Monday, September 28, 2015
Anne C. Wegner and Sophie Oberhammer both with Luther Rechtsanwaltsgesellschaft mbH survey The Application of Competition Law to the Automotive Industry.
ABSTRACT: The European Commission has investigated an unprecedented number of cartels targeting car part manufacturers, and dealers have come under review by national competition authorities for horizontal practices. In relation to mergers, the European Commission continues to review numerous cases and seems to broaden geographic market definition for spare parts production in the future. National courts clarified their interpretation of antitrust law, ruling in particular on access to network claims, thereby partly diverging from the European Commission's preferred (brand-specific) market definition for the aftermarkets. As regards access to technical information, the European Commission published an external study proposing Best Practice Guidelines and the German industry association of independent parts dealers has taken court action for the release of additional data.
Jeff Harrison, University of Florida offers Weyerhaeuser: An Epilogue.
ABSTRACT: Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., could have been influential in three ways. First, the Court directly addressed the standard for predatory buying and, consequently, has undoubtedly had an impact on whether plaintiffs will rely on that theory. Second, its express recognition of the similarities between buyers and sellers may encourage increased reliance on monopsony-based theories of liability. Finally, the decision could have created the impetus for refining the analysis of a number of issues when they arise in monopsony contexts. These include monopsony tying, the use of monopsony power to gain power on the selling side of markets, as well as standing and antitrust injury. This study of post-Weyerhaeuser events demonstrates that it is a narrow opinion perhaps only economically suitable for very few special fact patterns. It is frequently ignored although sometimes relied upon by defendants who attempt to reframe their cases as Weyerhaeuser-like in hopes of a dismissal.
Melchior Wathelet, First Advocate General of the Court of Justice of the European Union describes Commitment Decisions and the Paucity of Precedent.
ABSTRACT: There is a growing and vocal disquiet within the EU competition law community concerning the European Commission's increasing recourse to commitment decisions pursuant to Article 9 of Regulation No. 1/2003. The debate on the matter has identified a number of interlinked points. Firstly, a great deal of discussion has focussed on the proportionality of commitments accepted (some have said ‘extracted’) by the Commission in order to meet the competition concerns expressed in its preliminary assessment or statement of objections. It is opined that if the commitments offered by undertakings and ultimately accepted by the Commission are overreaching or simply not necessary, the latter is effectively redrawing or regulating markets rather than strictly upholding competition rules. It is argued that the imposition of unnecessary or excessively restrictive behavioural and/or structural remedies may undermine an undertaking's ability to compete in the market, thereby weakening the competitive process itself. This debate may, however, underestimate the ability of undertakings to defend their legitimate interests, not to mention the capacity of those undertakings and the Commission to act in a rational manner. On a more positive note, the diverse benefits that accrue under commitment proceedings to the undertakings involved and the Commission as opposed to infringement proceedings, which are in principle more protracted and contentious, have been noted and welcomed. A swifter resolution of the matter together with the avoidance of fines and the negative publicity that a finding of infringement pursuant to Article 7 of Regulation No. 1/2003 by the Commission entails provides clear incentives for undertakings to engage in commitment proceedings and explain their popularity in that quarter. Commitment as opposed to infringement proceedings may also reduce undertakings’ compliance costs most notably by reducing expenditure on legal fees. In addition, the use of commitment rather than infringement decisions undoubtedly frees up limited Commission and NCA resources, which can be employed in other (more serious) cases in the interest of competition and thus the consumer. In that regard, I perceive the power granted by the legislature to the Commission pursuant to Article 9 of Regulation No. 1/2003 to adopt commitment decisions as a logical extension of its recognised entitlement to prioritise its case load.
Sunday, September 27, 2015
Florian Wagner-von Papp, University College London Faculty of Laws asks Should Google's Secret Sauce Be Organic?
Abstract: This commentary discusses the European antitrust investigation into Google and the international implications of the case. It focuses on Google's alleged dominance and the allegations concerning Google’s self-preferencing of its Google Shopping results on general web search result pages, which form the subject matter of the Statement of Objections that the Commission sent on 15 April 2015.
The EU Commission's international jurisdiction to prescribe is found to be unproblematic. However, the tendency towards overenforcement resulting from the cumulation of national and supranational investigations by competition authorities worldwide counsels caution in borderline cases. And Google is a borderline case.
While it seems possible to construct a story of dominance and consumer harm, the paper doubts Google's ability to act to an appreciable extent independently of its competitors and customers. Ultimately, this is an empirical question, and the Commission may have sufficient evidence at its disposal. However, the publicly available evidence does not seem to support a finding of dominance, despite Google's high share of user searches.
A finding of abuse would require changing the goalposts: one would have to accept that instead of a constructive refusal to deal, it is already abusive if services are not provided to third parties on identical conditions, or that instead of requiring coercion of consumers to acquire a tied product or service, it is already abusive if consumers are merely nudged to preferring the vertically integrated firm's products. These changes would amount to a paradigm change. Traditionally, competition is to force producers to be responsive to consumer preferences. Consumer choices are taken to reveal their preferences unless coercion can be shown. Allowing intervention already below the threshold of coercion, when consumers are merely nudged to make particular choices, risks substituting the competition authority's assessment for consumer preferences.
Friday, September 25, 2015
Yee Wah Chin, Ingram Yuzek Gainen Carroll & Bertolotti, LLP examines Intellectual Property Rights and Antitrust in China.
ABSTRACT: China’s Anti-Monopoly Law (AML) came into effect on August 1, 2008, following its enactment the year before and 13 years of drafting. China enacted the Third Amendments to its Patent Law on December 26, 2008, effective October 1, 2009. This chapter summarizes the AML, and discusses those aspects that may have particular impact on intellectual property rights (IPR), as well as the provision of the Patent Law that implicates competition law issues and the implementing regulations and Judicial Interpretations relating to those laws that involve the IPR-competition law interface.
Christoph Engel, Max Planck Institute for Research on Collective Goods; University of Bonn - Faculty of Law & Economics; Universitat Osnabruck - Faculty of Law describes Tacit Collusion: The Neglected Experimental Evidence.
ABSTRACT: Both in the United States and in Europe, antitrust authorities prohibit merger not only if the merged entity, in and of itself, is no longer sufficiently controlled by competition, but also if, post merger, the market structure has changed such that “tacit collusion” or “coordinated effects” become disturbingly more likely. It seems that antitrust neglects the fact that for more than 50 years, economists have been doing experiments on this very question. Almost any conceivable determinant of higher or lower collusion has been tested. This article standardizes the evidence by way of a meta‐study, and relates experimental findings as closely as possible to antitrust doctrine.
Herbert J. Hovenkamp, University of Iowa - College of Law and Erik N. Hovenkamp, Northwestern University, Department of Economics examine Patent Pools and Related Technology Sharing.
ABSTRACT: A patent "pool" is an arrangement under which patent holders in a common technology commit their patents to a single holder, who then licenses them out to the original patentees and perhaps also to outsiders. The payoffs include both revenue earned as a licensor, and technology acquired by pool members as licensees. Public effects can also be significant. For example, technology sharing of complementary patents can improve product quality and variety. In some information technology markets pools can prevent patents from becoming a costly obstacle to innovation by clearing channels of technology transfer. By contrast, a pool's aggregate output reduction or price fixing in a product market can produce cartel profits.
A traditional justification for patent pools is that they facilitate improved products by uniting complements Sharing of complementary patents means that licensees can then employ all the patents in their product, rather than creating silos in which each manufacturer incorporates only its own patented features. Pools created for this purpose can reduce problems of royalty stacking and holdup, as well as problems involving blocking patents. A more robust explanation for pooling in many markets comes out of the economics of transaction costs, which emphasizes the role of limited information and the costs of obtaining it, as well as uncertainty in bargaining and sharing. Pooling is an efficient solution to problems of technology development and transfer when determining patents' validity or identifying their boundaries is costly. In this sense, patent pools function much as traditional common pool resources.
An individual patent’s boundaries distinguish its protected technological embodiments from noninfringing technology. But when multiple patents are aggregated what really matters are the outer boundaries that separate the portfolio as a whole from outside patents or the public domain. So long as the relevant rights are somewhere in the portfolio, the parties do not need to delineate the boundaries of individual patents in order to strike a deal. While most patent pools are socially beneficial, certain practices or structures can pose competitive problems. The biggest antitrust risk from pooling is collusion, and its threat depends on two things. First is the market structure and the power of the pool within its market. Second is the nature of pricing and exclusivity arrangements within the pool. Pool "exclusivity" can take several forms. First, it can refer to the contract that each licensor has with the pool, asking whether that licensor is free to license to others outside of the pool. Second it can refer to the pool’s willingness as licensee to accept an offered technology from an outsider for inclusion in the pool. Third it can refer to the pool's willingness as licensor to license to outsider manufacturers. Fourth, it can refer to field-of-use or other restrictions given to licensees from the pool.
A large but inconclusive literature considers the relationship between pooling and innovation. Conclusions are sensitive to assumptions about patent strength and quality, about the relationship among the patents in a pool and the strength of alternatives outside the pool, about the impact on innovation of insiders vs. outsiders to the pool, and finally, about the strategic responses of participants. Most of the literature concludes that most pools increase innovation rates. A pool should increase the demand for innovation of complements to the pool. First of all, access to the existing technology by pool members should be guaranteed and cheaper. To the extent the pool reduces licensing costs and eliminates royalty stacking the cost of further improvements should decline. When innovation is cumulative the development of new technology may require the licensing of existing technology with multiple patent holders. Pooling can reduce these costs and thus facilitate cumulative innovation.
Thursday, September 24, 2015
1st India Conference on Innovation, Intellectual Property & Competition December 7th & 8th at IIM Bangalore
1st India Conference on Innovation, Intellectual Property & Competition December 7th & 8th at IIM Bangalore
- The Conference Webpage is here: http://www.iimb.ernet.in/iipc
- A short preview video is available here: https://www.youtube.com/watch?v=i628nr5LeE4
- Registration link is now open with early bird discounts expiring October 1st (last date Nov 1st) is here: http://www.iimb.ernet.in/regn/iipc/
- Confirmed Speakers by Invitation are here: http://www.iimb.ernet.in/iipc-Conf-invited-Speakers
- Conference organizing committee and team are here: http://www.iimb.ernet.in/iipc-organizing-committee
Albert Sanchez-Graells, University of Leicester - School of Law explores Competition Law and Public Procurement.
ABSTRACT: The interaction between competition law and public procurement has been gaining visibility in recent years. This paper claims that these two bodies of EU economic law mainly intersect at two points, or in two different dimensions. Firstly, they touch each other at the need to tackle anticompetitive practices (or bid rigging) in public tenders. This has attracted significant attention in terms of the enforcement priorities of competition authorities and led to recent regulatory developments in the 2014 EU public procurement Directives aimed at increasing the sanctions for bid riggers. Secondly, competition and public procurement cross again at the need to avoid publicly-created distortions of competition as a result of the exercise of buying power by the public sector, or the creation of regulatory barriers to access to public procurement markets. This second intersection has been less explored and the development of regulatory solutions has been poor in both the fields of EU competition law and EU public procurement law. Moreover, the protection of the ‘public mission’ implicit in the public procurement activity led the CJEU to deform the concept of undertaking in a way that can distort EU antitrust enforcement beyond public procurement markets. This paper assesses these issues and stresses the possibilities for a better integration of competition considerations in public procurement through the principle of competition of the 2014 Directives.
Intel and the Abuse of Dominant Position: The General Court Upholds the Highest Fine Imposed on a Single Company for a Competition Law Infringement
Joao Cardoso Pereira, Portuguese Competition Authority describes Intel and the Abuse of Dominant Position: The General Court Upholds the Highest Fine Imposed on a Single Company for a Competition Law Infringement.
ABSTRACT: The General Court’s ruling of 12 June 2014 (Case T-286/09 Intel) upheld the Commission’s decision and the fine imposed on Intel. The General Court held that exclusivity rebates are by their very nature capable of restricting competition. The General Court considers that when a dominant company grants exclusivity rebates (or engages in equivalent practices), the Commission is not under the obligation to analyse the actual effects of the conduct on competition. This paper analyses the Court’s reasoning and tries to anticipate the implications for the enforcement of competition rules.
7° Coloquio ForoCompetencia
20 de noviembre de 2015
Pilar, Buenos Aires, Argentina
8:30 – 9:00 Acreditación
9:00 –9:15 Apertura. Julián PEÑA
9:15 –10:45 Tema I – Efectividad de los condicionamientos.
Panelista. Marcelo CALLIARI (Tozzini Freire, Brasil)
Comentarista. Oriol ARMENGOL (Pérez Llorca, España)
Comentarista. Alberto DELGOBBO (Economista Jefe, CNDC, Argentina)
Moderador. Luis BARRY
10:45 – 11:15 Receso para café
11:15 – 13:00 Tema II. Restricciones verticales en contratos de distribución.
Panelista. Gastón PALMUCCI (Jefe de Investigaciones, FNE, Chile)
Comentarista. Miguel DEL PINO (Marval, O’Farrell & Mairal, Argentina)
Comentarista. Lucía OJEDA (SIL, México)
Moderador. Walter CONT
13:00 – 15:00 Almuerzo (Salón Las Vasijas)
15:00 – 16:30 Tema III. Métodos de pruebas de cárteles.
Panelista. Jaime CROWE (White & Case, Estados Unidos)
Comentarista. Carlos PETRE (Cámara Civil y Comercial Federal, Argentina)
Comentarista. Jorge JAECKEL (Jaeckel/Montoya Abogados, Colombia)
Moderador. Agustín SIBOLDI
16:30 – 17:00 Receso para café
17:00 – 18:30 Tema IV. Nuevas tendencias en materia institucional.
Panelista. William KOVACIC (G.Washington University, Estados Unidos)
Comentarista. Javier TAPIA (Tribunal Nacional Libre Competencia, Chile)
Comentarista. Paolo BENEDETTI (Agon, México)
Moderador. Viviana GUADAGNI
18:30 – 19:00 Cierre. Marcelo DEN TOOM
Valor de la inscripción:
US$ 250/AR$ 2500
Los cupos son limitados. Se considerará inscripto quien efectivice el correspondiente pago,
1°. Registrar sus datos on line en el siguiente link: Formulario de Inscripción
Luis BARRY, Marina BIDART, Bernardo CASSAGNE, Marcelo CELANI, Germán COLOMA, Walter CONT, Miguel DEL PINO, Marcelo DEN TOOM, Viviana GUADAGNI, Ricardo INGLEZ DE SOUZA, Julián PEÑA, Pablo TREVISAN, Agustín SIBOLDI y Agustín WAISMAN.
Pablo Ibanez Colomo, London School of Economics - Law Department discusses Post Danmark II, or the Quest for Administrability and Coherence in Article 102 TFEU.
ABSTRACT: The legal status of quantity rebates under Article 102 TFEU is unclear. In Post Danmark II, the ECJ has been asked to provide a substantive test to establish whether this practice amounts to an abuse of a dominant position. As the case law stands, two possible approaches can be followed. Quantity rebates can be assessed in accordance with the framework sketched by the Court in Michelin I, or they can be subject to the principles applying to other price-based strategies such as ‘margin squeeze’ abuses and selective price cuts. There are compelling reasons to follow the latter approach. The criteria set out in Michelin I were conceived for target rebates, which – unlike quantity-based schemes – are not presumptively legal under Article 102 TFEU. In addition, the said criteria are not administrable, in the sense that they do not make it possible to define in advance whether a given rebate scheme is lawful or unlawful. In practice, and in contradiction with the logic underlying Michelin I, it is sufficient for a competition authority or a claimant to identify some ‘loyalty-inducing’ features to establish an abuse. As such, they are not suitable for their application in disputes before national courts, or by national competition authorities.
Andreas Heinemann, University of Zurich describes Behavioural Antitrust - A 'More Realistic Approach' to Competition Law.
ABSTRACT: The paper explores the potential of behavioural economics for competition law. After a summary of the most important behavioural findings from a competition law perspective, several applications are presented. Behavioural economics does not only influence basic concepts like the definition of relevant markets but also affects the competition law analysis of specific conduct like vertical agreements, practices on aftermarkets, tying and bundling, conditional rebates, predatory pricing and merger control. Moreover, the behavioural insights have an impact on the shaping of remedies and sanctions. In spite of these consequences, it seems more appropriate to describe this development as a “behavioural turn” than a “behavioural revolution” since traditional analysis is not replaced but complemented. Therefore, the new insights can be integrated into the existing system without major frictions. Although the behavioural approach more often makes a case for enforcement than against it, it cannot be blamed for greater interventionism. The goal of the “more realistic approach” is, no more and no less, to base competition law on a more reliable foundation.
Wednesday, September 23, 2015
Call For Papers: Special Issue of The Review of Industrial Organization on the 40th Anniversary of GTE Sylvania
Call For Papers
Special Issue of The Review of Industrial Organization
In June, 1977, the U.S. Supreme Court, with its decision in Continental T.V. v. GTE Sylvania, mandated use of a rule of reason approach deciding the legality of manufacturer-imposed restraints on distributors' locations under the antitrust laws. Along the way, the Court reversed the rule of per se illegality for restraints on distributors that had taken ownership of a product contained in its barely 10-year-old decision in Schwinn, cast vertical restraints as restricting intrabrand competition while promoting interbrand competition, and declared that "Interbrand competition ... competition among the manufacturers of the same generic product ... is the primary concern of antitrust law." One may argue that GTE Sylvania was the first step in an evolutionary process expanding the scope of the rule of reason generally, and leading to the application of the rule of reason to resale price maintenance in Leegin.
We invite submissions to a Special Issue of The Review of Industrial Organization devoted to GTE Sylvania and its aftermath, on its 40th anniversary. Contributions that highlight the impact of the decision on all aspects of U.S. antitrust and its influence on the treatment of vertical restraints in other competition policy regimes around the world are welcome.
PAPER SUBMISSION PROCEDURE: Submissions should be made by e-mail to either:
Jeroen Hinloopen Utrecht University School of Economics P.O. Box 80125 3508 TC Utrecht The Netherlands, J.Hinloopen@uu.nl
Stephen Martin Department of Economics Purdue University West Lafayette, IN 47906 USA, email@example.com
Submissions should be received by February 29, 2016. Papers that are selected will be presented and discussed at a workshop, hosted by the Utrecht School of Economics, to take place in Utrecht on May 19, 2016. Final versions of papers will be prepared after the workshop. Limited funds are available to partially reimburse travel expenses; housing is covered for the nights of May 18, 2016 through May 20, 2016. Authors of papers that are accepted for inclusion in the Special Issue will be informed about the details of the workshop by March 31, 2016.
The Section of Antitrust Law International Scholar in Residence Program (“SAL SIR”) will provide funding of $10,000.00 USD each for up to two scholars to visit the United States to pursue competition policy-related research in the Spring of 2016.
ABSTRACT: Peer-to-peer markets such as eBay, Uber, and Airbnb allow small suppliers to compete with traditional providers of goods or services. We view the primary function of these markets as making it easy for buyers to find sellers and engage in convenient, trustworthy transactions. We discuss elements of market design that make this possible, including search and matching algorithms, pricing, and reputation systems. We then develop a simple model of how these markets enable entry by small or flexible suppliers, and the resulting impact on existing firms. Finally, we consider the regulation of peer-to-peer markets, and the economic arguments for different approaches to licensing and certification, data, and employment regulation.
ABSTRACT: This paper analyses the impact of substitution between fixed and mobile tele- phony on call prices. We develop a model where consumers difer in the benefits of mobility and firms price discriminate between on-net and off-net calls. We find that call prices are distorted downwards due to substitution possibilities and customer heterogeneity, and that this distortion increases with the fixed-mobile termination mark-up.
Aviv Nevo ; John L. Turner; and Jonathan W. Williams have an interesting paper on Usage-Based Pricing and Demand for Residential Broadband. Worth downloading!
ABSTRACT: We estimate demand for residential broadband using high-frequency data from subscribers facing a three-part tariff. The three-part tariff makes data usage during the billing cycle a dynamic problem; thus, generating variation in the (shadow) price of usage. We provide evidence that subscribers respond to this variation, and use their dynamic decisions to estimate a flexible distribution of willingness to pay for different plan characteristics. Using the estimates, we simulate demand under alternative pricing and find that usage-based pricing eliminates low-value traffic. Furthermore, we show that the costs associated with investment in fiber-optic networks are likely recoverable in some markets, but that there is a large gap between social and private incentives to invest.
Jinyoung Kim (Department of Economics, Korea University) shows Patent Portfolio Management of Sequential Innovations: Theory and Empirics.
ABSTRACT: This paper develops a model for understanding a firm's decisions regarding the maintenance (renewal) and patenting of sequential innovations and studies how these decisions are affected by the model's parameters such as maintenance fees and filing fees. The model offers a discriminating testable hypothesis, predicated on the cross-price effects, to identify complementarity or substitutability across sequential innovations. Our empirical results show that higher filing fees are associated with lower probability of patent renewal, which corroborates the case of complementarity in sequential innovations.
Tuesday, September 22, 2015
Giulio CODOGNATO (Universita degli Studi di Udine) and Ludovic A. JULIEN (Universite de Dijon LEG) explore Noncooperative Oligopoly in Markets with a Cobb-Douglas Continuum of Traders.
ABSTRACT: In this paper, we revisit two models of noncooperative oligopoly in general equilibrium proposed by Busetto et al. (2008, 2011), a version of Shapleyâ€™s â€œwindowâ€ model for mixed exchange economies following Shitovitz and its reformulation following Cournot-Walras. We introduce the assumption that the preferences of traders belonging to the atomless portion are represented by Cobb-Douglas utility functions. This assumption permits us to prove the existence of a Cournot-Nash equilibrium in Shapleyâ€™s window model, known as the Cobb-Douglas-Cournot-Nash equilibrium, without introducing further assumptions of atom endowments and preferences previously used by Busetto et al. (2011). We then show that the set of Cobb-Douglas-Cournot-Nash equilibrium allocations coincides with that of Cournot-Walras equilibrium.