Chillin'Competition

EUROPEAN COMPETITION JOURNAL

Volume 9 . Number 3 . December 2013

The 3^rd issue of the 2013 volume of European Competition Journal is now available online.

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CONTENTS

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

Welcome

Topic 1: Public–Private Partnerships for Effective Enforcement

Public–Private Partnerships for Effective Enforcement: Some “Hybrid” Insights?

Philip Marsden

Topic 2: Effective Injunctive Relief

Effective Injunctive Relief

Spencer Weber Waller

Topic 3: Private Actions for Damages

Private Actions for Damages

Philipp Fabbio

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.

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Two Bodies of Law Separated by a Common Mission: Unilateral Conduct by Dominant Firms at the IP/Antitrust Intersection in the EU and the US

Amedeo Arena, Bettina Bergmann and Jay L Himes

Abstract: Both antitrust law and intellectual property (IP) law seek to promote optimum prices, quantity and quality of goods and services. However, because these laws pursue their common objectives through different means, tensions may arise between them. This article looks at five instances of interaction between those two bodies of law in the EU (part I) and the US (part II): (1) the failure to license IPR to competitors (refusal to license); (2) the acquisition of IPRs through misleading representations to public authorities (patent fraud); (3) the exploitation of regulatory procedures involving IPRs to exclude competitors (misuse of regulatory procedures); (4) the failure to disclose IPRs that are essential to implementing a standard adopted by Standard Setting Organization (SSO) or to license those rights on fair, reasonable, and non-discriminatory (FRAND) terms (deception of SSOs); and (5) licensing IPRs at unreasonable rates (excessive royalties) . This article compares the different solutions devised in each jurisdiction and outlines factors that may account for them.

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Injunctions for FRAND-Pledged SEPS: The Quest for an Appropriate Test of Abuse under Article 102 TFEU

Nicolas Petit

Abstract: This paper discusses the legal test under which owners of Standard Essential Patents (SEPs) who have pledged to grant licenses to those SEPs on Fair Reasonable and Non-Discriminatory (FRAND) terms can be held guilty of an abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union (TFEU) by seeking, or threatening to seek, injunctions against unlicensed implementers of their technology.

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EU Merger Control and Non-controlling Minority Shareholdings: The Case against Change

Nicholas Levy

Abstract: This article examines the two principal questions raised by the European Commission’s 2013 proposal to expand the EU Merger Regulation to capture the acquisition of non-controlling minority shareholdings: is there a material gap in the EU Merger Regulation’s scope of application, and, if there is, is that gap large enough to justify subjecting a significant number of transactions to EU merger control?  It concludes that, although there is theoretical support for the notion that non-controlling minority shareholdings may in certain circumstances raise antitrust concerns, in light of the existing possibilities available to the Commission to apply Articles 101 and/or 102, the lack of persuasive empirical evidence that non-controlling minority shareholdings have caused anti-competitive harm, and the real risk that any expansion would be copied in 100 or more jurisdictions, the case for change has not been persuasively made.  Accordingly, at most, any revision of the EU Merger Regulation’s jurisdictional ambit should be narrowly focused to capture only acquisitions that exceed 25% and involve horizontal competitors.

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Book Reviews

A review of Market Power in EU Antitrust Law by Luis Ortiz Blanco

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A review of Economic Efficiency: The Sole Concern of Modern Antitrust Policy? Non-efficiency Considerations under Article 101 TFEU by Ben Van Rompuy

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Current Developments in Member States

Covers developments in Czech Republic; Denmark ; Estonia; Germany; Hungary; Malta; Netherlands; Poland; Slovakia; Spain; United Kingdom

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