Antitrust & Competition Policy Blog

The ECJ Has Spoken: Where Do We Stand with Standard of Proof in Merger Control?

Posted by D. Daniel Sokol

Pal Szilagyi, Competition Law Research Centre, Hungary explains The ECJ Has Spoken: Where Do We Stand with Standard of Proof in Merger Control?

ABSTRACT: Comments on the European Court of Justice (ECJ) ruling in Bertelsmann AG v Independent Music Publishers & Labels Association (Impala) (C-413/06 P), focusing on whether the same standard of proof applies in merger clearing decisions and in merger prohibition decisions under Regulation 139/2004 (Merger Regulation) art.2.

Let's Abolish Telecommunications Law and Rely on Competition Law and Authorities

Posted by D. Daniel Sokol

Antonios G. Broumas, University of Athens, suggests Let's Abolish Telecommunications Law and Rely on Competition Law and Authorities.  We have not had enough natural experiments on this but the one that I am familiar with, New Zealand, did not work out so well.

ABSTRACT: The model, which evolved in practice as the most appropriate for the regulation of the electronic communications sector, is based on the combination of sector specific regulation and competition law, put into effect by entities independent of states or market players. As the market is evolving towards a state of effective competition, concerns are raised over whether sector-specific regulation is still necessary and whether general competition law could guarantee effective regulation of its own accord. This paper questions the capacity of generic competition law to efficiently regulate the electronic communications sector and concludes instead in favour of the continuance of sector-specific regulation, oriented towards competition law principles, and independent (tele)communications agencies.

Exceptional Approval of Major Mergers: London and Brussels Compared

Posted by D. Daniel Sokol

Ian Forrester (White & Case) & Stefan Mahoney (White & Case) offer their thoughts on Exceptional Approval of Major Mergers: London and Brussels Compared.

ABSTRACT: This note records a short, urgent, highly-publicised attempt by a group of concerned citizens, the Merger Action Group (“MAG”), to challenge a rare governmental decision not to expose a government-favoured merger to the scrutiny of the otherwise applicable competition rules. The initiative was unsuccessful in appealing to the UK Competition Appeal Tribunal, which found, heavily against the applicants, that there had been no legal impropriety in the changing of the law to facilitate the transaction, or in the actions by the responsible minister when exercising his freshly-minted powers. We contrast the speed, rigour and efficiency which the CAT deployed with the norms prevailing in Brussels.

Third International Conference of IMEDIPA on Competition Law and Policy

Posted by D. Daniel Sokol

Third International Conference of IMEDIPA on Competition Law and Policy

Friday May 29, and Saturday, May 30, 2009
Karatzas Conference Center
National Bank of Greece
82-84 Aiolou str., Athens

Friday, 29 May 2009

08:30 - 09:00 Registration

09:00 - 09:20 Welcome
Ioannis Kokkoris, Executive Director and vice-Chairman, IMEDIPA
Ioannis Lianos, Executive Director and Chairman, IMEDIPA

A. CARTELS IN GREEK COMPETITION LAW AND PRACTICE
(Session to be held in Greek)

09:20 - 11:15
Chair: Lambros Kotsiris, Aristotle University of Thessaloniki, Faculty of Law
- Multilateral Interchange Fees: Georgios Triantafyllakis, Democritus University of Thrace, Faculty of Law
- Oil cartel: Nikos Vettas, Athens University of Economics and Business and Economic Advisory Group for Competition Policy, DG-Competition, European Commission.
- The Use of Settlements in Antitrust Enforcement in Greece: Alexandra Mikroulea, University of Athens, Faculty of Law
- The Authority’s Perspective: Nikos Zevgolis, Hellenic Competition Commission
Commentator 1: Anastasia Dritsa, KGDI, Athens
Commentator 2: Panayotis Bernitsas, M.P. Bernitsas Law Firm, Athens

11:15 - 11:30: Coffee Break

B. UNILATERAL CONDUCT IN GREEK COMPETITION LAW AND PRACTICE
(Session to be held in Greek)
11:30 - 13:30
Chair: Yannis Katsoulakos, Athens University of Economics and Business
- Rebates in competition law: a coherent approach and implications for Greek competition law:
Nikos Economides, NYU, Stern Business School & Ioannis Lianos, University College London (UCL), Faculty of Laws, IMEDIPA
- Recent developments in abuse of dominance case law: Lefkothea Nteka, Hellenic Competition Commission
- Abuse of economic dependence: Constantin Iliopoulos, Democritus University of Thrace, Faculty of Law
- An assessment of the new Greek Competition Act: Dimitris Tzouganatos, University of Athens, Faculty of Law
Commentator 1: Ioannis Dryllerakis, Dryllerakis Law Office, Athens
Commentator 2: Maria Golfinopoulou, Your Legal Partners Law Firm, Athens

13:30-14:30 Lunch

C. EFFICIENCIES IN HORIZONTAL AND NON-HORIZONTAL MERGERS

14:30 - 16:30
Chair: Simon Pritchard, Allen & Overy LLP, London
- Efficiencies in Horizontal Mergers: Ioannis Kokkoris, Office of Fair Trading, IMEDIPA
- Assessment of Non-horizontal Mergers: Penelope Papandropoulos, DG Competition (Chief economist office), European Commission
- Efficiencies in Non-horizontal Mergers: Jorge Padilla, LECG, London
- A lawyer’s perspective: Kyriakos Foundoukakos, Herbert Smith LLP, Brussels
Commentator 1: Robert Stillman, CRA International, London

16:30 – 16:45: Coffee Break
D. ROUNDTABLE DISCUSSION: THE REFORM OF COMPETITION AUTHORITIES AND THE “MODERNIZATION” OF ANTITRUST
16:45 - 19:00
Main issues:
- Competition authorities with dual roles (competition authority and consumer protection authority) : advantages and disadvantages
- The unification of competition law enforcement: is one better than two? (the reform of the French competition law system)
- Integrating economics and economists in competition authorities: the recent reform of the
DG Comp with the position of the chief economist, the redesign of the units
- Issues of independence, transparency, competition advocacy
- Relations with other sector-specific regulators
- Political influence: Competition authorities in times of economic crisis
Chair: Frederic Jenny (Judge, Cour de Cassation, France; member of the Board, Office of Fair
Trading; President, Competition Committee, OECD, UCL)
- William Kovacic (Commissioner, Federal Trade Commission, US)
- Bruno Lasserre (Chairman, Autorité de la concurrence, France)
- Carles Esteva Mosso (Director of Policy and Strategy, DG Competition, European Commission)
- Philip Collins (Chairman, Office of Fair Trading, UK)
- Abel Mateus (Professor, University of Lisbon, former president of the Portuguese competition authority)
- Dimitrios Skiadas, Secretary General for Commerce, Ministry of Development

Saturday, 30 May 2009

E. DAMAGES ACTIONS FOR INFRINGEMENT OF COMPETITION LAW

09:15 - 11:25
Chair: Richard Whish, King’s College London, School of Law
- Private Enforcement: Between Deterrence and Compensation: Wouter Wils, Legal Service, European Commission & King’s College London, School of Law
- The Economic Justifications behind Private Actions for Damages: Andrea Renda, CEPS, Brussels
- Claimants’ access to information held by public antitrust agencies: Eric Barbier de la Serre Latham & Watkins, LLP, Brussels
- The Way Forward for the Commission: Eddy de Schmijter, DG Competition, European Commission

Commentator 1: Emmanuela Truli, Hellenic Competition Commission
Commentator 2: Kerem Cem Sanli, Bilgi University Istanbul, Faculty of Law
Commentator 3: John Kallaugher, Latham & Watkins LLP, London and Brussels; UCL, Faculty of Laws, London.

11:25-11:40 Coffee Break

F. PRIVATE ENFORCEMENT IN A MULTIJURISDICTIONAL SETTING
11:40 - 13:10
Chair: Valentine Korah, UCL, Faculty of Laws
- Applicable law: Laurence Idot, University of Paris II, French Competition Authority
- Jurisdiction and International Private Antitrust Litigation: Luca Radicati di Brozolo, Università Cattolica of Milan, Bonelli Erede Pappalardo Studio Legale, Milan
- Private Litigation Tactics in a Multijurisdictional Setting: Assimakis Komninos, White & Case LLP, Brussels, UCL, IMEDIPA
- Private Enforcement--Recent Development in China and Hong Kong: Thomas Cheng, University of Hong Kong – Faculty of Law
Commentator 1: Anestis Papadopoulos, University of Athens, Fellow, Faculty of Law
Commentator 2: Alan Riley, City University Law School

13:10-14:30: Lunch
G. THE INTRODUCTION OF AN ECONOMIC APPROACH AND STATE AID REFORM

14:30 - 16:30
Chair: Michael-Theodoros Marinos, Democritus University of Thrace, Faculty of Law
- State aids control: towards a more economic approach: Phedon Nicolaides, European Institute of Public Administration, Maastricht
- The General Block Exemption regulation and framework: implications of the State aid reform: Alexander Winterstein, DG Competition, European Commission
- Recent developments in state aid law jurisprudence: Konstantinos Adamantopoulos, Hammonds LLP, Brussels
- Case study: The Olympic Airways/Airlines Case: Paris Anestis, Howrey LLP, Brussels
Commentator 1: Kostas Loukopoulos, KLC law firm, Athens
Commentator 2: Niki Papadonikolaki, PRP Law, Athens-IMEDIPA & Dimosthenis Papakrivopoulos, Court of First Instance of the European Communities

16.30 - 16.45: Coffee Break
H. TRANSFORMATION OF THE ROLE OF THE STATE, ECONOMIC CRISIS AND STATE AID CONTROL

16:45 – 18:45
Chair: Phedon Nicolaides, European Institute of Public Administration, Maastricht
- State aids in times of financial crisis - The banking sector: Abel Mateus, University of Lisbon
- State aids and compensation for services of general economic interest/universal service: Jose Luis Buendia Sierra, Garrigues, Brussels
- State aids and the evolving role of the State: George Dellis, University of Athens, Faculty of Law
Commentator 1: Alexandros Stratakis, Baker McKenzie, LLP, London
Commentator 2: Eliza Petritsi, Hammonds LLP, Brussels

18:45 – 19:00 Conclusions
Assimakis Komninos, Executive Director and Finance Officer, IMEDIPA

REGISTRATION INFORMATION
Registration fee:
Normal Fee: 100 euro
Trainees/Students: 75 euro (limited number of tickets available)
UCL Alumni: 75 euro (limited number of tickets available)
The registration fee should be deposited in the following account:
IMEDIPA
Peiraios Bank,
Aristidou 4, TK 105 59, Athens
Account Number: 5017041244290
IBAN: GR 5401720170005017041244290
BIC: PIRBGRAA
Please confirm by email at info@imedipa.com and provide us with your name, surname and
affiliation.

Monopolistic Competition Between Differentiated Products with Demand for More Than One Variety

Posted by D. Daniel Sokol

Andrei Hagiu, Harvard Business School analyzes Monopolistic Competition Between Differentiated Products with Demand for More Than One Variety.

ABSTRACT: We analyze the existence of pure strategy symmetric price equilibria in a generalized version of Salop (1979)'s circular model of competition between differentiated products - namely, we allow consumers to purchase more than one brand. When consumers purchase all varieties from which they derive non-negative net utility, there is no competition, so that each firm behaves like an unconstrained monopolist. When each consumers is interested in purchasing an exogenously given number (n) of varieties, we show that there is no pure strategy symmetric price equilibrium in general (for n > 2 with linear transportation costs). In turn, if the limitation on the number of varieties consumers purchase comes from a budget constraint then we obtain a multiplicity of symmetric price equilibria, which can be indexed by the number of varieties consumers purchase in equilibrium.

Women in Antitrust

Posted by D. Daniel Sokol

I have been thinking about gender in antitrust for an ongoing empirical project in which I am examining among other things why economic analysis of law has taken a monopoly position within the US legal academy but why we have not seen a similar transformation in IP or tax, two other areas of economic regulation.  I have discovered that the gender numbers for antitrust in the academy may be the worst for any substantive area of law.

TOTAL PROFESSORS TEACHING IN US LAW SCHOOLS
Year	Antitrust	IP	Tax
1957	157	16	87
1967	153	88	388
1977	295	195	726
1987	289	198	573
1997	297	314	567
2007	312	512	608
FEMALES
Year	Antitrust	IP	Tax
1957	2	0	3
1967	2	2	5
1977	10	8	38
1987	17	26	83
1997	22	62	106
2007	36	134	137

In 1957, women professors in antitrust and trade regulation (there is no separate antitrust category so this number may include some consumer protection people) made up less than 2 percent of those teaching antitrust.  Fast forward to 2007 and women teaching antitrust (those writing in antitrust for a majority of their publications is even smaller - more on this in a later post) make up only 12 percent of the full time antitrust legal academy who have ever taught antitrust. 

It is therefore great to report that the Global Competition Review has released Women in Antitrust 2009 with profiles of the world's leading female antitrust practitioners.

The elite female practitioners include:

Margaret Zwisler

My only quibble with the list is that it seems to omit top female economists and in-house people.  On the margins there are a few additional practitioners that have been particularly important in shaping global antitrust policy that I would have included.

More Important Additions to the FTC

Posted by D. Daniel Sokol

Those announced to join the FTC include:

Will Tom, who has been practicing antitrust law as a partner in Morgan Lewis’s Washington, D.C. office, is rejoining the Commission, where he was Deputy Director of the Bureau of Competition and led the Bureau’s policy office under former Chairman Robert Pitofsky. He previously served as counselor to the head of the U.S. Department of Justice’s Antitrust Division, responsible for intellectual property, vertical restraints, and telecommunications matters. He graduated, cum laude, from Harvard College and Harvard Law School. Pete Levitas, who will be a Deputy Director of the Bureau of Competition, joins the agency from Dickstein Shapiro, LLP in Washington, DC. He formerly was Staff Director and Chief Counsel for the U.S. Senate Judiciary Committee’s Antitrust, Competition Policy & Consumer Rights Subcommittee, and he was Antitrust Counsel to the Subcommittee Chairman, former U.S. Senator Mike DeWine. Levitas also worked in the Justice Department’s Antitrust Division, and as a Special Assistant U.S. Attorney in the U.S. Attorney’s Office in Washington, D.C. He received his B.A., summa cum laude, from the University of Pennsylvania, and his J.D., cum laude, from Harvard Law School. Mark Frankena, who will become Associate Director for Competition Policy of the Bureau of Economics, has been Deputy Director for Antitrust for the past five years. He formerly served as Associate Professor of Economics at the University of Western Ontario, and as a principal at Economists Inc., an economics consulting firm where he specialized in antitrust litigation and the electric power industry. Frankena earned a Ph.D. from the Massachusetts Institute of Technology and a bachelor degree with Highest Honors from Swarthmore College. Howard Shelanski will become Deputy Director for Antitrust of the Bureau of Economics. Since 1997 he has been a law professor at the University of California at Berkeley, where he co-directed the Berkeley Center for Law and Technology and was an affiliated professor at the Haas School of Business. He recently joined the Georgetown University Law Center faculty. Shelanski has served as chief economist for the Federal Communications Commission and as a senior economist for the President's Council of Economic Advisers. Shelanski has a J.D. and a Ph.D. in Economics from the University of California at Berkeley, and graduated Phi Beta Kappa from Haverford College. He served as a law clerk for U.S. Supreme Court Justice Antonin Scalia, U.S. District Court Judge Louis H. Pollak, and D.C. Circuit Court of Appeals Judge Stephen F. Williams. Judy Bailey, who was appointed as Deputy Director of the Office of Congressional Relations, returns to the FTC after serving as Consumer Protection Counsel for the House Energy and Commerce Committee’s Commerce, Trade, and Consumer Protection Subcommittee. She also was counsel to the House Judiciary Committee’s former Monopolies and Commercial Law Subcommittee, and she worked for the FTC, including service in the Bureau of Competition as Assistant Director, and as Deputy Executive Director and Acting Executive Director. She has worked at the Federal Deposit Insurance Corporation and in private practice at Wilmer, Cutler & Pickering and Debevoise & Plimpton. Bailey is an honors graduate of UCLA Law School and did her undergraduate work at the University of Michigan; she also holds Master’s degrees from the University of Chicago and the University of London.

This is a strong group.

Exclusive Dealing and Entry

Posted by D. Daniel Sokol

João Leão (ISCTE - Portugal) explores Exclusive Dealing and Entry.

ABSTRACT: This paper examines the use of exclusive dealing agreements to prevent the entry of rival firms. An exclusive dealing agreement is a contract between a buyer and a seller where the buyer commits to buy a good exclusively from the seller. One main concern of the literature is to explain how an incumbent seller is able to persuade the buyers to sign an exclusive dealing agreement that deters the entry of a more efficient rival seller. We propose a new explanation when the buyers are downstream firms and both the seller and the buyers face the threat of entry. In this case, the entry of more efficient upstream seller, by decreasing the market power of the upstream firms, can make entry in the downstream market more attractive. This can lead to further entry in the downstream market and to an increase in the competition faced by the downstream firms. Since part of the bigger surplus created by the entry of a more efficient s! eller is now captured by the downstream entrant firms, entry in the upstream market does not necessarily benefit the incumbent downstream firms.

Class Action Standards in Crisis: Whether Common Merits Questions Predominate Does Not Depend on the Questions’ Answers

Posted by D. Daniel Sokol

J. Douglas Richards (Cohen Milstein Hausfeld & Toll) argues Class Action Standards in Crisis: Whether Common Merits Questions Predominate Does Not Depend on the Questions’ Answers.

ABSTRACT: In recent class action case law, the United States Courts of Appeals for the First, Second, and Third Circuits have modified governing legal standards that had been established law for decades, explicitly overruling some precedents and arguably adopting a new paradigm for class action certification. Unfortunately, however, recent opinions have engendered widespread confusion and disagreement concerning how the new approach properly functions in the context of the most commonly disputed element of class certification analysis, which is the predominance of “common questions of law or fact” over “questions affecting only individual members” of the class, under Rule 23(b)(3) of the Federal Rules of Civil Procedure.

Multilevel Governance, Lead Jurisdiction Concepts and Global Competition

Posted by D. Daniel Sokol

Oliver Budzinski, University of Southern Denmark - Department of Environmental and Business Economics explains Multilevel Governance, Lead Jurisdiction Concepts and Global Competition.

ABSTRACT: This paper discusses the prospects and limits of combining the governance principles of multilevel governance and lead jurisdictions models for international antitrust. In doing so, it targets to contribute bridging a gap in the current world economic order, i.e. the lack of supranational governance of private international restrictions to market competition. Competition policy on the global level restricts itself to the selection and appointment of appropriate lead jurisdictions for concrete cross-border antitrust cases, while the substantive treatment remains within the competence of the existing national antitrust regimes. Further research about lead jurisdictions as an innovative mode of global governance is advocated.

On Government, Governance and Judicial Review: The Case of European Competition Policy

Posted by D. Daniel Sokol

Dirk Lehmkuhl, University of St. Gallen, Political Science explains On Government, Governance and Judicial Review: The Case of European Competition Policy.

ABSTRACT: Through the lens of a traditional rationalist principal-agent framework, the development of the European Community's competition policy could be read as a straightforward story of agency loss. However, with the recent overhaul of competition policy, which the Community presented in terms of a decentralisation, the story seems to have changed as we are confronted with the uncommon event in which an agent (the European Commission) returns some of its powers to the principals (the member states). This paper resolves the puzzle by highlighting the role of the Commission and of European courts. It has become part of the Commission's strategy to pursue its objectives through legally non-binding instruments such as notices or guidelines or even through co-operation in networks. For the Commission, these instruments have the advantage that they do not need the approval of the Council of Ministers or the European Parliament. With the Commission's promotion of new modes of governance, the link between sectoral governance (in terms of regulation specific to competition policy) and the governmental shadow of hierarchy shifted, to an ever-larger extent, to the mechanism of judicial review by European courts. Alongside this shift, the character of judicial review has changed in the direction of judicial control, as European courts no longer restrict themselves to review of the legality of Commission actions, but engage in assessing the facts themselves.

Handbook of Competition Enforcement Agencies 2009

Posted by D. Daniel Sokol

The Global Competition Review has published The Handbook of Competition Enforcement Agencies 2009.

• Overview
  1. Introduction
     David Lewis - International Competition Network (ICN)
• Countries
  1. Albania
  2. Argentina
     Viviana Guadagni, Norberto Caneva, Hugo Quevedo - Quevedo Abogados
  3. Australia
     Russell Miller AM, Paul Schoff - Minter Ellison
  4. Austria
     Bernhard Kofler-Senoner - CHSH Cerha Hempel Spiegelfeld Hlawati
  5. Azerbaijan
  6. Barbados
  7. Belgium
  8. Bosnia
  9. Brazil
     Carlos Francisco de Magalhaes, Gabriel Nogueira Dias - Magalhaes, Nery e Dias - Advocacia
  10. Bulgaria
      Stamen Yanev, Anna Rizova-Clegg - Rizova & Partners Law Firm, part of DLA Piper
  11. Canada
      Susan Paul, Barry Zalmanowitz - Fraser Milner Casgrain LLP
  12. Chile
  13. Colombia
  14. Costa Rica
  15. Croatia
      Marko Praljak - Divjak Topic & Bahtijarevic
  16. Cyprus
      Anna Rossides - Dr K Chrysostomides & Co.
  17. Czech Republic
  18. Denmark
      Jesper Fabricius - Accura
  19. EFTA
  20. Egypt
  21. El Salvador
  22. Estonia
      Vaido Poldoja - Advokaadibüroo Paul Varul
  23. European Union
      Dave Anderson, Rachel Cuff - Berwin Leighton Paisner LLP
  24. Faroe Islands
  25. Finland
      Katri Joenpolvi, Matti Metsola - Krogerus
  26. France
      Joseph Vogel - Vogel & Vogel
  27. Germany
  28. Greece
      Anastasia S Dritsa - Kyriakides Georgopolous & Daniolos Issaias
  29. Hungary
  30. Iceland
  31. India
      Rajiv K Luthra, G R Bhatia - Luthra & Luthra Law Offices
  32. Indonesia
  33. Ireland
      Louise Carpendale - Matheson Omsby Prentice
  34. Israel
      Eytan Epstein, Tamar Dolev-Green - Epstein, Chomsky, Osnat & Co
  35. Jamaica
  36. Japan
  37. Jersey
  38. Jordan
  39. Kenya
  40. Latvia
  41. Lithuania
  42. Luxembourg
      François Brouxel - Wildgen
  43. Macedonia
  44. Mexico
      Lucia Ojeda - SAI Abogados
  45. Mongolia
  46. Netherlands
      Esther Glerum-van Aalst - Kneppelhout & Korthais NV
  47. New Zealand
      Phil Taylor, Torrin Crowther - Bell Gully
  48. Norway
      Stein O Solberg, Steinar E Travag - Arntzen de Besche Advokatfirma AS
  49. Pakistan
  50. Papua New Guinea
  51. Poland
  52. Portugal
      Mário Marques Mendes, Pedro Vilarinho Pires - Marques Mendes & Associados
  53. Romania
      Sorin David, Catalin Suliman - D&B David si Baias SCA
  54. Russia
  55. Senegal
  56. Serbia
      Rastko Petakovi'c, Dejan Nikoli'c - Karanovi'c & Nikoli'c Advokati
  57. Singapore
  58. Slovakia
      Nad'a Spustová, Jaroslav Ruzicka - Ruzicka & partners, sro
  59. South Africa
      Robert Legh, Lulama Mtanga - Bowman Gilfillan
  60. Spain
  61. Sweden
  62. Switzerland
      Philipp Zurkinden - Prager Dreifuss Attorneys-at-Law
  63. Taiwan
      Stephen C Wu - Lee and Li Attorneys-at-Law
  64. Tanzania
  65. Thailand
  66. Turkey
      Gonenç Gürkaynak, K Korhan Yildirim - ELIG Attorneys-at-Law
  67. Ukraine
      Alexey Pustovit - Konnov & Sozanovsky
  68. United Kingdom
      Becket McGrath, Simon Albert - Berwin Leighton Paisner LLP
  69. United States
      Arman Y Oruc, Andrew M Lacy - Simpson Thacher & Bartlett LLP
  70. Venezuela
      Luis E Andueza - Despacho de Abogados miembros de Macleod Dixon SC
  71. Zambia

Competition and Consumer Policies: Starting Points for Better Convergence

Posted by D. Daniel Sokol

Kati Cseres, University of Amsterdam - Amsterdam Center for Law & Economics has a new paper on Competition and Consumer Policies: Starting Points for Better Convergence.

ABSTRACT: Competition and consumer policies have developed in many jurisdictions along separate lines. The potential complementarities and tensions between these two areas have often been overlooked. However, the way markets evolve today and the kind of market failures consumers and companies face call for new regulatory approaches that have a firm basis in both competition and consumer policies. When markets fail to work effectively we turn to competition and consumer protection. However, the specific form and the tools of intervention depend on the nature of the market failures. Different market failures trigger different remedies and the remedies exhibit different ?spill-over effects?. The regulatory choices need to account for the specific functions competition and consumer policies have. This paper addresses the interface between competition and consumer policies by discussing a number of specific issues that are situated at the crossroads of these two fields. These issues include the interpretation of the consumer welfare standard in both policy areas, the role of consumers in the pro-competitive reforms as well as an overview of the close parallels in the new enforcement methods that are presently discussed and proposed in both fields. Better convergence of competition and consumer policies is vital, but the discussion on how to achieve closer cooperation on national and international platforms is underdeveloped. Moreover, policy calls for better coordination and integration between these two policies need to take account of the costs and not only the benefits of such integration in both substantive law and in the law enforcement. The convergence and divergence between competition and consumer policies and law enforcement is worth exploring - and this paper intends to provide starting points for further research.

Competition Policy and International Trade Liberalisation: Essential Complements to Ensure Good Performance in Public Procurement Markets

Posted by D. Daniel Sokol

Robert D. Anderson (WTO) and William E. Kovacic (FTC) write on Competition Policy and International Trade Liberalisation: Essential Complements to Ensure Good Performance in Public Procurement Markets.

This article reviews and synthesises relevant literature and policy developments concerning the challenges involved in ensuring effective competition in public procurement markets. The overall point of view of the article is that both trade liberalisation and national competition policies have important roles to play in promoting competition in such markets, and that neither is likely to fully achieve its objectives in the absence of the other. In this sense, the roles of competition and trade policy are complementary. While the article draws particularly on policy developments and experience in the United States and (to a lesser extent) Europe, an effort is made to illustrate the universality of the issues raised and their significance for developing as well as developed countries.

The remainder of the article is organised as follows. Part 2 reviews basic economic theoretical considerations and evidence concerning the importance of competition in procurement markets, based on existing literature. Part 3 discusses the role of international liberalisation (for example, via the WTO Agreement on Government Procurement) in promoting competition in such markets. Part 4 discusses and reviews relevant literature concerning the complementary role of national competition policies in regard to public procurement markets.9 This encompasses: (1) the importance and content of rules to prevent collusive tendering; (2) the role of such policy in addressing regulatory and other barriers to competition, chiefly through ‘‘competition advocacy’’ activities; and (3) the application of other aspects of competition law including the treatment of mergers and joint ventures. Part 5 illustrates some of the points developed in Parts 3 and 4 with reference to developments concerning transatlantic defence procurement. Part 6 provides concluding remarks.

Cartels and Tacit Collusion

Posted by D. Daniel Sokol

Summer is the time for great conferences.  One worth attending is Cartels and Tacit Collusion.
Download CCP_cartels_and_tacit_collusion_June09

ESRC Centre for Competition Policy
University of East Anglia
Cartels and Tacit Collusion
CCP 5th Annual Conference
18–19 June 2009

Provisional Programme

Thursday 18 June 2009

08:30 – 09:15
Registration and Tea/Coffee/Pastries

09:15 – 09:30
Welcome Remarks
Stephen Davies & Catherine Waddams, CCP
First session: Cartels
Chair: tbc

09:30 – 10:20
Maarten Pieter Schinkel (University of Amsterdam) ‘Cartel Damages: On the Commission’s Call for “Simplified Rules on Estimating the Loss”’

10:20 – 11:10
Maggie Levenstein (University of Michigan) ‘Determinants of Cartel Duration and the Role of Cartel Organization’

11:10 – 11:40
Tea/Coffee

11:40 – 12:30
Joe Harrington (Johns Hopkins University) ‘Collusion with Monitoring Based on Self-Reported Sales’

12:30 – 13:30
Lunch
Second session: Tacit Collusion
Chair: tbc

13:30 – 14:20
David Gilo (Tel Aviv University) ‘Partial Cross Ownership and Tacit Collusion under Cost Asymmetries‘

14:20 – 15:10
Christian Schultz (University of Copenhagen) ‘Transparency on Both Sides of the Market and Tacit Collusion’

15:10 – 15:40
Tea/Coffee

15:40 – 16:30
Okeoghene Odudu (Cambridge University) ‘The Hub and Spoke Agreement: ABC Collusion’

16:30 – 17:20
Rob Porter (Northwestern University) ‘Competition or Collusion in Recent Offshore Oil and Gas Bidding?’

17:20 – 18:00
Drinks

18:15
Coach to Dragon Hall, Norwich City Centre

19:30 – 22:00
Dinner
Friday 19 June 2009

09:00 – 09:35
Late Registration and Tea/Coffee/Pastries
Third session: Experimental Research on Collusion
Chair: Mike Whinston (Northwestern University)

09:35 – 09:45
Mike Whinston (Northwestern University) Introductory Comments

09:45 – 10:35
Hans Theo Normann (Goethe University) ‘Excess Capacity and Collusion in Bertrand-Edgeworth Markets: Experimental Evidence’

10:35 – 11:05
Tea/Coffee

11:05 – 11:55
Jeroen Hinloopen (University of Amsterdam) ‘Going Once, Going Twice, Reported! Cartel Activity and the Effectiveness of Leniency Programs in Experimental Auctions’

11:55 – 12:45
Kai-Uwe Kühn (University of Michigan) ‘Communication, Renegotiation, and the S

12:45 – 13:45
Lunch
Fourth session: Overview of Research on Collusion in CCP
Chair: Steve Davies

13:45 – 15:00
Various CCP members to present current CCP research on cartels

15:00 – 15:15
Tea/Coffee

15:15 – 16:15
Various CCP members to present current CCP research on tacit collusion

16:15 – 16:30
Closing discussion

16:50
Coach to train station

Dominant Firms’ Duties to Deal with Pharmaceutical Parallel Traders Following Glaxo Greece

Posted by D. Daniel Sokol

Robert O’Donoghue & Louise Macnab (Brick Court Chambers) Dominant Firms’ Duties to Deal with Pharmaceutical Parallel Traders Following Glaxo Greece.

ABSTRACT: EU competition policy on dominant firms and pharmaceutical parallel trade—wholesalers taking advantage of arbitrage possibilities to export drugs from a low-priced Member State to a higher-priced one—reminds one of a debate between two famous economists. Each of them had taken opposing sides in a case and, after several discussions, they each remained wholly unpersuaded of the other’s view. In a fit of exasperation, one economist said to the other “I agree with you, but you are completely wrong!”

So it is with parallel trade. The virtuous wholesalers say that they bring much-needed price competition to the (higher-priced) market. The no-less-virtuous pharmaceutical companies say that this is true, if at all, only in the short term, and that it comes at the expense of appropriation of manufacturer profits that fund expensive research & development (“R&D”)—so there is, they say, less competition in the medium- to long-term. Both may be correct, for different reasons and from different perspectives.

Model Jury Instructions in Criminal Antitrust Cases

Posted by D. Daniel Sokol

The ABA Antitrust Section has published

Model Jury Instructions in Criminal Antitrust Cases 

This practical book provides guidance regarding jury instructions in criminal antitrust cases for juries sitting in judgment in antitrust trials of all types. The instructions in the book are presented in concise and readily understandable language and organized in the same order in which a court presiding over a criminal antitrust jury trial would likely give them. Thus, this book includes both general and antitrust specific instructions, instructions that are appropriate just prior to the admission of the evidence, and those for the close of the case. The book also includes explanatory commentary and references to supporting case law and model jury instructions in a variety of circuits.

Assessing the Quality of Competition Policy: The Case of Horizontal Merger Enforcement

Posted b D. Daniel Sokol

Commissioner Bill Kovacic (FTC) discusses Assessing the Quality of Competition Policy: The Case of Horizontal Merger Enforcement.

ABSTRACT: This article suggests how a jurisdiction might best go about evaluating the quality of its competition policy system. It urges that competition agencies and collateral institutions strive to improve our ability to measure the economic effects of merger control and to verify the consequences of different approaches to enforcement. The article uses merger control in the United States as its main illustration, but the article’s observations apply to other areas of competition policy oversight, as well.

The article seeks to encourage the recent trend within the global competition policy community of accepting a norm that focuses greater attention on the evaluation of the economic effects of enforcement decisions—especially by developing better quantitative measures of actual economic effects—and the assessment of the processes by which competition agencies examine individual transactions.

Market Share Exclusion

Posted by D. Daniel Sokol

Mikko Packalen, University of Waterloo - Department of Economics describes Market Share Exclusion.

ABSTRACT: A market share exclusion contract between a seller and a buyer prevents rival sellers from competing for a share of the buyer's purchases. We examine both non-discriminatory and discriminatory market share exclusion contracts, and compare them with exclusive dealing contracts. For non-discriminatory contracting we show that, unlike exclusion through exclusive dealing, market share exclusion can be profitable. The condition for the profitability of market share exclusion is characterized in terms of straightforward economic concepts. For discriminatory contracting we show that the ability to offer market share exclusion contracts does not provide an advantage over the ability to offer only exclusive dealing contracts. We also show that market share exclusion always decreases both buyer surplus and total surplus. Hence, competition authorities should not view exclusion through exclusive dealing as a pre-requisite for the possibility of anti-competitive effect from exclusionary contracting.

Towards an Optimal Enforcement of Competition Rules in Europe - Time for a Reviwew of Regulation 1/2003?

Posted by D. Daniel Sokol

The Global Competition Law Centre of the College of Europe presents its Fifth Annual Conference, titled Towards an Optimal Enforcement of Competition Rules in Europe - Time for a Reviwew of Regulation 1/2003?  This year it will be held June 11-12 at the HILTON HOTEL, 38 BOULEVARD DE WATERLOO – BRUSSELS

The speaker list is fantastic and I strongly encourage EU based practitioners to attend this conference.

CONFERENCE PROGRAMME

DAY ONE

9:00 Welcome words and introduction
Jacques Bourgeois, President of the GCLC

9:10 Presentation of the conference
Massimo Merola, Co-director of the conference
KEYNOTE SPEECH – LESSONS FROM SEVEN YEARS AT THE HELM OF DG COMP IN PARTICULAR AS REGARDS THE ENFORCEMENT SYSTEM

9:25 Philip Lowe, Director General, DG Competition

9:45 Coffee break

I. MORNING SESSION

CHAIR: Jacques Bourgeois, President of the GCLC

THE DIRECTLY APPLICABLE EXCEPTION SYSTEM AND THE DIRECT

APPLICABILITY OF ARTICLE 81(3) EC

10:00 Speaker: Bernard van de Walle de Ghelcke, Of Counsel, Linklaters

10:30 Discussant: Ben Smulders, Director, Legal Service, European Commission

10:50 Roundtable discussion
Eric Gippini-Fournier, Member of the Legal Service, European Commission
Prof. Ioannis Lianos, University College London
Christophe Humpe, SJ Berwin LLP
Prof. Nicolas Petit, University of Liege (ULg), Howrey LLP

11:20 Q&A session
RELATIONSHIP BETWEEN EC COMPETITION LAW AND NATIONAL COMPETITION LAW

11h30: Speakers: Eric Morgan de Rivery, Partner, Jones Day
Filippo Amato, Associate, Jones Day

12:00 Discussant: Carles Esteva Mosso, Director Acting, DG Competition

12:20 Roundtable discussion
Prof. Alberto Heimler, Consultant, Autorità Garante della Concorrenza e del Mercato; Professore, Scuola superiore della Pubblica Amministrazione
Niels Lau, Director Competition Policy, Federation of German Industries
Edurne Navarro, Partner, Uría Menéndez
Leonardo Armati, Associate, Bonelli Erede Pappalardo

12:50 Q&A session

13:00 Lunch

II. AFTERNOON SESSION

CHAIR: Sir Christopher Bellamy QC, Senior Consultant, Linklaters and Former President, Competition Appeal Tribunal

ENFORCEMENT BY THE COMMISSION

14:30 Procedural issues
Speaker: Denis Waelbroeck, Partner, Ashurst

14:45 Substantive issues
Speaker: Prof. K. Hofstetter, General Counsel, Schindler

15:00 Discussant: André Bouquet, Legal Advisor, Legal Service, European Commission

15:20 Roundtable discussion
Céline Gauer, Head of Unit, DG Competition
Ian Forrester, Partner, White & Case
Matthew O'Regan, Counsel, Freshfields

15:50 Q&A session

16:00 Coffee break

ENFORCEMENT BY NATIONAL COMPETITION AUTHORITIES
16:15 Speaker: Marc van der Woude, Partner, Stibbe

16:45 Discussant: Dorothé Dalheimer, Deputy Head of Unit, DG Competition

17:05 Roundtable discussion
Luís Pais Antunes, Partner, PMLJ - A.M. Pereira, Sáragga Leal,
Oliveira Martins, Júdice e Associados, Lisbon
Damien Gérard, Research Fellow, Catholic University of Louvain (UCL)
Vittorio di Bucci, Legal Advisor, Legal Service, European Commission

17:35 Q & A session

18:00 End of day one

DAY TWO

CHAIR: Damien Geradin, Director of the GCLC

COOPERATION BETWEEN COMPETITION AUTHORITIES AND JUDICIAL AUTHORITIES

9:00 Speaker: Matthew Levitt, Partner, Lovells

9:30 Discussant: Frédéric Jenny, Judge at the French Cour de Cassation, Professor at ESSEC

9:50 Roundtable discussion
Theofanis Christoforou, Director, Legal Service, European Commission
Cani Fernández, Partner, Cuatrecasas
Christopher Brown, Barrister, Matrix Chambers

10:20 Q&A session

10:30 Coffee break

INTERNATIONAL COOPERATION
10:45 Speaker: Jacques Bourgeois, Consultant, Wilmer Hale

11:15 Discussant: Ewoud Sakkers, Head of Unit, DG Competition

11:35 Roundtable discussion
José Luis Buendía, Partner, Garrigues Abogados
Jacques Steenbergen, Director General, Belgian Competition Authority
Bruno Zanettin, Policy Co-ordinator, DG Competition

12:05 Q & A session

CONCLUDING REMARKS

12:15 Denis Waelbroeck, Co-director of the conference

12:30 End of the conference