Antitrust Proceedings Research Articles

Expert Economic Testimony in Antitrust Cases: A Comparative Law and Economics Study

The purpose of this document is to assess two questions that have a positive and normative nature respectively: 1) What incentives does the legal and institutional framework of the European Community (EC) and the United States (Federal level) provide to the different agents involved in antitrust proceedings in regards to the use of expert economic testimonies? 2) What legal and social norms could provide appropriate incentives to the different agents involved in antitrust proceedings in order to align the use of expert economic testimonies with antitrust enforcement goals? The research questions are assessed from a comparative law and economics approach. The law and economics approach is based upon the Asymmetric Information Theory and Principal-Agent Theory. The document contains five conclusions that may be summarized in the following statement: regarding expert economic testimonies, an antitrust enforcement system must aim at the minimization of its costs through the mitigation of the consequences of asymmetric information between the adjudicator and the expert. A cost-benefit analysis of the use of expert witnesses must take into account the incentives produced by the interaction among the different regulatory and non-regulatory features of the antitrust enforcement system.

MARKET DELIMITATION ON THE EXAMPLE OF THE SUGAR SECTOR

This paper is aimed at: (1) discussion of the geographical market delimitation, considering the decision-making methods used by antitrust authorities; and (2) verification of the geographical range of the sugar market using the Elzinga-Hogarty test. This market is defined as domestic market in the decisions of the European Commission and Polish antitrust authorities. The comprehensive research (covering ca. 80 countries of the world supplying ca. 98% of the global sugar supply) showed that – in the light of the Elzinga-Hogarty method – most of the countries fail to meet the criteria of the LOFI/LIFO tests, which means that the geographical range of the sugar market is usually transnational. The findings comply – in the gen- eral dimension – with the mainstream of the criticism of the European antitrust authorities for too narrow definition of the markets and, in the detailed dimension – with the opinion of the representatives of the industry and scientists dealing with the sugar sector concerning the transnational range of the sugar market. This controversy points to the need for further research and discussions on the geographical market delimitation. Moreover, the issue should be covered with reference to other agri-food markets – using both the methodology developed with antitrust proceedings in mind, as well as the concepts stemming from strategic management.

Powaga rzeczy osądzonej i prawomocność rozszerzona a kontrola wzorców umownych

Issues concerning illegal contractual provisions, as well as the extent of the effects of a judicial decision that recognizes the provision of standard contracts illegal, causes great controversy, both theoretical and practical. This is important because this question concerns the constitutional principle of protection of consumers. The primary objective of the law concerning of illegal provisions is healing of legal relations arising from irregularities in the contracting process, related to the contractual advantage one of the parties. Due to the increasingly common practice used by entrepreneurs in standard contracts with consumers, it is necessary to their judicial review. It aims to eliminate from standard contracts such provisions that grossly violate the interests of consumers, putting them in a much worse position in relation to a person who uses such a standard contract. But the question is whether, in circumstances where the specific contractual provision will be criminalized and the court will prohibit a particular entrepreneur using it in dealings with consumers, such a decision also involves other entrepreneurs. In other words, if though they are not party to the trial, they are obliged to adhere to the judgment. We are dealing here with the opposition of the rule of law to the court for every person, including entrepreneurs, to the principle of consumer protection, which is really executed. The essence of the problem boils down to the concept of extended validity, so that the art. 47943 Civil Procedure Code, which provides for such an effect applies only to the entrepreneur who was a party (defendant) in trial for the recognition provisions of standard contracts illegal, whether it should be assumed broad interpretation, so that inscribing of a clause in the register of the President of the Trading Standard Office has certain effects also in relation to other entrepreneurs who use patterns agreement. The problem takes on added significance if we consider the possibility of punishment in antitrust proceedings businesses using abusive clauses that have been inscribed into the register.

The Strange Case of Dr. Lucentis and Mr. Avastin. The Italian Competition Authority Fines Roche and Novartis for Collusion

The article aims at retracing the main elements of an antitrust proceedings carried on by the Italian Competition Authority against the Roche and Novartis groups for an alleged infringement of article 101 TFEU. In the antitrust authority's view, as expressed in a formal decision adopted on March 2014, the cartel was set up in order to control the sales of two biotech pharmaceutical products, Avastin and Lucentis, within the Italian relevant market of the drugs used for curing vascular ocular diseases. The article details and discusses the decision, also providing further considerations concerning artificial product differentiation, off-label uses and human rights protection.

The Abolishment of the 'Dishonesty' Requirement in the Cartel Offence and the Future of Anti-Cartel Enforcement in the United Kingdom

This paper examines the application of the 'dishonesty' requirement in the cartel offence in the Enterprise Act 2002. It provides an outline of the main issues with the 'dishonesty' element and the struggle of the courts to apply such an illusive provision in antitrust court proceedings. The paper concludes that the new cartel offence in the Enterprise and Regulatory Reform Act 2013 does not go far to amend the issues. It is proposed that a 'per se' stipulation of the cartel offence will achieve the deterrent effect the government aimed for at the start of its competition law reform in the early 2000s.

Is the Parallel Competence Set Out in Regulation 1/2003 Totally Clear? Case Comment to the Preliminary Ruling of the Court of Justice of 3 May 2011 Tele 2 v Prezes Urzędu Ochrony Konkurencji i Konsumentów (Case C-375/09)

With a motion dated 28th of April 2005 submitted to the President of the Office of Competition and Consumer Protection (in Polish: Prezes Urzedu Ochrony Konkurencji i Konsumentow; hereafter, UOKiK President), Tele2 Polska Sp. z o.o. (currently: Netia S.A., hereafter, Applicant) requested the initiation of antitrust proceedings against Telekomunikacja Polska S.A. (hereafter, TP). The Polish incumbent, TP, was alleged to have engaged in practices restricting competition covered by Article 8(1) and 8(2)(5) of the Act on Competition and Consumer Protection of 15th December 2000 (hereafter, Competition Act 2000) and in Article 82 of the Treaty establishing European Community (hereafter, TEC), presently, Article 102 of the Treaty on the functioning of the European Union (hereafter, TFEU).

What Do Limitation Periods for Sanctions in Antitrust Matters Really Limit?

Limitation periods represent a legal safeguard for a person who has once broken the law in order not to be put at risk of sanctions and other legal liabilities for an indefinite amount of time. By contrast, public interest can sometimes require that a person who has committed a serious breach of law cannot benefit from limitation periods and that it is necessary to declare that the law had indeed been infringed and that legal liability shall be expected irrespective of the passage of time. This article aims to answer the question whether limitation periods for sanctions attached to competition restricting practices by Slovak competition law also limit the powers of its competition authority to declare the illegality of illicit behaviour or to prohibit it. Although this question can arise, and has done so already, as a defence in antitrust proceedings, as well as the fact that an answer to this question can potentially, as well as actually, affect rights of undertakings which have broken competition rules, Slovak jurisprudence cannot be seen as explicit in answering this question.

Interaction between Leniency Programmes and Damages Actions in Antitrust Law: Perspectives for Collective Redress

This article addresses the effectiveness of private antitrust enforcement and its relationship with public enforcement of competition law. In light of the recent initiatives taken by the European Commission, it is suggested that soft law instruments are incapable of guaranteeing a coherent approach, especially taking into consideration the need to balance the public and private interests involved in antitrust proceedings. This is particularly evident when appraising the links between actions for damages based on Article 101 TFEU and leniency programmes. The analysis of the case law of the EU courts and national tribunals reveals the tensions between the focus on cartels and the rights of competing undertakings and consumers to claim redress. The situation is hardly satisfactory given the differences in national regulations, on the one side, and the lack of binding EU measures, on the other. Hence, as advocated by the Commission in its Work Programme 2012, it appears preferable, and in line with the principle of subsidiarity, to harmonize domestic laws in this field via the adoption of a directive based on Article 103TFEU.

Cartel Criminalisation and Due Process: The Challenge of Imposing Criminal Sanctions Alongside Administrative Sanctions within the EU

There is increasing debate within the European Union (EU) concerning the imposition of criminal sanctions upon those individuals who engage in cartel activity. For it to be legitimate, such cartel criminalisation must respect the due process guarantees contained in the European Convention on Human Rights (ECHR). Unfortunately the literature on this issue is deficient and the specifics of this legal challenge are not fully understood. In particular, a comprehensive analysis of the due process-related challenge presented when personal criminal antitrust sanctions are employed alongside administrative sanctions for a given cartel is conspicuously absent from the literature. This article rectifies this deficiency by examining this particular legal challenge and its relevance to information exchange, double jeopardy and concurrent antitrust proceedings. In doing so, it identifies practical techniques designed to meet the challenge of due process in this context, as well as the inherent tensions between due process and the objectives of European antitrust criminalisation.

The Role of the Hearing Officer in Competition Proceedings before the European Commission

This paper deals with the role of the Hearing Officer in competition proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 TFEU (antitrust proceedings) and under the EU Merger Regulation (merger proceedings). After a brief discussion of the status of the Hearing Officer, the paper examines the various powers and tasks of the Hearing Officer (other than the organization and conduct of the oral hearing, which is discussed in a parallel paper 'The Oral Hearing in Competition Proceedings before the European Commission', published in the same issue of this journal).

The Oral Hearing in Competition Proceedings before the European Commission

This paper deals with the (formal) oral hearing in competition proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 TFEU (antitrust proceedings) and under the EU Merger Regulation (merger proceedings). It analyses the legal basis and the nature and purpose of the oral hearing, examines who can request an oral hearing, and who can attend and speak at the oral hearing, compares the oral hearing with state of play meetings, and provides some general observations as to what factors may make addressees of a statement of objections decide in favour or against requesting an oral hearing.

Due Process in EU Competition Cases Following the Introduction of the New Best Practices Guidelines on Antitrust Proceedings

Due Process in EU Competition Cases Following the Introduction of the New Best Practices Guidelines on Antitrust Proceedings

Leniency Program as an Innovative Legal Tool for Fighting Cartels within The European Union

The article focuses on discussing the substance of the institution of leniency which is used against cartel agreements. The study was carried out with regard to the provisions of EU law and Polish law. The paper analyses the factors that determine the effectiveness of the leniency program. Some of the considerations were given to the practical effects of applying the scheme by the European Commission and the Office of Competition and Consumer Protection. The article discusses the issue of the impact of the leniency program on the effectiveness of antitrust proceedings and shows the factors which determine the effective functioning of the program.

DG COMP and the Hearing Officers Publish Detailed Explanations on How they Conduct Antitrust (and certain aspects of merger) Proceedings

Although the decision taken by DG COMP and the Hearing Officers to publish detailed guidance regarding how they conduct antitrust and certain aspects of merger proceedings is a welcome step, the measures contained in these documents do not yet go far enough to provide the EU with a world class set of procedures to handle competition cases.

Regulation 1/2003 (and Beyond): Balancing Effective Enforcement and Due Process in Cross-Border Antitrust Investigations

The exchange and the use of information within the European Competition Network is a key feature of the cooperative enforcement system established by Regulation 1/2003. So is the autonomy of Member States in designing their own national procedural framework for the application of Articles 101 and 102 TFEU. Yet, those two features necessarily affect each other: the diversity of procedural rules and standards in place at national level impinges on the circulation of evidentiary materials, while securing the benefits of the cooperative system induces procedural convergence and thus aligns the exercise of Member States’ autonomy. Such a diversity/effectiveness conundrum raises inevitable coordination issues which affect the position of parties in antitrust proceedings. This paper aims to identify those issues and to provide a consistent framework for the management of effectiveness and due process concerns in an enforcement context bound to remain diverse.

Confidentiality and Disclosure in European Commission Antitrust Proceedings—the Case for Clarity

(2008). Confidentiality and Disclosure in European Commission Antitrust Proceedings—the Case for Clarity. European Competition Journal: Vol. 4, No. 2, pp. 401-414.

European Commission Opinions to National Courts in Antitrust Cases: Consistent Application and the Judicial-Administrative Relationship

The House of Lords judgment in Inntrepreneur v Crehan, where the court did not consider itself bound by a finding of the European Commission, demonstrated the potentially contentious and constitutionally significant nature of the relationship between the European Commission and national judges in the field of antitrust. The decentralisation of enforcement of Articles 81 and 82EC arguably carries greater risks of divergent application of EC antitrust enforcement rules. While national competition authorities are linked through the European Competition Network, no such mechanism exists for national courts as this would offend against the principles of judicial independence and procedural autonomy. The Commission, as primary enforcer of competition law in the Community, has therefore attempted to complement the formal judicial 'dialogue' of the European Court of Justice's preliminary reference procedure with a strengthening of its own relations with the national courts. After addressing the broader theoretical context of administrative intervention in judicial decision-making, this paper examines the use of one tool to promote consistent application of EC antitrust rules - non-binding European Commission opinions and amicus curiae briefs to national courts in antitrust proceedings under Article 15 of the Modernisation Regulation. It identifies national cases where the Commission has actually intervened under Article 15 and assesses the nature and efficacy of this soft law mechanism. One finding is the difficulty in finding and tracing the cases, making the impact of the Commission's advice difficult to judge. Transparency is desirable for legitimacy, legal certainty, and if Commission opinions are to have the most impact for promoting convergent application of EC antitrust rules among national judges.

Pricing Abuses by Essential Patent Holders in a Standard-Setting Context: A View from Europe

Pricing Abuses by Essential Patent Holders in a Standard-Setting Context: A View from Europe

Mandatory Supply of Interoperability Information: The Microsoft Judgment

The judgment of the Court of First Instance in Microsoft represents a major success for the European Commission in its fight against abuses of a dominant position. The Court upholds the Commission's findings that Microsoft abused its dominant position by refusing to supply interoperability information that is indispensable for competitors to be able to viably compete in the work group server operating system market. Moreover, the Court upholds the recordfine of approximately EUR 497 million. According to the Court, the judgment does not contain any legal novelty, as it simply applies earlier Magill/IMS Health case law. However, it may be argued that thejudgment does contain a legal novelty as to the scope of the so-called new product condition. Specifically, it may be argued that the J. udgment considerably diminishes the scope for a dominantfirm to rely on intellectual property rights as a defence in antitrust proceedings concerning the abuse ofa dominant position. (Less)

Midland Bank Plc and Another v. Laker Airways Ltd and Others

540Jurisdiction — Whether English court having jurisdiction under English law to restrain antitrust proceedings against plaintiffs in United States court — Requirement that bringing of proceedings be unconscionable — Whether plaintiffs having relevant presence or business in United States at relevant time — Whether plaintiffs having submitted themselves to jurisdiction of United States — Whether extraterritorial application of United States antitrust legislation permissible — Whether bringing of proceedings before United States court unconscionable — The law of England