Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Saturday, June 18, 2011

Fordham 38th Annual Conference on International Antitrust Law and Policy: Wednesday, September 7 & Thursday, September 8, 2011

Posted by D. Daniel Sokol

Barry Hawk's annual Fordham antitrust conference looks like a big winner this year in terms of topics and speakers, and not merely because my newest colleague Wentong Zheng will participate in a session on China's AML.

Dates for the 38th Annual Conference on International Antitrust Law and Policy:
Wednesday, September 7 & Thursday, September 8, 2011.

The conference will be held at McNally Amphitheater, Fordham Law School, located at 140 West 62nd Street, New York, NY.

Each year, a full two-day program focuses on a wide range of issues related to antitrust policy and enforcement. Leaders in the field, representing competition authorities, the judiciary, private practice and the academia, regularly contribute to the success of the conference as speakers and discussants.

The conference attracts close to 400 participants, including competition authorities from Africa, Asia, Europe, Latin/South America and North America, as well as practitioners and academics.

- - - - - - - -

For PROGRAM details, click here.

For CLE details, click here.


June 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, June 17, 2011

Antitrust Division Issues Updated Merger Remedies Guide

Posted by D. Daniel Sokol

According to a press release:

The Department of Justice today released an updated version of the Antitrust Division’s Policy Guide to Merger Remedies. The policy guide is a tool for Antitrust Division staff to use in analyzing proposed remedies in its merger matters. It also provides transparency into the division’s approach to merger remedies for the business community, the antitrust bar and the broader public.

You can get a copy of the Merger Remedies Guide here.

June 17, 2011 | Permalink | Comments (0) | TrackBack (0)

International Competition Enforcement Law between Cooperation and Convergence

Posted by D. Daniel Sokol

Jorg Philipp Terhechte, University of Hamburg discusses International Competition Enforcement Law between Cooperation and Convergence.

ABSTRACT: International Competition Enforcement Law is a new field of research in jurisprudence which, until now, has attracted little attention. Academic debate has, in recent years, concentrated almost entirely on substantive law. Such an imbalanced focus, however, risks losing sight of the fact that the differing procedures, complex networks of cooperation between authorities and courts, and also the diverse organizational structures of the authorities all have an influence on the decision-making process in a manner which ought not to be underestimated. Whereas an increasing convergence of national, international and supranational law may be observed in the field of substantive law, enforcement law is character-ized by a wide range of different approaches, as well as the complexity which necessarily accompanies such diversity in approach. A closer look at International Competition Enforcement Law quickly reveals a multitude of national cartel and competition laws (approximately 100 at the moment), all of which feature different procedural quirks. Furthermore, there is supranational law and, in particular, with respect to procedure, complicated EU law, as well as variety of regional regimes (for example, MERCOSUR or NAFTA), all of which are based on completely different procedural traditions. Lastly, there are several international bodies (for example, the WTO or OECD) which aim at harmonizing and/or shaping procedural rules. These differences in regulation pose the question whether it is indeed possible to create a set of common principles for competition and merger control law. This is the premise of this book, which discusses the most important national procedural rules, while also exploring links to supranational and international law and analyzing the comprehensive cooperative networks. With this approach, it is possible to delineate the general structures and basic principles of International Competition Enforcement Law and piece them together.

June 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Article 82, Sector-Specific Regulation, Microsoft and Telefonica: Really a New Economic Understanding of Abusive Practices Under EC Law?

Posted by D. Daniel Sokol

Fernando Diez, University of Antonio de Nebrija asks Article 82, Sector-Specific Regulation, Microsoft and Telefonica: Really a New Economic Understanding of Abusive Practices Under EC Law?

ABSTRACT: Article 82 of EC Treaty prohibits any abuse by one or more undertakings of a dominant position; the examples contained of “abuse” reflect a variety of public policies that have led European antitrust authorities in several directions simultaneously, indicating also a highly regulatory policy of control of the adverse effects of market power in the EU. The lack of guidance in this field both for undertakings and enforcers led the European Commission to issue in 2005 the well known Discussion Paper on exclusionary abuses; although also announced, a further notice on the so-called exploitative abuses is still waited. Besides, a more economic approach to abusive practices is preached from virtually all the communitarian instances. However, two recent decisions – the fine imposed in July 2007 to Telefonica for practicing excessive prices in the form of margin squeeze in the broad band market in Spain, and the confirmation in September 2007 by the Court of First Instance of the fine imposed to Microsoft in 2004 for two allegedly anticompetitive practices (tying and refusal to supply) - suggest that this new economic understanding is either still forthcoming or not yet understood as such by everybody. In this paper we take all this considerations into account when analyzing two features of the current understanding of abusive practices under EC law. First, the evolution from early decisions finding excessive prices and refusals to deal – which were mostly vertical in nature- to the latest pronouncements show a shift to horizontal effects. In addition to it, the ex ante regulation of certain industries – e.g. telecommunications - has certainly altered the way in which antitrust ex post intervention is conducted. Both phenomena are illustrated respectively by the Telefonica and Microsoft cases, and need to be assessed under the new economic approach to Article 82 practices.

June 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Quality Upgrading of Italian Manufactures: Evidence from Firms’ Prices and Strategies

Posted by D. Daniel Sokol

Valter Di Giacinto, Bank of Italy and Giacinto Micucci, Bank of Italy explain Quality Upgrading of Italian Manufactures: Evidence from Firms’ Prices and Strategies.

ABSTRACT: Even before the global crisis, the Italian economy was in difficulties internationally, but slow growth and a declining share of world trade were accompanied by a perceptible process of manufacturing transformation. This paper, using data from the Bank of Italy’s survey of manufacturers, measures a crucial aspect of the transformation, namely quality upgrading, from 2000 to 2006. The gauge of upgrading, not used in earlier literature, is the portion of price changes representing the return to value creation, both tangible (new products and improvement of existing ones) and intangible (branding policies). We find evidence of upgrading capable of explaining a quarter of the firms’ average annual price increases (about 0.5 out of 2 percentage points), with roughly equal effects from the tangible and the intangible components. The analysis also shows that strategies of product upgrading helped foster job creation and sales growth.

June 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 16, 2011

Ensuring Competition in the Clouds: The Role of Competition Law?

Posted by D. Daniel Sokol

Ian Walden, Queen Mary University of London, School of Law and Laise Da Correggio Luciano ask Ensuring Competition in the Clouds: The Role of Competition Law?

ABSTRACT: This article examines the potential applicability of competition law to the cloud computing sector, as well as assessing its suitability as a regulatory regime. It then considers alternative legal mechanisms, specifically measures to promote open standards and interoperability in the context of public procurement, as well as a data portability right as a demand-side measure. Despite being early days, the article argues that these latter mechanisms are likely to have a more significant impact on competition in the cloud computing sector than intervention using traditional competition measures.

June 16, 2011 | Permalink | Comments (0) | TrackBack (0)

The Intersection of Consumer Protection and Competition in the New World of Privacy

Posted by D. Daniel Sokol

Julie Brill (FTC) describes The Intersection of Consumer Protection and Competition in the New World of Privacy.

ABSTRACT: Privacy issues are becoming increasingly important during this time of rapid technological advance. This article addresses the important question of how the FTC might balance the consumer protection concerns arising in the context of privacy with competition issues. It will first examine the basic principles of consumer protection and competition law, the two core missions of the FTC, and then take a look at some cases and other actions by the FTC outside the privacy realm that illustrate the different modes of interaction between the two areas of law. The agency's careful balance of its two core missions becomes clear through this exercise. Next, the article will describe the most recent evolution of privacy law at the agency, and the FTC's preliminary staff report on privacy. Included in the discussion will be a review of some of the latest privacy protection proposals from industry members. Finally, the article will discuss the interplay of some core consumer protection and competition principles in analyzing the privacy protection proposals.

June 16, 2011 | Permalink | Comments (0) | TrackBack (0)


Posted by D. Daniel Sokol


ABSTRACT: This article surveys, from an economic perspective, the recent application of merger control in the European energy sector. It considers ten significant transactions in the energy sector: the eight largest energy transactions assessed by the European Commission since 2004, as well as two major gas-electricity mergers in Spain over roughly the same period. Merger decisions in the energy sector have been characterized by a significant concern for potential horizontal unilateral effects, even in situations where the merging parties accounted for a limited combined share of the market, or where one of the parties was only a small competitor. A variety of non-horizontal concerns have also been considered by the competition authorities, including effects flowing from the increasing use of gas for electricity generation or from limited ownership unbundling of network assets. Remedy packages have typically included extensive structural divestments to remove competition concerns. Given the nature of competition in energy markets, particularly effective remedies are those that involve the sale of price-setting generation plants, network assets, and controlling stakes in merging parties' competitors.

June 16, 2011 | Permalink | Comments (0) | TrackBack (0)


Posted by D. Daniel Sokol


This job is based in Paris.

We are looking for a senior expert with substantial experience in competition policy analysis and the application of competition laws. S/he will be responsible for providing competition capacity building in the Asian region through the OECD-Korea Policy Centre, Competition Programme (RCC) in Seoul.

The Centre’s activities focus upon helping to build capacity to support effective, efficient competition law enforcement and pro-competitive reform in non-member economies in Asia, to enhance economic performance, growth, employment and living standards in the region.

The activities are part of a broader work programme of co-operation with non OECD member economies in the Competition Division ( of the Directorate for Financial and Enterprise Affairs (DAF).

For further information, please consult our careers website (Ref. 07736) -


June 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Battles Among Licensed Occupations: Analyzing Government Regulations on Labor Market Outcomes for Dentists and Hygienists

Posted by D. Daniel Sokol

Morris M. Kleiner, University of Minnesota and Kyoung Won Park, University of Minnesota have an interesting paper on Battles Among Licensed Occupations: Analyzing Government Regulations on Labor Market Outcomes for Dentists and Hygienists.

ABSTRACT: Occupational licensing is among the fastest-growing labor market institutions in the U.S. economy. One of the key features of occupational licensing is that the law determines who gets to do the work. In those cases where universally licensed occupations are both complements to and substitutes for one another in providing a service, the government determines who can do the tasks that are required for the consumer. In this study, we examine dentists and dental hygienists, who are both universally licensed and provide complementary services to patients, but may also be substitutes as service providers. We focus on the labor market implications of governmental requirements on permissible tasks and the supervision of hygienists’ activities by dentists. Since there are elements of monopsony in the market we examine, we use the model as a guide for our analysis. We find that states that allow hygienists to be self-employed have about 10 percent higher earnings, and that dentists in those states have lower earnings and slower employment growth. Several sensitivity and falsification tests using other regulated and partially regulated occupations show that our licensing measures are generally robust to alternative specifications. Our estimates are consistent with the view that winning the policy and legal battle in the legislature and courts on the independence of work rules matters in the labor market for these occupations.

June 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 15, 2011

Competition Law and Distributive Justice: A Critical State of Play

Posted by D. Daniel Sokol

UCL's Centre for Law, Economics and Society at the UCL Faculty of Laws presents

Competition Law and Distributive Justice: 
A Critical State of Play 

on Wednesday 13 July 2011, from 4-7pm


  • Professor Herbert Hovenkamp
    Ben and Dorothy Willie Chair, College of Law, University of Iowa


  • Professor Kai-Uwe Kühn
    Chief economist, DG Competition, European Commission
  • Dr. Jorge Padilla
    Senior Managing Director and Head of Compass Lexecon Europe
  • Dr. Ioannis Lianos
    City Solicitors' Educational Trust Reader in European and Competition Law; Director, Centre for Law, Economics and Society, Faculty of Laws, UCL


About this talk: 
The debate over the objectives of competition law statutes has recently intensified. There are many reasons for this:

First, competition law has expanded globally to different forms of economies and societal bases, thus leading to different conceptions over its scope and aims.

Second, the expansion of competition law has led to tensions between different legal regimes regulating the conduct of corporations in global markets.

Thirdly, more and more State activities are now infused with a form of competition culture: competition law is applied to previously exempted economic activities and even to some State activities, competition advocacy has also developed. Equity considerations are explicitly integrated as objectives of several competition legislations around the world, and more specifically EU competition law in the area of state aids control, alongside efficiency (total welfare). Some could also envision the standard of consumer welfare as a distributive justice standard, in the sense that it focuses on wealth transfers from consumers to antitrust law infringers. This raises questions over the deep meaning of competition law and its interaction with other public policies, including policies aiming at wealth redistribution.

Fourthly, economic analysis and evidence has become an essential ingredient of competition law discourse. Economic rhetoric emphasises efficiency considerations, but does not suppress the need for distributive choices. The recent work of the Stiglitz, Sen and Fitoussi Commission on the measurement of economic performance and social progress and the OECD happiness index illustrate this trend. Recent work has also highlighted the importance of equality concerns and distributive justice in public policy more generally (e.g. "The Spirit level"). More generally, there are fundamental questions raised by the application within the legal system of the principles of welfare economics, in view of the Stiglitz-Atkinson theorem and more generally the consideration of distributive justice by welfare economics.

The concept of distributive justice also has considerably evolved over time. To be sure, its content is not the same as in the 1930s'. Finally, the recent emphasis of competition law worldwide on fostering consumer interest requires difficult choices from policy makers, competition authorities and the courts. They must set priorities over the long v. short term consumer interest (thus including intertemporal trade offs), trade off the interest of some classes of consumers versus others, adopt - explicitly or implicitly - a specific conception of the consumer (marginal versus infra-marginal, neoclassical versus behavioural...).

The objective of this workshop will be to reflect on these fundamental issues in competition law and policy by inviting contributions from competition lawyers, economists, historians of economic thought, philosophers and sociologists.


Accredited with 3 CPD hour by the Solicitors Regulation Authority and the Bar Standards Board (applied for)

June 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Margins and Market Shares: Pharmacy Incentives for Generic Substitution

Posted by D. Daniel Sokol

Kurt Richard Brekke (Dept. of Economics, Norwegian School of Economics and Business Administration), Tor Helge Holmas (Stein Rokkan Centre for Social Studies) and Odd Rune Straume(University of Minho) address Margins and Market Shares: Pharmacy Incentives for Generic Substitution.

ABSTRACT: We study the impact of product margins on pharmacies’ incentive to promote generics instead of brand-names. First, we construct a theoretical model where pharmacies can persuade patients with a brand-name prescription to purchase a generic version instead. We show that pharmacies’substitution incentives are determined by relative margins and relative patient copayments. Second, we exploit a unique product level panel data set, which contains information on sales and prices at both producer and retail level. In the empirical analysis, we find a strong relationship between the margins of brand-names and generics and their market shares. In terms of policy implications, our results suggest that pharmacy incentives are crucial for promoting generic sales.

June 15, 2011 | Permalink | Comments (0) | TrackBack (0)

The strategic timing of R&D agreements

Posted by D. Daniel Sokol

Marco Marini (Department of Economics, Society & Politics, Università di Urbino "Carlo Bo"), Maria Luisa Petit (Department of Computer and System Sciences "Antonio Ruberti", Università di Roma "La Sapienza") and Roberta Sestini (Department of Computer and System Sciences "Antonio Ruberti", Università di Roma "La Sapienza") conceptualize The strategic timing of R&D agreements.

ABSTRACT: We present a model of endogenous formation of R&D agreements among firms in which also the timing of R&D investment is made endogenous. The purpose is to bridge two usually separate streams of literature, the noncooperative formation of R&D alliances and the endogenous timing literature. Our approach allows to consider the formation of R&D agreements over time. It is shown that, when both R&D spillovers and investment costs are sufficiently low, firms may find difficult to maintain a stable R&D agreement due to the strong incentive to invest noncooperatively as leaders. In such a case, to be stable a R&D agreement requires that the joint investment occurs at the initial stage, avoiding any delay. When instead R&D spillover rates are sufficiently high, the cooperation in R&D constitutes a profitable option, although firms also possess the incentive to sequence their investment over time! . Finally, when spillovers are asymmetric and the knowledge leaks mainly from the leader to the follower, to invest as follower becomes extremely profitable, making R&D alliances hard to sustain unless firms strategically delay their joint investment in R&D.

June 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Optimal Structuring of Assessment Processes in Competition Law: A Survey of Theoretical Approaches

Posted by D. Daniel Sokol

Jurgen-Peter Kretschmer (University of Marburg) provides Optimal Structuring of Assessment Processes in Competition Law: A Survey of Theoretical Approaches.

ABSTRACT: In competition law, the problem of the optimal design of institutional and procedural rules concerns assessment processes of the pro- and anticompetitiveness of business behaviors. This is well recognized in the discussion about the relative merits of different assessment principles such as the rule of reason and per se rules. Supported by modern industrial organization research, which applies a more differentiated analysis to the welfare effects of different business behaviors, a full-scale case-by-case assessment seems to be the prevailing idea. Even though the discussion mainly focuses on extreme solutions, different theoretical approaches do exist, which provide important determinants and allow for a sound analysis of appropriate legal directives and investigation procedures from a ‘Law and Economics’ perspective. Integrating and examining them in light of various constellations results in differentiated solutions of optimally structured assessment processes.

June 15, 2011 | Permalink | Comments (1) | TrackBack (0)

Exploring National Concerted Practices in an Open Small Economy: What Does the Change in the Competition Law in the Netherlands Reveal?

Posted by D. Daniel Sokol

F.C. Ozbugday (Tilburg University, Center for Economic Research) is asking Exploring National Concerted Practices in an Open Small Economy: What Does the Change in the Competition Law in the Netherlands Reveal?

ABSTRACT: The present study examines the impact of several industry characteristics on the propensity to collude using a dataset on the existence of collusion across Dutch industries during the late 1990s and early 2000s. The results of the Probit model with sample selection indicate that our sample of Dutch concerted practices is non-random in the sense that it only consists of anti-competitive agreements that were subject of an antitrust immunity behavior. Our bivariate probit model with sample selection indicates that concerted practices are less likely to be seen in service industries relative to manufacturing industries. The results also show that it is more likely that firms engaged in concerted practices in unconcentrated industries. Furthermore, we could not find a non-linear relationship between concentration and the presence of collusion. There is also strong evidence from all the regressions that concerted practices are! less likely in industries where entry is more possible. Interestingly, our estimation results indicate that there is a positive correlation between cartel prevalence and import penetration, which implies that import competition did not discipline firm behavior and foreign importers joined the cartel paradise in the Netherlands. As to the role of measures of asymmetry on concerted practice prevalence, the association between patenting activity and propensity to engage in collusion is ambiguous in the current setting, while advertising intensity, as the second measure of asymmetry, is associated with increased likelihood of collusion. Contrary to the previous empirical findings, market growth has been found to have a negative effect on the probability of a concerted practice in an industry. Furthermore, our proposition that growing demand might attract new entrants, which, in turn, hampers collusion, has been falsified in the current context.

June 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 14, 2011

Antitrust's A-Team

Posted by D. Daniel Sokol

The other week I gave a keynote at an excellent conference on Competition Policy for Emerging Economies: When and How? at the University of Amsterdam's Amsterdam Center for Law & Economics. The discussion was quite good. Among the topics that a roundtable covered was whether or not it made sense to send in, as co-organizer Maarten Pieter Schinkel termed it, "a competition A-Team" to help out developing world agencies. Apparently, someone took Maarten Pieter literally as they sent him (and he forwarded to me) a photo of this Competition/Antitrust A-Team.

View this photo

Update June 15, 2011: Some readers asked why my head shot was placed upon "Howling Mad Murdock".  Let's discuss the options.  Fred Jenny makes the most sense to be Hannibal Smith.  Maarten Pieter is the best looking and so naturally he is Faceman.  I cannot imagine anyone better suited than Bill Kovacic to utter the line "I pity the fool" in an antitrust context or quite possibly any other context.  As for me, my slides included Viagra, bunny rabbits and a toilet seat for an antitrust presentation. I think that fits “Howling Mad”.

June 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Quality competition with profit constraints: Do non-profit firms provide higher quality than for-profit firms?

Posted by D. Daniel Sokol

Kurt R. Brekke (Dept. of Economics, Norwegian School of Economics and Business Administration), Luigi Siciliani (University of York), Odd Rune Straume (University of Minho) ask Quality competition with profit constraints: Do non-profit firms provide higher quality than for-profit firms?

ABSTRACT: In many markets, such as education, health care and public utilities, firms are often profit-constrained either due to regulation or because they have non-profit status. At the same time such firms might have altruistic concerns towards consumers. In this paper we study semi-altruistic firms’ incentives to invest in quality and cost-reducing effort when facing constraints on the distribution of profits. Using a spatial competition framework, we derive the equilibrium outcomes under both quality competition with regulated prices and qualityprice competition. Profit constraints always lead to lower cost-efficiency, whereas the effects on quality and price are ambiguous. If altruism is high (low), profit-constrained firms offer higher (lower) quality and lower (higher) prices than firms that are not profit-constrained. Compared with the first-best outcome, the cost-efficiency of profit-constrained firms is too low, while quality might be over- or underprovided. Profit constraints may improve welfare and be a complement or substitute to a higher regulated price, depending on the degree of altruism.

June 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Watch Live: The Impact of Interchange Fee Regulation on European Payment Cards

Posted by D. Daniel Sokol

Watch Live: The Impact of Interchange Fee Regulation on European Payment Cards

In the CPI Spring 2011 Journal, we presented an article by Jean Tirole on Payment Card Regulation and the Use of Economic Analysis in Antitrust. This article highlights the importance of antitrust regulation and analysis in what Jean describes as an ubiquitous area of our modern economy-debit and credit cards. In particular, the field of interchange fees has been the object of much controversy and the theoretical underpinnings of its regulation are still debated.

In light of the importance of this topic to the competition policy community, CPI, in concert with, is hosting a symposium on 15 June in Brussels where leading economists and current and former officials will discuss a broad range of topics related to interchange fees. The symposium will be streamed live, online, allowing you to follow the day's events from anywhere in the world. The live streaming is available without charge; we hope you'll be able to join us.

WATCH LIVE or Download a PDF of the Conference Agenda

June 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Old controversy revisited: pricing, market structure, and competition

Posted by D. Daniel Sokol

Frederic Lee (University of Missouri Kansas City) has written on Old controversy revisited: pricing, market structure, and competition.

ABSTRACT: In this essay, I examine the connection between pricing, profit mark ups, competition, and economic activity from a heterodox perspective. These issues are examined utilizing a two-industry Burchardt-Kaleckian production model and a labor-based mark up pricing model; the conclusion reached is that market structure and competition have no fundamental role in affecting pricing, profit mark ups, or economic activity. However, it is generally perceived in heterodox economics that competition does play an important role in the economy. This theme is discussed in conjunction with the going business enterprise.

June 14, 2011 | Permalink | Comments (0) | TrackBack (0)

The complementarity foundations of industrial organization

Posted by D. Daniel Sokol

Filippo L. Calciano (Université catholique de Louvain; Department of Economics, University of Rome 3) addresses The complementarity foundations of industrial organization.

ABSTRACT: In this paper we review the state of the art of Games with Strategic Complementarities (GSC), which are fundamental tools in modern Industrial Organization. The originality of the paper lies in the way the material is presented. Indeed, the mathematical aspects of GSC are complex and scattered in a literature which spans a long time period and a variety of research fields such as economics, applied mathematics and operations research. We organize a large amount of material in a unified and self-contained way, and concentrate on the intuitions and conceptual points that lie in the background of the mathematical modeling, with special emphasis on the modeling of complementarity. On the technical side, we investigate in details the choice and content of the assumptions. The scope of the paper is to allow the applied researcher to understand the theory, so that she may rapidly develop her own ability to deal with concrete problems.

June 14, 2011 | Permalink | Comments (0) | TrackBack (0)