Antitrust & Competition Policy Blog

Should I Go by Bus? The Liberalization of the Long-Distance Bus Industry in France

Thierry Blayac, Université Montpellier and Patrice Bougette, Université Côte d'Azur, CNRS, GREDEG ask Should I Go by Bus? The Liberalization of the Long-Distance Bus Industry in France.

ABSTRACT: The opening up of the French long-distance bus industry is one of the outcomes of the Loi Macron. In this study, we build a unique data set of several representative bus routes and show that the effects of the liberalization have been encouraging in terms of fares, new entry, higher frequency, and higher quality. First, with regard to international routes that used to be under cabotage, we find that relaxing quantitative restrictions has led to the expected results on the Lyon-Torino and Paris-London routes. Second, with regard to domestic routes newly created from the Loi Macron, mostly all procompetitive expected variations in the variables have been observed, except for fares. Indeed, we show that bus operators used an initial aggressive pricing strategy to induce demand for the new services and then increased fares once customers became accustomed with the service.

America's favorite retailers and restaurants

From a new study:

NPD Group, a market research organization, which tracks millions of online and in-store receipts, says that 95% of all US consumers shopped at a Walmart store in 2016. By comparison, Amazon reached less than half of all US consumers last year—at 42%.

McDonald’s and Target each reached over 80% of all US consumers last year.

 

I am in the 95% of Americans who shop at Walmart. I love the low prices.

Competition Policy: The Comparative Advantage of Developing Countries

Eleanor Fox (NYU) discusses Competition Policy: The Comparative Advantage of Developing Countries.

ABSTRACT: Despite all of the handicaps of developing countries, this article argues, developing countries have two overlooked comparative advantages in the realm of competition policy: their incentives are better aligned than those of the developed countries to design a competition law fit for their economic context, and their incentives are better aligned than those of the developed countries to design a regional framework and global norms. While the author does not presume that developing countries would have the power to act on their advantages to change the world, she argues that recognition of these better aligned incentives could spur their leaders to make the case for a better architecture for regional collaboration and world coherence from the vantage of less powerful nations.

Defusing the Antitrust Threat to Institutional Investor Involvement in Corporate Governance

Edward B. Rock, New York University School of Law and Daniel L. Rubinfeld, University of California at Berkeley - School of Law; National Bureau of Economic Research (NBER); NYU Law School are Defusing the Antitrust Threat to Institutional Investor Involvement in Corporate Governance.

ABSTRACT: Thirty years of regulatory reform has focused on encouraging diversified institutional investor involvement in corporate governance. Recently, some intriguing recent economic research by Azar, Schmalz and Tecu (working paper 2015) and Azar, Raina and Schmalz (working paper 2016) purports to show that concentration among shareholdings has led to higher prices in the airline and banking industries, two concentrated industries. Based on this research, Einer Elhauge (2016) has argued that current ownership patterns by diversified institutional investors violate Section 7 of the Clayton Act. Following on Elhauge, Posner, Weyl and Scott Morton (working paper 2016) propose a “solution” in which diversified investors would be limited to acquiring one firm in any oligopoly.

In this article, we critique the economic evidence, focusing on the airline industry. We then challenge Elhauge’s legal analysis and critically examine Posner et al’s proposals. Although we are unconvinced by the rather broad claims of the existing literature, we agree that an open discussion of the antitrust implications of common ownership by large institutional investors is appropriate. Thus, in the final section, we sketch out proposed “Antitrust Guidelines,” including a safe harbor, in an effort to prevent anticompetitive effects, while continuing to encourage institutional investors’ involvement in corporate governance.

Barriers to Entry for Low Cost Carriers in the South African Airline Industry: Competitive Dynamics and the Entry, Expansion and Exit of 1time Airline

Anthea Paelo Centre for Competition, Regulation & Economic Development (CCRED) and Thando Vilakazi Centre for Competition, Regulation & Economic Development (CCRED) examine Barriers to Entry for Low Cost Carriers in the South African Airline Industry: Competitive Dynamics and the Entry, Expansion and Exit of 1time Airline.

ABSTRACT: This paper examines the barriers to entry and expansion of competitor airlines in South Africa. The exit of 1Time from the market as well as the experience of FlySafair, a recent entrant, are used to draw lessons about competitive conditions and constraints that new airlines face in the market. The assessment shows that while the exogenous barriers to entry are not prohibitively high in South Africa (partly evidenced by the number of entrants), a history of repeated anti-competitive conduct by the national carrier, South Africa Airways, has contributed to these challenges. The analysis of price data covering 2014 and 2015 and information drawn from detailed firm-level interviews demonstrates the positive effects of entry in the South African market, including through reducing prices and increasing frequencies to smaller routes which has benefits for local economies. There is preliminary evidence that the entry of LCCs has also contributed to increased passenger volumes, although there are limitations in the data which is available to assess this further.

Litigation of Standards-Essential Patents in Europe: A Comparative Analysis

Jorge L. Contreras, University of Utah - S.J. Quinney College of Law, Fabian Gaessler, Max Planck Institute for Innovation and Competition , Christian Helmers, Santa Clara University - Leavey School of Business; Universidad Carlos III de Madrid and Brian J. Love, Santa Clara University School of Law offer Litigation of Standards-Essential Patents in Europe: A Comparative Analysis.

ABSTRACT: Despite the significance of patent litigation in the EU and the looming structural overhaul of the European patent litigation system, there has been comparatively little empirical or statistical analysis of European patent cases across member states. This absence has largely been due to the lack of harmonized case-level data across European jurisdictions. Over the past few years, however, researchers in Europe have developed patent litigation databases that have enabled robust quantitative analysis. As a result, comparative empirical studies have recently been published concerning European patent litigation overall, as well as litigation by so-called non-practicing entities (NPEs). The present study extends this work to the important area of litigation relating to standards-essential patents (SEPs) in the EU. We find that that the assertion of SEPs has occurring in Europe at significant levels, and that PAEs are playing a large role in this activity.

 

Proposals for a More Efficient European Merger Control

Aleksandra Boutin, Compass Lexecon Brussels; Université Libre de Bruxelles (ULB) - European Center for Advanced Research in Economics and Statistics (ECARES) and Xavier Boutin, Compass Lexecon Brussels; Université Libre de Bruxelles (ULB) - European Center for Advanced Research in Economics and Statistics (ECARES) offer Proposals for a More Efficient European Merger Control.

ABSTRACT: The reforms proposed in this paper pursue one common objective. Our aim is to reduce the burden of notifying and controlling unproblematic mergers, such that resources can be focused on the most complex cases. This would facilitate adequate assessment of complex transactions. These are more and more common in the new economy, where the variety of both potential harm and possible efficiencies has dramatically increased. Therefore, enforcement agencies now, more than ever, need to concentrate resources on complex cases and design procedures that allow for a thorough debate. This paper identifies three main avenues for the improvement of the ECMR. We first argue that the current time pressure during phase II mergers, and in particular after the SO has been sent, is counterproductive and against the interests of all parties. The tight time constraint does not allow for a serene and thorough debate that is needed. We propose to allow more time for the exchange of views in complex merger cases. In such cases, it is actually very challenging to have a debate through only one exchange of pleadings. This exposes the parties and the Commission to serious legal risks. While it is possible that just releasing time pressure will be sufficient to enable an adequate dialogue, it could be worthwhile to consider moving from one exchange of pleadings to two in merger control, just as it is done in Courts. Second, as turnover thresholds are not correlated with harm, they do not lead to a proper prioritization of cases in merger control in Europe. Thresholds could increase or decrease with no effect on the proportion of non-problematic mergers being notified. Regardless of the change in thresholds, this proportion would remain high, therefore wasting the scarce resources of all parties to the proceedings, including enforcement agencies. We show that no other threshold, or combination of thresholds, would perform better. Therefore, there is no room for further incremental improvements to the merger control system. We believe that only moving in the direction of a properly framed voluntary notification would significantly enhance the efficiency of merger control in Europe. This would be consistent with the 2003 reform in antitrust. However, the Commission should be able to intervene in due time against problematic mergers that are not notified. At the same time, the parties that decide not to notify need to know when it is safe to implement the merger. Therefore, we propose that parties planning to implement a merger of European interest should disclose their intentions to the Commission by submitting an electronic form containing readily available information about the merger. This would be similar to the HSR document used in the United States. We also propose that the parties make their intentions regarding the transaction public, or at least that they inform their largest customers and suppliers. The completion of these two steps would start the period when the Commission can receive complaints and use its market investigation tools. At the end of this period, the Commission could decide to take no action, clearing the way for the implementation of the merger, or to open proceedings. This would be more efficient for all parties than the simplified procedure or any reform of the notification thresholds. Here, the Commission would not be required to make a formal investigation and draft a clearance decision in all cases that are clearly not anticompetitive, as is currently the case. The parties would not be required to enter in formal contacts with the Commission in these cases. Last, we also propose to further the integration of the ECN, which, as the Commission mentions in its own documents, is not working perfectly yet. We first propose to increase the efficiency of one stop shopping by letting parties self-assess whether their operation affects trade between Member States. If they believe it does, they would then either voluntarily notify to the Commission, or simply disclose their intentions to merge by submitting the electronic form mentioned earlier. Member States would naturally be able to request a referral, but they would have the burden to prove that either trade is not affected or that they are better placed than the Commission to control the merger. Moreover, there has not been any systematic review of the effective application of the new substantive test by Member States. We would welcome such a review, followed by a public consultation on the ways to promote more convergence in the competitive assessments and rights of defence in the EEA.

Rise of the Digital Regulator

Rory Van Loo, Boston University School of Law; describes Rise of the Digital Regulator.

ABSTRACT: The administrative state is leveraging algorithms to influence individuals’ private decisions. Agencies have begun to write rules to shape for-profit websites such as Expedia and have launched their own online tools such as the Consumer Financial Protection Bureau’s mortgage calculator. These digital intermediaries aim to guide people toward better schools, healthier food, and more savings. But enthusiasm for this regulatory paradigm rests on two questionable assumptions. First, digital intermediaries effectively police consumer markets. Second, they require minimal government involvement. Instead, some for-profit online advisers such as travel websites have become what many mortgage brokers were before the 2008 financial crisis. Although they make buying easier, they can also subtly advance their interests at the expense of those they serve. Publicly run alternatives lack accountability or—like the Affordable Care Act health-insurance exchanges—are massive undertakings. The unpleasant truth is that creating effective digital regulators would require investing heavily in a new oversight regime or sophisticated state machines. Either path would benefit from an interdisciplinary uniform process to modernize administrative, antitrust, commercial, and intellectual property laws. Ideally, a technology meta-agency would then help keep that legal framework updated.

Should Market Definition Be Abandoned in Estimating Market Power? An Affirmative Answer from Qihoo V. Tencent

Qiang Yu, Leiden Law School; Skolkovo Institute for Law and Development, National Research University Higher School of Economics asks Should Market Definition Be Abandoned in Estimating Market Power? An Affirmative Answer from Qihoo V. Tencent.

ABSTRACT: Professor Louis Kaplow’s proposal to abandon market definition in estimating market power has been criticised by a number of scholars. Both the proposal and its criticism were analysed theoretically. The recent Chinese case of Qihoo v. Tencent provides an empirical examination of the proposal and its criticisms, because the courts deciding the case applied market definition analysis to identify market dominance. The facts and analysis in the decision provide support for Kaplow’s proposal because, despite clear facts proving a direct relationship between a firm’s unilateral conduct and competitive harm, neither the so-called relevant market nor the dominant firm were successfully identified. By examining the facts and analysis in the decision, this article concludes that the market definition approach to identifying market power is misleading and counterproductive, supporting the position of Professor Kaplow. This conclusion further supports an argument that the market definition methodology provisions of Article 19 of China's Anti-Monopoly Law 2008 (AML) and of the Anti-Monopoly Committee of the State Council Guidelines for the Definition of the Relevant Market (Guidelines) should be repealed or modified.

 

Sherman vs. Goliath?: Tackling the Conglomerate Dominance Problem in Emerging and Small Economies — Hong Kong as a Case Study

Thomas Cheng, HKU asks Sherman vs. Goliath?: Tackling the Conglomerate Dominance Problem in Emerging and Small Economies — Hong Kong as a Case Study.

ABSTRACT: This article explores a competition problem that has been long neglected in the two major competition law jurisdictions, the United States and the European Union, conglomerate dominance or aggregate concentration. With their continental scale, the U.S. or the EU economies are unlikely to be dominated by conglomerates. However, conglomerates have been found to be common in small economies and emerging economies. Conglomerates no doubt have their advantages. Yet they also pose some serious economic power issues and distort competition in a variety of ways, the latter of which has been relatively unexplored in the literature. This article catalogs these issues and distortions and proposes two sets of responses to them: direct regulation of conglomerates and competition law enforcement. These two sets of solutions to some extent alleviate the detrimental effects of conglomerates. However, they do not get to the root of the problem, domination of an economy by large conglomerates. Using Hong Kong as an example, this article illustrates the application of these two sets of solutions and their limitations.

 

Call for Papers - The Competition Law Scholars Forum (CLaSF) and the Amsterdam Centre for European Law and Governance “Constitutional challenges in Europe– the impact and role of competition law”

Call for Papers

The Competition Law Scholars Forum (CLaSF) and 

the Amsterdam Centre for European Law and Governance

invite contributions to a workshop

  “‘Constitutional challenges in Europe– the impact and role of competition law’.”

At the University of Amsterdam, on Thursday 14th September 2017

The Competition Law Scholars Forum (CLaSF) will be running a workshop on Friday 14th September 2017 at the University of Amsterdam, Amsterdam Centre for European Law and Governance, Amsterdam, the Netherlands. The subject of the workshop will be the broad theme of ‘Constitutional challenges in Europe– the impact and role of competition law’.

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.

Contributions are invited particularly in the field of the following matters:

 

• Rule of law challenges in Europe and its impact on competition law (enforcement)
• The impact of Brexit on the enforcement of EU competition law
• The role of EU competition law in reinforcing the EU’s political constitution
• Rule of law challenges and the political accountability of NCAs
• The role of the EU and national parliaments in shaping (EU) competition policies
• The external competition law of the EU
• How do emerging non-competition interests defy the analytical framework of (EU) competition law

 

 

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 protected]. An abstract is required of approximately 500-1000 words, to be submitted by no later than May 26, 2017, and decisions on successful submissions will be taken by June 9, 2017. 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.

Applying Competition Policy to Optimize International Trade Rules

Hyo-young Lee, Center for International Commerce and Finance, Seoul National University is Applying Competition Policy to Optimize International Trade Rules.

ABSTRACT: This paper delves into the relationship between trade and competition, which has long been a subject largely untouched since the issue had been dropped from the multilateral trade agenda in 2003. The need to incorporate elements of competition policy into international trade rules has long been discussed in the context of making the international trade regime more effective. The issue has gained more attention as state-owned enterprises (SOEs) began to emerge as new influential players in the international market, competing with private enterprises on an unequal footing. A growing number of bilateral trade agreements have included chapters on competition policy, albeit with rules that do not have sufficient binding force for disciplining the business practices of state-owned enterprises. The recently concluded Trans-Pacific Partnership (TPP), however, has introduced innovative rules for disciplining the competitive practices of SOEs by integrating the existing WTO disciplines on subsidies with competition rules. In this article, "competitive neutrality", the fundamental principle underlying the SOE disciplines, is used as a framework of analysis for understanding the new disciplines and obligations in the SOE rules. Several legal issues and challenges are identified that are relevant for applying the new rules in the real world, and implications are derived for future rule-making involving other new trade issues.

The Welfare Effects of Metering Tie

Einer Elhauge and Barry Nalebuff examine The Welfare Effects of Metering Tie.

ABSTRACT: Critics of current tying doctrine argue that metering ties can increase consumer welfare and total welfare without increasing output and that they generally increase both welfare measures. Contrary to those claims, we prove that metering ties always lower both consumer welfare and total welfare unless they increase capital good output. We further show that under market conditions we argue are realistic (which include a lognormal distribution of usage rates that are independently distributed from per-usage valuations), metering ties always harm consumer welfare, even when output increases. Whether metering ties raise or lower total welfare depends on the dispersion of desired usage, the cost structure, and the dissipation of profits caused by metering. For realistic cost values, metering ties will reduce total welfare if the dispersion in desired usage of the metered good is below 0.62. (For comparison, 0.74 is the dispersion of income in the United States.) If 5% of metering profits are dissipated, metering will reduce total welfare for all cost levels unless the dispersion in desired usage exceeds 150% of the dispersion of income in the United States.

 

Best Price Clauses: What Policy as Regards Online Platforms?

Matthias Hunold asks Best Price Clauses: What Policy as Regards Online Platforms?

ABSTRACT:  Online sales platforms may use best price clauses, which restrict service providers to offer better deals to customers elsewhere. Competition authorities prohibited such clauses of online travel agents that restrict the hotels’ sales on other online platforms (so-called wide clauses). By contrast, that unanimity does not exist if the clauses are limited to hotels’ direct sales (so-called narrow clauses). This article discusses the authorities’ different approaches, apparently diverging standards of proofs, as well as empirical methods to evaluate the most effective policy moving forward.

Pleading Standards: The Hidden Threat to Actavis

Michael A. Carrier, Rutgers Law School has written on Pleading Standards: The Hidden Threat to Actavis.

ABSTRACT: In FTC v. Actavis, the Supreme Court issued one of the most important antitrust decisions in the modern era. It held that a brand drug company’s payment to a generic firm to settle patent litigation and delay entering the market could violate the antitrust laws.

Since the decision, courts have analyzed several issues, including causation, the role of the patent merits, and whether “payment” is limited to cash. But one issue — the pleading requirements imposed on plaintiffs — has slipped under the radar. This issue has the potential to undercut antitrust law, particularly because settlements with payment and delayed entry today typically do not take the form of cash. The complexity of non-cash conveyances increases the importance of the pleading stage.

For that reason, it is concerning that several courts have imposed unprecedented hurdles. For example, the district court in In re Effexor XR Antitrust Litigation failed to credit allegations that a generic delayed entering the market because a brand promised not to introduce its own “authorized generic” that would have dramatically reduced the true generic’s revenues. The same judge, in In re Lipitor Antitrust Litigation, dismissed a complaint despite allegations that the generic delayed entry in return for the brand’s forgiveness of hundreds of millions of dollars in potential damages in separate litigation.

This essay first introduces the Supreme Court’s Actavis decision. It then discusses the pleading standards articulated by the Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. Turning to the cases that applied excessively high pleading requirements, it next focuses on the Effexor and Lipitor cases. Finally, it analyzes the settlement cases that applied a more justifiable analysis.

The essay concludes that the imposition of excessive standards, as was done by the Effexor and Lipitor courts, threatens to overturn established pleading standards and undercut the landmark Actavis decision. Such a result would significantly weaken the antitrust analysis of potentially anticompetitive settlements.

 

 

Vertical Licensing, Input Pricing, and Entry

Elpiniki Bakaouka, Athens University for Economics and Business and Chrysovalantou Milliou, Athens University of Economics and Business theorizes Vertical Licensing, Input Pricing, and Entry.

ABSTRACT: We explore the incentives of a vertically integrated incumbent firm to license the production technology of its core input to an external firm, transforming the licensee into its input supplier. We find that the incumbent opts for licensing even when licensing also transforms the licensee into one of its direct competitors in the final products market. In fact, the licensee's entry into the final products market, although increases the competition and the cost that the licensor faces, it reinforces, instead of weakens, the licensing incentives. Furthermore, the licensee's entry augments the positive welfare implications of vertical licensing.

Market Definition Changes the Story: Competition and Price Dispersion in the Airline Industry Revisited

Myongjin Kim, University of Oklahoma - Department of Economics and Leilei Shen, Kansas State University - Department of Economics explain Market Definition Changes the Story: Competition and Price Dispersion in the Airline Industry Revisited.

ABSTRACT: We analyze the effect of competition on price dispersion in the airline industry and show that the outcome hinges on redefining the extent of a market. Using panel data from 1993 to 2013, an increase in competition has a positive effect on price dispersion in one-way markets but a negative effect in round-trip markets. This is driven by a bigger (smaller) decrease in the 10th percentile of the price distribution in the one-way (round-trip) markets. We provide suggestive evidence that airlines compete more aggressively in the lower tail of the price distribution in one-way markets due to higher markups.

Brexit: Implications for UK Competition Law

Alison Jones, Kings College has written on Brexit: Implications for UK Competition Law.

ABSTRACT: This paper considers the impact of a British exit from the European Union on UK competition law.

The paper commences by summarising the current competition law regime in the UK, before going on to consider how Brexit may affect it both at the point of Brexit and over time. It notes that Brexit is unlikely to reduce the regulatory burden on British business in this sphere but, rather, may increase it. In particular, it increases the risk of ‘double jeopardy’ in terms of investigations and penalties for firms and raises the possibility that UK competition law will diverge further from EU law, so increasing complexity for business.

Brexit also provides the opportunity for the UK competition law system to become more politicised again, with greater scope for intervention on broader industrial policy grounds. There are already indications that the Government is considering these issues in the merger sphere. Between 1998-2003, however, the UK consciously moved away from a competition system which was subject to political interference to one focused on allowing independent competition agencies to safeguard competition. It was believed that such a regime would better protect the free market process and deliver efficiencies for the benefit of consumers. An important question therefore is whether the core of the current competition law rules will be preserved or whether the Government will return to a regime which is more susceptible to political interference. 

Vertical price relationships between different cuts and quality grades in the U.S. beef marketing channel: a wholesale-retail analysis

Panagiotou, Dimitrios and Stavrakoudis, Athanassios study Vertical price relationships between different cuts and quality grades in the U.S. beef marketing channel: a wholesale-retail analysis.

ABSTRACT: The present article offers an empirical assessment of the degree and the structure of price dependence between wholesale and retail market levels in the U.S. beef industry, while accounting for product differentiation. This is pursued using the statistical tool of copulas and monthly rates of price changes for different cuts and quality grades of the beef product for the time period 2002–2016. Six wholesale–retail pairs were formed based on different cuts and quality grades. The empirical results suggest that prices at retail level respond differently to extreme negative and positive wholesale price shocks. More specifically, extreme price increases at the wholesale level are transmitted to the retail level in five out of six pairs whereas extreme price decreases are not passed from the wholesale to the retail market level in five out of six pairs. Based on these findings, there is evidence of asymmetric price relationships between wholesale–retail market levels in the U.S. beef marketing channel, when quality differences in cuts and grades is considered.

Passover Mistakes

There are a number of ways to enjoy Passover and still properly feel the loss of leavened bread.  Most Jews make the mistake of eating disgusting kosher for Passover foods (ring gels, macaroons, gefilte fish).  For a creative people who have collectively amassed over 20% of all Nobel prizes, traditional Passover foods are disgusting. What are my recommendations:

1. Stop eating matzah!  It is full of empty carbs and incredibly constipating.
2. Eat more grilled and sauteed vegetables.  Let me suggest in particular bok choy, brussel sprouts and broccolini. 
3. This is a holiday based on the spring harvest.  Why don't you take the time to eat more fruits and vegetables more generally?
4. Stop eating disgusting Passover food that tries to imitate food you eat the rest of the year - no more Passover brownies or cakes! Instead, eat more vegetables and fruit.
5. If you are going to have baked goods, focus on things you might eat all year round: creme brulee, chocolate flourless cake, or even Sephardic almond cookies (almendrados). I stay away from desert typically.  This is why my pants from my bar mitzvah probably still fit me.
6. Rediscover root vegetables - beets with some lemon and ginger are really tasty as are baked parmesan sweet potatoes. Root vegetables does not mean eating potato chips!
7. Use cabbage or lettuce as a wrap for fish.
8. If you need a crispy snack, try kale chips in lieu of potato chips.