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Abstract:
The first prong of Article 82 of the EC Treaty, which prohibits abuses of a dominant position, requires, prior to the identification of abusive behaviour, evidence that the firm under scrutiny enjoys a dominant position. Surprisingly, this issue seems to be sometimes overlooked. Enforcers, practitioners and scholars have recently paid greater attention to the concept of abuse than to the question of dominance when discussing Article 82 EC. This should not, however, be interpreted as a sign that the law of dominance is clear. Quite to the contrary, the concept of dominance raises a wide array of questions which are discussed in the sections that follow.

abuse of dominance, antitrust, EC competition law, market definition, barriers to entry, vertical integration, network effects, essential facilities, collective dominance, buyer power, economies of scale, economies of scope

Abstract:
Price discrimination is one of the most complex areas of EC competition law. There are several reasons for this. First, the concept of price discrimination covers many different practices (discounts and rebates, tying, selective price cuts, discriminatory input prices set by vertically-integrated operators, etc.) whose objectives and effects on competition significantly differ. From the point of view of competition law analysis, it is thus not easy to classify these practices under a coherent analytical framework. Second, there is a consensus among economists that the welfare effects of the (various categories of) price discrimination are ambiguous. It is hard to say a priori whether a given form of price discrimination increases or decreases welfare. The response to this question may indeed depend on which type of welfare standard (total or consumer) is actually pursued. Moreover, even if one agrees on a given standard, the welfare effects of discriminatory prices generally depend on factual issues, such as whether it increases or decreases total output. Third, the exact scope of Article 82(c), the only Treaty provision dealing with discrimination, is not entirely clear. While the European Commission (hereafter, the Commission) and the Community courts have applied Article 82(c) to many different practices, there are good reasons to believe that this provision should be applied to a limited set of circumstances, most forms of discrimination being adequately covered by Article 82(b) or other provisions of the Treaty.

Against this background, the main objective of this paper is to throw some light on the compatibility of price discrimination with EC competition law. In order to do so, this paper does not seek to propose a grand unifying theory that would provide a single test offering a way to distinguish between practices compatible and incompatible with the EC Treaty. Instead, we offer an analytical framework which distinguishes between different categories of price discrimination depending on their effects on competition. Different tests may thus be needed to assess the compatibility of the practices belonging to these categories with EC competition law. Another objective of the paper is to show that Article 82(c) should only be applied to the limited circumstances where a non-vertically integrated dominant firm price discriminates between customers with the effect of placing one or several of them at a competitive disadvantage vis-a-vis other customers (secondary line price discrimination). In contrast, Article 82(c) should not be applied to pricing measures designed to harm the dominant firm's competitors (first line price discrimination) or to fragment the single market across national lines. As will be seen, relying on Article 82(c) to condemn such practices goes against the letter and the spirit of this provision and may also apply a wrong test to such practices. It is also not necessary since other Treaty provisions can be used to achieve this objective.

Price discrimination, efficiency, antitrust, EC competition law, consumer welfare, abuse of dominance, monopolization discounts, rebates, selective price cuts, tying

Abstract:
Article 230 EC allows any natural or legal person to “institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former”. Private parties thus frequently rely on this provision to challenge acts adopted by the European Commission (hereafter the “Commission”) in accordance with the powers granted to it in the field of competition law. While this particular subject has generated extensive scholarly analysis, the last decade of reforms of EC competition law – often cited as the “modernisation” process – makes it particularly necessary to re-examine this topic. Two major developments in the field of competition law give rise to novel and complex questions with regard to judicial review pursuant to Article 230 EC.

First, the reforms introduced by virtue of the modernisation of the implementation of EC competition rules have generated a proliferation of new acts whose legal character (and therefore by implication the possibility to challenge these new acts before the European Court of Justice – hereafter, the “ECJ” – and the Court of First Instance – hereafter, the “CFI”) is not necessarily clear. This is the case, for example, of the multitude of soft law instruments (notices, guidelines, etc.) which the Commission adopted with a view to clarifying its decisional practice, as well as new binding acts envisaged by Regulation 1/2003 such as findings of inapplicability and decisions to remove a case from a National Competition Authority.

Second, the increased emphasis on the use of economic analysis following the successive reforms of the rules pertaining to horizontal and vertical agreements and merger control has transformed competition law into a technically complex subject matter whereby economists are stealing a lead over lawyers. The corollary of this development could be to limit the scope of judicial review exercised by generalist EC and national courts. Indeed, faced with having to make complex evaluations involving the weighing up of anti-competitive restrictions and efficiency gains, the generalist judge could quickly find himself lost. Therefore, the more opaque and complex a particular case is, the wider the Commission’s discretion in its decision making becomes. Certain recent judgments of the CFI concerning the annulment of Commission prohibition decisions in merger control, however, put this danger into perspective.

Apart from the above-mentioned developments, it is equally worth highlighting the proliferation of litigation running in parallel to annulment actions. Such litigation calls for, first and foremost, a re-examination and revision of the fines imposed by the Commission under Articles 81 and 82 EC. Subsequent to successful annulment actions, such litigation also encompasses actions for compensation of the losses incurred by the firm(s) subjected to unlawful Commission decisions. The recent case Holcim v. Commission or the request lodged by Mytravel after the Airtours judgment illustrate the development of such litigation in the field of competition law.

Against this background, the developments that follow intend to provide a critical analysis of annulment actions against Commission decisions in the field of competition law in the aftermath of the modernisation process. This study is made up of seven parts. Part II identifies those acts that can be the subject of an annulment action within the meaning of Article 230 EC. Part III reviews and analyses the rules laying down who is entitled to initiate an annulment action. Part IV recalls the modalities for an annulment action. Part V evokes the parallel actions (revision of fines) and subsequent actions for indemnity following an annulment action. Part VI evaluates the effectiveness of the Community annulment action procedure in the light of the principles laid down by the CFI and ECJ as regards judicial review. Part VII provides a brief conclusion.

judicial review, remedies, antitrust, competition law, EC, standing, European Commission, litigation, enforcement, damages

Abstract:
In this paper we analyse institutional issues of common interest to the National Regulatory Authorities (NRAs) and the European Agencies (EAs) created under the impulsion of EC law. Both sets of bodies are examined through the lenses of three institutional regulatory parameters, i.e. (i) the jurisdictional level at which agencies should be placed (EU vs. national), (ii) the degree of homogeneity/heterogeneity that is desirable among agencies, and (iii) the state of compliance with principles of good governance. On the basis of this analysis, we argue that there is some scope for significant reforms. While the creation of NRAs and EAs can be seen as a positive development of EC law, the methods of functioning of these agencies and the way they are organised could largely be improved, in particular with regards to principles of good governance.

Agencies, regulation, European Union, governance, accountability

Abstract:
The present paper reviews in a plain language and with only limited statistical formalization, the virtues of econometrics in the field of competition law. Following a brief introduction to the origins of econometrics, we explain first that econometrics provides assistance to decision-making in a variety of fields (merger control, abuse of dominance, etc.). Second, we show that econometrics also constitute a decision-reading instrument, which may assist competition agencies, courts, firms and their counsels in understanding the content of the law. The econometric models discussed in the paper are illustrated by examples coming from well-known legal cases. Our conclusion is that in light of the novel sophisticated issues arising in antitrust enforcement (damages estimation, etc.), the nascent "econometrics of competition law" exhibit promising features.

Econometrics, competition law, antitrust law, mergers, abuse of dominance

Abstract:
For a number of reasons - notably its limited administrative resources - the European Commission (the Commission) seems to be relying increasingly on methods of competition law enforcement based on informal pronouncements (press releases, oral statements, etc.) and soft law instruments. Surprisingly, and in stark contrast with the extensive body of literature devoted to the Commission's more muscular enforcement initiatives under Articles 81 and 82 EC and the EC Merger Regulation (the ECMR), the pervasive use of soft law and informal legal instruments in European Community (EC) competition policy has gone relatively unnoticed.

In our view, these alternative mechanisms of competition law enforcement raise many important legal questions - not only theoretical but also of very significant practical relevance. For instance, is compliance with such instruments mandatory? Are they amenable to judicial review? Can they introduce new legal standards that depart from established case-law? To what extent can they be relied upon as a reference for competitive assessments, etc.?

The aim of this article is therefore to provide a broad picture of the various formal and informal instruments through which the Commission carries out the soft enforcement of EC competition rules. We refer to them as sunshine enforcement instruments and explain the reasons behind this label in Section I. We then provide a typology of those various instruments in Section II. Finally, we explore their advantages and drawbacks in Sections III and IV respectively. Section V concludes.

Competition Law, Enforcement, Soft law, Informal Pronouncements, Follow-on Actions

Abstract:
This paper seeks to provide a critical assessment of the efforts made by the EC to stimulate the development of competition laws in the Mediterranean countries with which it is engaged in partnership agreements. It reviews the content of the competition provisions of the association agreements, as well as their effectiveness. In then examines the regular calls for convergence on the EC competition law model to which Mediterranean countries are object. There is indeed room for debate regarding the opportunity, as well as the nature of such convergence. The paper concludes that a deep convergence approach, whereby the non-candidate Partner countries would transpose EC competition rules in their domestic legal order, would provide many benefits for both the EC and these countries.

Antitrust, competition, development, infrastructure

Abstract:
The main objective of this paper is thus to examine the state of adoption and implementation of competition rules in the 12 Mediterranean countries (the "Euromed countries") engaged in association agreements with the EC in the framework of the Barcelona Declaration of November 1995. Indeed, these agreements not only contain trade related provisions, but also include competition rules. Moreover, independently of the association agreements, some Euromed countries have decided to adopt domestic competition law regimes. A related objective of this paper is to discuss why adoption of competition law regimes is important in emerging economies, in particular as a necessary component of the market-opening reforms undertaken by a number of Euromed countries in the area of network industries (telecommunications, postal services, energy, and transport). Competition rules have played a very important role in the liberalisation process in the EC. There is every reason to believe that competition rules could play a similarly important role in the Euromed countries that have engaged in the liberalisation of their network industries.

Antitrust, regulation, competition, development, network industries

Abstract:
The present article seeks to assess the degree of judicial scrutiny performed by French courts when reviewing National Competition Authorities ("NCAs") and National Regulatory Authorities ("NRAs") decisions in the aftermath of the seminal ruling handed down by the European Court of Justice (the "ECJ") in Commission vs. Tetra Laval.

In this judgment, the ECJ considered that the European Community ("EC") courts should refrain from engaging in a de novo assessment of the decisions adopted by the European Commission (the "Commission"), when enforcing EC competition rules and, arguably, in other fields such as sector-specific regulation.

In light of the general duty of Member States to fully ensure the effet utile of EC legislation, the question arises whether the Tetra Laval standard of judicial review promoted by the ECJ has been endorsed by national courts, when reviewing decisions of NCAs and NRAs. Indeed, the equally ranking principle of procedural autonomy implies that national legal orders should remain free to decide the degree of judicial scrutiny applicable to decisions from national regulators.

The present article examines whether the French courts have drawn inspiration from the ECJ's moderate standard of judicial review in Commission vs. Tetra Laval, or if, on the contrary, a stricter standard prevails under French law. To that end, it is divided into four sections, which follow a chronological approach. The first section provides an overview of the specificities of the French judicial review system in the pre-Tetra Laval world (I). As in the French judicial system many courts have jurisdiction over regulators' decisions, it seeks to clarify who judges the regulators, the judicial remedies available to regulated entities and the degree of judicial scrutiny traditionally exercised over regulators' decisions in the pre-Tetra Laval period.

The second section offers a brief analysis of Commission vs. Tetra Laval where the Court introduced a new standard of judicial review different from that found in previous case-law. It argues that the ECJ's judgment marks a striking piece of judicial deference towards regulators' decisions (II).

The third section determines whether the Tetra Laval judgment has impacted on the degree of judicial scrutiny applied in practice by French courts when reviewing regulators' decisions in the areas of competition law (including merger control and antitrust) and sector-specific regulation (III). We find that French courts have not followed the Tetra Laval ruling in the area of competition law, and, to the contrary, that they scrutinize intensively the procedural aspects but also the merits of the NCAs' decisions. By contrast, French courts display a much higher degree of deference with respect to NRAs' decisions in the field of sector-specific regulation.

The fourth section offers a brief conclusion (IV).

Judicial Review, National Courts, France, Competition Law, Sector Specific Regulation

Abstract:
It has become conventional wisdom to view the rulings handed down by the CFI in Airtours, Schneider, Tetra Laval and Impala as unprecedented setbacks for the European Commission ("the Commission") that would usher in a new era of administrative accountability in the field of merger control. However, several commentators still consider that the Commission regretfully enjoys a de facto power of "life or death" over notified mergers, and that judgments striking down its decisions are unlikely to change much in practice. Parties to a blocked merger generally abandon their projects following the Commission's decision, irrespective of the outcome of the actions they may subsequently bring before the EC Courts (e.g. the Airtours/First Choice or Schneider/Legrand mergers). Third parties - competitors or consumers - to an illegally approved merger have little prospect of inducing the Commission to unscramble a consummated transaction (e.g. the Sony/BMG merger).

This unsatisfactory state of affairs has led practitioners to explore other legal avenues to hold the Commission accountable for its mistakes. One such possible means of redress is to resort to Article 288 EC which provides that the EC shall "make good any damage caused by its institutions". Where an EC institution such as the Commission is found liable for such damage, Article 235 EC grants the Community Courts jurisdiction to award compensation In light of the virulence of some of criticism directed at the Commission by the CFI in the Airtours and Schneider/Legrand judgments, the parties to those mergers initiated proceedings against the Commission, seeking compensation for the unlawful prohibition of their proposed mergers.

These actions drew enthusiastic reactions from certain EC competition law experts which, upon close examination, appear unjustified. The legal avenue provided for by Article 288 EC is most likely a procedural dead-end. First, from the applicants' perspective, the conditions under which the Commission's liability can give rise to a right to compensation in the field of merger control are set so high by existing case-law that most Article 288 EC claims are likely to be dismissed as unfounded. Second, from a public policy standpoint, Article 288 EC does not constitute an adequate instrument to improve the Commission's accountability for its unlawful decisions.

Merger, non contractual liability, competition law

Abstract:
The purpose of the present article is to offer thoughts on the “Guidance Communication on the Commission’s Enforcement Priorities in Applying Article 82 of the EC Treaty” and, in particular, to review the requirements which the Commission must meet in Article 82 EC cases when it purports to apply the Communication’s economics-oriented, effects-based approach. In addition, this article seeks to assess whether the Communication’s effects-based approach really entails a paradigmatic shift towards increased competition economics, comparable to the (r)evolution that has taken place in other areas of EC antitrust enforcement since the early 2000. It comes to the conclusion that whilst the Communication marks a welcome economic sophistication of the Commission’s Article 82 EC enforcement policy, it nonetheless often fails to go beneath the surface of modern antitrust economics, and thus provide only limited guidance to firms and their counsels.

dominance, abuse, European Commission, guidelines, guidance, economics, effects-based approach

Abstract:
No study has so far systematically explored the legal consequences arising from the formal release of a judgment by the European Court of Justice ("ECJ") and the Court of First Instance ("CFI"). Yet, a cursory examination of the case-law indicates that ECJ and CFI judgments trigger a myriad of legal implications over time (ratione temporis), over parties and third parties (ratione personae) and raise difficult implementation issues. A judgment rendered in the field of EU tax law may, for instance, give rise to a right to reimbursement of the unlawful national tax scheme as well as to a claim for damages against a Member State.

Our paper seeks to fill this gap in legal literature. First it reviews the direct effects (res judicata, etc.) of the most common types of ruling adopted by the ECJ and the CFI. We mainly focus on judgments rendered over annulment actions, infringement proceedings against Member States and in the context of the preliminary ruling procedure (I). Second, we elucidate in a consistent fashion the various indirect effects arising from those decisions and, in particular, the right to obtain reimbursement, the possibility to recast binding national court decisions and the ability to claim damages against the European Community or Member States (II).

European Law, Court of Justice, Court of First Instance, Legal Implications, Res Judicata

Abstract:
The present paper discusses whether the market share threshold enshrined in Regulation 2790/1999 allows to draw correct inferences on the foreclosure risks arising from single branding and exclusive purchasing obligations in the context of vertical relationships. As far as the customer foreclosure risks arising from single branding are concerned, it comes to the conclusion that Regulation 2790/1999 wrongly focuses on the market share of the seller and should concentrate on the market share of the acquirer. Symetrically, in so far as the input foreclosure risks arising from exclusive purchasing are concerned, Regulation 2790/1999 should focus on the market share of the seller. In the context of the upcoming review of the rules applicable to vertical agreements, the European Commission should seek to address this problem.

Vertical agreements, single branding, exclusive purchasing, markets share, threshold, Regulation 2790/1999, foreclosure

Abstract:
To date, the European Commission has not yet made use of the novel guidance instruments established under Regulation 1/2003 (Article 10 inapplicability decisions, guidance letters, etc.), or taken any exemption decision pursuant to Article 81(3). The "brave new world" of Regulation 1/2003 is thus a competition enforcement system devoid of individual guidance and positive decisions. That is not to say, however, that firms have been left without formal guidance. In early 2004, the Commission issued Guidelines on Article 81(3), which set out the methodological and substantive framework for the self-assessment of agreements under Article 81(3). The present paper paper offers a critical review of those Guidelines and explains why, in practice, firms and their counsels have repeatedly argued that this text is unpractical and thus of little use.

Competition law, Guidelines, Article 81, economics, guidance, agreements

Abstract:
The purpose of this paper is to assess the risks that result from the mushrooming of regulatory authorities at the national level alongside the increased reliance on national competition authorities in the EC. Both sets of institutions have, to a certain extent, overlapping duties and competences. Therefore, they become increasingly procedural subsitutes for complainants. To avoid the risks of multiple proceedings and regulatory inconsistencies between the two sets of bodies, a variety of mechanisms have been adopted at the EC and national levels. The paper seeks to provide a brief account of these mechanisms and to show that they do not eradicate the risks of multiple proceedings.

competition, authorities, regulatory, sector specific regulation, EC

Abstract:
The main objective of this article is to shed light on the compatibility of price discrimination with EC competition law. We offer an analytical framework which distinguishes between different categories of price discrimination depending on their effects on competition. Our framework suggests that different tests are needed to assess the lawfulness of price discrimination practices under EC competition law. A related objective of the article is to show that Article 82(c), the main Treaty provision dealing with price discrimination, should only be applied to the limited circumstances where a non-vertically integrated dominant firm price discriminates between customers with the effect of placing one or several of them at a competitive disadvantage vis-a-vis other customers (secondary line injury price discrimination). In contrast, Article 82(c) should not be applied to pricing measures designed to harm the dominant firm's competitors (first line-injury price discrimination) or to partition the single market across national lines.