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Abstract:
This study analyzes and contrasts the U.S. and EU antitrust standards on bundling (in its various forms) and tying. The analysis is applied to the U.S. and EU cases concerning Microsoft's practice of integrating (tying) new products (Internet Explorer in the U.S. and Windows Media Player in the EU) with Windows as well as to cases brought in Europe and in the United States on bundled discounts. We conclude that there are important differences between the EC and U.S. antitrust law on the choice of the relevant analogy for bundling and tying (for example, a predatory price test versus an anticompetitive foreclosure test). The two jurisdictions also differ in their interpretations of the requirement for anticompetitive effects, and, in particular, the analysis of foreclosure and consumer harm. It seems that, in Europe, consumer detriment is found more easily under Article 82 of the Treaty of Rome than under the Sherman Act in the U.S., or at least that the standard of proof for consumer harm in the E.U. appears lower. We advocate a unified test for bundling and tying that would focus on anticompetitive foreclosure and absence of objective justifications. The function of the distinct product element of the tying test should be reconsidered and the coercion element of the test should be abandoned.

tying, bundling, foreclosure, requirement contracts, monopolization, Microsoft, predatory pricing

Abstract:
The paper's starting point is that EC competition law does not draw any distinction between horizontal and vertical relations when it comes to the definition of the concept of agreement. This approach could make sense if vertical and horizontal agreements were considered as equally harmful to competition. However, since the enactment of Regulation 2790/99 and the emergence of a more economic approach in interpreting Article 81, EC competition law focuses less on the protection of the freedom of action of distributors and recognizes that vertical agreements may bring important efficiency gains from which the consumers may ultimately benefit. The concept of agreement, which is of little practical significance in cartel cases, has thus been interpreted restrictively so as to limit the scope of Article 81 with regard to vertical restraints. It is submitted that, while the aim of reducing the scope of Article 81 to vertical agreements may be legitimate, the formalistic approach currently followed by the courts in defining the concept of agreement under Article 81 EC is theoretically and practically flawed. The study will advance an alternative approach for the definition of the concept of agreement, in particular for vertical relations.

vertical restraints, contract, agreement, collusion, concerted practice, resale price maintenance, hub and spoke conspiracy

Abstract:
The study focuses on the admissibility and assessment of economic expertise in EC competition law litigation. I start by exploring the broader issues raised by the integration of economic expertise in litigation: in particular the risk of moral hazard and adverse selection because of the epistemic asymmetry between judges and experts and the risk of expert bias. The analysis of these problems will bring me to the question of the conception of science and of the relations between science and law that underpins the concept of scientific expertise and, more specifically, economic expertise. I will then identify the extent of the problem of epistemic asymmetry and expert bias by looking to the degree and the locus of the intrusion of economic analysis in competition cases. I will examine the instruments, procedural and substantive, employed by the legal system, in order to mitigate the risks flowing from the epistemic asymmetry and the expert bias claims. First, I will highlight the different institutional and procedural frameworks that were adopted at the European Union level and in some selected member states in order to integrate economic expertise in litigation. My objective will be to understand how these institutional solutions may address each of the identified problems. Second, I will look to 'substantive' law approaches in the adjudication of expertise, such as the development of specific standards for the admissibility and the sufficiency of economic expertise in courts, as an alternative or as an additional option to deal with the challenges raised by economic expertise. The paper will conclude that the possible adverse effects of the epistemic asymmetry and expert bias between judges and experts raise important concerns that the legal systems should tackle. The current procedural/institutional and substantive legal framework governing economic expertise does not however take sufficiently into account important concerns that are specific to economics and other social sciences, such as the preservation of the scientific 'competition' in the supply of economic theory and consequently methodological or assumptions-related pluralism in economic thought. In particular, I will argue against adopting specific standards of admissibility of economic expertise in Europe. This is a US context-specific solution which does not necessarily fit with the specific characteristics of the European legal system. It is also an approach that represents an outdated and partial view of the scientific as well as of the judicial adjudication process.

antitrust, competition law, evidence, economics, expertise, experts, Daubert, proof, admissibility, assessment of evidence, philosophy of science, methodology of economics

Abstract:
The Microsoft cases in the United States and in Europe have been influential in determining the contours of the substantive liability standards for dominant firms in US antitrust law and in EC Competition law. The competition law remedies that were adopted, following the finding of liability, seem, however, to constitute the main measure for the “success” of the case(s). An important disagreement exists between those arguing that the remedies put in place failed to address the roots of the competition law violation identified in the liability decision and others who advance the view that the remedies were far-reaching and that their alleged failure demonstrates the weakness of the liability claim. This study evaluates these claims by examining the variety of remedies that were finally imposed in the European Microsoft cases, from a comparative perspective. The study begins with a discussion of the roots of the Microsoft issues in Europe and the consequent choice of a remedial approach by the Commission and the Court. It then explores the effectiveness of the remedies in achieving the aims that were set. The non-consideration of the structural remedy in the European case and the pros and cons of developing such a remedy in the future are briefly discussed before more emphasis is put on alternative remedies (competition and non-competition law ones) that have been suggested in the literature. The study concludes by discussing the fit between the remedy and the theory of consumer harm that led to the finding of liability and questions a total dissociation between the two. We believe that it is important to think seriously about potential remedies before litigation begins. However, we do not require an ex ante identification of an appropriate remedy by the plaintiffs, since this could lead to underenforcement or overenforcement.

antitrust, remedies, Microsoft, complementarity, innovation, efficiency, monopoly, oligopoly, media player, interoperability, Internet browser

Abstract:
The vertical/horizontal distinction is an important feature of modern competition law.This paper will first examine the genealogy of the vertical/horizontal dichotomy in the United States (US) and in European Communities (EC) competition law. It will then analyse the application of the dichotomy in situations of hybrid practices, dual distribution practices, and private labels, where the relation between the supplier and the distributor presents a vertical and a horizontal dimension. The vertical/horizontal dichotomy may find its limits in these situations. After highlighting the reasons and distinct principles that led to the formulation of these specific categories, the study will delve into the utility of the vertical/ horizontal dichotomy and will suggest alternative interpretations of these categories which are both analytically rigorous and consistent with the objectives of EC competition law.

distribution, competition, antitrust, dual distribution, private labels, vertical restraints

Abstract:
The recently published EU Commission guidance introduces a sharp dichotomy between price and non-price exclusionary conduct. For price-related conduct, only the exclusion of at least as equally efficient competitors as the dominant firm triggers antitrust intervention. The Commission recognizes that “in certain circumstances a less efficient competitor may also exert a constraint which should be taken into account when considering whether a particular price-based conduct leads to anticompetitive foreclosure”, but this possibility is given less weight than was previously the case in the 2005 DG Comp Staff Discussion paper. This brief study will discuss the emergence of the price/non price dichotomy and will critically assess its impact in EC competition law. It will first examine the validity of the assumption inherent in the introduction of the dichotomy, that is, that less efficient competitors are not “worthy” of competition law protection and that a filter should be introduced in order to limit accordingly the scope of Article 82 EC

Abstract:
The election of the new democratic administration in the United States in November 2008 was overwhelmingly greeted in Europe as an opportunity to reinforce transatlantic cooperation and convergence in competition law and policy. This study evaluates the plausibility of greater convergence between EC competition law and U.S. antitrust law in a number of areas: single-firm conduct, vertical contractual restraints, mergers, and state action (state subsidies).

antitrust, competition, European Union, United States, abuse of dominance, monopolization

Abstract:
The rise of economics as one of the main (some will advance the most important) “source” of competition law discourse is well documented. This study focuses on a facet of the integration of economic analysis in competition law: "economic transplants". The term “economic transplants” refers to specific economic concepts that were incorporated into the legal discourse by an act of “translation”. They represent the ultimate degree of interaction between the legal and the economic systems. Using a paradigmatic approach the study examines their specific characteristics and what distinguishes them from other forms of integration of economic analysis in competition law. It critically assesses their role and their impact on the legal and the economic discourses. The study concludes that the “paradigm” of translation constitutes the most appropriate explanatory framework for taking into account the dual nature of economic transplants and, more broadly, for conceptualizing the interaction of law with other social sciences. It should be distinguished from the existing methodologies of interaction between the disciplines of law and economics, such as the concept of “economic law” and the law and economics approach.

law and economics, antitrust, competition, economic evidence, translation theory, economic law, transplants, legal theory

Abstract:
This Article examines the contribution of the United Nations Conference on Trade and Development (UNCTAD) to the emergence of an international framework for antitrust. It is the first systematic analysis of UNCTAD’s contribution to international antitrust since the 1980s when the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices (the Set) was adopted. The Set still constitutes the only universally applicable instrument in the area of antitrust and its validity has been constantly reaffirmed by international conferences organized by UNCTAD, the most recent one being held in 2005. However, the Set’s existence has also been shadowed: first, by its weak legal effect and, second, by the emergence of new international fora for competition policy, such as the Word Trade Organization and the International Competition Network (ICN). This Article re examines the legal effects of the Set, taking into account the evolution of the legal and political context of global antitrust; the adoption of a significant number of international, regional, and bilateral trade agreements containing various aspects of competition law provisions; and numerous antitrust cooperation agreements. It concludes that even if it is unlikely that the Set produces, by itself, any binding effect, it may eventually contribute to the emergence of a customary international norm against restrictive business practices. Nor is the importance of UNCTAD’s Set limited to the issue of its legal effect; by providing a balanced approach to the relationship between competition law and the specific needs of developing countries, the Set may provide a model for a future international agreement on antitrust that could address the interests of both developed and developing countries

UNCTAD, antitrust, competition, customary international law, development

Abstract:
Commercial agency agreements benefit from a specific competition law regime with regards to the application of Article 81 of the Treaty of the European Communities (hereinafter Article 81). Although they may contain clauses that can produce anticompetitive effects, such as minimum price fixing, these are generally found outside the scope of Article 81 paragraph 1 [hereinafter Article 81(1)]. In comparison, if a franchise or selective distribution agreement contains resale price maintenance clauses, Article 81(1) may apply. The existence of a distinct competition law regime for commercial agency agreements constitutes a paradox, as from an allocative efficiency perspective it makes no sense to distinguish between the two situations. By adopting a new-institutional economics perspective, this study will provide a justification for this specific competition law regime. The agency agreements exception will be considered as a specific form of the single entity defense that operates in situations of hierarchy. Other vertical restraints are mainly organizational mechanisms used in situations of network forms of organization. The distinction established between these agreements could thus be theoretically defended. More generally, the comparative institutional analysis of vertical restraints will provide a useful insight to delimit the boundaries of Article 81(1).