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Abstract:
The recent decision issued by the European Commission against Microsoft raises legitimate concerns under many respects. First, the way the Commission handled the whole proceeding highlighted all the impasse that characterizes antitrust authorities when dealing with complex cases from the high-tech world. Secondly, the Commission's decision adopted a mistaken 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 what possible solutions could have been endorsed, 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.

Antitrust, intellectual property, Microsoft, interoperability, technological leveraging, essential facility

Abstract:
Price squeeze abuses lie at the crossroad between different forms of potentially anticompetitive conduct, as well as between antitrust law and regulation. The main question that has arisen in the academic debate and actual practice is whether a combination of a lawful wholesale price and a non-predatory retail price can be characterized as exclusionary conduct based on the analysis of the margin between the two prices. In the paper, we argue that there is no need for a separate price squeeze theory under antitrust law. Assuming that the costs of supplying an input to rivals and to internal downstream divisions do not differ, a price squeeze capable of excluding equally efficient competitors may arise only from upstream discrimination (discriminatory price squeeze) or downstream predation (predatory price squeeze). However, when the downstream division of the dominant firm is not a separate legal entity, distinguishing discriminatory and predatory price squeezes may turn out to be impossible, as internal transfer charges are absent in many concrete settings of vertical integration. In these cases, an analytical framework for the assessment of price squeeze cases can be useful, provided that it is intended as an operational tool aimed at detecting anticompetitive conduct of a discriminatory or predatory nature, which is not directly observable. Instead of mimicking regulatory tools and criteria, the analytical framework for the assessment of price squeeze cases should be construed in accordance with basic principles of competition law and traditional doctrines of antitrust liability. This approach strongly supports the application of principles on refusal to deal to price squeeze cases and the use of the equally efficient competitor test to ascertain whether a given pricing policy is anticompetitive.

Antitrust, Unilateral conduct, Monopolization, Abuse of dominance, Price Squeeze, Margin Squeeze, linkLine, Deutsche Telekom

Abstract:
Guido Calabresi proposed to replace the dominating paradigm of fault with simpler strict liability rules that put liability on the most appropriate actors (the cheapest cost avoiders). Assuming that the objective function of the tort system is the mimimization of the sum of the injury and injury avoidance costs associated with accidents (primary costs), risk-spreading costs (secondary costs), and administrative costs (tertiary costs), he suggested that the adoption of strict liability, targeted to specified activities, would achieve the goal of cost minimization. The core of an extremely richer message was that the cheapest cost avoider test would abate the administrative costs of courts. Moreover, the manufacturers’ ability to spread the costs of strict liability through the prices charged for their products would effectively insure product users against the risks of injury. This masterpiece of normative analysis has deployed an ever increasing influence on thinking about tort law, not only in the US but also in Europe. This paper aims to trace the impact of Calabresi’s ideas on Italian case-law.

cheapest cost avoiders, tort law, Italian case-law, Calabresi