bluuebunny/crossref_metadata_2025 huggingface dataset:
A Harmonized Interpretation of Freedom of Transit in the Fragmented International Legal System: Applying Article 31(3)(c) of the Vienna Convention on the Law of Treaties to the Russia – Traffic in Transit Dispute
Authors: Wu Hao
Published: April 2022

The article applies Article 31(3)(c) of the Vienna Convention on the Law of Treaties to examining the relevance of accords that bear on freedom of transit. Taking the WTO dispute of Russia – Traffic In Transit as an example, the article experiments with a harmonized interpretation, in quest of consistent meanings, of norms on freedom of transit in the fragmented international legal system.

freedom of transit, fragmentation of international law, harmonized interpretation of norms, Russia, Ukraine, WTO dispute, Vienna Convention on the Law of Treaties (VCLT), landlocked developing countries (LLDCs)
WTO Dispute Settlement and Rule-Making: One Crisis or Two?
Authors: Mcdonald Brad
Published: April 2022

The World Trade Organization (WTO) Agreements can be thought of as an incomplete contract that needs to be completed either through renegotiation, the judiciary, or non-judicial interpretation. It provides for all three, but only the judicial route has functioned regularly. With that route now (also) in crisis, there is doubt whether the contract itself can continue to deliver the relative stability and openness in trade policy that has underpinned exceptional global economic performance post World War II. The paper asks whether the multiple crises in the WTO might stem from a common cause of institutional design or culture. New challenges such as climate change and the interface of technology and security may brutally expose further implications of this weakness. The paper concludes with thoughts on a way out.

Dispute settlement, General Agreement on Tariffs and Trade (GATT), International Monetary Fund (IMF), International trade, World Trade Organization (WTO), WTO reform
Public Morality Exception at the WTO: Much Ado About Nothing?
Authors: Plouffe-Malette Kristine
Published: April 2022

Public morality is one of the stated objectives for which WTO Members may seek to justify a measure that impedes trade. The value of considering this single objective is twofold. First, while all six trade disputes relating to the public morality exception have passed the public morality test, no measure has passed both the necessity test and the test in the chapeau paragraph. Second, it is questionable whether it is possible for a panel or the Appelate Body (AB) to recognize a measure as being of public morality. Moreover, if the EC – Seal Products dispute is the focus of the morality exception, it is important to look more closely at subsequent interpretations by panels and the AB, as nothing is less certain about the interpretation of this exception. Two trilogies emerge, firstly the US – Gambling, China – Publications and Audiovisual Products and the EC – Seal Products, and then Colombia – Textiles, Indonesia – Import Licensing and Brazil – Taxation, with the Canada-European dispute as the tipping point. This article is constructed in three parts that draw on the lessons learned from these two trilogies to highlight what remains of the public morality exception at the WTO.

public morality exception, WTO law, US – Gambling, China – Publications and Audiovisual Products, EC – Seal Products, Colombia – Textiles, Indonesia – Import Licensing, Brazil – Taxation
Untapping the Full Development Potential of Trade Along Global Supply Chains: ‘GVCs for LDCs’ Proposal
Authors: Cernat Lucian , Antimiani Alessandro
Published: April 2022

There is clear evidence that existing preferential schemes contributed significantly to boosting least-developed country (LDC) exports (Klasen et al., 2016). Many seem to believe the multilateral trading system could offer little to LDCs as they have already obtained market access to critical markets under the current preferential schemes. Despite the LDCs’ reluctance to positively engage in recent WTO discussions, there is room for the global trading system and new multilateral initiatives to promote the participation of LDCs in global value chains (GVCs). Given that LDC exports are often further processed and ‘travel’ down the GVCs as part of third-country exports still facing tariffs, one could envisage a global preferential scheme based on LDC value-added, i.e., products originating in any WTO members should receive an ‘LDC preferential treatment’ proportionate to the value of LDC’s inputs content embodied in their exports, whenever exported to any other WTO member. We conceptualize this new ‘GVCs for LDCs’ proposal and estimate its economic potential using a dynamic Computable General Equilibrium (CGE) modelling framework. If LDC preferential market access is changed from the simple ‘direct export’ approach (e.g., the Generalised Scheme of Preferences (GSP)-like schemes currently in operation) to a GVC approach, LDC exports would receive a considerable boost (a 2.5% annual increase worth over USD 10 billion per year) and increased market premium for their products.

WTO, World Trade Organisation, CGE modelling, GTAP, development, Least Developed Countries, LDCs, global value chains, GVC, Generalized System of Preferences, GSP
Parallel Trade in the Pharmaceutical Market – Current Trends and Future Solutions
Authors: Nazzini Renato
Published: April 2022

This article explores the relationship between EU law and the pharmaceutical market. It analyses the political debate on the competitiveness of the European pharmaceutical industry, in the view of the enlargement, the different models of regulation of pharmaceuticals in the Member States and the economic theories of parallel trade and intellectual property rights. Against this background, it is demonstrated that both the Commission and the Court of Justice have adopted a strong pro-single market approach, whereby price regulations, ethical obligations to sell medicines and the need for adequate reward of investment in research and development have been considered incapable of limiting the scope of application of the European law of competition and free movement of goods. The article suggests solutions available under the existing legal framework; it also proposes, in view of further European harmonisation, the principle of effective and fair negotiation as a core element in price regulation in the Member States.
Analysis of the Principles Applicable to the Review of Exclusive Broadcasting Licences Under EC Competition Law
Authors: Graf Thomas , Subiotto Romano
Published: April 2022

This article discusses the Commission's review of exclusive broadcasting licences under EC competition law. It concludes that the Commission's practice suffers from a number of inconsistencies both as concerns market definition and substantive analysis.

The authors submit that exclusive licensing is a legitimate and recognised practice for the commercial exploitation of broadcasting rights. There should therefore be a presumption in favour of the validity of such licences. Market definition and substantive analysis should be consistent with the competitive issue under examination. If the competitive issue is foreclosure, then competition authorities need to acknowledge the existence of alternative content that serves the needs of competing broadcasters equally well, regardless of the existence of dedicated viewer groups.

A particular content's share of the relevant content market should serve primarily as a filter to eliminate licences involving low market shares from further scrutiny. Such licences a priori cannot raise competition issues, irrespective of their duration or scope. High market shares, on the other hand, do not automatically translate into an appreciable restriction of competition. Even in the case of high market shares, right-holders retain the right to grant licences on an exclusive basis. However, in such cases the duration and scope of the licence may need to be assessed in more detail, taking into account the full economic and legal context of the licence.

An obligation for right-holders to license their content or to grant licences on a non-exclusive basis can only be contemplated in exceptional cases. Refusal to license, as such, even by a dominant undertaking cannot warrant such an obligation.

The assessment of licences for new media rights should follow the same principles as the assessment of licences for traditional broadcasting rights. EC competition law should not be used as an instrument to make media policy. Competition law is platform neutral and does not provide a legal basis to favour or promote certain media platforms over other platforms. Indeed, using competition law as a media policy instrument would distort free competition and create serious legal uncertainties.
Competition Law and Policy: Global Governance Issues
Authors: Jenny Frédéric
Published: April 2022

This article synthesizes the current debate on the need to address the issue of competition on global markets. It shows that negative externalities arise because at the same time that markets become more internationalised market governance remains in the scope of national competition authorities having limited territorial jurisdictions. Firms are thus in a position to engage, with impunity, in transnational anticompetitive practices that contradict the trade liberalization efforts of governments. This leads to allocative inefficiencies on world markets. Recent evidence suggests that transnational anticompetitive practices are more prevalent than was previously thought and that the magnitude of the costs that this entails, particularly for developing countries, is quite significant. Various types of remedies are conceivable. However, their adoption is unlikely or undesirable because most of these remedies either are incomplete or require national governments to relinquish their national sovereignty in this area. The EU is proposing the adoption of a competition agreement within the WTO. This proposal is compared to alternative solutions.
The EU Leniency Programme Comes of Age
Authors: Levy Nicholas , O’Donoghue Robert
Published: April 2022

In 2002, the European Commission adopted a new Leniency Notice that sought to address certain of the shortcomings identified under the pre-existing Leniency Programme and achieve a substantial degree of convergence with the US Leniency Program. The 2002 Notice is widely considered to have led to a significant increase in the number of cartel infringement decisions. It has also transformed legal practice in this area, in particular by sensitising EU companies to the complex strategic considerations that shape the decision whether or not to seek leniency. Although papers and speeches delivered by Commission officials have improved understanding of the Commission's practice, several important procedural and practical issues remain unresolved. Among other things, there would be considerable benefits to formalising in a set of Guidelines important recent changes in the Commission's administrative practice in respect of leniency that are capable of having material legal effects. Further, the Modernisation Programme, which comes into force in May 2004, has created a pressing need for the Commission and national competition authorities to consider the potential implications of multiple proceedings at EU and national level, including where there is a risk of individual criminal sanctions for cartel behaviour under national law. This article suggests various ways in which these uncertainties might be resolved.
Do Merger Efficiencies Receive “Superior” Treatment in Canada? Some Legal, Policy and Practical Observations Arising from the Canadian Superior Propane Case
Authors: Finkelstein Neil , Piaskoski Michael
Published: April 2022

In the last few years, the role of efficiencies in merger review has become a topic of great interest within the antitrust community, particularly in light of the recent U.S. Heinz/Beechnut babyfood decision, the European Union GE/Honeywell decision and the Canadian Superior Propane decision (perhaps the most comprehensive review of efficiencies in the context of the creation of an otherwise “anti-competitive” merger). Using the Canadian Superior Propane case as a springboard, the authors examine many of the legal, policy and evidentiary issues that may arise when the parties to a merger seek to argue the pro-competitive and efficiency-enhancing elements of their transaction before a competition authority. In particular, the authors present a comparative review and analysis of the role of merger efficiencies in each of Canada, the United States and the European Union, including the types of efficiencies that may or may not be considered by competition authorities in merger review, the different methods that may be adopted in balancing efficiencies against the anti-competitive effects of a merger, and some of the practical and evidentiary issues faced by merging parties when claiming efficiencies.
The IMS Health Decision: A Triple Victory
Authors: Derclaye Estelle
Published: April 2022

This article is a follow-up on a previous article we published in the December 2003 issue of this review. It comments on the recent decision of the European Court of Justice in the IMS Health case. The case dealt with the refusal by IMS Health to licence its copyright structure to NDC. The factual background of the case is restated and a brief summary of the state of the case law before the decision is also given for a better understanding of the decision. The decision of the Court is then summarised. The comment shows that the decision is a triple victory. First, the Court clarifies its case law and thereby provides legal certainty. Second, it is a victory for copyright. The so-called essential facilities doctrine does not apply to copyright as such and only when the competitor wishes to introduce a new product on the market will a licence be imposed. As a result, this is a victory for IMS Health because NDC will have difficulty proving it wishes to market a new product. However, the decision leaves one important point unresolved: the Court does not define what it means by a ``new product’’. This can have a broad or narrow meaning therefore influencing the fulfilment of the condition and the corresponding imposition of a compulsory licence.
Recent US Antitrust Developments of International Relevance
Authors: Davidow Joel
Published: April 2022

During the last two years, the Antitrust policy of the United States has been one that could be dubbed ``vigorous conservatism’’. The vigour has been evidenced by an increase in anti-cartel activity and punishments, by strict review of a substantial percentage of major horizontal mergers, and by the development of some new cases against abuses of patent rights. There has also been evidence of international vigour, such as in the rapid development of the International Competition Network and in day to day coordination in anti-cartel criminal matters.

Conservatism has been evident in efforts to delimit the territorial scope of the treble damage remedy and the possibility of forced dealing by a dominant firm controlling an alleged
Unilateral Effects: The Enforcement Gap under the Old EC Merger Regulation
Authors: Ehlermann Claus-Dieter , Ehlermann Claus-Dieter , Ehlermann Claus-Dieter
Published: April 2022

The reform of the EC Merger Regulation was preceded by an animated debate about whether the traditional ``dominance’’ test allowed the Commission to challenge mergers that did not lead to single firm or collective dominance in the traditional sense, but nevertheless may have reduced competition to the detriment of consumers. The authors submit that the dominance test failed to reach such situations of ``unilateral’’ or ``non-coordinated’’ effects. The old Merger Regulation therefore suffered from a potential ``enforcement gap’’ that was closed only by the legislative change to the ``significant impediment of effective competition’’ test. National jurisdictions still using variants of the dominance test may want to consider this aspect in their legislative reform plans.
Recent Developments in US Antitrust
Authors: Davidow Joel
Published: April 2022

A major issue for US antitrust enforcement in the last year or so has been how to achieve maximum detection and deterrence of cartels, even at the cost of weakening certain sanctions. Thus, new legislation protects first-to-confess price fixers from criminal penalties and from trebling of damages owed to customers. To the same end, US enforcement agencies have sought to cut back the ability of foreign victims of the non-US aspects of worldwide cartels to obtain damage relief in American courts. This approach has been justified primarily as facilitating the operation of leniency policies by decreasing the scope, or uncertainty, of the private damage action consequences of confession. Closing US courts to foreign victims has also been justified in terms of the expressed wishes of the US allies (e.g. Germany, Japan, Canada) to fashion their own private remedy policies for their residents. In merger enforcement, trends are steady, but many litigated merger cases were decided against the Government, which could not always support its theories of probable consumer injury with hard facts. Cases involving misuse of intellectual property continue to be aggressively fought, particularly where dubious means are used to enshrine a patented invention as part of an industry standard. US efforts toward international cooperation and harmonisation have had a steady pattern of achievement, but some difficult issues of policy and practice seem intractable, particularly centralisation of merger control and harmonisation of approaches to private remedies.
Delegation of State Regulatory Powers to Private Parties - Towards an Active Supervision Test
Authors: Szoboszlai Judit
Published: April 2022

Even though Article 81 and 82 EC apply to private undertakings and not to State regulations, the European Court of Justice established in Van Eycke that State regulations can come under antitrust scrutiny. This will happen in particular when the State delegates decision-making powers to private actors, enabling them to adopt decisions affecting the economic sphere. The Court has developed coherent case-law to describe what delegation means but its test fails to address the main concern: whether regulatory acts resulting from such delegation in reality emanate from the State or whether State approval merely shields private anti-competitive behaviour. Thus the borderline between State acts and private measures remains unresolved. In a delegation situation there is a risk that market actors will act in pursuance of their own interests and restrict competition, whilst at the same time obtaining immunity for their behaviour on the basis that it constitutes ``State action’’. In the recent Mauri case the Court seems to be groping towards a stricter standard which requires that Member States ensure active supervision over ``delegated’’ decisions rather than merely approve them formally. Additionally, in CIF the Court articulated a strict interpretation of the effet utile principle placing a large responsibility on Member States to ensure the full effectiveness of EC law in the field of competition. It is still unclear whether these changes result in a considerably tighter delegation test but Member States and their competition authorities---especially after the CIF judgment---will face a higher threshold when drawing the line between private and State measures. This article has been shortlisted for the 1st World Competition Young Writer Award.
Margin Squeeze in the Telecommunications Sector: An Economic Overview
Authors: Fernández Álvarez-Labrador Margarita
Published: April 2022

Margin squeeze is a strategic behaviour of vertically integrated dominant firms in liberalized markets, where they have incentives to discriminate against new entrants in the downstream market. The discrimination that they perform is either in the form of refusals to grant access to the essential facilities, excessive prices for essential inputs, or as margin squeezes. The telecommunications industry, in which neighbouring (liberalized) markets are vertically linked, meets the suitable economic conditions for the ex-State owned incumbents to squeeze their rivals in the downstream market, as they control the essential input (access to networks), and simultaneously have an important presence in the retail market.Detecting a margin squeeze requires the application of a complex imputation test, which may not be straightforward and which may determine the final decision on the alleged existence of this abusive practice.The general purpose of this study is to carry out an economic overview of margin squeeze in the telecommunications sector, focusing on the conditions for its existence, the regulatory constraints, and to establish the adequate economic test to determine the existence of a margin squeeze. This article has been shortlisted for the 1st World Competition Young Writer Award.
Towards a Constructive Public-Private Partnership to Enforce Competition Law
Authors: Weber Waller Spencer
Published: April 2022

Finding the right balance between public and private competition enforcement is a critical issue for almost all jurisdictions. This article surveys the forces that are producing an apparent contraction in private rights of actions in the United States, an expansion of such actions in the European Union, and the need for some form of private actions including aggregate claims and indirect purchaser actions for any jurisdiction seeking a system of viable private enforcement. The article concludes that some form of private enforcement is a necessary complement to public competition law enforcement and that public-private enforcement networks geared to local needs should be encouraged to create stable and effective competition law regimes.
The Aggravating Circumstance of Recidivism and the Principle of Legality in the EC Fining Policy: Nulla Poena Sine Lege?
Authors: Piernas López Juan Jorge
Published: April 2022

The European Commission takes into account several factors when it imposes fines for the violation of Competition Law. Amongst them, the aggravating circumstance of recidivism is usually considered. However, no explicit legal provision for recidivism can be found in the primary or secondary legislation of the European Union. This situation could infringe the fundamental right and principle of Community Law that states that criminal law must be legally foreseen: the so-called principle of nulla poena sine lege. It seems worth analysing to what extent that principle is fulfilled by the European Commission and the European Courts. As a result of this research, it can be concluded that the EC enforcement of Antitrust Law poses serious doubts in relation to the principle of legality. Certainly, the Commission enjoys a broad discretion in its justification of competition fines and this has even been extended by judicial review. Such a state of affairs may be justified politically, but it is not legally acceptable. The principles of legality and legal certainty require a more transparent system. The influence of the ECHR and of the new bias towards criminalisation may improve this situation. This article has been shortlisted for the 1st World Competition Young Writers Award
A New Era of ECN Cooperation–Achievements and Challenges with Special Focus on Work in the Leniency Field
Authors: Jaspers Maria , Dekeyser Kris
Published: April 2022

The article gives an overview of the cooperation between antitrust enforcers in the European Competition

Network (ECN) three years after it coming into existence. It recalls the main principles behind this unique

cooperation form and gives an insight into its working methods, achievements and challenges. The authors,

working within the dedicated ECN unit in DG Competition, explain how the work-sharing and

information exchanges between the enforcers have resulted in an enhanced, strategic and coherent

application of Community competition rules throughout Europe. Focus is given to ECN’s increasing role

in influencing policy reflections beyond the legal obligations in Regulation 1/2003. This new era of ECN

cooperation is illustrated by work undertaken in the leniency field. The authors give a detailed account of

the ECN Model Leniency programme, unanimously endorsed by all ECN members in September 2006

as a solution for the multiple parallel leniency filing issue in Europe. The authors explain the background

and the status of this ground-breaking project and reveal the reflections behind its individual provisions.
US Federal Merger Regime from the Network Management Perspective
Authors: Cengiz Firat
Published: April 2022

This article analyses the structure of the federal merger regime of the United States. and the options selected by the Antitrust Modernization Commission to improve the allocation of enforcement responsibilities between the federal antitrust authorities and the State Attorneys General. Emphasising the complexity of policy enforcement in multi-jurisdictional settings, it offers the theory of regulatory competition as revised by regulatory co-opetition, alongside the theory of policy networks as a theoretical benchmark of effectiveness of policy enforcement in such systems. In the light of the political theory and empirical data, it finds that the US federal merger regime seems to suffer from bad network structuring stemming from information block rather than the allocation of enforcement responsibilities. The article concludes that improved information sharing mechanisms between the federal antitrust authorities and the State Attorneys General could bring about a major improvement to the system without more dramatic amendments being necessary. Consequently, it suggests that the US authorities might find it plausible to examine the mechanisms of cooperation and coordination which the European Competition Network incorporates if policy learning from the European Community is desirable.
Competition Law Choice in China
Authors: Furse Mark
Published: April 2022

China is in the process of introducing a new comprehensive competition law, which will replace a disjointed and ill-enforced set of laws that apply to some, but not all, competitive constraints. In shaping its new law China has taken advice from international organisations and from regimes, notably the United States and the European Community, with mature competition law systems. This article argues that while much can be learned from such international comparisons competition law is not necessarily a standard that can be applied in a one-size-fits-all formulation to any jurisdiction, and that some sensitivity to local market conditions and economic development may be required. However, the law as presently drafted is an uneasy amalgam of competition law standards and wider political and industrial agendas. There exists a danger that the law may be inconsistent and non-transparent in application, undermining the attainment of competition objectives.
Refined Economic Approach in European State Aid Control—Will it Gain Momentum?
Authors: Schweinsberg Andrea
Published: April 2022

A new guiding principle in the EC competition rules is the so-called “more economics based approach”. This refined economic approach is based on an effects analysis. The question is now whether this successful modernisation in antitrust and merger control will spill over to State aid. The Commission has already started implementing the refined economic approach to some areas of the State aid provisions. The balancing test in Article 87(3) EC Treaty is one example. However, the economic analysis in Article 87(1) EC Treaty analysis is still rudimentary. The authors think through the potential and consequences of a refined economic approach in Article 87(1) EC Treaty in accordance with the new interpretation of Article 81(1) EC Treaty. An appropriate economic procedure will be developed by applying the lessons learned form antitrust.
Competitive Advantage and the Regulation of Dominant Firms
Authors: Boscheck Ralf
Published: April 2022

Although US and EU competition law offers a well established framework for regulating commercial conduct, its main focus—the behaviour of dominant companies—is still unsettled. Legislators and regulators are asked to distinguish and, for the purpose of rule making, pre-judge which types of conduct are likely to lead, or have led, to superior offers as opposed to the building up and abuse of market power. In reality, they often end up mixing assessments of conduct with beliefs in the intrinsic ability of markets to adjust to the prevailing circumstances. The EU’s review of the application of Article 82 to exclusionary conduct intends to move beyond such arguments as to form and belief. Intended to provide an effect-based economic approach to dominant firm regulation, the Commission’s discussion paper largely replaces formal characterisation of conduct with, instead, principles and methods for assessing the ability of businesses to foreclose markets and lock out equally efficient competitors. In the process, the Commission avoids prejudging actual behaviour and, by allowing for an efficiency-defence, in actual fact shifts the burden of proof to the dominant firm. Yet even if this could be made compatible with prior regulation, to be useful in regulatory practice and judicial review, the standards for assessing dominance and exclusionary conduct would need to be clarified and data requirements reduced.
Frequent Flyer Programmes under Article 82 EC—Is the Sky the Only Limit?
Authors: Emch Adrian
Published: April 2022

Frequent flyer programmes (FFPs) are ubiquitous marketing tools used by airlines all over the world. Many airline passengers are members of FFPs, and most of them probably perceive FFPs as something positive.

This article examines the status of FFPs under EU competition law. More precisely, the article analyses the FFPs of dominant airlines under the law on loyalty rebates in implementation of Article 82 of the EC Treaty. Five particular characteristics of FFPs are closely scrutinized: the duration of the reference period, the retrospective nature, the multiplicity of reward levels, their character as bundled rebates and the particular efficiencies which FFPs can create.

The conclusion of this analysis is that the FFPs’ characteristics may conflict with the current law, to various degrees. Based on this finding, the article advances a number of propositions on how the law on rebates could be improved.

Finally, the article goes beyond the law on rebates, and examines the effects on competition of a particular feature of FFPs—the so-called principal-agent relationship.
Downloading Competition Law from a Regional Trade Agreement (RTA) - A Strategy to Introduce Competition Law in Bolivia and Ecuador
Authors: Marcos Francisco
Published: April 2022

Bolivia and Ecuador have proved resistant to the adoption of competition laws. Despite several drafts having been discussed in the last few years, to date no competition rules have been enacted in these countries.

Notwithstanding, both are members of the Andean Community (CAN) which in 2005 adopted new rules aimed at fighting anticompetitive practices at supranational level. These new rules mirror Articles 81 and 82 of the EC Treaty and provide Andean institutions with investigation and sanction powers; however, no merger review is provided. The CAN competition rules foresee the possibility that Ecuador and Bolivia use them in their domestic settings as if they were national rules until national competition laws are adopted (i.e. they can download them into their national legal system).

Although this provision is well-intended and it may help overcome the impasse in the processes leading to the adoption of national competition laws in both countries, this article will argue that it may have undesirable effects. Not only may it undermine the competition rules contained in the Regional Trade Agreement, but may also worsen the prospect of domestic competition rules being adopted. Besides, the transfer of Andean rules to the national system requires considerable effort to adapt them to a national institutional background, and even in that case some conflicts and interferences may arise afterwards. Notwithstanding all these difficulties and problems, downloading CAN competition rules may be a good alternative in preparing the Bolivian and Ecuadorian legal systems for the adoption of their own domestic competition rules.
Competition Law Enforcement and Incentives for Revelation of Private Information
Authors: Hviid Morten , Harker Michael
Published: April 2022

The past and current reluctance of firms and individuals to use private enforcement suggests that there are limited incentives for self–help. The key contribution of private enforcement to overall deterrence derives from cases which would not otherwise be brought, not simply because of resource constraints, but also because relevant information would not otherwise have come to light. In terms of revealing such private information, cases initiated and pursued by private litigants add much more to the equation than do cases merely following–on from decisions made by competition authorities. In this article we use a simple model to highlight what features of the private enforcement system promote and hamper the use of these two different types of private enforcement. A key finding is that that to encourage new cases, it is essential that it is quicker to get a decision in a stand–alone case than the time it takes to get a decision in a follow–on case.
“National Champions” Rhetoric in European Law — Or the many faces of protectionism
Authors: Goucha Soares António
Published: April 2022

The article aims to debate the issue of national champions regarding merger operations with a Community dimension. It starts with a brief overview of the legal framework for merger review in European Union law, as well as a reference to the division of competences between the Union and the Member States in this field. Then, it analyses the scope of Member State action regarding merger operations with a Community dimension, namely the clause to protect national legitimate interests. After some illustrations of recent cases concerning Member States’ defence of national champions, the article devotes the last part to a reflection of two related issues: the concept of industrial policy and the new challenges raised by sovereign wealth funds.
Direct versus Indirect Proof of the Airtours Criterion in Impala
Authors: Mezzanotte Félix E.
Published: April 2022

In this article I look at the legal notion of pre–existing collective dominance (PCD) following the Impala case. More particularly, I examine the theory of indirect proof of the Airtours criterion and analyse the implications it has on the test of pre–existing collective dominance (PCD test). I argue that this theory offers an alternative yet behavioural avenue for the Commission to establish the existence of a position of PCD. Yet a behavioural PCD test need not be easier to enforce, and can blur the line that separates the existence of PCD from instances of Article 82’s abusive conduct.
New Paradigm for Recovery of Unlawful Aid in the EU – National Judges and the ‘Exception of Compatibility’
Authors: Giraud Adrien , Cheynel Benjamin
Published: April 2022

The Court of Justice recently disrupted the few certainties that one could entertain as to the treatment by national courts of recovery requests targeting unlawful State aids. The Court now admits that an unlawful aid, which has been declared compatible by the European Commission by way of a decision that acquired a definitive status, may benefit from an exception to the reimbursement rule, save for the obligation imposed to national courts of ordering the recovery of interest for the period of unlawfulness. Not only does this new exception seem to contradict the Court’s recent case law in the field, but it may also entail significant and undesirable effects in terms of State aid policy.
Revisiting Competition Law of India: Changing Dimensions in the Era of Globalized Economy
Authors: Sharma Avinash
Published: April 2022

Competition law is a classical example wherein the government wants to meet the compelling needs of the changing times. The Indian Monopolies and Restrictive Trade Practices Act was enacted in the era of restrictive economy. With the opening up of the economy in 1991, and subsequently the advent of the WTO in 1995, it was felt that the MRTP Act had outlived its utility and no longer served its purpose in the changed environment. While the new open market economy would ensure adequate competition,at the same time, experience in other countries had indicated that some enterprises do try to undermine the market by resorting to anti–competitive practices. Hence, it was felt that such practices could nullify the gains from competition, which could be answered only by having a new competition law. Accordingly,the Competition Act 2002 was enacted. However, only some parts of the Act are in force and the entire Act is yet to become operative. This article will make a modest attempt to discuss this new competition regime, its scope, ambit and various dimensions, and to explain whether it will face further new challenges due to dynamism in international trade and economic laws in the era of irreversible globalisation.
The Relationship between Public Antitrust Enforcement and Private Actions for Damages
Authors: Wils Wouter P. J.
Published: April 2022

This paper concerns the relationship between public antitrust enforcement and private actions for damages, focusing in particular on the enforcement of Articles 81 and 82 EC. In the first half of the paper, I examine the respective roles of public antitrust enforcement and private actions for damages. I argue that public enforcement should aim at clarifying and developing the antitrust prohibitions and deterring and punishing violations, whereas private actions for damages should aim at compensation. This corresponds to the approach adopted by the European Commission in its 2008 White Paper on damages actions for breach of the EC antitrust rules, and differs from the US approach which views damages actions as an instrument of deterrence. In the second half of the paper, I analyze a number of specific issues concerning the interaction between public antitrust enforcement and private actions for damages: the binding effect of the finding of a violation in public enforcement proceedings on follow–on actions for damages; access to the public enforcement file; encouragement of voluntary compensation through fine rebates, as a condition for leniency, or as part of settlements; punitive damages; private demand for public enforcement; the impact of private actions for damages on substantive law; and their impact on leniency.
A Balance of the Impact of Economic Analysis on the EU Competition Policy
Authors: Briones Juan
Published: April 2022

Economic analysis has improved the application of EU competition law in many respects. But this article argues that economic analysis has not had major material implications with regard to policy definition or case handling. Some economists have indeed pointed out that the economic tradition of academic modelling based on introspective deduction is ill suited for the requirements of competition policy. Thus the move to an SLC test in merger control does not seem to have closed any ‘gap’, and it is argued that most decisions that have taken place under the new test, could have been handled in very much the same way under the dominance test. The non–horizontal merger guidelines and recent cases apparently have shifted the control of mergers to something closer to prevention of abuses, by focusing excessively on modelling of pre–merger behaviour and less on strategic reactions to the merger. With regard to efficiencies, in eighteen years the Commission has not found yet, a single case where efficiencies have made a difference in the decision, so one may wonder if the current formulation of the efficiency test is appropriate. Finally, economic analysis is proving itself incapable of defining policy in the area of abuses of dominance.
Legal Uncertainty and Competition Policy in European Deregulated Electricity Markets: the Case of Long–term Exclusive Supply Contracts
Authors: de Hauteclocque Adrien
Published: April 2022

The case of long–term exclusive supply contracts in the EU electricity markets is a highly topical example of the difficulties faced by competition authorities with the deregulation of energy markets. The ambiguous effects of these contracts on foreclosure, investment and consumer welfare in the long term made them logically become a priority for antitrust enforcement. However, due to the lack of precedents and the on–going modernization of EC competition law, the legal uncertainty currently perceived in the market place is strong. By analyzing the recent decisions of community and national competition authorities across energy industries, this article comes up with four conclusions. First, a new methodology to assess foreclosure effects in a market building context is emerging. Second, legal uncertainty in electricity is largely overstated as antitrust enforcement aligns across energy industries and quickly converges with enforcement in sectors where competition is more mature. Third, the European Commission is increasingly taking a unifi ed approach under Articles 81 and 82 EC for long term exclusive dealing in energy. Fourth, the antitrust strategy of the European Commission demonstrates both the limits of the application of a rule of reason in energy and the importance of the politics of liberalization.
Antitrust Transitions
Authors: Weber Waller Spencer , Woods Jennifer
Published: April 2022

Antitrust enforcement is entering a period of transition in the United States. The election of Barack Obama as President and his executive branch, regulatory, and judicial appointments will have important consequences for antitrust law and enforcement, although most observers believe that these changes will be relatively modest both substantively and in comparison to the matters of banking reform and economic stimulus.

As part of that process of change, there has been no shortage of advice offered to first the Transition Team and now the Administration about how to handle competition policy going forward. Two of the more substantial efforts in this regard have come from well-established antitrust groups with very different perspectives and memberships. Both the Antitrust Section of the American Bar Association and the American Antitrust Institute have offered sophisticated lengthy public advice to the new Administration on how best to proceed in the competition law field. The reports are very different in nature and reflect the different nature of the institutions that prepared them. This essay takes a brief look at the transition reports offered by each organization and the vision they would offer for the new Administration.
Contract and Restitution Law and the Private Enforcement of EC Competition Law
Authors: Di Giò Alessandro
Published: April 2022

In the context of private enforcement of competition law, most attention and efforts have been traditionally drawn to the area of tort law. Claims for tortious damages have recently been regarded as a crucial instrument for strengthening private enforcement also in EC antitrust law. This article aims to highlight that a significant role may also be played by contractual and restitutionary remedies.

The article analyzes the following areas where such remedies might become relevant to the private enforcement of EC competition law:

(1) disputes between co-contractors to an agreement prohibited by Article 81 in respect of the sanction of voidness and the related restitutionary claims;

(2) anticompetitive agreements and the validity of subsequent contracts;

(3) abuse of dominant position, abuse of economic dependence, and their relationship with contractual remedies against ‘unfair’ contracts.

Arguably, the effectiveness of the Commission’s action, and most probably, the legal consistency and certainty of a future legal framework of European antitrust private litigation would be improved if contractual and restitutionary claims were dealt with in addition to tortious claims. Furthermore, a reflection on the above-referred issues may provide mutual sources of inspiration for the development of private enforcement of antitrust and for the debate on European harmonized contract law.
Ailing Financial Institutions: EC State Aid Policy Revisited
Authors: Antoniou Daniel , Savvides Charalambos
Published: April 2022

This article provides an overview of how European Community state aid policy has been administered thus far in cases of ailing financial institutions and discusses whether state aid to ailing financial institutions should be regulated under a special legal framework, instead of the general Community Guidelines on rescuing and restructuring firms in difficulty. In particular, it analyses the importance of commercial banks’ specific activities in facilitating economic growth and it provides an insight to a key feature of European (and indeed global) financial markets, financial interdependency. More than just engaging in specific activities that facilitate economic growth, financial institutions create financial interdependencies, which may cause conditions of systemic risk within the sector and the economy in general. This implies that, apart from operating in a competitive environment, financial institutions operate in a market characterized by high degree of integration and interdependence. Throughout the article, questions arising from legal analysis and considering the appropriateness of the application of the Guidelines in the case of ailing financial institutions are answered within an economic context, illustrating some unique characteristics of the financial sector.
Strategic Considerations in the Emergence of Private Action Rights
Authors: Rajabiun Reza
Published: April 2022

The design of mechanisms for the enforcement of rules regarding anticompetitive practices has been the subject of considerable controversy in both developed and developing countries. Public competition authorities have advantages in terms of scale economies and coordination of competing policy objectives. Private rights of action enhance the capacity of legal regimes to generate information and deter collusive agreements and exclusionary practices. Private enforcement also increases the transaction costs of regulatory capture. Given these differences, mixed regimes are likely to be superior to purely public or private arrangements. However, most national jurisdictions grant exclusive authority to public agencies and prosecutors. This article explores the puzzling resistance to the development of mixed competition enforcement regimes by studying recent attempts in the European Union (EU) to enhance private rights of access. The analysis suggests that decentralization of enforcement rights limits the capacity of a government to employ competition rules as an instrument of strategic trade policy. Evidence from EU illustrates that tensions between domestic and international policy considerations can generate distinctive paths of procedural development.