9781849464130 RSP: £50 / €65 / US$100 / CDN $80
20% DISCOUNT PRICE: £40 / €65 / US$80 / CDN$80
Order Online in US
If you would like to place an order you can do so through the Hart Publishing website (link above). To receive the discount please type the reference ‘CCB’ in the special instructions field. Please note that the discount will not show up on your order confirmation but will be applied when your order is processed.
Order Online in the UK, EU and Rest of World
UK, EU and ROW: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849464130
If you would like to place an order you can do so through the Hart Publishing website (link above). To receive the discount please type the reference ‘CCB’ in the voucher code field and click ‘apply’.
Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW
Telephone Number: 01865 517 530
Fax Number: 01865 510 710
With tough budget cuts in State universities and the bonkers rates charged by some academic publishers, university libraries are being margin squeezed.
At chillin’competition, we have thus decided to advertise competition law and economics books, provided we receive a free copy from the editor.
It is our pleasure today to advertise a new book entitled “‘State Aid and the European Economic Constitution” by Francesco de Cecco. The book is published by Hart Publishing. A full description + all relevant info can be found hereafter.
State Aid and the European Economic Constitution
By Francesco de Cecco
Recent years have seen the rise of EU State aid law as a crucial component of the European economic constitution. To date, however, the literature has neglected the contribution of this area of EU law to the internal market. This book seeks to fill this gap in our understanding of the economic constitution by exploring the significance of State aid law in addressing questions that go to the core of the internal market project. It does so by examining the case law relating to three different activities that Member States engage in: market participation, market regulation, and funding for Services of General Economic Interest. Each of these areas offers insights into fundamental questions surrounding the economic constitution, such as the separation between the State and the market, the scope for Member States to engage in regulatory competition, and the tension between market and nonmarket concerns.
Link to table of contents http://www.hartpub.co.uk/pdf/9781849461054.pdf
Francesco de Cecco is a Lecturer in Law at Newcastle University.
December 2012 210pp Hbk 9781849461054 RSP: £50 / US$100
20% DISCOUNT PRICE: £40 / US$80
If you would like to place an order you can do so through the Hart Publishing website (links below). To receive the discount please mention ref: ‘CCB’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.
UK, EU and ROW: http://www.hartpub.co.uk/books/details.asp?isbn=9781849461054
If you have any questions please contact Hart Publishing
Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW, UK
Tel No: 01865 517530
Fax No: 01865 510710
Hart Publishing Ltd. is registered in England No. 3307205
As you know, Nicolas is one of the co-authors of a new book on EU Competition Law and Economics.
Oxford University Press has sent me a review copy. I was intending to write a serious review, but now I’ve watched a youtube-review of the book that is much better than anything I could ever write.
Those interested can watch it here: Youtube review of EU Competition Law and Economics
My favorite comments” “it is not too heavy”, “it’s got a useful index at the back” and “it has lots of footnotes” . I also enjoyed the way the reviewer pronounces the authors’ names, including Nikos Petite and Demien Geraden (although, to be fair, in Damien’s case I think it must be a Youtube dialect; here’s a precedent). He does better with Anne Layne-Farrar’s name.
P.S. This reviewer has featured in previous post here at Chillin’Competition. In fact, he had two nominations to our Antitrust Oscars.
P.P.S. By the way, Val Korah has also written a review of this book in World Competition which Nico is described as an “eminent professor” and a “partner at a famous law firm” (?!).
In order to stand up to our reputation of “competition geeks”, and following our own advice on the usefulness of “reading, not just consulting, competition law books“, both Nicolas and myself included some “professional readings” within our beach-reading-material [I also took some non-competition readings with me (American Pastoral and Soldiers of Salamis) and they were simply excellent, and perhaps a bit more fun...].
I chose to read several network-effects related pieces (which are useful both for my halted PhD research and for my current work). Some of what I read was
crap perhaps not so useful (what’s going on with peer reviews these days?), but other pieces were very good. I’ll share some views on them (assuming that you don’t give a damn about what we read, but in the hope that we can help anyone interested on these matters to “sepparate the wheat from the chaff)”.
For instance, I re-read Pierre Larouche’s article “The European Microsoft Case at the Crossroads of Competition Policy and Innovation” and -regardless of whether one agrees with everything that is in it or not- I thought that it is a model of what a serious, balanced, well-though and well-written comment of a Judgment should be like. I also re-read (or read seriously for the first time) a somehow more difficult (given its economic nature and its lenght) but brilliant piece by J. Farrell and P. Klemperer ”Competition and Lock-In: Competition with Switching Costs and Network Effects“. And I read for the first time a paper entitled “Monopolization via Voluntary Network Effects“, by Adi Ayal, that is both original and quite sensible.
Finally, I finished reading Competition Law and Regulation of Technology Markets, by Kevin Coates. In a previous post I said I would write a short review on it here, so here it goes. It may, however, come a bit late, since it’s most likely that you are already familiar with the existence of this work. Anyway…. Kevin Coates has produced a truly excellent book, and one that focuses on what is possibly the most timely subject in worldwide antitrust these days. The book deals with the application of competition law, intellectual property law, telecoms regulation, and data protectition law “accross the different layers of the value chain, from the underlying technology, through the networks and into services and applications in light of the disciplines“.
The book does a great job in presenting the reader with the particular features of technology industries (e.g. its rapidly evolving and innovation-driven nature, the existence of network effects, the multiplicity and complexity of market relationships or the crucial role of technical compatibility), and, most notably, in addressing the particular challenges that these features pose to antitrust enforcement.
The book’s analysis is lucid, its scope is comprehensive, its language is fresh and lively; it expresses some personal views, but objectively presents all possible sides to every debate. In no other book will you find a comparable coverage of the breadth of technology-related issues covered in this one. In sum, it’s a book that I would’ve loved to write myself, and that I would’ve been proud to write in the way it is written.
P.S. We have asked Kevin to develop in a guest post in Chillin’Competition some of the ideas that we found more interesting. We’ll let him rest for a few days, but we hope to have him here soon.