More Common Ground for International Competition Law?

‘The goals and scope of competition and antitrust laws’ evaluates the goals and scope of competition and antitrust laws. Competition laws seek to protect the competitive process in the marketplace from companies that seek to distort it. By safeguarding free and fair markets, competition laws promote consumer welfare as well as efficiencies in the marketplace. While key competition law principles are similar across the world, competition laws are not internationally uniform, but are instead customized by each jurisdiction. A comparison can be made between US Federal Antitrust Law and the EU competition law. There are also other jurisdictions that apply competition laws, including China, Japan, and South Korea.

This paper was prepared for the Academic Society for Competition Law (ASCOLA) Conference on 'More Common Ground for International Competition Law?' held in Washington, D.C., June 17, 2009. In a 5-4 antitrust decision in Leegin, the Supreme Court overruled Dr. Miles in 2007 to end per se condemnation of resale price maintenance (RPM) in favor of a rule of reason analysis. But the case has hardly settled the debate on the economics and appropriate legal treatment of RPM. It has also created a divergence with EU competition law, which treats RPM as a 'hard core' restraint. In this paper, after providing a short history of RPM and a synopsis of Leegin and post-Leegin developments, I will discuss the theories relating to RPM’s competitive harms and benefits. With respect to anticompetitive theories, I will primarily develop arguments on two less recognized effects - to explain why evidence of higher prices under RPM should not be viewed as neutral or irrelevant, but should be read to presume anticompetitive effect; and to focus attention on RPM’s adverse effect on the retail sector. With respect to the procompetitive theories, I argue that the free-rider explanation for RPM, though theoretically elegant, has limited application. As for the more recently advanced non free-rider procompetitive theories, I identify and analyze a few common problems: their failure to show that the theories are socially efficient and not merely privately efficient; their unpersuasive explanation as to why RPM would be necessary in a competitive retail market absent free riding; and the lack of consideration of less restrictive alternatives. The problem with a full-blown rule of reason analysis in real-world antitrust litigation is that it often devolves into a de facto legality rule, at least in vertical restraint cases. Indeed, given the stringent pleading standards recently articulated by the Supreme Court in Twombly, RPM plaintiffs may have difficulty even surviving a motion to dismiss on the pleadings going forward, a result that is undesirable. We should not forget that market competition is the norm in our economy and that price is a dimension of competition. RPM is essentially a restraint on intrabrand price competition. To the extent that economists disagree on the prevalence and significance of RPM’s benefits, and there is little reliable empirical evidence, it seems wiser to place the onus on those seeking to restrain competition, through RPM (which almost always raises prices), to demonstrate that it is procompetitive.

IT is now generally recognized that there are many cases of vertical restraints that do not fit the standard "consumer free riding on special services" theory.1 For example, the widespread use of resale price maintenance in the marketing of brand name clothing cannot be explained as inducing retailers to supply services such as dressing rooms. It is unlikely that consumers must be prevented from trying on clothing free of charge at a full-service retailer before purchasing the clothing at a discount from retailers who do not supply dressing rooms. A number of authors recently have attempted to correct this deficiency in the standard theory by expanding the type of services that vertical restraints may induce retailers to supply and the corresponding retailer free-riding problems.2 The standard economic analysis of how vertical restraints operate to induce desired retailer behavior has remained essentially unchanged, however. The standard analysis assumes that when it is not feasible for a manufacturer to write explicit, court-enforceable contracts with retailers for the supply of particular services, the only alternative mechanism manufacturers can use to induce the supply of desired services is to increase the direct return retailers receive from consumers when those

This monograph is the definitive work on the application of antitrust and competition law in blockchain, decentralized finance, and virtual asset markets. It covers all aspects of antitrust and competition law, including market definition, market power, abuse of dominance and monopolization, and anticompetitive agreements and restraints of trade. Completely up to date with all recent literature and case law, this monograph is a key companion to academics, practitioners, competition authorities, and anyone with an interest in competition law and policy in the decentralized economy. Both EU competition law and US antitrust law are covered, and the legal analysis is complemented by extensive economics and computer science literature. Keeping in pace with recent industry developments, this monograph not only systematizes extant scholarship but also breaks new ground, introduces new concepts of the decentralized economy, and integrates them in the analytical framework of competition and antitrust law, making it readily usable by academics, practitioners, and regulators.

The protection of the interests of consumers is a central aspect of all modern competition laws as well as a direct aim of consumer protection laws. However, despite being complementary in many ways, competition and consumer protection laws cover different issues and employ different methods to achieve their goals. While consumer protection rules are built upon the premise that consumers are the weaker party to transactions and should be directly protected for this reason in their dealings with traders through certain consumer rights, competition law only indirectly protects the consumers’ economic well-being by ensuring that the markets are subject to effective competition. This article explores the interplay between consumer protection and competition law in the Indian context with some comparison with the EU position, where relevant. After an examination of the relevant legislation and case law, the article finds that given that the mandate of the Competition Commission of India is to prevent practices having an adverse effect on competition, in cases of overlap between consumer protection and competition laws, the Authority should act only on the basis of adverse effects on competition. The treatment of ‘unfair trade practices’ is used to demonstrate the appropriateness of this approach.

Consumer protection law and competition law are interrelated, closely knitted, and cannot be dealt with in isolation of the other. The two branches of law are delicately intertwined and often overlap with each other and a critical assessment needs to be undertaken to fully understand and appreciate how the two laws interface with each other. These two laws have interfaced in many aspects including sharing a common purpose and their cardinal desire to promote and protect each other. It should be borne in mind that through such interface, the two branches of law either co-operate or at times conflict with each other. In interfacing, Competition and Consumer Protection laws have benefits that include realisation of a fully functioning market, an improved inflow of information, detection of anticompetitive practices, control of complicated products and services, and protection of consumers. However, the above interface has demerits. These include disincentives to invest by firms holding dominant positions, increase of “fly-by-night” operators and cropping up of unethical and criminal behaviours as firms compete with each other. To address the above demerits posed by the interface of the two branches of law, this article suggests that there should be close coordination and coherence of the two laws, use of economics based models and emphasis on consumer protection. Keywords: Consumer Protection Law, Competition Law, Cooperation, Conflicts, Tanzania.

Rapid technological innovations have challenged the conventional application of antitrust and competition law across the globe. Acknowledging these challenges, this original work analyses the roles of innovation in competition law analysis and reflects on how competition and antitrust law can be refined and tailored to innovation. With chapters from well-established and up-and-coming competition law and economics scholars – from the Academic Society for Competition Law (ASCOLA) – this book reflects on the role innovation has played, and can continue to play, within competition and antitrust law. In addition to uncovering innovation concerns within their analysis, the authors also make important contributions to academic and policy debates on the relationship between these areas of law and other instruments of innovation regulation, such as data protection regulation, intellectual property law, the regulation of big data, platforms and artificial intelligence. Academics in competition and intellectual property law, economics and political science working on data protection or innovation more generally will find this book a useful insight into future challenges for constructing meaningful and effective laws within the area of innovation. Policymakers and practising lawyers will also find the example cases useful, especially for refining and restructuring perception about innovation in competition law.

This article analyzes the interaction of EU competition, consumer and data protection law in the digital economy. We compare the objectives, rules and enforcement structures of these legal regimes, and we discuss market failures that justify regulatory intervention in digital markets. In particular, the Facebook investigations in Germany and Italy are selected as a case study. The Bundeskartellamt’s investigations are remarkable, being the first in which an exploitative abuse of dominance involving a digital platform has been decided under competition law. These we compare with their Italian counterpart, where the AGCM has recently sanctioned Facebook for behavior similar to that investigated in Germany. Yet, the Italian case has been decided under consumer, rather than competition law. This shows the regulatory dilemma faced by European antitrust authorities, which are currently struggling to find a solution to the market failures arising in digital markets.

The Interaction of EU Competition, Consumer, and Data Protection Law in the Digital Economy: The Regulatory Dilemma in the Facebook Odyssey

Competition law has always formed a core pillar of the European integration process and so it was among the crucial EU requirements set for the candidate countries. Competition law had a significant influence on the way competition laws and institutions were shaped in the candidate countries. In the pre-accession phase this was due to conditionality, however once conditionality terminates and candidate countries become Member States they fall under the EU law and its governance mechanisms, in competition law under Regulation 1/2003. While pre-accession rule transposition is well documented and closely monitored by the EU in its Regular Reports on the candidate countries, the EU’s internal governance mechanisms are less visible and have not been examined in the light of its external model that developed in the course of its eastward enlargement. In EU competition law such internal mechanisms have developed within the framework of Regulation 1/2003. These post-accession compliance mechanisms are critical both with regard to the effectiveness of the EU’s external governance and the internal system of Regulation 1/2003.The aim of this paper is to analyse the interplay between the EU’s external (pre-accession) and internal (post-accession) governance model in the field of competition law and to arrive at a deeper understanding of the EU’s Europeanization strategy at the intersection of the external and internal governance models. Accordingly, the paper maps the EU’s external law and governance model that applies vis-a-vis third countries that wish to join the EU and examines to what extent and how this external model has shaped the EU’s internal governance model vis-a-vis its Member States. It analyses the role of Regulation 1/2003 in creating an effective implementation of EU competition law in the Member States and its governance mechanisms that framed the Europeanization process. In order to evaluate the effectiveness of post-accession compliance in the Member States the paper examines the compound procedural framework composed of EU and national administrative rules that underlies and challenges the enforcement of EU competition law and investigates how administrative capacity of the national competition authorities may effect competition law enforcement. This inquiry includes the detailed assessment of the European Competition Network as the EU’s main mechanism to monitor compliance of Member States with EU law in the post-accession phase.

Private enforcement has long been a central part of US antitrust law experience, while it has played minor roles or none at all in European competition law systems. This contrast is fundamental to understanding differences between European and US competition law and to assessing the potential consequences of increasing the role of private enforcement of competition law in Europe. It is also central to decisions about competition law development in much of the world, because in this respect most competition law systems in the world resemble European competition laws rather than US antitrust law.In this essay, I examine the private enforcement of competition law in the US and Europe against the backdrop of efforts in Europe to rely more heavily on private enforcement in the enforcement of its competition law. As part of its so-called ‘modernization’ efforts, which went into effect on May 1, 2004, the European Commission seeks to reduce reliance on administrative authorities and to encourage those harmed by restraints on competition to bring private law suits in national courts. There is, however, widespread uncertainty about the prospects for successfully incorporating private litigation into European competition law systems. There is also uncertainty about which, if any, measures should be taken to enhance acceptance of private enforcement.This article provides a comparative perspective on these issues that can provide a more solid basis for making informed decisions in the area.

A LONG-STANDING puzzle to economists is that some manufacturers prefer that their products are sold at not less than "fair trade" retail prices.' Before the courts upset the legal status of resale price maintenance, some of these manufacturers spent millions to prevent distributors from selling their products below the list price. The manufacturers' interests seem to be best served when distributors resell their products under such competitive conditions as may exist at the level of distribution and at the lowest prices resulting from that competition. If manufacturers set a floor to the resale price then they also set a ceiling to their sales and thus apparently support a policy that runs counter to their own self-interest. Let the manufacturers fix a price at the factory gate at which all distributors may buy the product. Would not the manufacturers' sales and profits be greater the lower is the price at which distributors resell their products to consumers? If so, then what explains the strong desire of some manufacturers to prevent distributors from

Chapter 1 - Introduction to Competition Law 1.1 The economic background to competition law 1.2 The function of competition law 1.3 The market 1.4 Competition law and the economic theory of regulation 1.5 Various systems of competition law Literature Chapter 2 - The basic structure of competition law 2.1 Some key concepts in the application of competition law 2.2 The combined system of UK and European competition law 2.3 The scope of application of competition law Chapter 3 - The prohibition of anti-competitive agreements 3.1 Introduction 3.2 The prohibition of cartels 3.3 Voidness 3.4 Block exemptions 3.5 Other exceptions from the prohibition of cartels 3.6 Some important types of anti-competitive agreements Chapter 4 - The prohibition of the abuse of positions of economic power 4.1 Introduction 4.2 The prohibition of the abuse of a position of economic power 4.3 Postscript: the Commission's Discussion Paper on Exclusionary Abuses under Article 82 EC Chapter 5 - Control of concentrations 5.1 Introduction 5.2 The key elements of the EC Merger Regulation 5.3 Merger control in the UK system: the Office of Fair Trading and the Competition Commission Chapter 6 - The Application and Enforcement of Competition Law 6.1 Introduction 6.2 The application of competition law by the courts 6.3 Competition procedure and enforcement under UK law 6.4 Enforcement of EC competition law 6.5 Leniency policy 6.6 Judicial protection in EC competition law 6.7 Division of competence and co-operation between the Commission and the UK authorities (OFT and CC) Chapter 7 - Competition Law and the State 7.1 Introduction 7.2 The rules for public undertakings and undertakings with exclusive or special rights 7.3 The norm of Articles 3(1)(g), 10, 81 and 82 EC 7.4 How to assess conduct in mixed situations? 7.5 EC state aids law: a general introduction Chapter 8 - The international dimensions of competition law 8.1 Introduction 8.2 The geographic scope of application of EC and UK competition law 8.3 International agreements 8.4 Relevant concepts Chapter 9 - Epilogue 9.1. Introduction 9.2. Themes in competition law 9.3. Objectives of EC Competition law and policy 9.4. Does competition law do the job? 9.5. Antitrust procedure 9.6. Fundamental rights 9.7. Block exemptions 9.8. Fostering general Community policies? 9.9. Remedies 9.10. Liberalisation of the closed 9.11. Public service obligations 9.12. Extraterritorial application of EC competition law and international co-operation in the competition law field 9.13. Merger Control 9.14. Article 82 EC 9.15. Articles 3(1)(g) and 10 EC 9.16. Article 86 EC 9.17. Role of national courts 9.18. Harmonisation 9.19. Centralisation & Decentralisation of EC competition law 9.20. Regulation 1/2003/EC 9.21. Competition between Legal Orders 9.22. Targeted sectors and/or issues 9.23. Accession 9.24. Conclusion

Resale Price Maintenance: Empirical Evidence from Litigation

One of the clearer messages from the EU Pharmaceutical Sector Inquiry was that the European Commission believes some patent settlement agreements—in particular those involving payments from the patent holder to the challenger (so-called ‘reverse payments’)—may infringe EU competition law. Indeed, on the day it published the Final Report of the Inquiry, the Commission announced a formal investigation of Les Laboratoires Servier and various generic companies in relation to what are understood to be settlements concerning Servier’s perindopril patents. This is a new development in Europe where patent settlements have not previously been a significant focus of competition law enforcement. In the USA, however, they have been the subject of significant antitrust litigation and debate and, it seems, the Commission is influenced by the US situation. Based on a review of the Commission’s statements and US case law, this article sets out the relevant issues in relation to reverse payment patent settlements, seeking to identify the approach likely to be taken under EU competition law. It also outlines some practical guidance on how to approach patent settlements without engaging competition law concerns.