Chillin'Competition

Hart has been kind enough to send us (technically, to me) a review copy of the latest volume of the European Competition Law Annual series, and I thought I would devote this Friday slot to say a word about it. You do not need an introduction to the famous Florence workshops, which have proved to be enormously influential and which have anticipated some substantive and procedural developments in EU competition law. The vast majority of you do not need an introduction either to the beauty of the Tuscan landscapes surrounding the European University Institute. Even though I did my PhD there, I am amazed every time I have the chance to go back, which is less often than I would like to.

Because it would not make any sense to discuss the obvious, I thought it would say instead a few words about some of my favourite pieces published as part of the proceedings. These are articles which I use very often for research purposes or about which I find myself thinking quite often. My personal top 3 – in strict alphabetical order – is as follows:

• Ian Forrester, Sector-specific price regulation or antitrust regulation – A plague on both your houses?: If you have followed my work a bit you will know that I am interested in telecommunications regulation (as it is now called again, it would seem). Unfortunately, there is relatively little academic research in the area. This piece discusses the interaction between competition law and sector-specific regulation and the implications of some legislative developments. In particular, it provides an excellent critical analysis of the regulation of roaming. This was the first significant departure from the logic underpinning the EU Regulatory Framework for Electronic Communications. If Ian Forrester only knew back then what would happen in subsequent years.
• Luc Gyselen, Rebates – Competition on the Merits or Exclusionary Practice?: The first virtue of this piece is its clarity. If you want to understand DG Comp’s pre-Discussion Paper approach to exclusive dealing and rebates, this article is the best starting point. Many things make more sense after reading the piece (in particular some ECJ rulings such as British Airways). Its second virtue is its intellectual honesty. At the time of the workshop, in 2003, Luc Gyselen was Head of Unit at DG Comp. This fact did not prevent him from expressing in public his misgivings about Michelin II, which was controversial for several reasons even under the old approach.
• Heike Schweitzer, The History, Interpretation and Underlying Principles of Section 2 Sherman Act and Article 82 EC: Article 102 TFEU case law is frequently labelled as being ‘ordoliberal’. It is not always clear what people mean when they use this expression, no less because it is often relied upon to refer to any feature of the case law that is perceived to be problematic or controversial. This article explores some common misconceptions in this sense. Heike Schweitzer discusses the drafting history of Article 102 TFEU and explains post-war ordoliberal views and debates on the appropriate legal treatment of unilateral practices. The analysis of existing case law is valuable in its own right. I often refer in my work to her understanding of the principle whereby dominant firms have a ‘special responsibility’ under Article 102 TFEU. I agree with her views and I also believe that people tend to read too much into it. I only regret that the piece does not cover more practices!