Table of Contents

European Networking and Training for National Competition Enforcers (ENTraNCE 2012). Selected Case Notes

Giorgio Monti, European University Institute - Department of Law (LAW), European University Institute
Pier Luigi Parcu, Florence School of Regulation - Communications and Media Area, European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)

The Implied Antitrust Immunity

Barak Orbach, University of Arizona

The Distinction between Anti-Competitive Object and Effect after Allianz: The End of Coherence in Competition Analysis?

Csongor István Nagy, University of Szeged, Faculty of Law, Hungarian Academy of Sciences CSS Institute for Legal Studies

The Compatibility of Deferential Standard of Judicial Review in the EU Competition Proceedings with Article 6 of the European Convention on Human Rights

Maciej Bernatt, University of Warsaw, Centre for Antitrust and Regulatory Studies, Loyola University of Chicago - Institute for Consumer Antitrust Studies

Abuses of Information and Informational Remedies: Rethinking Exchange of Information Under Competition Law?

Fabiana Di Porto, University of Salento - Department of Economic Sciences

Classical Competition and Freedom of Contract in American Laissez Faire Constitutionalism

Nicola Giocoli, University of Pisa

Dominant Market Position and Prohibition of Abuse of Market Power in BRICS Countries: General Approaches

Ksenia Belikova, Peoples` Friendship University of Russia


ANTITRUST: ANTITRUST LAW & POLICY eJOURNAL

"European Networking and Training for National Competition Enforcers (ENTraNCE 2012). Selected Case Notes" Free Download
Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2014/68

GIORGIO MONTI, European University Institute - Department of Law (LAW), European University Institute
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PIER LUIGI PARCU, Florence School of Regulation - Communications and Media Area, European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)
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The working paper includes a collection of the case notes written by the national judges who attended the European Networking and Training for National Competition Enforcers (ENTraNCE 2012). The training program was organized by the RSCAS between September 2012 and June 2013 with the financial contribution of DG Competition of the European Commission. The case notes included in the working paper summarize judgments of new EU Member States and candidate countries related to different aspects of competition law enforcement. The working paper thus aims at increasing the understanding of the challenges faced by the national judiciary in enforcing national and EU competition in the context of the decentralized regime of competition law enforcement introduced by Reg. 1/2003.

"The Implied Antitrust Immunity" Free Download
Antitrust Law Journal, 2014 Forthcoming
Arizona Legal Studies Discussion Paper No. 14-16

BARAK ORBACH, University of Arizona
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In 1963, Richard Posner, then Justice William Brennan’s motivated clerk, drafted for the Supreme Court the iconic United States v. Philadelphia National Bank (“PNB?) decision. Addressing a set of issues in antitrust and regulation, Posner introduced several important doctrinal innovations and clarifications. Among others, PNB emphasized the primacy of competition over regulation and framed the implied antitrust immunity as a clear antitrust presumption: “Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored.?

The logic of the implied antitrust immunity has not changed much since its early days: the doctrine’s primary rationale is the elimination of conflicts between administrative agencies and federal courts. Over time, however, the immunity’s narrative and nature have considerably transformed. Born in the late nineteenth century as an application of the presumption against implied repeals, in PNB, the doctrine turned into an independent antitrust presumption. During the past five decades, the doctrine has transformed into an evaluative framework whose underlying premises tilt its outcomes toward preclusion of antitrust law.

The implied immunity doctrine is exceptionally important because it gives antitrust courts the power to preclude the application of antitrust law and influence national competition policy without meaningful a consideration of tradeoffs. Indeed, the doctrine is frequently invoked in courts. Yet, the doctrine has always been murky and confusing. This Article studies and clarifies the operation and applications of the implied immunity, as well as its structure, premises, and flaws.

"The Distinction between Anti-Competitive Object and Effect after Allianz: The End of Coherence in Competition Analysis?" Free Download
World Competition: Law and Economics Review, Vol. 36, No. 4, 2013

CSONGOR ISTV?N NAGY, University of Szeged, Faculty of Law, Hungarian Academy of Sciences CSS Institute for Legal Studies
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The article analyses the distinction between object and effect in competition analysis in the context of the CJEU’s recent ruling in Allianz. First, it examines the rationale and traditional notion of anti-competitive object. Secondly, it provides an outlook to the structure of antitrust analysis in US law and compares it with EU competition law. Thirdly, it gives an overview and assessment on the Allianz ruling as to the grasp of ‘object type’ agreements. The article criticizes the CJEU’s ruling and submits proposals.

"The Compatibility of Deferential Standard of Judicial Review in the EU Competition Proceedings with Article 6 of the European Convention on Human Rights" Free Download

MACIEJ BERNATT, University of Warsaw, Centre for Antitrust and Regulatory Studies, Loyola University of Chicago - Institute for Consumer Antitrust Studies
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The EU courts have been criticized by competition law scholars for exercising insufficient review when it comes to the EU Commission’s determinations in factual and economic matters. It has also been claimed that the General Court gives the Commission too broad deference when it comes to the assessment of fine for violation of Article 101-102 of the TFEU. Against this background the EU courts judicial review is analyzed from the perspective of Article 6 of the European Convention on Human Rights (ECHR) in order to answer the question whether deferential standard of review is permissible under the full jurisdiction principle prescribed in Article 6(1) of the ECHR. The analysis of the European Court of Human Rights jurisprudence leads to the conclusion that the way in which the EU Courts currently review the EU Commission’s decisions is not very likely to be found in violation of Article 6 of the ECHR after the EU accesses to the ECHR. However, further improvements of fairness of the administrative process before the Commission should be considered.

"Abuses of Information and Informational Remedies: Rethinking Exchange of Information Under Competition Law?" Free Download
in Fabiana Di Porto and Josef Drexl (eds), Competition Law as Regulation (Edward Elgar, 2014 Forthcoming)

FABIANA DI PORTO, University of Salento - Department of Economic Sciences
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Traditionally, the way competition law has viewed the exchange or sharing of information among competing firms, has been to some extent mainly negative, at least from the supply side. Present market conditions, an excessively transparent market, where operators exchange detailed and (prospect) commercially sensitive data on a regular basis, can amount to a practice facilitating collusion, or be itself an anti-competitive agreement violating Article 101 TFEU.

Interestingly, though, while a great deal of literature and case-law exists that reflects on the difficult relationship between the exchange of information and Article 101 (collusive scenarios and oligopolistic interdependence), the relationship between the exchange of information and Article 102 is a much less scrutinised issue.

A closer look at the Article 102 case-law suggests a less strict and skeptical approach towards exchange of information, compared to that on Article 101: it is the lack of information exchange or the misuse of information by dominant firms that are deemed anticompetitive and abusive.

At the same time, this closer look reveals that many Article 102 cases are adjudicated via remedies imposing an exchange of information or a duty to disclose information. Such behavioural remedies resemble much – as regards the rationale of intervention, the institutional resources employed and the powers exercised – to traditional regulation: it is therefore suggested to call them ‘para-regulatory’, to distinguish them from pure, traditional regulatory interventions.

In such a scenario, a risk may arise of conflicts with existing information-based regulation (e.g. access and disclosure regulation), leading to legal uncertainty, conflict of decisions and inconsistency; furthermore, information exchange obligations to remedy informational abuses under Article 102 can become suspicious under Article 101, as they can possibly ease unlawful collusion.

The Chapter is therefore organised as follows. Part 2 reviews a selection of Article 102 (or homologous norms in other jurisdictions) decisions dealing with information flows. In particular, two lines of cases are presented: those where exchanges of information are the subject-matter of abuse cases (at 2.1 below), and those where such exchanges are the object of “para-regulatory? remedies enforced pursuant to Article 102 (at 2.2 below). Part 3 focuses on the different treatment exchange of information receives under Articles 101 and 102 TFEU. Thereby possible internal clashes between these two branches of competition law will be analysed. The conclusion explores the theoretical possibility of reconciling such clashes, suggesting a framework for competition agencies to adequately intervening on market information flows.

"Classical Competition and Freedom of Contract in American Laissez Faire Constitutionalism" Free Download

NICOLA GIOCOLI, University of Pisa
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It is impossible to tell the history of American antitrust law and economics during the so-called formative era (1890-1915) without a preliminary understanding of the economic rationale underlying that major phase of American constitutional law commonly called laissez faire constitutionalism, or Lochner era. The essay is a preliminary effort to locate such a rationale in the almost perfect overlap between classical political economy, especially the notion of competition as the supreme organizing principle of thriving societies, and classical liberalism, in particular the notion of liberty of contract. It is argued that the well-known Progressive interpretation of the Lochner era fails to recognize the true meaning and extent of this overlap. The protagonists of our story are economists Adam Smith, John Stuart Mill and Francis Wayland, and Supreme Court Justices James Wilson, Oliver Wendell Holmes and Rufus Peckham.

"Dominant Market Position and Prohibition of Abuse of Market Power in BRICS Countries: General Approaches" 

KSENIA BELIKOVA, Peoples` Friendship University of Russia
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The articles represents a research of general approaches of BRICS countries legislation and legal order to counteraction against such an anticompetitive market strategy as abuse of dominant market power in legal orders of China, India, Russia and South Africa. The author pays particular attention to current legislation of BRICS countries in the field of competition protection with regard to provisions related to criteria of establishment of a dominant market position fixed by Asian (China and India), Euro-Asian (Russia) and African (South Africa) legal orders and prohibition of abuse of market power. This article argues that our society is interested in the engagement of a population in trade and industrial activity. This is the general rule. Nowadays, however, this rule allows exceptions: restrictions of a freedom of trade can be justified by exceptional circumstances in certain cases and under certain circumstances (e.g. exemption necessary in the interest of security of the state or public interest, etc.).

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ANTITRUST & REGULATED INDUSTRIES EJOURNALS

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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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
Senior Lecturer, University of Chicago Law School

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)

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

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