Archive for the ‘Antitrust Scholarship’ Category
LIDC Conference in Vienna – 22-25 October
I am flying to Vienna tomorrow for the LIDC (International League of Competition Law) annual congress. I have the great honour of being one of the two 2009 international reporters.
I attach below the programme of the conference as well as the latest draft of my international report. Looking forward to it.
LIDC – Programme Annual Congress
International Report – LIDC – Question A – Nicolas PETIT (12 10 09)
New Book on Standard of Review in Competition Law and Economic Regulation
Oda Essens, Anna Gerbrandy and Saskia Lavrijssen (Utrecht University) have just edited a new book entitled National Courts and the Standard of Review in Competition Law and Economic Regulation (Europa Law Publishing). Once more, I cannot say much of this book because I am conflicted (I co-authored the Chapter on French judicial review).
Yet, the overall topic of the book is extremely interesting. In a nutshell, the whole point is to assess whether the ECJ’s Tetra Laval ruling, and the specific standard of review it encapsulates, has had repercussions on national judicial review practices. Congratulations to the editors for bringing this project to completion.
New Book on Associations (Federations) of Undertakings and Competition Law
Charles GHEUR and Philippe LAMBRECHT, of the Belgian Federation of Undertakings (FEB), have just published
The book is edited by Larcier.
No book review for this one, because I am conflicted (I wrote the chapter on exchange of information agreements). This being said, this book is one of the first to provide a comprehensive overview of the implications of EC/national competition rules for federations of undertakings. It will surely help many in-house lawyers from federation/association of undertakings in their daily work.
Slides of THE Best Conference on Verticals of the Year
We had 168 registered participants to our conference on verticals last week. Let’s see who has the Best conference on verticals in terms of turnout.
Now, more seriously, I attach hereafter the slides presented at the conference.
A. VANDENCASTEELE The 30 % market share
C. CAFFARRA Selective Distribution and Restrictions of Online Commerce An Economic Perspective
E. KAIRIS & E. VAN PARYS The future of the Car Block Exemption Regulation
F. GALARZA Online Distribution
F. WIJCKMANS A Practitioner s Perspective on Regulation 279099
J. HOLTZ Impact of the draft guidelines on online advertising
J. RATLIFF Buyer-Related Vertical Restraints (Upfront access payments and category management)
L. PEEPERKORN Review of the Vertical Restraints Framework
P. LUGARD Resale Price Maintenance
R. NASH Review of the Vertical Restraints
T. VERGE Economic Review of the Current Regime and of the Draft Guidelines
New GCLC Working Paper
Dan Sokol (University of Florida), has a new GCLC Working Paper (02/09) entitled “Limiting Anti-Competitive Government Interventions That Benefit Special Interests“. Timely paper. Public restrictions of competition are indeed an under-researched area of competition law. In addition, in the current post-crisis context, governments are increasingly tempted to make use of heavy-handed regulatory instruments.
Should you have a draft paper that you would like to submit for publication in the GCLC WP series, please send it to me.
New Book Out – Article 81 EC and Public Policy
Chris Townley has just published a promising book entitled “Article 81 EC and Public Policy” (Hart Publishing). I paste below the author’s description of his book.
The book explains how some of the most complex competition law cases can be understood. It also offers a framework for those fighting or deciding such cases in the future. The argument comes in three parts. First, from a theoretical perspective, Part A discusses whether public policy considerations (such as public health or the environment) should be considered in European competition law. Contrary to the mainstream view, it concludes that this should sometimes happen. Then, Part B shows that, surprisingly for some, the ECJ/CFI and Commission regularly consider public policy in both Article 81(1) and 81(3) EC. I also explain how these decision-makers do this (including by distorting the consumer welfare analysis). Finally, Part C notes the incoherence of the case law described in Part B, and suggests ways to consider public policy that are more in line with the EC Treaty and also respect competition policy’s integrity. As such, it will be of interest to European competition lawyers, both academics and practitioners (furnishing them with a framework for hard cases), as well as students, seeking a deeper understanding of how the European competition rules work and how they interact both with European Union and Member State public policy goals. It will also help competition economists by revealing the mechanisms through which public policy considerations impact upon the consumer welfare test in European law.
Happy to do a review, if the publisher sends me a copy. And congratulations to the author.
Where to find the Fiesole Papers on EC Competition Law
Each year, the vicinity of Florence (It.) becomes THE place to be for antitrust experts.
The venerable city of Fiesole indeed hosts a prestigious closed-door seminar on EC competition law and economics, under the supervision of C-D. Ehlermann.
Whilst the papers presented at this seminar are subsequently published by a law publisher, it often takes a while for the book to be available.
The good news is that all the draft papers prepared ahead of the seminar are available on line. I just discovered the link. An absolute mine of information.
Image possibly subject to copyright (source: http://www.travelplansintl.com)
So What
Familiar with situations where the EC Courts find a violation of a rule of due process, but refuse to quash a Commission’s decision because, absent this infringement, the outcome of the case would not have been different?
In a very straightforward, and funny, manner, Ivo Van Bael proposed to describe this (“unfortunate“) legal principle as the “so what doctrine” (source: “Insufficient Control of EC Competition Law Enforcement”, Fordham Corporate Law Institute, 1993, at p.742). Awesome.
A refresher now. Ivo Van Bael was one of the most influential Brussels lawyers in the 70s and 80s. Besides being one of the founders of the law firm Van Bael and Bellis, Ivo Van Bael has been one of the strongests advocates of due process/rights of defence issues in competition cases. He has written ferocious papers lambasting the Commission’s attitude in antitrust proceedings (with a certain sense of courage, many practitioners being now reluctant to do so, for fear of ex post retaliation against their clients).
Just wanted to pay tribute to him. This kind of straigthforward language in legal papers is unfortunately disappearing.
Call for Papers on Antitrust in the Energy Sector
Call for papers: OGEL special issue on “antitrust in the energy sector”
6/5/2009
Oil, Gas and Energy Law Intelligence (www.ogel.org) invites submissions for a Special issue covering antitrust issues in energy. The guest editor for this special issue is MYSELF.
The energy sector is one of the areas where antitrust enforcement in the EU has been the most intensive in recent years. In addition to the very significant sector inquiry 2005-2007 and the cases that are now resulting from that inquiry, the remedies (e.g. divestiture of significant network assets, energy release programmes, etc.) that have been ordered by the European Commission in the energy sector have sparked a lot of controversy. Whilst the EU seems to lean towards increased antitrust intervention in energy markets, including access issues, downstream markets, long-term agreements, LNG imports, etc. other jurisdictions, such as the United States, apparently promote less intrusive approaches (as a result, amongst others, of some US Supreme Court decisions such as Trinko). Finally, a number of antitrust agencies inside and outside the EU have a significant record in the enforcement of antitrust rules in the energy sector.
We encourage submission of relevant papers, studies, and brief comments on various aspects of this subject. The topics may cover all aspects of antitrust enforcement (vertical/horizontal cooperation agreements, abuse of dominance, merger control, etc.) relevant for oil, gas, electricity and other energy sub-sectors including LNG and nuclear.
IEJE Working Paper n°3/2009
In this article, Nicolas Petit argues that the adoption of the Commission’s Guidance on article 82 marks a welcome improvement in Article 82 EC enforcement. The effects-based approach promoted in the Guidance places the Commission under mounting evidentiary thresholds. Should it be applied in future Article 82 EC cases, one can expect a likely upgrade in DG COMP’s decisional output.
This notwithstanding, several provisions of the Guidance are problematic like the analysis of consumer harm, which is particularly unsatisfactory. Whilst, from the outset, the Guidance claims that consumer welfare is a pivotal objective in Article 82 EC enforcement, the Guidance’s provisions on the factors and methods relevant to the assessment of consumer harm remain extremely unclear. In the same vein, whilst the Guidance requires the proof of a causal link between foreclosure and the dominant firm’s conduct, it illogically fails to impose a similar causation requirement in respect of consumer harm and foreclosure. Overall, the assessment of the Guidance’s effects-based approach is mixed.
Download: From Formalism to Effects? – The Commission’s Guidance on Article 82 EC (en)
Chillin'Competition 