Wednesday, November 21, 2018
Pier Luigi Parcu and Giorgio Monti, European University Institute, Italy and Marco Botta, Max-Planck-Institut für Innovation und Wettbewerb, Germany have edited Private Enforcement of EU Competition Law The Impact of the Damages Directive.
BOOK ABSTRACT: During the past decade, the use of private enforcement within competition law has gradually increased throughout Europe but major differences still exist among Member States. By harmonizing a number of procedural rules, the implementation of the Damages Directive has established a level playing field among EU Member States. This book represents the first assessment of the implementation of the Damages Directive at the national level.
Tuesday, November 20, 2018
Claudia M. Landeo and Kathryn E. Spier discuss Optimal Law Enforcement with Ordered Leniency.
ABSTRACT: This paper studies the design of enforcement policies to detect and deter harmful short-term activities committed by groups of injurers. With an ordered-leniency policy, the degree of leniency granted to an injurer who self-reports depends on his or her position in the self-reporting queue. By creating a "race to the courthouse," ordered-leniency policies lead to faster detection and stronger deterrence of illegal activities. The socially-optimal level of deterrence can be obtained at zero cost when the externalities associated with the harmful activities are not too high. Without leniency for self-reporting, the enforcement cost is strictly positive and there is underdeterrence of harmful activities relative to the first-best level. Hence, ordered-leniency policies are welfare improving. Our findings for environments with groups of injurers complement Kaplow and Shavell's (1994) results for single-injurer environments.
Claudia M. Landeo and Kathryn E. Spier offer Ordered Leniency: An Experimental Study of Law Enforcement with Self-Reporting.
ABSTRACT: This paper reports the results of an experiment designed to assess the ability of an enforcement agency to detect and deter harmful short-term activities committed by groups of injurers. With ordered-leniency policies, early cooperators receive reduced sanctions. We replicate the strategic environment described by Landeo and Spier (2018). In theory, the optimal ordered-leniency policy depends on the refinement criterion applied in case of multiplicity of equilibria. Our findings are as follows. First, we provide empirical evidence of a "race-to-the-courthouse" effect of ordered leniency: Mild and Strong Leniency induce the injurers to self-report promptly. These findings suggest that the injurers' behaviors are aligned with the risk-dominance refinement. Second, Mild and Strong Leniency significantly increase the likelihood of detection of harmful activities. This fundamental finding is explained by the high self-reporting rates under ordered-leniency policies. Third, as a result of the increase in the detection rates, the averages fines are significantly higher under Mild and Strong Leniency. As expected when the risk-dominance refinement is applied, Mild Leniency exhibits the highest average fine.
ABSTRACT: Historically, authorities tasked with reviewing mobile mergers have assessed the overall effects on consumers primarily on the basis on how mobile mergers affect prices in the short-term ('static' effects). However, innovation and quality ('dynamic' effects) have not been modelled and evaluated properly. Likewise, the existing economic literature that analyses the impact of mobile mergers primarily focuses on price effects, and only a few, more recent studies show how mobile mergers impact investments. Building on these, a recent study published by the GSMA analyses how the 2012 merger in Austria between H3G and Orange affected innovation and quality. The study is the first of its kind in analysing the impact of a mobile...
Amber Darr explains the Role of courts in enforcing competition laws: a comparative analysis of India and Pakistan.
ABSTRACT: Developing countries adopt modern competition laws based on international blueprints for motivations ranging from gaining international legitimacy to achieving domestic economic goals. However, whilst adopting such laws confers some legitimacy on the competition regimes of these countries, it does not automatically translate into the realization of their economic goals unless the laws are also meaningfully enforced. Comparative law literature, viewed in the light of development economics, suggests that meaningful enforcement entails, among other things, a productive interaction between the adopted laws and the pre-existing legal systems of the countries. In this article, I identify possible interactions between competition laws and pre-existing legal systems in India and Pakistan and compare the interactions that actually occur in the two countries. I observe that, although India and Pakistan have nearly identical pre-existing legal systems and adopted similar competition laws within five years of each other, the interactions of these competition laws with the pre-existing legal systems in the countries are remarkably different. I argue that the nature of interactions in a country is substantially shaped by the strategy, mechanisms, and legal and political institutions through which it adopts its competition law. I also demonstrate that the type of interaction has an observable impact on the enforcement of competition law in that country.
Monday, November 19, 2018
Vsevolod Grabar, National Research University - Higher School of Economics and Konstantin Sonin, University of Chicago - Irving B. Harris Graduate School of Public Policy Studies; Higher School of Economics; Centre for Economic Policy Research (CEPR) analyze Financial Restrictions and Competitive Balance in Sports Leagues.
ABSTRACT: A dramatic surge in revenues from TV broadcasting and brand-selling forced modern football clubs, simultaneously involved in domestic and European competitions, to operate in a new environment. In response, the Union of European Football Associations introduced the Financial Fair Play Regulations, a set of fifinancial regulations that affect all major European clubs. To assess the impact of financial restrictions (e.g., salary caps) on the default risk for individual clubs and competitive balance, we construct a game-theoretic model where clubs make decisions on the amounts they borrow and spend on the team. The impact of financial restrictions on competitive balance is positive; the total amount of debt also decreases at equilibrium. Finally, we show that financial restrictions create more incentives to invest in second-tier clubs compared to the situation in which there are no financial regulations.
Germain Gaudin, European Commission - Directorate General for Competition; Telecom ParisTech asks Vertical Bargaining and Retail Competition: What Drives Countervailing Power?
ABSTRACT: This article investigates the effects of changes in market concentration on the equilibrium prices in a supply chain. Results are derived from a theoretical model of bilateral bargaining between upstream and downstream firms which allows for general forms of demand and retail competition. Whether countervailing buyer power arises, in the form of lower input prices following greater concentration downstream, depends on the pass‐through rate of input prices to retail prices. Countervailing buyer power generally does not translate into lower retail prices because of heightened market power at the retail level.
Implementing a Competition Law System: Closing Seminar & Panel Discussion
23rd November; Warsaw
This event closes a two-year-long investigation into introduction and development of a system of competition law in Poland conducted by Dr Marek Martyniszyn (Queen's University Belfast) and Dr hab. Maciej Bernatt (University of Warsaw). This study uniquely benefited from in-depth interviews with individuals who shaped the Polish system over nearly thirty years of its existence (inclusive of all former heads of the agency, judges, leading practitioners and agency advisors) and from analysis of a variety of newly-gathered data and statistics.
Venue: Faculty of Management, University of Warsaw
10:00 Registration & coffee
10:30 Welcome & Project’s Background: Dr Marek Martyniszyn, Queen’s University Belfast
10:40 Opening remarks: Professor William Kovacic, George Washington University (video message)
11:50 Panel discussion (in Polish)
Judge Dariusz Dąbrowski, Deputy President of the District Court in Warsaw
Mr Marek Niechciał, President of the Office of Competition and Consumer Protection (to be confirmed)
Dr Marta Sendrowicz, Competition Law Society
Ms Agnieszka Stefanowicz-Barańska, Competition Law Society
Professor Agata Jurkowska-Gomułka, University of Information Technology and Management
Chair: Professor Tadeusz Skoczny, CARS, University of Warsaw
12:30 Plenary discussion (in Polish)
13:00 Expected closing of the event
Free registration available via http://go.qub.ac.uk/Warsaw
ABSTRACT: The developments discussed in this survey article show that the interaction between competition and public procurement law keeps getting stronger. The survey relies on examples from EU jurisdictions to show that competition authorities clearly target instances of bid rigging as one of their top enforcement priorities. However, the quashing of some of these decisions in judicial review in Sweden also shows the need for refined bid rigging analysis, as some national courts are unwilling to accept the categorisation of bid rigging as an anticompetitive agreement ‘by object’ (II). The article also reports on how the UK’s competition authority has sought to develop screening algorithms to facilitate the detection of collusive practices by...
ABSTRACT: This paper discusses the effects of horizontal mergers on innovation. We rely on the existing academic literature and our own research to present the various positive and negative effects of mergers on innovation. Our analysis shows that the overall impact of a merger on innovation may be either positive or negative and sheds light on the circumstances under which each of these scenarios is likely to arise. We derive a number of policy implications regarding the way innovation effects should be handled by competition authorities in merger control and highlight the differences with the analysis of price effects.
Saturday, November 17, 2018
THE NEW YORK BAR FOUNDATION
2019 ANTITRUST SECTION
LAW STUDENT FELLOWSHIP
The New York Bar Foundation is pleased to announce the 2019 Antitrust
Section Law Student Fellowship, which has been established by the Foundation
through gifts from the Antitrust Section of the New York State Bar Association.
The Fellowship will be awarded to up to four current first or second year law
students to work on antitrust and related matters in the public sector in the State
of New York during the summer of 2019.
About Antitrust Law
Antitrust laws prohibit business practices that deprive consumers of the benefits of
competition, including conduct that may result in higher prices for products or
harm consumers by discouraging innovation or depriving them of greater choices.
Antitrust laws can be enforced through criminal or civil investigations and cases.
Federal and state antitrust agencies have authority to enforce antitrust laws in the U.S.
In addition, there are many other countries with antitrust/competition laws. Antitrust
investigations often involve consideration of economic relationships among companies
and other participants in an industry and overall market dynamics.
Fellowship Program Goals
Provide law students an opportunity to experience antitrust and government
investigations practice during the summer after their first or second year of law
school and to increase the representation of lawyers from a diverse range of
backgrounds in the practice of antitrust law in New York. The ultimate goal of the
Fellowship is to forge relationships among antitrust practitioners throughout the State
of New York and foster greater diversity in the antitrust bar. Through the Fellowship,
a student will be provided a meaningful and appropriately supervised work experience
in the New York Office of New York Attorney General, Antitrust Bureau; the Federal
Trade Commission, Northeast Region; or the Department of Justice Antitrust Division,
New York Office. In past years, Fellows in our Fellowship Program reflected diversity
in many different ways, including having diverse backgrounds, educational and work
experience, and unique perspectives and interests in antitrust law and government
- Up to four (4) Fellowships, each currently valued at $6,000, will be awarded
to students to spend the summer of 2019 (10 weeks) working on antitrust
matters in one of the following agencies: the New York Office of New
York Attorney General, Antitrust Bureau; Federal Trade Commission, Northeast
Region; or Department of Justice Antitrust Division, New York Office.
Proof of U.S. citizenship may be required for employment with federal law
- The Fellows will be guest members of the NYSBA Antitrust Section for two
years starting with the award of the Fellowship.
- The Fellows will be invited to attend Executive Committee meetings of the
NYSBA Antitrust Section during the Summer and Fall of 2019.
- The Fellows will be announced no later than February 28, 2019.
- The Fellowship is open to all first-year (1L) and second-year (2L) students (as of the
Fall 2018 semester) who are capable of fulfilling the requested work hours and
responsibilities and meet the criteria under the heading “Judging” below.
- The Fellowship will take place during the summer of 2019 for a period of 10
weeks, between June and August 2019; the precise dates will be provided when the
fellowship is awarded. The expected work requirement per week generally will be 35 to
Location of Fellowship
- The 2019 Fellowship will take place in one of the following agencies: the New
York Office of New York Attorney General, Antitrust Bureau; Federal Trade
Commission, Northeast Region; or Department of Justice Antitrust Division, New
York Office. Fellowship finalists will be interviewed in New York City in early 2019.
Payment of Fellowship
Each Fellow will receive $3,000 at the start of the Fellowship with the remaining
$3,000 paid to each Fellow at the end of the Fellowship (no federal or state income
taxes will be withheld and a 1099 will be issued to the student by January 31, 2019).
Housing and Other Expenses
Housing, transportation and all other expenses to participate in the Fellowship will
be provided by the student. Finalists’ costs of out of town travel to participate in
interviews in New York City may be reimbursed.
Fellowship Application Requirements
The applicant must submit the following:
1. A completed application (application form below)
2. Cover letter of interest
3. Unofficial law school transcript (if available)
4. Unofficial undergraduate school transcript
6. Two letters of recommendation
7. One writing sample on any topic related to the law. The writing sample
must be at least five pages but shall not exceed 10 typed pages doublespaced.
All hard copy materials must be submitted by mail with a postmark on or before
January 12, 2019.
A Fellowship Committee will undertake a careful review of all applications for
the Fellowship, and will consider the criteria below in evaluating each candidate.
No single criterion or combination of criteria will be dispositive.
1. Work experience.
2. Academic record.
3. Leadership experience.
4. Extracurricular activities and community service.
5. Quality of written expression.
6. Maturity, integrity and professionalism.
7. Content and quality of application materials.
8. Demonstrated interest in antitrust and/or consumer protection.
9. New York permanent residence or demonstrated intent to reside
and practice law in New York following graduation from law
10. Diverse background (e.g., Asian/Pacific Islander, Black/African American,
Latino/a, LGBT, Native American/Alaska Native, Physically Disabled).
11. Any other relevant factors.
All materials must be submitted by mail with a postmark on or before January 12, 2019.
THE NEW YORK BAR FOUNDATION
ONE ELK STREET
ALBANY, NY 12207
Law Student Fellowship
Provided by The New York Bar Foundation
through gifts from the Antitrust Section of the New York State Bar Association
Law School attending:
o Day student o Evening student
Year of Law School Study as of December 1, 2018:
Please indicate membership in any of the following diversity groups:
o Asian or Pacific Islander — person having origins in any of the Far East
Countries, South East Asia, the Indian subcontinent or the Pacific Islands
o Black/African American
o Latino/a — person of Mexican, Puerto Rican, Dominican, Cuban, Central or
South American origin
o Lesbian Gay Bisexual or Transgendered
o Native American or Alaskan native — person having origins in any of the
original peoples of America
o Physically Disabled
College Name Address Major Attended Degree
Attach the following materials to this application:
1. A cover letter which indicates your interest in the practice of antitrust and/or
consumer protection law in New York and the receipt of this Fellowship.
2. An undergraduate school transcript. (Transcripts need not be official; finalists may
be asked to provide official transcripts.)
3. If available, a law school transcript.
4. A resume describing your prior employment and other relevant activities and
5. Two letters of recommendation. (These may be the same as used for law
6. One writing sample on any topic related to the law. (Must be at least five but shall
not exceed 10 double-spaced typewritten pages.)
Application deadline: All materials must be submitted by mail with a postmark on or
before January 12, 2019.
Mail applications to:
THE NEW YORK BAR FOUNDATION
ONE ELK STREET
ALBANY, NY 12207
I hereby certify that all of the statements contained and information provided in this
application, and in the attachments hereto, are truthful, to the best of my knowledge, and
that I meet the eligibility requirements for the 2019 Antitrust Section Law Student
Applicant's Signature Date
Where did you hear about this fellowship opportunity?
About the Antitrust Section of the New York Bar Association
The Antitrust Law section provides a forum in which attorneys and law students can learn about
and keep up with developments in competition law and complex litigation generally. The section
covers not only U.S. national developments, but also international activity and New York State
Section activities include (1) monthly meetings of the group’s Executive Committee, (2) an
annual day-long program and series of evening events, held each January in conjunction with the
New York State Bar Association’s annual meeting, and (3) special programs in the mid-summer
The Section also has six standing subcommittees, which focus on (1) diversity in the Section, (2)
cartel and criminal practice, (3) class actions, (4) coordinated conduct (5) mergers, and (6)
unilateral conduct. The subcommittees similarly hold regular meetings, special programs and
Annual Meeting Events:
The Section’s annual meeting events consist of topical panels, presented during the day, followed
by a reception, dinner and dessert buffet in the evening. The evening events are attended by
roughly 350 persons, and the day events by about 100.
For the 2018 annual meeting, the featured dinner speaker was Andrew Finch, Principal
Deputy Assistant Attorney General, United States Department of Justice, Antitrust Division.
Other Section Activities:
The Executive Committee’s monthly meetings handle regular business, followed by a one-hour
speaker’s presentation. These monthly programs cover a wide range of subjects, which recently
have included the legal and economic implications of institutional investors’ ownership of equity
interests in competing companies; recent criminal antitrust enforcement actions brought by the
Office of the New York Attorney General; the use of statistical screens and other empirical
analyses to detect antitrust conspiracy and other forms of market manipulation; legal and
economic issues related to patent assertion entities; and other topics. Some of these programs
offer CLE credit at no charge. The Section also sponsors a Summer merger program, which most
recently addressed antirust issues associated with high tech mergers, and an annual Taft Lecture,
which most recently featured Professors Herbert Hovenkamp and Dennis Carlton, who spoke on
the U.S. Supreme Court’s recent decision in Ohio v American Express.
The programs are open to Section members and non-members alike.
The Section also sponsors a yearly writing competition open to students at law schools located in
New York, and to New York state residents in law schools outside the State. The student whose
paper is selected as the winning entry receives a $5000 award.
There are more than 525 members of the Antitrust Section, and roughly 60 Executive
Committee members. The Section’s website is located at:
The website is regularly updated to link to materials presented at the Section’s programs, and
to competition law developments generally.
For further information about the Antitrust Section, contact the Section’s chair:
Wesley R. Powell
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10166
Friday, November 16, 2018
J. Gregory Sidak & Urška Petrovčič ask Will the CJEU’s Decision in MEO Change FRAND Disputes Globally?
ABSTRACT: In April 2018, the Court of Justice of the European Union (CJEU) issued a decision in MEO v. Autoridade da Concorrência that clarified the circumstances in which price discrimination would trigger liability under Article 102(c) TFEU. The decision in MEO has so far received sparse attention from lawyers, academics, and competition law commentators. Yet, it represents an important addition to the analysis of price discrimination under EU competition law. The CJEU emphasized that Article 102(c) TFEU does not categorically prohibit a dominant firm from engaging in price discrimination, but instead prohibits only price discrimination that “tends to distort competition on the downstream market.” The CJEU also said that one cannot assume that price discrimination will have that prohibited effect, but rather one must examine the circumstances of each case to determine whether the challenged practice has a prohibited effect on the downstream market and thus violates Article 102(c) TFEU.
Although MEO concerned the licensing of copyrights, for two reasons it has important implications for disputes concerning standard-essential patents (SEPs) that are subject to the owner’s commitment to offer to license them on fair, reasonable, and nondiscriminatory (FRAND) terms. First, MEO clarifies that an SEP holder’s differential offers to its licensees are discriminatory within the meaning of Article 102(c) TFEU only when that differential treatment is so substantial as to be capable of distorting competition in the market in which the licensees compete. Thus, after MEO, scrutiny of an SEP holder’s licensing practices under Article 102(c) TFEU turns on the potential effects of the differential treatment. Second, to the extent that the prohibition against discrimination in the FRAND contract is equivalent to the prohibition against discrimination contained in Article 102(c) TFEU, MEO will require an effects-based analysis in cases alleging a breach of the FRAND contract. In those cases, MEO provides guidance for scrutinizing an SEP holder’s discharge of its duties under the FRAND contract, not only in the European Union, but also in foreign jurisdictions where a court must construe and enforce the nondiscrimination requirement of an SEP holder’s FRAND contract.
ABSTRACT: Pleas for the reinvention of EU competition law in the digital age have become popular – so much so that they feature in the generalist press (and the pages of this journal). It is regularly claimed that efficiency and/or consumer welfare are poor guides to address the emerging challenges for the discipline. A whole new approach to competition law (labelled ‘New Brandeis’) defines its identity around this key tenet.
Such claims are also made in relation to specific practices or markets. The rise in the use of algorithms, some commentators argue, is a new threat that requires the refinement of existing doctrines. Similar arguments have been advanced in relation to the prominence of online platforms, which are deemed too mighty to leave legal principles untouched.
There is no reason to exclude digital markets from the reach of EU competition law. What is more, some of the economic dynamics of online markets may, in some circumstances, justify vigorous intervention. This said, it is far from clear whether there is something truly unique about the digital world that warrants a fundamental rethink of the law as it stands.
This editorial suggests that the main risk for EU competition law, at this juncture, is not so much its alleged failure to adapt to new circumstances, but its tendency to forget the lessons learnt over the years.
Susan Athey, Stanford Graduate School of Business and Michael Luca, Harvard Business School discuss Economists (and Economics) in Tech Companies. Worth reading!
ABSTRACT: As technology platforms have created new markets and new ways of acquiring information, economists have come to play an increasingly central role in tech companies – tackling problems such as platform design, strategy, pricing, and policy. Over the past five years, hundreds of PhD economists have accepted positions in the technology sector. In this paper, we explore the skills that PhD economists apply in tech companies, the companies that hire them, the types of problems that economists are currently working on, and the areas of academic research that have emerged in relation to these problems.
Thursday, November 15, 2018
Fabio Falconi and Lars Suhr describe The Application of European Competition Law in the Financial Services Sector.
ABSTRACT: From May 2016 to December 2017 there were important developments in the application of EU and UK competition laws in the financial services sector in banking, payment systems, insurance, and capital markets. At UK level, this survey provides an overview of the retail banking investigation, merger decisions a and private damages actions. At EU level, this survey covers the review of the Insurance Block Exemption Regulation, the General Court’s Icap judgment, merger decisions, and state aid decisions.
Assistant Attorney General Makan Delrahim Remarks at the American Bar Association Antitrust Section Fall Forum Washington, DC ~ Thursday, November 15, 2018
Due process is a very important issue (pre-order my forthcoming book with Oxford University Press here).
The current CPI issue is devoted to this topic.
By Paul O’Brien – Competition agency process can be just as important as substance when it comes to effective enforcement.…
Advances in International Due Process Considerations: Proper Compliance Mechanisms Could Propel Convergence
By Jana I. Seidl & James F. Rill – Convergence in practice on due process principles is critical to the…
Due Process and Production of Documents Stored Abroad: A Review of Antitrust Discovery Tools After Microsoft Ireland and the Cloud Act
By Valeria Losco & Terry Calvani – This article discusses one specific issue raised by new technologies in antitrust investigations:…
What’s the Appeal? How the General Court and Competition Appeal Tribunal are Shaping the EU and UK Antitrust Regimes
By Paul Gilbert – This article considers why European Commission antitrust decisions seem less vulnerable to appeal on substance than…
By Hideo Nakajima – Since I worked at the Japan Fair Trade Commission as Secretary General prior to joining the…
By Antonio Capobianco & Gabriella Erdei – Procedural fairness includes rights of individuals and legal persons to “due process.” It…
Filippo Maria Lancieri asks Digital protectionism? Antitrust, data protection, and the EU/US transatlantic rift.
ABSTRACT: EU authorities increasingly take antitrust and data protection enforcement action against US internet companies. While many believe in digital protectionism, this article looks at the foundations of data protection and antitrust policies across the Atlantic to propose an alternative explanation based on the distinct views over how online markets work and should be regulated. Europeans associate data protection with inalienable rights, Americans treat data as an asset. Europeans use competition policy to advance personal freedom, US antitrust policy focuses on economic efficiency. These singular EU traits encourage the regulation of major internet companies. While the European mistrust of data amassing by private parties supplies political motivation to rein in on digital giants, its competition law framework provides a toolkit capable of overcoming challenges commonly present whenever regulators take antitrust enforcement action against Big Data firms. The US does not share either. This indicates that the EU/US divide over internet regulation will grow—and transatlantic tensions perilously increase. The article concludes by arguing for an adjusted role for economic reasoning in antitrust enforcement as a way to bridge differences.
Jens-Uwe Franck, University of Mannheim - Department of Law and Martin Peitz, University of Mannheim - Department of Economics write Toward a Coherent Policy on Cartel Damages.
ABSTRACT: The focus of cartel damages law is on the recovery of the cartel overcharge. Parties other than purchasers are often neglected, not only as a matter of judicial practice, but also due to legal restrictions. We argue that a narrow concept of standing—which excludes parties that supply either the cartel or the firms that purchase from the cartel with complementary product components—falls short of achieving effective antitrust enforcement and corrective justice in the best possible way. We provide a framework with two complementary products and show that under neither competition nor cartelization do the allocation and the distribution of surpluses depend on the market organization in place. Thus, we argue that prima facie producers of complements should be treated alike, regardless of whether they purchase from the cartel or supply the cartel or the cartel’s customers. Moreover, based on various factors that determine the enforcement effect of antitrust damage claims and their role as an instrument to achieve corrective justice, we show that a broad concept of standing is, indeed, the preferable legal solution. While its implementation required a change of the position by the U.S. federal courts, we submit that it would amount to a consistent completion of the legal framework within the EU.