Table of Contents

Tesla, Dealer Franchise Laws, and the Politics of Crony Capitalism

Daniel A. Crane, University of Michigan Law School

Leniency and Damages

Paolo Buccirossi, Laboratory of Economics, Antitrust, Regulation (LEAR)
Catarina Moura Pinto Marvão, Stockholm School of Economics - Stockholm Institute of Transition Economics (SITE), Trinity College Dublin
Giancarlo Spagnolo, Stockholm School of Economics (SITE), Centre for Economic Policy Research (CEPR), University of Rome 'Tor Vergata', EIEF

National Competition Laws, International Cooperation and Procedural Rights

Michael Albers, Independent

The Future of the European Competition Network

Bruno Lasserre, Conseil de la Concurrence

Intel, Leveraging Rebates and the Goals of Article 102 TFEU

Nicolas Petit, University of Liege - School of Law


ANTITRUST: ANTITRUST LAW & POLICY eJOURNAL

"Tesla, Dealer Franchise Laws, and the Politics of Crony Capitalism" Free Download
Iowa Law Review, Forthcoming
U of Michigan Law & Econ Research Paper

DANIEL A. CRANE, University of Michigan Law School
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Tesla Motors is fighting the car dealers' lobby, aided and abetted by the legacy Detroit manufacturers, on a state by state basis for the right to distribute its innovative electrical automobiles directly to consumers. The Tesla wars showcase the important relationship between product innovation and innovation in distribution methods. Incumbent technologies may block competition by new technologies by creating legal barriers to innovative distribution methods necessary to secure market acceptance of the new technologies. While judicial review of such special interest capture is generally weak in the post-Lochner era, the Tesla wars are creating new alliances in the political struggle against crony capitalism that could contribute to a significant re-telling of the conventional public choice story.

"Leniency and Damages" Free Download

PAOLO BUCCIROSSI, Laboratory of Economics, Antitrust, Regulation (LEAR)
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CATARINA MOURA PINTO MARVÃO, Stockholm School of Economics - Stockholm Institute of Transition Economics (SITE), Trinity College Dublin
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GIANCARLO SPAGNOLO, Stockholm School of Economics (SITE), Centre for Economic Policy Research (CEPR), University of Rome 'Tor Vergata', EIEF
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Modern antitrust engenders a possible conflict between public and private enforcement due to the central role of Leniency Programs. Damage actions may reduce the attractiveness of Leniency Programs for cartel participants if their cooperation with the competition authority increases the chance that the cartel’s victims will bring a successful suit. A long legal debate culminated in a EU directive, adopted in November 2014, which seeks a balance between public and private enforcement. It protects the effectiveness of a Leniency Program by preventing the use of leniency statements in subsequent actions for damages and by limiting the liability of the immunity recipient to its direct and indirect purchasers. Our analysis shows such compromise is not required: limiting the cartel victims’ ability to recover their loss is not necessary to preserve the effectiveness of a Leniency Program and may be counter-productive. We show that damage actions will actually improve its effectiveness, through a legal regime in which the civil liability of the immunity recipient is minimized (as in Hungary) and full access to all evidence collected by the competition authority, including leniency statements, is granted to claimants (as in the US).

"National Competition Laws, International Cooperation and Procedural Rights" Free Download
Procedural Rights in Competition Law (eds. C. Cauffman and Q. Han), Springer, Berlin, Forthcoming

MICHAEL ALBERS, Independent
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Competition authorities have increasingly to deal with transnational cases in order to fulfil their task to enforce the competition rules in their countries against anti-competitive mergers and market behaviour. To do so effectively, enforcers have to cooperate with increasing frequency and more closely with their colleagues in other jurisdictions. Such international cooperation among enforcement authorities has consequences for their procedural rights and obligations as well as those of the enterprises involved in transnational competition cases.

"The Future of the European Competition Network" Free Download
21st St. Gallen International Competition Law Forum ICF, May 2014

BRUNO LASSERRE, Conseil de la Concurrence
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The ECN, young as it is, has so far been a splendid success story and one that is worth telling since it is an encouragement to regional integration schemes everywhere, notably for those in Asia, Africa and Latin America. As far as I am concerned, I feel especially attached to this project since I was appointed as President of the French authority only two months after Regulation 1/2003, the cornerstone of the ECN, came into force. Since then, I have been in a position to observe the development and the achievements of the network. Looking back, convergence, consistency and cooperation have been the three building blocks of the ECN since its inception in 2004.

Convergence has been its prime achievement. Having decentralised the application of EU competition law, the network set up by Regulation 1/2003 has also managed to ensure its uniform implementation, not only because convergence was a legal requirement but also because all members have been eager to play by the book and, furthermore, to go for voluntary convergence on procedural issues.

Consistency has been a by-product of the general EU principles of equivalence and effectiveness which in competition law have materialised in a specific manner. Consistency has established itself not only as a policy objective but also as a true requirement, for instance, on such prominent issues as the method for the calculation of fines and the ability of competition authorities to defend their decisions before the review courts. It has therefore been taken on by the European Commission and NCAs as a feature of their dialogue.

Cooperation, needless to say, is a key feature of the ECN in that it has designed a practical, effective scheme for handling individual cases – joint investigations being a striking illustration. It is rather remarkable that cooperation has evolved from the logic of “hub and spoke?, with the “hub? role devoted to the European Commission, to horizontal cooperation by member agencies between themselves. We now have to go further together by widening and deepening the reach of the ECN. This three-fold approach has proven to be highly effective in striking the right balance between EU and national responsibilities; raising awareness among ECN members of the interdependence between them; and fostering project-based solidarity.

Our shared success so far should make us confident that we can take the opportunity to explore other areas where the ECN could further extend its reach in order to better respond to the needs of enforcers, the business community and consumers. Many of us believe that we can afford to be ambitious without resorting to mere wishful thinking; an “ever closer network? is desirable for agencies and for global and local players alike, and the means to that end are positively within our reach. There is no need to wait for some big moment of truth since a few non-idealistic but effective projects are already underway or can be launched at no extra institutional cost. I would like to discuss these briefly in this paper.

"Intel, Leveraging Rebates and the Goals of Article 102 TFEU" Free Download

NICOLAS PETIT, University of Liege - School of Law
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This paper reviews the 2014 Intel judgment of the General Court of the EU in relation to exclusivity rebates given by dominant firms. It distinguishes between the positive issue – ie the legal standard currently applicable to the assessment of dominant firms' rebates – and the prospective discussion – ie the legal standard that should optimally apply to dominant firms rebates. On the positive debate, the paper argues that Intel affirms a modified per se prohibition rule against dominant firms' exclusivity rebates. The scope of this standard is confined to leveraging rebates, and does not cover non-leveraging rebates, which must be analysed under the rule of reason. The paper also draws a distinction between exclusivity obligations and exclusivity options for which agencies and courts should undertake more economic analysis.

On the prospective debate, the paper starts from the assumption made by several scholars that Intel endorses a non-welfarist view of the goals of Article 102 TFEU. With this background, it questions which non-welfarist alternative goal can be ascribed to Article 102 TFEU. The paper finds that none of the three classic non-welfarist goals (ie competitive process, consumer choice and raising rivals' costs) can be acclimated in modern EU competition law.

It concludes that it would help all stakeholders, and in the first place the Commission, the national competition agencies, the General Court and the national courts – who are in the driving seat of competition enforcement – to benefit from a clear dicta of the Court of Justice of the EU ("CJEU") on the rationale underpinning the Article 102 TFEU prohibition, in so far as exclusionary conduct is concerned. The Court already sought to advance on this complex journey in Post Danmark, which remains a model of judicial clarity and literacy. Future cases – and in particular the pending appeal of the GC Intel judgment before the CJEU – offer a welcome opportunity to settle once and for all the current "purposivist" controversy, or whatever other label is used.

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Antitrust: Antitrust Law & Policy eJournal

JAMES R. ATWOOD
Covington & Burling

JONATHAN B. BAKER
Professor of Law, American University - Washington College of Law

MAXWELL M. BLECHER
Attorney at Law, Blecher and Collins

DENNIS W. CARLTON
Professor, University of Chicago - Booth School of Business, National Bureau of Economic Research (NBER)

FRANK H. EASTERBROOK
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NICHOLAS ECONOMIDES
Executive Director, Networks, Electronic Commerce, and Telecommunications Institute, Professor of Economics, New York University - Leonard N. Stern School of Business - Department of Economics

EINER R. ELHAUGE
Professor of Law, Harvard Law School

ELEANOR M. FOX
Professor of Law, New York University School of Law

HERBERT J. HOVENKAMP
Professor, University of Iowa - College of Law

LOUIS KAPLOW
Professor of Law, Harvard Law School, National Bureau of Economic Research (NBER)

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Professor, University of California at Berkeley - School of Law, National Bureau of Economic Research (NBER), NYU Law School

CARL SHAPIRO
University of California, Berkeley - Haas School of Business