Field Of Competition Law Research Articles

Developments in EC competition law in 2007: An overview

This article summarizes the main legal developments in the field of competition law during 2007. It is in 8 sections: (1) introduction, (2) legislation and policy initiatives, (3) general enforcement issues, (4) vertical restraints, (5) cartels and cooperation between competitors, (6) abuse of dominance, (7) merger control and (8) conclusion and outlook. While there have been no major legislative or policy documents of general application, the year has been marked by a number of interesting developments in individual cases, both as regards the application of Articles 81 and 82 and merger control. Highlights in the area of Articles 81 include the refusal by the CFI in Akzo to extend the scope of legal privilege, the first judicial pronouncements on the Article 9 commitments procedure in Alrosa, and many significant cartel appeal judgments. As for Article 82, Commission decisions have been upheld by the ECJ in British Airways, and the CFI in Wanadoo and, most significantly, in Microsoft. In the field of merger control the Commission has issued new and revised guidance documents and has taken a number of important decisions, including the prohibition of the Ryanair/Aer Lingus merger. In addition the CFI, in Schneider, for the first time awarded damages based on a wrongful prohibition by the Commission of a transaction.

Article 234 and Competition Law: A Comparative Analysis

Many of the most significant principles established by the ECJ have been decided in the context of a reference to that court for a preliminary ruling under Article 234 (ex 177) EC. Article 234 facilitates a dialogue between the national courts and the ECJ in order to allow national courts to seek guidance on the appropriate interpretation of Community law principles in a particular dispute. The importance of the Article 234 procedure in seeking to ensure the uniform and consistent interpretation of Community law cannot be under-estimated, particularly in the field of competition law. This article is based on collaborative research involving fourteen Member States and a comprehensive review of all Article 234 competition and State aid rulings to 1 May 2004. The article considers various issues relating to the number and type of preliminary rulings given by the ECJ in competition-law related matters. It provides insights into which Member States have resorted most frequently to the Article 234 mechanism, and the types of competition law issues raised in those legal disputes, and assesses the extent to which resort to the procedure has varied over different time-frames, together with suggested rationale for the varying use between different Member States, and over different periods of time. Finally, the article outlines the extent to which information has been gained on the post-ruling process in different Member States.

Towards an Improved Application of European Union Law in Lithuania: The Examples of Competition Law and Intellectual Property Law

Although both the Lithuanian authorities and Lithuanian courts had already started to apply EC law well before accession, the quality of application of EC law and the frequency of its use have only improved within the last two years. Nevertheless, there is still room and need for improvement in this area before proper application of EC law in all sectors is achieved. This article analyses some cases decided by the Lithuanian authorities and the highest Lithuanian courts for both administrative and general jurisdiction, mainly in the fields of competition law and intellectual property law. Summarising the application of EC law by the Lithuanian Supreme Court in the area of civil jurisdiction, particularly intellectual property rights, on the one hand, and the Lithuanian Supreme Administrative Court and the Lithuanian Competition Council, with a special focus on competition law, on the other, the authors contend that the application of EC law in the areas under consideration is far from ideal. In most cases, courts have not yet developed a general view of Community law as a sui generis system of law. There are still difficulties in distinguishing between EC law and ordinary international law. Instead of referring to the specific nature of EC law, which is accepted in both constitutional jurisprudence and national legislation, courts treat EC law as something analogous to international law. The principles set forth by the ECJ concerning the ‘ideal’ application of Community law by the national judiciary have apparently not yet been fully comprehended by Lithuania’s courts. While they seem to have learned that supremacy must be given to EC law, in most cases they are unable to consistently incorporate reasoning based on such supremacy into their judgments. However, when these two ‘pioneer’ fields of EC law application are analysed, it is obvious that changes are gradually occurring. The first examples of application by both supreme courts were very poor ones, lacking a systematic approach to application and insufficient in both quality and quantity. The development of case law in trademark disputes permits a more positive evaluation, while in the area of competition law EC law has begun to be applied much more purposefully. ECJ case law is being referred to, and arguments by the parties based on EC law are given due consideration. Still, these two areas represent the most well-developed ones, while similar progress has not yet been seen in other fields of EC law. Hopefully, satisfactory practice in the fields considered here will spill over into a more general awareness of EC law and, accordingly, its proper application. Since ‘the will’ to apply EC law seems to exist on the part of national courts and institutions, ‘the way’ to apply it correctly must also be found. For the moment, the way is time, training and practice.

Delimitation and Exercise of Competence between the West African Economic and Monetary Union (WAEMU) and its Member States in Competition Policy

WAEMU’s competition policy has been orientated towards an increasing centralization of competence within the Union by means of unified rules regarding agreements, abuse of dominant position and State aids. Accordingly, Member States have been deprived of all their competence in these fields. When legislating in the field of competition law, WAEMU Member States must respect the scope of the Union’s exclusive competence. Centralization is also to be seen with regard to procedures, which are an exclusive competence of the WAEMU Commission.A critical glance at WAEMU’s competition policy, both in material and procedural terms, reveals that even if this policy is justified, given both the relative infancy of the organization and the lack of a “competition culture” on the part of Member States, centralization nevertheless endangers the effectiveness of WAEMU competition law. Whereas a certain degree of harmonizing legislation may be justified in the framework of WAEMU, it remains doubtful whether an exclusive competence on the part of the WAEMU Commission would contribute to better achieving the goals of Community competition law.<abs>ƒAccordingly, the distribution of competences between the WAEMU Commission and the WAEMU Member States calls for a redefinition which should seek to increase the involvement of Member States as far as decision-making is concerned. In this respect, a proposal is put forward according to which WAEMU Member States would be accorded a number of competences which would coexist with the competences vested in the WAEMU Commission.<?tf>

Talking 'Bout My Antitrust Generation: Competition For and In the Field of Competition Law

Twenty-seven years ago I took my law-school antitrust course, from a fledgling assistant professor who had just left the Federal Trade Commission. My performance was adequate, earning one of the better grades in the course, but not spectacular. Unspectacular enough that afterwards the professor said it disappointed him. In retrospect, I think I under-performed because I was a soon-to-be economist as well as a budding lawyer. Like many people back then, I approached antitrust with a presumption that the gears of industrial-organization economics and antitrust law meshed more or less synchronously. But such a presumption was unwarranted, to say the least. As the course developed, it increasingly dawned that antitrust law, supposedly devoted to enhancing competition, was more a part of the problem than the solution. A few who had thought about all this longer had figured it out already. But for a callow law student at the time, it was difficult to mesh the economics of with competition law. I went into the exam conflicted, and evidently it showed. The conflicts today are fewer, thanks to a new brand of antitrust thinking that has developed and a new breed of antitrust enforcers that have arrived over the past generation. Often the new thinkers and enforcers are one and the same. The assistant professor who taught me antitrust is now the Chairman of the Federal Trade Commission, having written prolifically on both the Commission and antitrust law generally. Likewise, seminal scholars - also among my contemporaries and teaching colleagues - such as Frank Easterbrook, Richard Posner and Diane Wood - now as judges apply the new law that they espoused as academics. This article describes aspects of the evolution by which new antitrust rules have emerged to stimulate the salutary (if incomplete) rapprochement between economics and law in antitrust. In effect, the new rules have emerged from various types of competition, of two general sorts. To invoke Harold Demsetz's useful distinction, the has occurred in the field and for the field of antitrust. That is, the current generation has witnessed competition, first, as to which intellectual (including economic) paradigm animates antitrust law - for the field. As Section I details, for the field has included in the federal judiciary, some of that represented by acts of seeming judicial disobedience in antitrust. Thereafter, there has been considerable in the field, along lines to be described in section II, focusing on developments (some desirable, some not) in enforcement of the antitrust laws.

Forging the European Cartel Offence: The Supranational Regulation of Business Conspiracy

AbstractThe discussion in this paper examines the emergence of what may now be fairly described as the ‘European cartel offence’: that species of infringement of Article 81 of the EC Treaty, increasingly referred to as ‘hard core cartel’ activity, connoting real delinquency which justifies the imposition of severe penal sanctions. This development is significant not just as a matter of more explicit regulation within the field of competition law, but also as part of a wider context of vilification and criminalisation of certain well-established forms of cartel behaviour. As national systems (such as that in Britain) have introduced new criminal offences in relation to cartels, it is illuminating to consider and compare the evolution of the supranational ‘European cartel offence’. Having its basis in the infringement of Article 81 of the EC Treaty, the offence is necessarily one of collusion, being an agreement or concertation for anti-competitive purposes. As such, the more specific nature of the ‘offence’ has been established incrementally, very much as the product of argument presented in appeals relating to issues of evidence and penalties. It has been necessary to consider whether the offence resides in the planning or the implementation of anti-competitive activity, or both, and whether it comprises specific acts or a continuing pattern of behaviour. The mature version of the ‘offence’, worked out in the jurisprudence of the European Commission and the Community Courts, is based on the organising concept of ‘the cartel as a whole’. This process of forging a ‘European cartel offence’ provides an instructive lesson in the legal construction of criminality and the resort to a form of organisational responsibility. It also points to the emergence of a bifurcated system of both individual and corporate liability in this context.

Globalisation and International Antitrust Co-operation

The globalisation of the world economy on the one side and the expansion of national systems of competition antitrust law on the other side over the last few years have raised to the top of the international agenda the trade and competition issue. While trade barriers are decreasing and business internationalises, cross-border anticompetitive practices increase. Such practices, which may reduce effective competition and undermine the benefits of globalisation, dramatically reveal the limits of an asinchronised international antitrust regime. From one point of view, it is generally very difficult for the panoply of national antitrust systems to tackle domestically cross-border anticompetitive practices, which by their very nature are planned and implemented by several actors under several jurisdictions and have negative effects in many countries. From another point of view, it is generally inefficient for companies operating at the international level to be subject to different national competition rules, due to the lack of common rules at the international level. Up to now, various attempts to synchronise competition principles with a new globalised trading system by establishing a harmonised international competition regime have dramatically failed. Meanwhile, several countries have concentrated their efforts on the development of bilateral co-operation agreements, by their nature more limited in scope. The first part of this paper will be devoted to analyse the main features of the EC-US bilateral co-operation agreements in the field of competition law. On the basis of this analysis, I will argue that although bilateral co-operation must be recognised as an important achievement in the present preliminary stage of the globalisation of the world economy, it should be gradually supplemented, and eventually replaced, by some forms of multilateral antitrust co-operation, possibly within the framework of the WTO. In the second part of this work, I will present some concrete options for the development of multilateral antitrust co-operation in this sense.

The European Commission's Extraterritorial Powers in Merger Control

Within the field of competition law the question of jurisdiction is able to ignite an extremely heated debate. For example, when the American company Boeing decided to acquire the American company McDonnel Douglas both the US and the EU competition authorities engaged in an investigation of the transaction. The fact that the Community commenced an investigation, and even appeared to consider a prohibition, of the merger caused an uproar amongst some American politicians. These politicians claimed that the merger was a purely American matter and that the Community's competition authorities had no jurisdiction over the merging parties.