Antitrust & Competition Policy Blog

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

Thursday, March 14, 2019

Antitrust Chronicle - LeadershIP EU - Innovation, IP & Competition Challenges (special issue)

 

 

 
 

Effects-Based Analysis: Where Do We Stand on Both Sides of the Atlantic?

 

By Douglas Ginsburg, Robin Jacob & Jean-François Bellis

 

A recap of the fireside chat which took place at LeadershIP between U.S. and EU judges exploring the competition law trends in each jurisdiction. The panel featured the Honorable Douglas Ginsburg Senior Circuit Judge, United States Court of Appeals for District of Columbia; Sir Robin Jacob, Sir Hugh Laddie Chair of Intellectual Property Law, University College London and former Justice in the Court of Appeal of England and Wales; and moderated by Jean-François Bellis, Partner, Van Bael & Bellis.

 


Click here for the full article.
 

 

New Fault Lines in Antitrust: The Rising Threat of Growing Divergence to IP-Centric Business Practices


By Paul Lugard & David Gabathuler
 

The last two decades have shown a remarkable degree of convergence in the area of antitrust enforcement and the dissemination of antitrust regimes around the globe has brought significant welfare gains. However, the wide adoption of antitrust regimes as a preferred model for economic regulation also comes at a price: as a result of the multitude of agencies that may each claim jurisdiction over particular transactions, the potential for incorrect and inconsistent outcomes and “system clashes” increases. International, IP-centric, and innovation-intense business transactions are the most likely recipients of the negative consequences of these frictions. It is in our view highly questionable whether the current, traditional cooperation mechanisms are in and of themselves sufficient to avoid major frictions between jurisdictions. The call for supplemental bilateral and multilateral mechanisms to ensure effective, coherent, and economically rational antitrust enforcement, such as the proposal for a Multilateral framework on procedures in competition law investigation and enforcement, is legitimate and should be taken seriously and further explored.

 


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Substantive Criteria and Legal Standards in Recent Abuse of Dominance Decisions in Hi-Tech Markets: EU vs. U.S. and Lessons Learned

 

By Yannis Katsuolacos

 

We focus on recent Abuse of Dominance antitrust cases in high-tech markets and discuss the important role of differences in the Substantive Criteria in explaining differences in the Legal Standards adopted in EU and U.S. Also, we consider the reasons that the rule of reason is not adopted in either EU or U.S. in these cases and, finally, we consider whether and how recognising the potential impact of anticompetitive (exclusionary) conduct on innovation in hi-tech markets, such as the “digital platforms,” should affect enforcement procedures.

 


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Abuse of a Dominant Position: A Post-Intel Calm?

 

By Giorgio Monti

 

While the Intel judgment might be a watershed moment for the ECJ’s interpretation of Article 102 TFEU, there may be risks that this development is countered by two trends: first, a concern by some competition agencies that a more aggressive approach is required to counter firms with exorbitant market power; second, a retreat to formalism by competition agencies who find the effects-based approach too problematic to implement. Moreover, for a proper integration of an effects-based approach, agencies focusing on prohibiting likely anticompetitive effects could develop improved approaches to the design of remedies and the measurement of fines.
 


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With Increased Powers to National Competition Authorities in the EU, Will We have Appropriate Procedural Safeguards too?

 

By Kaarli H. Eichhorn
 

Following the recent adoption of the EU’s “ECN+ Directive,” this article highlights the importance of the rule of law in the EU, including in competition proceedings. It applauds the Directive’s many improvements to enhancing national competition enforcement, and contends that due process issues should have received more attention, in parallel with the substantially increased powers given to EU Member State competition authorities. This article finds that a genuinely effective competition regime can only be attained with robust procedural safeguards to accompany the greater powers that competition agencies across Europe will exercise in the future.
 


Click here for the full article.
 

 
 

 

 

LETTER FROM THE EDITOR


Dear Readers,

The March 2019 CPI Antitrust Chronicle addresses issues related to the second annual LeadershIP EU Conference, “Innovation, IP and Competition Challenges for Global Businesses in the 21st Century,” which took place in Brussels, Belgium on November 13, 2018. The panelists at the conference came from the private and public sectors: regulators, academics, and private practitioners.

A focus of the day-long conference featured ranging views on innovation policy, intellectual property policy, and international antitrust policy. Notably, the intersection and overlay of IP and antitrust with respect to the development of standardized technology and the continuing “Great Patent Debate” were hotly-discussed topics.

The sixth annual LeadershIP Conference will take place later this month on March 26, 2019 in Washington, DC. The agenda themes for the day are: (i) The impact of 5G: Why Innovation Policy Matters; (ii) The IP Policy Landscape: U.S. and The World; (iii) IP and Antitrust: Global Agency Dynamics; and (iv) International Antitrust: What Rules and Whose Standards? Among the many great panelists, the conference will feature a Fireside Chat with Makan Delrahim, Assistant Attorney General, United States Department of Justice Antitrust Division; and Andrei Iancu, Director, United States Patent Trademark Office. We hope to see many of our readers there.

As always, thank you to our great panel of authors.

Sincerely,

CPI Team*

*CPI thanks Qualcomm Inc. for their sponsorship of this issue of the Antitrust Chronicle. Sponsoring an issue of the Chronicle entails the suggestion of a specific topic or theme for discussion in a given publication. CPI determines whether the suggestion merits a dedicated conversation, as is the case with the current issue of the Chronicle, and takes steps to ensure that the viewpoints relevant to a balanced debate are invited to participate.

 

 

 

WHAT’S NEXT?


For April 2019, we will feature Chronicles focused on issues related to (1) Public Procurement; and (2) Online Advertising and Antitrust.

 

 

 

ANNOUNCEMENTS

 

CPI wants to hear from our subscribers. In 2019, we will be reaching out to members of our community for your feedback and ideas. Let us know what you want (or don’t want) to see, at: antitrustchronicle@competitionpolicyinternational.com.

CPI ANTITRUST CHRONICLES MAY 2019

For May 2019, we will feature Chronicles focused on issues related to (1) Healthcare; and (2) Common Ownership.

Contributions to the Antitrust Chronicle are about 2,500 – 4,000 words long. They should be lightly cited and not be written as long law-review articles with many in-depth footnotes. As with all CPI publications, articles for the CPI Antitrust Chronicle should be written clearly and with the reader always in mind.

Interested authors should send their contributions to Sam Sadden
(ssadden@competitionpolicyinternational.com) with the subject line “Antitrust Chronicle,” a short bio and picture(s) of the author(s).

The CPI Editorial Team will evaluate all submissions and will publish the best papers. Authors can submit papers on any topic related to competition and regulation, however, priority will be given to articles addressing the abovementioned topics. Co-authors are always welcome.

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Editorial Team & Editorial Advisory Board

https://lawprofessors.typepad.com/antitrustprof_blog/2019/03/antitrust-chronicle-leadership-eu-innovation-ip-competition-challenges-special-issue.html

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