Relaxing whilst doing Competition Law is not an Oxymoron

Latest ECJ features a bunch of very good papers

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Volume 9 . Number 2 . August 2013


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Vertical Antitrust Enforcement: Transatlantic Perspectives on Restrictions of Online Distribution under EU and US Competition Laws

Gabriele Accardo

Abstract: This article looks at how EU and US competition laws deal with restrictions of online sales in distribution agreements, respectively. The growing importance of online commerce highlights how vertical competition law enforcement is still an important building block of competition law policies, both in the US and in Europe. Businesses who are either engaged in online activities or deal with online intermediaries in the US and EU should be aware of the rules of the game, since vertical antitrust issues are generally subject to different principles on the two sides of the Atlantic. The European Commission recently adopted new competition rules that specifically target restrictions of online sales in distribution agreements, acknowledging the importance of e-commerce for consumers and its instrumental role in achieving the paramount goal of a single internal market in Europe. Conversely, unlike in the EU, several factors, such as the existence of a developed online market, the absence of single market considerations, the paramount importance of freedom to contract and the role of inter-brand competition under US antitrust law, arguably explain why US antitrust doctrine is less concerned about the need to adopt specific rules applicable to restrictions of online sales.

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Alternative Approaches to Sentencing in Cartel Cases: The European Union, Ireland and the United States

Paul K Gorecki and Sarah Maxwell

Abstract: The paper examines the approach used in sentencing in hard core cartel cases in the European Union, Ireland and the United States. These approaches are not considered in a vacuum, but rather use the facts of the successful prosecution of the Citroen cartel in Ireland. While the EU and the US both use sentencing guidelines, the US guidelines are more evidence based and transparent. In contrast, the judiciary in Ireland has yet to develop a systematic clear policy for determining sentences in cartel cases. Applying the EU and the US sentencing guidelines to the facts of the Citroen cartel suggests that, in any event, the sentences imposed in cartel cases Ireland are too low. Some suggestions for rectifying the situation are discussed.

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Public Interest Mergers

Cosmo Graham

Abstract: This article looks at the law and practice surrounding public interest mergers in the UK. Although most mergers are assessed on the basis of their effects on competition, there are a small group of mergers which raise wider concerns and some of these have been very controversial. The special procedure for dealing with such mergers is explained. The most high profile cases: Lloyds/HBOS, BSkyB/ITV and the failed bid by News International for BSkyB, are then examined. The article concludes that these cases offer a cautionary tale for those who see a bigger role for non-economic factors in competition analysis.

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Do Cartel Breakdowns Induce Mergers? Evidence from EC Cartel Cases

Kai Hüschelrath and Florian Smuda

Abstract: We investigate the impact of cartel breakdowns on merger activity. Merging information on cartel cases decided by the European Commission (EC) between 2000 and 2011 with a detailed data set of worldwide merger activity, we find that, first, the average number of all merger transactions increase by up to 51% when comparing the three years before the cartel breakdowns with the three years afterwards. Second, for the subset of horizontal mergers, merger activity is found to increase even more – by up to 83% – after the cartel breakdowns. Our results not only suggest that competition authorities should consider mergers as potential ‘second-best’ alternative to cartels but also imply that resource (re)allocations in competition authorities, law practices and economic consultancies may become necessary to handle the increase in merger cases.

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The Orange–H3G Merger and the New Regulatory Paradigm for a Single Telecoms Market

Milena Stoyanova-Sieber

Abstract: The regulatory decisions on the occasion of the Orange-H3G merger in Austria raise the question whether, and to what extent, the remedies agreed upon in merger control go beyond the enforcement of competition law and are they used to further sector-specific wider policy objectives. The regulatory approvals of the merger illustrate an existing tension within the evolving new regulatory paradigm for the European telecoms. On the one hand, cross-border consolidation between the European telecoms providers is at the core of the Single market for European telecoms. On the other hand, such consolidation reduces the number of competitors in national already oligopolistic markets thus incurring stricter regulatory scrutiny. Sector-specific regulation and competition law enforcement in the telecoms sector tend to converge in the name of their common goal: to contribute to the accomplishment of the Single telecoms market characterised by effective competition and delivering innovative, high quality, value adding services to European consumers at affordable prices.

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Benighted We Stand: Justifications of Prima Facie Dominance Abuses in EU Member States

Tjarda Van Der Vijver

Abstract: EU law prohibits the abuse of a dominant position, but only in the absence of an objective justification. EU Member States have also acknowledged the relevance of objective justification vis-à-vis their domestic prohibitions of the abuse of dominance. However, little is known of how Member States interpret and apply the concept. This article seeks to provide more clarity by examining the approach of several Member States. The analysis incorporates legislative acts, case law, as well as guidance documents and decisions by National Competition Authorities. The article explores the scope and legal conditions as to the various types of justifications that have been acknowledged at the domestic level, namely legitimate business behaviour (including commercial freedom and objective necessity), efficiency benefits and public interest gains. The article concludes by listing promising practices that should be considered by EU and domestic decision makers alike.

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Book Review: A review of The Criminal Law of Competition in the UK and in the USA: Failure and Success by Mark Furse

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Written by Nicolas Petit

1 November 2013 at 4:16 pm

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