bluuebunny/crossref_metadata_2025 huggingface dataset:
The Evolution of EU Trade Law Through the Prism of Competence: A Quantitative, Longitudinal Perspective
Authors: Ovádek Michal
Published: April 2022

Most trade law scholarship analyses developments on a case-by-case basis, which makes the discipline liable to miss changes that occur in the aggregate. In an attempt to partially rectify this lacuna, this article compiles a quantitative, longitudinal picture of European Union (EU) trade law based on a primary dataset of over 6000 acts, along with additional data on international agreements, decisions thereunder, and implementing and delegated acts. The selection of this simplified corpus of EU trade law is driven by the so-called legal basis which signifies the existence of EU competence in a given area – in this case international trade. We focus on the EU’s competence regarding the common commercial policy and the common customs tariff which constitute the core of EU trade powers. We find that the expansion of the latter has, counterintuitively, not translated into an increase in the quantity of trade acts produced by the EU, and we sketch out possible explanations for the quantitative trends observed in our data.
Consistent and Recurring Use of External Legal! Norms: Examining Normative Integration of the FCTC post-Australia  Tobacco Plain Packaging
Authors: Gleason Ted , Devillier Nathalie
Published: April 2022

The Framework Convention on Tobacco Control (FCTC) has emerged as international consensus concerning legally binding trade measures related to tobacco products. Nevertheless, the tobacco industry along with various WTO Member States have regularly argued that certain FCTC compliant measures conflict with various obligations arising from the WTO and international investment agreements. Normative conflicts between the FCTC and international economic law crystalize at the dispute resolution stage. This article analyses WTO and investor state dispute settlement (ISDS) disputes concerning tobacco control measures (TCMs), including Australia – Tobacco Plain Packaging, and shows consistent, recurring, and increasing use of the FCTC by tribunals who reliably uphold non-discriminatory TCMs on public health grounds. Despite a general hesitancy to formally integrate external legal norms in international legal systems, this article posits that the regularity of reliance on the FCTC, not only for evidentiary issues, but also for substantive legal analysis, evidences normative integration of the FCTC in international economic legal regimes. In line with the principle of systemic integration, international tribunals should consider the FCTC not only as factual reference, but also as legal norms when relevant.
Design Rights in EU PTAs: Where Does Such Internationalization Lead?
Authors: Kapyrina Natalia
Published: April 2022

It has been widely acknowledged that current international intellectual property (IP) standard setting is carried through bilateral and plurilateral negotiations, and that the EU is very much involved in this process. It is notably the case of standards pertaining to the rights protecting designs, which received a particularly flexible set of minimum standards under the TRIPS WTO agreement. Building on the growing research both in IP rights in preferential trade agreements and design law, this article looks at the IP chapters of EU agreements with third countries, assessing their deepness and the flexibility they maintain to uncover the trends of such design law internationalization. It evaluates how design rights, which have been seen in the past as less instrumental for business expansion abroad, compared to trademark right and copyright, start to be elevated as strategic tools for business internationalization
India’s Dilemma in Negotiating Rules on E-commerce in the WTO
Authors: Kaushik Atul
Published: April 2022

Seventy-six WTO Members, including all the major economies except India and South Africa have agreed to commence negotiations on e-commerce. The growth of e-commerce in India is among the fastest in the world and Indians see an opportunity of leapfrogging the technological and infrastructural barriers to become a leading e-commerce economy.

Apart from the moratorium on customs duties on electronic transmissions, not much progress has been made on trade rules relating to e-commerce in the WTO. Now with negotiations agreed upon by a large number of its Members, India has to take a call whether to join in or await a prepared text and accept or reject it. Trade rules are believed to be technologically neutral, and a number of existing agreements have rules that may apply to ecommerce, or give guidance for the way e-commerce shall be conducted under the WTO. India has also taken many steps to install necessary regulatory framework for ensuring a level playing field for e-commerce players at the national level. Still India is in a dilemma whether to join the negotiations. It is time for it to take the call now.
The Rule of Precedent and the Role of the Appellate Body
Authors: Bacchus James , Lester Simon
Published: April 2022

The crisis over appointments to the WTO's Appellate Body has been one of the most challenging conflicts the GATT/WTO system has ever seen, threatening to destroy a core institution of the world trading system. The Appellate Body has played a valuable role in dispute settlement, by providing a coherent set of jurisprudence to guide WTO Members as to the meaning of WTO law. The Appellate Body does not create formal "precedent," but nevertheless its reasoning in past cases serves informally to create expectations as to the meaning of the WTO agreements. The United States has objected to the Appellate Body's treatment of past rulings, arguing that the Appellate Body has elevated these rulings to "binding precedent." However, a careful reading of the language used by the Appellate Body to describe its views indicates that the Appellate Body has not done so. The U.S. objections are one part of its series of concerns justifying its blocking of appointments. Losing the Appellate Body over this dispute would be devastating to the WTO, and engagement on these issues must continue in good faith in order to find a resolution.

WTO Dispute Settlement, Appellate Body, Panels, Precedent, StareDecisis, Cogent Reasons, Rule of Law, Walker Principles
The EGA Negotiations: Why They Are Important, Why They Are Stalled, and Challenges Ahead
Authors: de Melo Jaime , Solleder Jean-Marc
Published: April 2022

Decade-long negotiations on the reduction of tariffs on Environmental Goods (EGs) at the Doha Round using a list approach to define EGs, failed to produce an agreement. In July 2014, fourteen countries entered plurilateral negotiations under the ambit of the WTO. If successful, the resulting Environmental Goods Agreement (EGA) would have eliminated tariffs on a list of EGs. These negotiations broke down in December 2016. This article documents this episode and the mercantilistic behaviour of negotiators that prevented agreement on an extended list of EGs, a prerequisite for a meaningful outcome for the environment.

A conclusion of the EGA negotiations under the current narrow agenda focusing only on tariffs could help build trust to go further but would be insufficient to help mitigate climate change, even if a critical mass were to be reached allowing extension of the tariff reductions to all WTO members. This is because average tariffs for the negotiating group are too low (1.5%). Extending the agenda to include Non-Tariff Barriers (NTBs) and Environmental Services (ESs) remains the acid test for an EGA to address meaningfully the climate change challenge. Reaching agreement on how to tackle NTBs and ESs will require delegating negotiating authority to independent scientific experts and probably modifying WTO rules.

Aligning the trade and climate regimes will call for transformational changes in the WTO contract to take into account transnational externalities and public goods. This would amount to a shift from the present negative contract where countries are free to choose their policies so long as they do not discriminate between domestic and imported goods to a positive contract where WTO members have to pursue similar climate-friendly policies.

Environmental goods, Environmental services, EGA, WTO, trade and environment,
Climate Change as a Security Risk: Too Hot to Handle?
Authors: Van Vaerenbergh Pieter , Hazarika Angshuman
Published: April 2022

Climate change has been considered as a security risk in political discussions. There has however been minimal discussion on whether climate change would qualify as a ‘national security issue’ in terms of the provisions of the GATT or international trade and investment agreements. This becomes crucial since countries across the globe have undertaken a number of measures to deal with the impacts of climate change or to fulfil their commitments with international treaties on climate change. In the future, states may be required to undertake measures to tackle sudden dangers arising from climate change which may threaten their territories or population. This gives rise to a strong possibility that countries may seek to justify these measures as being taken under the guise of a security risk which permits unilateral action. This article seeks to find out whether the ‘security exception’ clause in GATT (as interpreted in Russia – Traffic in Transit) and similar provisions in international trade and investment agreements could be used to justify measures taken to mitigate or tackle situations related to climate change, which then would be determined as a national security risk.

Climate change, security exception, GATT, investment agreements, FTAs, Article XXI GATT
Trade Remedy Rules for Digital Services: Inapplicability of GATT-type Safeguard Rules
Authors: Kim Nayung
Published: April 2022

Digitalization considerably complicates the application of previous trade remedy norms to the new and expanding digital services trade, and there is a need to reprioritize and restructure the existing framework to reflect this difference. Emergency safeguard is an essential element in the trade regime, but the classic concept of GATT-type safeguard measures that is based on a dichotomy of tariff and nontariff barriers and clear-cut rules between goods and services are not suitable for regulating the expanding digital services transactions where barriers tend to be much more diverse and less obvious. Hence, a new trade remedy framework must incorporate the elements of convergence, interconnectedness and externality, while taking a sectoral approach, as generic rules on trade remedies that cater to all possible scenarios and sectors are no longer suitable in these realms. It must prioritize rules-making on subsidies and domestic tax schemes, while also considering for issues specific to the digital features such as data flow restrictions and their implications.

Digital trade, digital services, trade remedy rules, emergency safeguard, GATT
Hurdles to Litigating Trade Defence Measures Before the EU Courts
Authors: Moroni Alessandra , Natens Bregt , Willems Arnoud
Published: April 2022

EU institutions often use trade defence measures to shield EU industries from competition. These measures come at the expense of importers and foreign exporting producers. The most feasible avenue for importers and exporting producers to obtain a practicable remedy is by challenging an adverse trade defence measure before the EU Courts. However, the EU Courts have adopted a strict approach to challenges to trade defence measures, which increasingly requires sophisticated litigation strategies to overcome multiple hurdles. First, the standing requirements to have a case admitted are stringent. Second, the burden to prove substantive or procedural errors in trade defence proceedings is high. Third, even if a case is successful, the EU Courts recognize that the EU institutions almost unbridled discretion in implementing judgments. These hurdles to litigating trade defence measures risk curtailing the role of the EU Courts in limiting the Commission’s powers in a way that maintains proper checks and balances. They also put on applicants the task to develop tools and arguments to address and overcome these hurdles.
How Should China Respond to Trump’s New Round of Trade War? An Unprecedented Debate Among Chinese IR Scholars
Authors: Meng Weizhan , Zeng Xinkai
Published: April 2022

The US-China trade war finally broke out in 2018 after more than a decade of gradual decline in bilateral relations. This article reviews the fierce debates among China’s most prominent international relations (IR) scholars and, respectively, some economists and business elites on various topics related to US-China relations, in particular, the trade war, from 2017 to 2020. Specifically, it addresses four topics: the causes for the decline in US-China relations, Beijing’s policy and strategy for dealing with Trump’s trade war, the impact of the ‘decoupling’ on China and the prospects for future bilateral relations. Intellectual elites try to influence government policies by participating in debates while the government also applies various means to influence scholars’ views and shape public opinion on the Internet. The article finds that Chinese scholars’ discussions on the trade war and Beijing’s policies were actually influenced by factors other than trade. If Washington adopts appropriate policies in the future, Beijing may still make concessions in the interests of the United States on trade and security issues.
Can the Appellate Body Be Saved?
Authors: Maruyama Warren H.
Published: April 2022

The ‘Walker Paper’ represents a commendable effort to find middle-ground on the World Trade Organization (WTO) Appellate Body, but does not address the US concerns about the Appellate Body’s overreaching in antidumping, countervailing duty, and General Agreement on Tariffs and Trade (GATT) Article XIX ‘escape clause’ disputes, and instead seizes on a series of half-hearted fixes to the long list of concerns in US Trade Representative’s (USTR’s) ‘Report on the Appellate Body of the World Trade Organization’. US concerns about overreaching date back to the Bush 43 and Obama Administrations and are rooted in the Appellate Body’s ‘zeroing’ line of cases. The concerns rest on the conviction of US trade officials who participated in the Uruguay Round negotiations and later served in the Bush 43, Obama, and Trump Administrations, that there was never a WTO agreement to abolish ‘zeroing’. This view was shared by the WTO Secretariat and WTO Panels and underpinned the contentious, decade-long impasse between USTR, the WTO Secretariat, and WTO Panels on the one hand, and the Appellate Body and Appellate Body Secretariat on the other. While the Appellate Body’s overreaching has multiple sources, one is its dismissive approach to negotiating history under Article 32 of the Vienna Convention, and obsessive reliance on the Oxford English Dictionary as a main source of meaning in interpreting the WTO Agreements. Had the Appellate Body taken a more respectful look at the Uruguay Round negotiating history, it would have found no support for efforts to read a broad prohibition on zeroing into terms that dated back to the Kennedy Round Antidumping Agreement, Tokyo Round Antidumping Code, and GATT 1947. The Appellate Body’s overreaching also appears to stem from hubris, as some Appellate Body Members have sought to make their mark on international jurisprudence or serve as saviours of the WTO system. While some in Geneva are clearly hoping the US concerns will disappear once the Biden Administration takes office, these concerns predated Ambassador Lighthizer by over a decade and are shared by both Republicans and Democratic Members of Congress. Accordingly, even if the new Administration were to seize on some variant of the Walker paper as an excuse to placate US allies and trading partners, it’s unlikely to offer a lasting solution, since the same problems will likely recur without serious systemic and structural reforms.

World Trade Organization, WTO, Appellate Body, Dispute Settlement Understanding, Dispute Settlement, Antidumping Agreement, Zeroing
EU Merger Control: From Birth to Adolescence
Authors: Levy Nicholas
Published: April 2022

On 21 September 1990, the Merger Regulation came into force, introducing into EU competition law a legal framework for the systematic review of mergers, acquisitions, and other forms of concentration. This article contains a short introduction to the Merger Regulation that: (1) explains the principal provisions of the Merger Regulation and describes the fundamental principles on which it is based; (2) identifies the main trends and developments in its application; (3) summarises the Merger Regulation’s implications for the practice of competition law in Europe; (4) identifies the main differences between EU merger control and the US process; (5) examines certain of the key developments in the Merger Regulation’s evolution and provides an historical overview of some of the leading decisions of the Commission and judgments of the Community courts; and (6) describes the principal elements and practical implications of the Commission’s December 2002 package of proposed reforms to the Merger Regulation. The article is an extract from a forthcoming book on the Merger Regulation, European Merger Control Law: A Guide to the Merger Regulation, which is scheduled for publication by LexisNexis Matthew Bender in June 2003.
Strategies to Reform the Regulations on International Competition
Authors: Conrad Christian A.
Published: April 2022

The question as to the form an international system on competition regulation should take has gained new importance recently due to increasing globalisation, and is heatedly discussed in academic circles. In this article a selection of the most important suggestions for reform of the international system of competition will be presented, comparatively analysed, and evaluated. Scherer’s strategy is awarded in total the highest points for net advantage. However, the comparison shows that there is a clear trade-off between the advantage gained and acceptance of the loss of sovereignty on the one hand, and the organisational expense on the other. It becomes clear that the current system of world trade must be supplemented by a system of competition; to which end a politically realisable common consensus will be formulated as an alternative solution to the undeniable demands for reform. The evaluation of the strategies is subjective to a good degree, because of the unavoidable choice of criteria and weighting system. The value of this analysis thus lies not so much in the end result in the form of a rating, but rather in the differentiated evaluation itself.
The Napp Case: A Study of Predation?
Authors: Allan Bill , Ahlborn Christian
Published: April 2022

The Napp decision was the first case in which the Director General of Fair Trading fined a company for abuse of a dominant position under the UK Competition Act 1998. The Competition Act introduced competition provisions into national law which mirrored those in the EC Treaty. Napp was charged with predatory pricing and excessive pricing. The heart of the Director’s case against Napp was the redatory pricing claim. He held that Napp had charged excessively low prices for its slow-release morphine product, MST CONTINUS (MST), to hospitals, specifically and consciously raising barriers to entry. Because hospitals were a gateway, according to the Director, Napp was ultimately able to foreclose sales to GPs and thereby to protect the excessive prices which it charged to GPs. On 30 March 2001, the Director imposed a fine of £3.21 million and gave directions to Napp to reduce its list price to GPs by at least 15 per cent, and to sell MST to hospitals at a price which amounted to at least 20 per cent of the list price to the GPs (requiring an increase of hospital prices, on average, of 280 per cent). Napp appealed the Director’s decision but the UK Competition Commission Appeals Tribunal (CCAT), in its judgment of 15 January 2002, largely upheld the Director’s decision. This article focuses primarily on the predatory pricing aspects of the Napp case. The following section addresses some of the more general economic and legal issues of predation, including a brief overview of the economic analyses and an evaluation of various legal tests for predatory pricing. The subsequent section deals with the Napp case. Following a summary of the facts and main legal arguments, we assess the approaches adopted by the Director and the CCAT.
Decentralised State Aid Control in an Enlarged European Union: Feasible, Necessary or Both?
Authors: Nicolaides Phedon
Published: April 2022

The European Union faces a problem of uneven implementation of its rules by national authorities. Agreement on common rules at the Community level does not necessarily translate into commitment by national authorities to apply those rules coherently and effectively. In this context, decentralisation of the existing system of State aid control is hardly considered. The issue, however, is not whether it should be decentralised or not but by how much. Theory and practice suggest that complete decentralisation of State aid control would be a recipe for disaster. On the other hand, as the European Union enlarges, as State aid policy becomes more codified, as State aid concepts become clarified by the courts and as State aid rules are modernised to take into account conditions in local markets, the case for some decentralisation becomes stronger. Some decentralisation will also create incentives for compliance with Community rules and reduction of State aid granted for political gains. This article analyses the various aspects of the problem and proposes a feasible division of tasks between the Commission and national State aid authorities.
The Decision of the European Court of Justice on Open Skies and Competition Cases
Authors: Abeyratne Ruwantissa
Published: April 2022

The open skies court judgments of the European Court of Justice relate to legal action brought by the European Commission seeking a declaration against eight member States which had signed bilateral air services agreements with the United States. The contention of the Commission was that the defendant Member States were in flagrance of their duty and obligations under Articles 10, and 43 in particular of the EC Treaty and that, according to EC law, only the Commission was competent, on behalf of its Member States, to conduct negotiations and to enter into agreements pertaining to market access and other related commercial aviation issues. While the Court refused to draw the inference that only the Commission could conduct negotiations and enter into agreements in the manner claimed, it brought to bear one clear principle in its judgments, that the traditional national ownership and control clauses of the bilateral agreements in question clearly eroded Articles 10 and 438 of the EC Treaty. It was the view of the Court that the clauses in question permitted the foreign party, i.e. the United States, to withdraw, suspend or limit operating licences or technical authorisation of an airline designated by the European States that were parties to the action if a substantial part of the ownership or effective control was not vested in that State or its nationals. These decisions may have far reaching consequences for the manner in which future competition laws and frameworks within the European Union may unfold. This article examines implications and possible scenarios in that context.
An Analysis of the Proposal to Decriminalize the Anti-competitive Pricing Practices Under The Competition Act
Authors: Collins Paul , Eatrides Vicky
Published: April 2022

On 23 April 2002, the Canadian Standing Committee on Industry, Science and Technology released a report containing twenty-nine recommendations for enhancing Canada's competition law regime, including, among other things, two significant proposals related to the criminal pricing practices under the Competition Act. One involves repealing the criminal offences of price discrimination, regional predatory pricing, predatory pricing and disproportionate advertising allowances and their replacement with amendments to the civil abuse of dominance provisions of the Competition Act. The Committee's second key proposal in this context is to repeal the price maintenance provision. Horizontal price maintenance would form part of an amended conspiracy provision, while vertical price maintenance would be added to an expanded abuse of dominance provision. The article sets out a brief overview of the rationale for the Committee's recommendations regarding the Competition Act's pricing provisions, as well as the Federal Government's response to the Committee's proposal. The authors review the history leading to the current pricing provisions as well as the scope of the current provisions themselves. In an effort to provide context for the Canadian competition law regime related to pricing practices, a brief consideration of the treatment of such practices by competition law authorities in Europe and the United States is provided. Following a consideration of the policy implications of decriminalizing the anti-competitive pricing practices under the Competition Act, the authors conclude that despite the compelling arguments in favour of decriminalizing provisions, these provisions cannot be amended in isolation. The article concludes that the effects of decriminalization are far-reaching and that many issues must be addressed prior to implementing the Committee's various recommendations. The authors suggest that undertaking an analysis of the broad policy implications arising from decriminalization is the approach most likely to produce a consistent and balanced policy for the future enforcement of the Competition Act's anti-competitive pricing provisions.
The New Technology Transfer Block Exemption: A Welcome Reform, After All
Authors: Pilola Anu , Dolmans Maurits
Published: April 2022

This article discusses the most important changes introduced at the final stage of the Commission’s review of the technology transfer block exemption regulation (``TTBER’’), and examines the benefits and the challenges of the new regulatory framework for technology licensing.

The new TTBER represents a significant improvement over the Commission’s draft TTBER, published in October 2003. Most importantly, the Commission agreed to revise the list of hardcore restrictions between competitors, which was over-inclusive and had the potential to seriously hinder technology licensing in horizontal agreements. In addition, the list of hardcore restrictions between non-competitors and the interpretation of ``know-how’’ (and thus the scope of the TTBER) were adjusted to reflect the comments submitted during the consultation period preceding the publication of the final TTBER. Significant changes were also made to the Guidelines, for instance, with respect to cross-licence agreements between competitors. Some difficulties remain in the final TTBER, mainly concerning the introduction of market share ceilings. However, on balance, the new TTBER can be considered to represent a desirable regulatory change. The final regulation promotes dynamic competition through innovation and contains a number of provisions that contribute towards a more liberal, flexible and economic oriented regulation of technology transfer agreements.
The European Commission’s Case Against Microsoft: Kill Bill?
Authors: Renda Andrea , Pardolesi Roberto
Published: April 2022

The recent decision issued by the European Commission against Microsoft raises legitimate concerns in many respects. Firstly, the way the Commission handled the proceeding highlighted the impasse that characterises antitrust authorities when dealing with complex cases from the high-tech world. Secondly, the Commission adopted an incorrect approach to interoperability, confusing it with perfect emulation of Microsoft’s copyrighted source code. Thirdly, the Commission showed little or no attention to the economics of technological leveraging in dealing with the media player market, and ended up awkwardly mimicking the rationale upheld by the US District Judge in the "browsers war". We conclude by calling for more sound economic analysis at the European Commission, and suggesting solutions which would significantly improve the level-playing-field in the server software and in the media player markets without hindering incentives to invest and consequently stifling innovation.
Refusal to Deal and ``Essential Facilities’’: Does Intellectual Property Require Special Deference Compared to Tangible Property?
Authors: Ritter Cyril
Published: April 2022

This article is based on the twofold premise that (a) refusal to supply cases such as Commercial Solvents and later ``essential facility’’ cases belong to the same line of case-law, meaning that a ``first-time refusal’’ and the termination of an existing supply relationship should be treated under the same test; and (b) ECJ judgments such as Magill and IMS suggest that plaintiffs have to meet a stricter test in refusal to license cases than in cases involving a refusal to supply tangible products or to give access to a tangible facility. On this basis, I argue that it is unwise to treat refusal to license cases and refusal to supply cases under different tests. As part of the analysis, I confront the conventional view that a ``duty to license’’ necessarily has a negative impact on innovation. I provide several arguments to the effect that (a) the defendant’s innovation incentives are unlikely to be significantly affected by a legal rule on the duty to license; (b) industry-wide innovation may actually benefit from such a rule; and (c) in any event, one cannot assume that dynamic efficiency considerations always trump immediate gains in static efficiency
EU Competition Policy, Vertical Restraints, and Innovation: An Analysis from an Evolutionary Perspective
Authors: Vezzoso Simonetta , Kerber Wolfgang
Published: April 2022

The EU competition policy in regard to vertical restraints is mainly based upon neoclassical efficiency-oriented reasonings, leading to a neglect of the innovation dimension. This article analyses to what extent evolutionary theories of competition and innovation economics can be used to derive additional new criteria for the assessment of vertical restraints. It is shown that Neo-Schumpeterian and Hayekian approaches to competition and innovation economics as well as knowledge-based theories of the firm are capable of providing a basis for a different framework for analysing the impact of vertical agreements. Specific evolutionary arguments, such as subjective and local knowledge, the heterogeneity of knowledge bases of firms, communication and learning problems, and the complementarity of knowledge (systemic innovations) can be used for deriving additional, new assessment criteria for vertical restraints. Particularly important is the consideration of the impact of vertical restraints on competition as a process of experimentation with new products, services, and retail formats. The analysis is made against the background of the most recent reforms of EU competition rules in regard to vertical restraints (especially the new Block Exemption Regulation in the motor vehicle industry). This article also shows how evolutionary approaches to competition and innovation might be used for deriving new, additional criteria for competition policy in general.
Implementation of the International Competition Network’s Recommended Practices for Merger Review: Final Survey Report on Practices IV-VII
Authors: Campbell Neil , Rowley J. William
Published: April 2022

The International Competition Network has adopted thirteen Recommended Practices for Merger Notification and Review Procedures. The purpose of these non-binding Recommended Practices is to facilitate convergence among competition agencies around best merger review practices. To assess and promote progress in this regard, the Merger Streamlining Group commissioned two surveys of competition agencies and private law firms in all ICN member jurisdictions. The first, carried out in 2003, found very mixed levels of compliance with the ICN’s initial three Recommended Practices. In 2004 a second survey was undertaken to measure implementation of the ICN’s next four Recommended Practices relating to Review Periods, Requirements for Initial Notification, Transparency and Review of Merger Control Provisions. This article reports on the 2004 survey, which found that achieving implementation continues to be a significant challenge notwithstanding the momentum arising from the unanimous adoption of the Recommended Practices. The analysis points to numerous opportunities for ICN members to bridge the gap between adoption and implementation.
Moving Towards a Template for Bilateral Antitrust Agreements
Authors: Galloway Jonathan
Published: April 2022

Bilateral antitrust co-operation agreements are gradually becoming more prevalent in international antitrust. These agreements arguably constitute the principal tool for avoiding conflict in international antitrust given the absence of international antitrust rules. The same motivation that drives countries to conclude bilateral antitrust agreements, such as efficient and effective enforcement, could also provide the stimulus for multilateral antitrust initiatives yet does not. Countries have consistently placed greater emphasis on bilateral agreements than on multilateral initiatives such as the OECD Recommendations; often arguing that bilateral agreements reflect the specific relationship between signatories and thereby facilitate greater co-operation than a multilateral agreement could. This article engages in a comparative analysis of the principal antitrust co-operation agreements to assess whether bilateral agreements do reflect specific relationships; i.e. whether there is such a justification for not pursuing multilateral initiatives. Immediately apparent is that most bilateral antitrust agreements implement key principles, i.e. notification; enforcement co-operation and co-ordination; and primacy of domestic law. The article assesses whether the substance of these principles varies between the agreements, and concludes that a large amount of convergence has already taken place. Indeed, the article argues that the convergence achieved suggests that international antitrust has moved very close to a template for co-operation in international antitrust, and questions the rationale for the lengthy negotiation periods and the reluctance to pursue multilateral initiatives.
Commitment Decisions: The Law and Practice under Article 9
Authors: Cook Christopher J.
Published: April 2022

Article 9 of Regulation 1/2003 introduced a new kind of settlement decision, by which companies’ commitments to the Commission are made legally binding. The commitment decision is a welcome addition to the range of possible resolutions of Article 81 and 82 EC investigations: in principle, settlement represents a cheaper and faster way of addressing the harmful effects of anticompetitive conduct. Notwithstanding its attractions for companies and regulators, however, in the nearly two years since Regulation 1/2003 has been in force the Commission has issued only two final commitment decisions. The process thus remains novel, and significant questions have not been addressed. This article summarises the procedural and substantive rules governing Article 9 commitment decisions and offers some reflections on practical issues that have arisen or seem likely to arise in connection with the new settlement process. On the procedural side, it relates practical experience with the main steps of the Article 9 process and highlights the process’s relative lack of procedural safeguards for companies. On the substantive side, it explains the legal effects of a commitment decision on the decision’s addressees, on third parties, and on national competition authorities and courts. In particular: it outlines the extent to which commitment decisions may be appealed; details how far an EC commitment decision will protect the addressees against future challenge of related conduct by third parties or national authorities; and explains why commitment decisions must be treated with caution since they may tend to create a false impression of setting forth definitive legal rules, which they cannot do.
Behavioural Remedies in EC Merger Control - Scope and Limitations
Authors: Ezrachi Ariel
Published: April 2022

Behavioural remedies provide the competition agency with flexibility and reversibility which are not usually found in structural remedies. On the other hand, behavioural remedies tend to generate uncertainty and costs, casting doubt upon their usefulness and reflecting their alleged inferiority. The following article explores the scope and limitations of behavioural remedies and questions whether they are used adequately in light of their potential role in conditional clearances of merger transactions. The discussion first focuses on the characteristics, benefits and drawbacks associated with behavioural remedies. It then moves on to consider which incentives may affect the negotiation of remedies and how the risk of “under-fixing” influences the competition agency’s position when assessing proposed commitments. Following this theoretical debate, the discussion shifts to the European merger regime and reviews the way in which the European Commission and Courts have shaped the scope of behavioural remedies. The range of behavioural remedies accepted by the European Commissions and their effectiveness are also considered together with the mechanisms used to facilitate their monitoring and enforcement. The article concludes with a discussion of the likelihood of behavioural remedies being used more prevalently in the future and the factors that could influence such direction.
When Parents Pay for their Children’s Wrongs: Attribution of Liability for EC Antitrust Infringements in Parent-Subsidiary Scenarios
Authors: Givaja Angel , Montesa Aitor
Published: April 2022

A correct attribution of liability for EC antitrust infringements is an essential part of the European Commission’s enforcement policy. This issue has become increasingly critical for companies involved in cartels and other antitrust violations. In particular, the potential consequences of the parent company being found liable for infringements by its subsidiary might represent a difference of several millions of euros in the final fine that the Commission might impose in its decision penalizing the antitrust infringements. This article provides a succinct legal analysis of the elements taken into account by the Commission when deciding whether to attribute liability to parent companies for infringements by their subsidiaries, as well as the stance taken on this matter by the Court of First Instance and the European Court of Justice. Despite this body of case law, there are still a number of issues that have been left unresolved, and the kind of (negative) evidence that a parent company must adduce in order to be relieved from the unlawful conduct of its subsidiary is far from clear. This article has been shortlisted for the 1st World Competition Young Writer Award.
Optimal Fines in Cartel Cases and the Actual EC Fining Policy
Authors: Camilli Enrico Leonardo
Published: April 2022

Based on the main results of the economics of punishment, an analysis of the elements necessary to set the optimal fine is carried out with specific reference to the hard-core cartels. Even though the lack of data hinders the exact application of the theoretical framework in the real world, it can still provide useful guidelines. Fining policies may be evaluated with regard to the achievement of the highest deterrent effect at the lowest possible costs In particular, with regard to the EC practice on fines, a possible source of inefficiencies could have been the “qualitative approach” lying behind the 1998 Guidelines. Once a deterrent sanction has to be set within the legal ceilings, the actual effect of the infringement (or a proxy of it) has to be taken into account, leaving aside the tendency to stick to legal categories. Moreover, if the methodology of such an assessment is clearly made public, the danger of uncertainty is wiped away, whereas legal categories have to be stretched in order to achieve results consistent with the deterrent aim and the proportionality constraint, with a consequent loss of transparency. The recent 2006 Guidelines on fines represent a major step forward on that matter. This article has been shortlisted for the 1st World Competition Young Writers Award.
The Development of the Concept of Collective Dominance in the ECMR. From its Inception to its Current Status
Authors: Kokkoris Ioannis
Published: April 2022

This article analyses how the concept of collective dominance is applied in the case law of the European Control Merger Regulation and how the assessment criteria have been developed through this case law precedence. In spite of the extensive development of the notion of collective dominance accompanied by the improvement of the checklist of the criteria on which the European Commission founds its assessment of collective dominance, legal uncertainty still remains.

The CFI judgment in the Airtours case constitutes a clear indication that legal uncertainty is not likely to fade. In the aftermath of Airtours, reforms were adopted that included the adoption of the SIEC test as a more efficient tool in assessing collective mergers. The Airtours judgment outlined three criteria for the assessment of collective dominance, namely transparency, retaliation and countervailing power by customers and competitors. The IMPALA judgment, the first annulment of a clearance decision, implies a lower threshold for collective dominance than the Airtours judgment set.

This article will present an extensive account of the development of the concept of collective dominance under the ECMR. It will assess the factors that make a market conducive to collective dominance and determine the criteria that need to be applied by authorities in the assessment of mergers leading to collective dominance.
European Antitrust in Search of the Perfect Fine
Authors: Manzini Pietro
Published: April 2022

This article sets out to verify if and to what extent the 2006 Guidelines allow the Commission to set fines that effectively deter firms from engaging in anticompetitive practices. The first two sections present a standard economic analysis of the optimal sanction. The results of this analysis are then compared with the fine setting methods of the 1998 Guidelines and, to a deeper extent, the 2006 Guidelines. Thereafter three main conclusions deriving from this analysis are discussed. First, the method adopted in the new Guidelines seems more economically oriented in comparison to the previous one but does not completely follow the optimal sanction approach. Moreover, the new Guidelines now use a gain based fine as opposed to a harm based one. Second, the 2006 Guidelines regard factors such as the offender’s personal behaviour and psychological attitude as relevant to determining the fine as well as objective factors such as the offender’s gain or harm to society. Third, the 2006 Guidelines are capable of setting a fine at the optimal level of deterrence, even though they apply a different method. This level, however, is not possible when a fine exceeds 10 per cent of a firm’s total turnover, which is the fine’s legal maximum as provided by Regulation 17 and reconfirmed by Regulation No. 1/2003.
Taking Care of Modernisation After the Startup: A View from a Member State
Authors: Bruzzone Ginevra , Boccaccio Marco
Published: April 2022

A complex architecture, based on multi-channel and multi-level enforcement of Articles 81 and 82 requires special care to ensure the internal consistency of the regime. This article, based on the Italian experience, identifies some challenges that must be met to ensure an effective operation of the modernisation system after its start-up.

As for private antitrust enforcement, the authors suggest national rules of jurisdiction limiting the number of competent courts, as well as keeping a strict conceptual distinction between the roles of fines and damages.

Modernisation was accompanied by emphasis on priority-setting, with an increasing focus on consumer protection. An accurate jurisdictional review of competition authorities’ decisions may help to avoid the risk of a goal-oriented competition policy going beyond the boundaries and changing antitrust law into something different, with a more regulatory flavour.

Finally, since the system does not provide for national decisions in application of Articles 81 and 82 to be challenged before Community courts, the effectiveness of the internal mechanisms for ensuring legal certainty and consistency is of the utmost importance. The arrangements provided in the modernisation package may require some refinement.
The Use of Settlements in Public Antitrust Enforcement: Objectives and Principles
Authors: Wils Wouter P. J.
Published: April 2022

This article discusses two general questions concerning the use of settlements in public antitrust enforcement,namely under which conditions the use of settlements contributes to optimal antitrust enforcement, and under which conditions self–incrimination and waivers of procedural rights by settlement candidates are compatible with fundamental rights of defence. The discussion of these general questions will be illustrated with the specific example of the two settlement procedures for the enforcement by the European Commission of the antitrust prohibitions contained in Articles 81 and 82 EC, namely the commitment procedure under Article 9 of Regulation 1/2003, and the new settlement procedure in cartel cases.

This online article has updated information in the printed version.
A Proposed Test for Separating Pro–competitive Conditional Rebates from Anti–competitive Ones
Authors: Geradin Damien
Published: April 2022

While the granting of rebates is a common commercial practice largely used by dominant and non–dominant fi rms, the assessment of rebates is one of the most complex and unsettled areas of competition law. In the EU, the decisional practice of the European Commission and the case–law of the Community courts have been harshly criticized as unnecessarily strict, following a form–based approach that sits uneasily with modern economic theory. In response, DG COMP published in December 2005 a Discussion Paper that promotes an effects–based approach to the assessment of rebates. This approach was recently confi rmed in the Guidance Paper of the Commission on Article 82 EC published by in December 2008. US courts have generally shown greater deference to conditional rebates adopted by dominant fi rms, but the case–law remains unsettled, notably in the area of bundled rebates. Against this background, this paper proposes an analytical framework, based on a three–step test, designed to separate pro–competitive rebates from anticompetitive ones. A particular emphasis will be placed on the treatment of single product “retroactive” rebates, which create complex issues.