Monday, March 14, 2016
Individuals and the Enforcement of Competition Law – Recent Development of the Private Enforcement Doctrine in Polish and European Antitrust Law
Maciej Gac Jagiellonian University in Krakow - Faculty of Law and Administration, describes Individuals and the Enforcement of Competition Law – Recent Development of the Private Enforcement Doctrine in Polish and European Antitrust Law
Abstract: The following article focuses on the issue of private enforcement of competition law as one of the key elements of the current European and national debate on the efficiency of competition law. By analyzing this concept, the article aims to determine the influence of the European private enforcement model on the national competition law enforcement practice. The goal of the analysis is to answer two main questions: 1) Does the current convergence of the national competition law enforcement system towards the European model guarantee the establishment of an effective, public-private system of antitrust enforcement? 2) Under which conditions may the development of private methods of antitrust enforcement lead to an increase in the efficiency of Polish and European competition law? In order to address these questions, the article analyses the development of the private enforcement doctrine in the European Union and Poland. It refers to European and Polish jurisprudence on private enforcement, the competition policy of the European Commission as well as of the Polish competition authority – the UOKiK President. It also covers recent legislative changes introduced in the European and national legal orders. The analysis leads to the conclusion that the current convergence of the national antitrust system towards the European model did not lead to the establishment of an effective mechanism of private enforcement in Poland. Nevertheless, the assessment of recent changes at the European level gives grounds to assume that the adoption of the Directive on Damages Actions, and its transposition into the national legal order, might overcome this problem and allow for better protection of individuals against anti-competitive behaviors.
Katharine Kemp, University of New South Wales - Law Faculty provides A Comparative Analysis of Effects-Based Tests for Unilateral Anticompetitive Conduct.
Abstract: The appropriateness of adopting an effects-based test for unilateral conduct is limited by the uncertainty which attends both the assessment of competitive effects and the impact of state intervention. In these circumstances, commentators on both sides of the debate have adopted decision theory under conditions of uncertainty to argue in favour of different approaches to effects-based rules. This chapter explains various proposals for effects-based tests for unilateral conduct, and particularly the way in which they address these key criticisms.
Friday, March 11, 2016
Liyang Hou, Shanghai Jiao Tong University (SJTU) - KoGuan Law School offers a Competition Assessment of IPRs in China's Merger Control.
Abstract: This essay gives an extensive examination of competition assessment and remedies in IPR-related merger cases in China, and aims to reveal the impact of IPRs on merger control under the framework of China's Anti-monopoly Law.
Oversight of the Enforcement of the Antitrust Laws - Subcommittee on Antitrust, Competition Policy and Consumer Rights Hearing Wednesday, March 9, 2016
The link to the Committee hearing here.
- The Honorable William Baer
Assistant Attorney General, Antitrust DivisionU.S. Department of JusticeWashington , DC
- The Honorable Edith Ramirez
ChairwomanFederal Trade CommissionWashington , DC
Larry Downes, Georgetown Center for Business and Public Policy examines How to Understand the EU-U.S. Digital Divide.
ABSTRACT: As the EU begins the long and painful process of reversing two decades of interventionist policies that failed to promote either broadband investment, competition or adoption, the experience of the largely deregulated U.S. market provides a natural comparison. This article looks at the widely different outcomes in the two economies on five key dimensions: investment, availability, competition, adoption, and price. On all five, even the most generous reading of government data sources makes clear the source of the EU's growing innovation deficit is well-intended but ultimately failed public policies.
Thursday, March 10, 2016
Lei Kuang, Edinburgh Law has written Celebrating with a damp squib: China’s public competition enforcement.
ABSTRACT: In recent years, public competition enforcement in China has attracted worldwide attention as the Anti-Monopoly Enforcement Agencies (AMEAs) have become increasingly active in applying the Anti-Monopoly Law (AML) to well-known domestic as well as foreign conglomerates. News about high-profile probes and enormous fines imposed by the AMEAs more commonly makes the headlines. Nonetheless, whilst intensified enforcement raises public awareness of the AML and expectations of the prospect of competition enforcement, it reveals at the same time a myriad of unsolved problems concerning this fiendishly complex, and in ways unsound, competition system: it has from the very beginning suffered from major defects involving ineffective institutional design, lack of transparency and consistency in decision-making, and all too frequent political intervention. This article analyses these problems by examining recent cases concluded by the AMEAs. It argues that whilst problems within China’s competition system are not entirely insurmountable, major external obstacles are much more formidable and can be overcome only if and when meaningful political reforms are achieved.
Chris Fonteijn, Chairman, Netherlands Authority for Consumers and Markets examines Multichannel Distribution and the Impact of ‘Footloose’ Consumers.
ABSTRACT: At a recent conference, I addressed the need to shape and sharpen the debate on the appropriate competition regime for the age of on-line distribution. The world has changed. On-line sales and ‘platformisation’ have opened multiple new distribution dimensions that may require a fresh look on the application of competition rules.
The scale and speed at which businesses and consumers can process information are unprecedented, and with that the impact of issues like information asymmetry and free-riding may take on a different level of significance.
A lot of study has been devoted to the way internet shapes distribution both from the business and consumer perspectives. The potential effects of increased transparency, lower search costs, and network effects have been well described. However, in my opinion, the impact of the rapid evolution of the consumers’ role is underexposed in the debate on the appropriate competition regime.
Consumer behaviour today is no longer comparable with the Grundig–Consten era. Nor is it comparable with the time of drafting the Block Exemption on Verticals, nor even the time the Block Exemption was revised in 2010. I believe that the debate would benefit from a clear consumer welfare perspective. What is driving business response to the opportunities and challenges that internet offers? Is the business response aimed at legitimately protecting investments that benefit consumers, or is it, in a harmful way, aimed at shielding itself from strong price competition?
Credit Agricole: Complaint to the European Ombudsman for Public Statements About Ongoing Investigations
Benoit Keane (BCL LLM Solicitor) describes Credit Agricole: Complaint to the European Ombudsman for Public Statements About Ongoing Investigations.
ABSTRACT: Following a finding of maladministration, the European Ombudsman recommended the Commission acknowledge the maladministration and issue guidelines for public statements in relation to ongoing cases.
Call for Papers The Competition Law Scholars Forum (CLaSF) and UCD Sutherland School of Law - “Competition Law and Enforcement Priorities”
Call for Papers
The Competition Law Scholars Forum (CLaSF) and
UCD Sutherland School of Law-
Invite contributions to a workshop
“Competition Law and Enforcement Priorities”
At UCD Sutherland School of Law, Dublin on Friday 16th September 2016
The Competition Law Scholars Forum (CLaSF) will be running a workshop on Friday 16th September 2016 at UCD Sutherland School of Law, Dublin. The subject of the workshop will be the broad theme of 'Competition Law and Enforcement Priorities'.
We invite abstract paper proposals from researchers, scholars, practitioners and policy-makers in relation to any issue within this broad theme. We welcome theoretical, economics-driven, practice-based or policy focused papers, and we are interested in receiving abstracts for papers which may be focused on perspectives or experience at national, regional (eg EU), or international levels, or a combination.
Suggestions are invited particularly in the field of the following matters:
- Prioritisation of cases by the EU Commission
- The influence of the ECN or ICN on the Priorities of NCAs
- Priorities of small (or newer) NCAs contrasted with those of larger (or long established) NCAs
- Public Enforcement – prioritisation as between civil and criminal proceedings?
- Enforcement of Art 102/domestic abuse prohibition in the light of the Commission 2009 Guidelines
- Comparative analysis of national provisions ensuring NCAs’ independence from national stakeholders or other actors when setting Enforcement Priorities
The conference will consist of a mix of invited speakers and contributions chosen following this call for papers.
- Any person interested in being considered on the basis of the call for papers at the conference is asked to contact Professor Barry Rodger at email@example.com. An abstract is required of approximately 500-1000 words, to be submitted by no later than Monday May 30, 2016, and decisions on successful submissions will be taken by Friday June 10, 2016. Submission of presentation/draft paper is also required a week prior to the workshop.
- Papers presented at the conference can be submitted to the Competition Law Review editorial board with a view to being published in the Review. Note that the Review is a fully refereed scholarly law journal: submission does not guarantee publication.
HSH Nordbank v Commission: Action for Annulment by Minority Shareholders Against State Aid Decisions Approving Aid in the Form of a Capital Increase
Philipp Werner, Jones Day has written on HSH Nordbank v Commission: Action for Annulment by Minority Shareholders Against State Aid Decisions Approving Aid in the Form of a Capital Increase.
ABSTRACT: The General Court (‘Court’) found with regard to procedural rights that a minority shareholder's action against a State aid decision approving aid as compatible is admissible only if the minority shareholder has a legitimate interest that differs from the legitimate interest of the company, eg as in the case the decision leads to diluting the minority shareholder's property rights, and held on the merits that the obligations on the minority shareholders were appropriate burden sharing.
Wednesday, March 9, 2016
Andrew Rhodes, University of Toulouse 1 - Toulouse School of Economics (TSE) and Jidong Zhou, University College London - Department of Economics discuss Consumer Search and Retail Market Structure.
ABSTRACT: This paper proposes a framework for studying how consumer search frictions affect retail market structure. In our model single-product firms which supply different products can merge to form a multiproduct firm. Consumers wish to buy multiple products and value the one-stop shopping convenience associated with a multiproduct firm. We find that when the search friction is relatively large all firms are multiproduct in equilibrium. However when the search friction is smaller the equilibrium market structure is asymmetric, with single-product and multiproduct firms coexisting. This asymmetric market structure often leads to the weakest price competition, and is the worst for consumers among all possible market structures. Due to the endogeneity of market structure, a reduction in the search friction can increase market prices and decrease consumer welfare.
Michael Hellwig Centre for European Economic Research (ZEW) - Competition and Regulation Research Group, Kai Huschelrath Centre for European Economic Research (ZEW); WHU - Otto Beisheim School of Management Ulrich Laitenberger Centre for European Economic Research (ZEW) - Competition and Regulation Research Group; KU Leuven - Department of Managerial Economics, Strategy, and Innovation examine Settlements and Appeals in the European Commission's Cartel Cases: An Empirical Assessment.
ABSTRACT: The introduction of the European Union (EU) Settlement Procedure in 2008 aimed at promoting the procedural efficiency of cartel investigations by the European Commission (EC). We use a data set consisting of 579 firms groups convicted by the EC for cartelization from 2000 to 2015 to investigate the impact of the settlement procedure on the probability to file an appeal. Based on the estimation of a model of the firm’s decision to appeal in the presettlement era, we subsequently run out-of-sample predictions to estimate the number of hypothetical appeals cases in the settlement era absent the settlement procedure. Our findings of a settlement-induced reduction in the number of appeals of up to 55 percent allow the conclusion that the introduction of the settlement procedure generated substantial additional benefits to society beyond its undisputed key contribution of a faster and more efficient handling of cartel investigations by the EC.
Health Insurance Merger Frenzy: Analyzing the Mergers of Anthem-Cigna and Aetna-Humana - March 16, 2016
Health Insurance Merger Frenzy: Analyzing the Mergers of Anthem-Cigna and Aetna-Humana
Wednesday, March 16, 2016
Capitol Visitor Center Room 202 (SVC 202)
12:00 p.m. – 1:00 p.m.
(Lunch will be served at 11:45 a.m.)
Health Insurance Merger Panelists:
Vice President of Health Policy at the Center for American Progress
Director of Healthcare Value Hub at Consumers Union
President of the American Antitrust Institute
David A. Balto (Moderator)
Law Offices of David A. Balto
Ongoing health insurance consolidation, including the proposed mega-mergers of Anthem-Cigna and Aetna-Humana, raises serious concerns about competition in health insurance markets. Come learn about consolidation and mergers in the health insurance markets and their impacts on consumers and providers. Panelists will share information, including their recent findings regarding the Anthem-Cigna and Aetna-Humana mergers, as well as discuss the mergers’ overall impact on consumers, providers, and health insurance competition.
This event has been structured to comply with the Widely Attended Event exception to the Congressional Gift Ban
Open to the Press
RSVP to firstname.lastname@example.org or 925-708-1135
Sponsored by the Coalition to Protect Patient Choice
Stephen Yelderman, Notre Dame Law School Do Patent Challenges Increase Competition?
ABSTRACT: As a general rule, judges and scholars believe settlement is a good thing. But, for nearly a century, the Supreme Court has said that patent litigation is categorically different, since it offers the chance to increase competition by freeing the public from the burdens of a monopoly. Based on this theory, and in the hopes of seeing more patent litigation fought to completion, the Court has overturned longstanding common law doctrines, declined to enforce otherwise valid contracts, and — in the recent case of FTC v. Actavis — subjected patent settlements to scrutiny under the antitrust laws. Similar reasoning has resulted in legislative initiatives to encourage patent disputes, including the regulatory bounty for challenging pharmaceutical patents included in the 1984 Hatch-Waxman Act and the administrative review procedures created by the 2011 America Invents Act. Moreover, scholars continue to call for reforms to provoke additional patent challenges, again asserting their supposed pro-competitive benefits.
This Article is the first to seriously scrutinize the claim that patent challenges lead to increased competition. It identifies a number of conditions that must hold for a patent challenge to provide this particular benefit, and evaluates the reasonableness of assuming that the pro-competitive benefits of patent challenges are generally available. As it turns out, there are a number of ways these conditions can and regularly do fail. This Article synthesizes legal doctrine, recent empirical scholarship, and several novel case studies to identify categories of challenges where the potential benefits for competition are smaller than previously thought or, in some cases, completely unavailable.
This analysis has a number of implications for patent law and policy. First, it provides critical guidance for how the patent office should administer its new review authority under the America Invents Act. Second, it exposes flaws in several judicially created policies intended to encourage more patent challenges. Third, it vindicates the present scope of the regulatory bounties provided under the Hatch-Waxman Act, and cautions against recently proposed expansion of these incentives to other technology areas. Fourth, it sheds new light on the competitive consequences of patent settlements, and thus informs how the Court’s recent FTC v. Actavis decision should be applied in future cases.
Gamal Atallah, University of Ottawa - Department of Economics discusses Endogenous Efficiency Gains from Mergers with and without Product Differentiation.
ABSTRACT: This paper analyzes endogenous efficiency gains from mergers. It considers oligopolistic homogeneous good markets and duopolistic and triopolistic markets under product differentiation (quantity and price competition). In a two-stage game, firms invest in cost-reducing innovation (with and without mergers) and then compete in output/prices. It is found that in homogeneous good markets, all possible mergers generate efficiency gains, and that these are most significant when spillovers are very low or very high. Efficiency gains increase with the number of insiders and generally decrease with the number of outsiders. With product differentiation, under quantity competition, and under price competition with outsiders to the merger, the merger generates efficiency gains when R&D spillovers and/or product differentiation are sufficiently high. Under price competition with a merger to monopoly, the merger induces efficiency gains except when spillovers are very low. With product differentiation, efficiency gains increase with R&D spillovers, but may increase or decrease with the level of product differentiation. Innovation incentives and the likelihood of efficiency gains are compared between quantity and price competition. The implications of the results for the relationship between competition and innovation outputs and for merger policy are discussed.
Tuesday, March 8, 2016
To What Extent Can We Rely on Contestability in Merger Policy? Ex Post Evidence from the McGill’s/AWS Merger Decision
Pietro Crocioni, Office of Communications (Ofcom) asks To What Extent Can We Rely on Contestability in Merger Policy? Ex Post Evidence from the McGill’s/AWS Merger Decision.
ABSTRACT: The McGill’s/AWS merger was cleared by the UK Competition Commission mainly on the basis of its belief that the threat of entry would be sufficient to prevent unilateral effects from arising post-merger. This is very close to argue that these local bus markets were contestable. This ex post evaluation case study based on the publicly available data and information on frequencies and fares suggests that the entry threat may have not been a strong disciplining force post-merger.
The Danish Supreme Court Rules on State Action Defense and Refusal to Supply Under Danish Competition Law (Copenhagen Airport Terminal A)
Christian Bergqvist, University of Copenhagen - Faculty of Law and Laurits Schmidt Christensen, Accura Advokatpartnerselskab discuss how The Danish Supreme Court Rules on State Action Defense and Refusal to Supply Under Danish Competition Law (Copenhagen Airport Terminal A).
ABSTRACT: After a lengthy process the Danish Supreme Court finally closed the curtain in September 2015 on a potential new, and competing, terminal in Copenhagen Airport, the main Danish airport hub. A group of investors had asked the airport to grant access (a lease) to a plot of land in the airport for the purpose of building a new terminal A. Terminal A would compete with the airport in the supply of services to airlines. Copenhagen airport rejected the request which in turn lead the group of investors to complain to the Danish Competition and Consumer Authority ("DCCA"). In its draft decision the DCCA identified an obligation to grant access under EU Article 102 and the Danish equivalent. However, just before a formal decision was to be made on the matter by the DCCA, the Danish Transport and Construction Agency reversed a previous finding now holding air security regulation to be an obstacle to the application of competition law to the matter at hand. Unhappy, not only with the outcome, but also the process, the access seeking party, Terminal A, lodged a case before the judiciary arguing that air security regulation did not prevent the application of competition law and an order for the granting of access. This submission was not accepted by the Danish Supreme Court that moreover held EU Article 106 (2) to be applicable as a defense for Copenhagen Airport’s refusal to lease the land to Terminal A. The case provides guidance on the scope of the state action defense under Danish competition law and, indirectly the application of EU Article 102 and the Danish equivalent to refusal to supply cases.
Shane M. Greenstein, Northwestern University - Kellogg School of Management; National Bureau of Economic Research (NBER), Martin Peitz, University of Mannheim - Department of Economics, and Tommaso M. Valletti, Imperial College Business School; University of Rome, Tor Vergata - Department of Financial and Quantitative Economics; Centre for Economic Policy Research (CEPR) offer Net Neutrality: A Fast Lane to Understanding the Trade-Offs.
ABSTRACT: The “net neutrality” principle has triggered a heated debate and advocates have proposed policy interventions. In this paper, we provide perspective by framing issues in terms of the positive economic factors at work. We stress the incentives of market participants, and highlight the economic conflicts behind the arguments put forward by the different parties. We also identify several key open questions.
Hak Choi, Chienkuo Technology University - Department of International Business; Chung-Hua Institution for Economic Research offers A Brief History of Competition.
ABSTRACT: This paper offers a historical account of competition theories in economics. It shows that most, if not all, of these theories do not offer winning strategy. It encourages students of economics to search for new, definite but honest winning strategy in competition.
Monday, March 7, 2016
The Competition Law Scholars Forum (CLaSF) and Lisbon Law School (Faculdade de Direito da Universidade de Lisboa/FDL) in conjunction with its Jean Monnet Chair in Economic Regulation in the EU
Workshop-“Competition and regulatory trends in digital markets”
At Lisbon Law University (FDL), Alameda da Universidade, Lisbon, on Thursday, 14 April 2016
09:15 – 9:45: Registration
09:45: Introduction: Prof Barry Rodger (CLaSF), Prof Luis Morais (FDL)
Keynote Speaker – Prof João Confraria (Católica University, Member of the Board of ANACOM, Electronic Communications Regulatory Authority) – ‘A future for ex ante electronic communications regulation?’
Big data and Competition Law:- Chair: Luis Morais
‘Competition Policy in a World of Big Data’, Prof. Simonetta Vezzoso, Universita di Trento; ‘The Role of Consumer Data in the Enforcement of US and EU Competition Law’, Dr Konstantina Bania, Post-Doctoral Researcher, Centre for Media Pluralism and Media Freedom (Robert Schuman Centre), Florence
11:45-12.00 Coffee break
Digital Markets and Competition Law:- Chair: Angus MacCulloch
‘Net Neutrality, Do Not Track, and Antitrust Law: The Applicability of Competition Law to the ‘Digital Market’ under the US and EU Competition Law Systems’, Mariya Naulo, J.D, University of Michigan and Gul Gok, Ph.D. Candidate, Strathclyde University Law School; ‘Digital Markets and Emerging Competition Regimes: The Case of Hong Kong’ Prof Sandra Marco Colino, The Faculty of Law, Chinese University of Hong Kong
Market Definition and Digital Markets:- Chair: Alan Riley
‘What role for Antitrust market Definition in Digital Markets?’, Prof. Viktoria Robertson, Asst Prof, Faculty of Law, University of Graz; ‘Market power, innovation and consumer welfare: a focus on digital platforms and IP rights’, Dr Florence Thepot, Law School, University of Glasgow; ‘Web Sites as “Essential Facilities”; Dr Uroš Ćemalović, Professor, Faculty of Law, Public Administration and Security, Belgrade and Dr Veljko Milutinović, Member of the Council, Serbian Commission for Protection of Competition
16:15-16:30 Coffee Break
Digital Markets, Innovation and Abuse:- Chair: Barry Rodger
‘Abuse of Dominance in Online Free Services:- Overview of Recent Cases’ Dr Miguel Sousa Ferro, Law School, Universidade de Lisboa; ‘Innovation by Dominant Firms in Digital Markets: Damned if you Don’t…But Damned if you do!’ Prof Francisco Marcos, IE Law School, Madrid
17:55 Closing remarks
Mandatory prior registration by 8 April 2016: email@example.com