Archive for the ‘Working Papers’ Category
Concurrences has launched the 2015 edition of the Antitrust Writing Awards.
Among the roughly 50 articles selected for each of the “academic” and “business” categories there are many written by friends of this blog, and also some authored by Pablo (namely this one), Nicolas Petit (see here) and myself (here and here) (btw, if you click on any of those you might as well give us a 5 star vote😉 )
Regardless of the degree of importance that you may give to these things, scrolling through the list of selected articles is a great way of catching up with some of the best scholarship of the past few months (and also with our writings). Being the sort of person that reads a competition law blog, you’ll surely find some stuff of interest in those lists.
P.S. An additional thought: I just saw once again the pic of Pablo that appears in the Concurrences website (at one point in time he was the most read author in that site) and couldn’t help thinking that it’s well suited for a before-and-after Men’s Health cover…
In the course of his time off blogging, Nicolas has remained pretty productive on the academic front. Here are the abstracts and links to some of his latest work:
1. A sequel to the World Cup, with a short paper on the UEFA Financial Fair Play Regulation. In brief, he expressess doubts that the FFPR recently introduced by UEFA will promote competition in the football industry. According to Nico’s view, the FFPR is likely to create an ‘oligopoleague’ of football clubs that will freeze the market structure, to the detriment of the smallest clubs. The conclusion is that the FFPR may well constitute an unlawful agreement under Article 101 TFEU. The paper can be downloaded here.
2. A paper arguing that the TeliaSonera judgment on price squeezes has been in part repealled by subsequent case-law. The paper resorts to a short numerical example to show the flaw of finding a price squeeze in the presence of positive margins. The final version of this paper was published in the “Revue du Droit des Industries de Réseaux“, a new journal on the regulation network industries. See here: Price Squeezes with Positive Margins – Economic and Legal Anatomy of a Zombie (Final)
3. A presentation on the General Court’s Judgment in Intel, where he argueS that the Guidance Paper is not yet dead. In his view, the impact of Intel is confined to leveraging rebates – ie retroactive rebates – which are subject to a quasi per se illegality standard. As for the other rebates – eg incremental rebates – they remain subject to a rule of reason standard, though the assessment method need not be quantitative. The General Court also has generalized the Article 102(3) defense in abuse of dominance cases, though it is complex to see if this will be practical. The paper concludes with an optimistic note on the future of the Guidance Paper, and discusses the more philosophical point of whether Article 102 should seek to protect competitive OUTCOMEs or rather the PROCESS of competition. Nicolas submits that if 102 protects the PROCESS of competition, this should not dispense agencies and complainants to bring a certain degree of economic evidence in support of their allegations. See here: Intel v Commission – ABC Seminar – 10 07 14
4. A presentation on “Problem Practices”, ie practices that do not fall neatly within the conventional antitrust prohibitions: planned obsolescence strategies, most unfavored customer clauses, IP tracking- pricing, etc. He gave a speech on this at the CCP (University of East Anglia) Annual conference on Problem Markets arguing that existing EU rules can be flexibly stretched to capture such practices, and that we do not need a Section 5-type provision in our legal framework. In other words, he submits that there is no gap within the EU competition toolbox. See here: Problem Practices – CCP
5. A presentation on the principles of effectiveness and procedural autonomy in EU competition law given before an audience of judges at EUI as part of a seminar hosted by Giorgio Monti. See here: The Principles of Equivalence and Effectiveness -Petit
Nicolas is currently writing papers developing the content of presentations 3 and 4, so he’ll be grateful to anyone interested in sharing thoughts on those.
Our colleague Christian Bergqvist, Associate Professor at Copenhagen University has offered us a working paper version of his piece on the “Use and Abuse of EU Competition Law”. See link at the end of this post.
In brief, Christian reviews the case-law under 101, 102 and the EUMR, searching whether the rules have been twisted, bent or manipulated to achieve objectives alien to the protection of competition.
A very interesting read. Christian is looking for comments on his work. You may directly write to him at: CBE@jur.ku.dk
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.
In line with many economists and legal observers, this Norman Neyrinck’s paper argues that a radicalization of the policies fighting cartels is justified, through an increase of the incentives to report and disincentives to collude.
First, harsher administrative sanctions are needed to deter cartel formation, both directly and indirectly as this would reduce many of the adverse effects generated by mild leniency programs. In this context, the Commission has obviously demonstrated a certain degree of commitment, with increasingly high fines being imposed on cartel infringers. Yet, there is still some way to go. In this regard, a close examination of the fines imposed in the car glass cartel – which have had a resounding impact on the antitrust community – reveals that the alleged elevation of the Commission’s fines policy is largely overestimated (they are partly the result of aggravating circumstances for repeated offenses).
Second, leniency schemes would be enhanced through the introduction of additional features such as rewards for firms, bounties for individuals and criminal sanctions. If well coordinated, those mechanisms can lead to a significant increase of leniency applications and, in turn, achieve an optimal degree of compliance with competition law.
The author is a LLM student in Liège University (www.ieje.net)
The first IEJE working paper provides an asssessment of the Belgian competition regime which entered into force 3 years ago. Hereafter, the abstract :
In 2006, a new Belgian competition law entered into force with a primary objective of modernizing the Belgian competition regime. This task was of serious importance as the previous Law on the Protection of Economic Competition was highly criticized, both at national and international levels, for its infamous inefficiency. In order to assess this new regime, we focus on three aspects of this reform: (i) the elevation of merger threshold that should have, in turn, entice the Belgian Council to focus on the assessment of anticompetitive practices, (ii) the strengthening of the Belgian competition law in regard of anticompetitive practices and (iii) a clarification of the Council and other national regulation authorities’ relationships. After careful analysis of the recent Council case law, it appears to us that, even if progresses are certain, the law do not entirely reach those ambitious goals.
En 2006, la Belgique adoptait un texte destiné à moderniser son droit national de la concurrence. Et la tâche était d’importance alors que les critiques sur l’inefficacité de l’ancienne Loi sur la protection de la concurrence économique fusaient de toutes parts, que ce soit au niveau national ou international. Dans cet article, afin d’évaluer l’efficacité de cette réforme, nous nous concentrons sur l’analyse de trois des principales modifications introduites par cette loi : (i) l’élévation des seuils d’analyse des concentrations afin de permettre au Conseil Belge de contrôler les pratiques anticoncurrentielles en plus grand nombre (ii) un renforcement de la loi belge sur la concurrence par rapport aux contrôles des pratiques anticoncurrentielles et (iii) une clarification des relations entre le Conseil et les autorités sectorielles de régulation. Dans ce cadre, après analyse des décisions rendues par le Conseil depuis la réforme, nous concluons que, si les progrès sont indéniables, les objectifs de la loi n’ont été que partiellement remplis.