Table of Contents

Theories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf

Nicolas Petit, University of Liege - School of Law

Collective Redress for Antitrust Damages in the European Union: Is this a Reality Now?

Damien Geradin, George Mason University School of Law, Tilburg University - Tilburg Law and Economics Center (TILEC)

Online Consumer Contracts: No One Reads, But Does Anyone Care?

Shmuel I. Becher, College of Management (Israel) - School of Law
Tal Zarsky, University of Haifa - Faculty of Law


CONSUMER LAW eJOURNAL

"Theories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf" Free Download

NICOLAS PETIT, University of Liege - School of Law
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In a 2015 paper, Bo Vesterdorf argues that there is no legal basis for the decisional implementation of theories of abusive self-preferencing under Article 102 TFEU. His paper comes in the context of the headline-grabbing Google search investigation in the EU. In Vesterdorf's view, the sole legal avenue that may be used to order a dominant firm "not to favour" its own services is the essential facilities doctrine. Vesterdorf goes on to make a very restrictive description of the scope and conditions of application of the essential facilities doctrine in EU competition law.

This paper is a reply to Bo Vesterdorf's paper. It shows that the Vesterdorf paper does not withstand a comprehensive positive law analyzis. The case-law provides several legal basis for the promotion of theories of abusive self-preferencing under Article 102 TFEU. Moreover, in positive EU competition law, the essential facilities doctrine is not the narrow theory of liability described in Vesterdorf's paper. Finally, the concept of "competition on the merits" is of limited help to redeem a dominant firm's abusive conduct.

"Collective Redress for Antitrust Damages in the European Union: Is this a Reality Now?" Free Download
George Mason Law Review, Forthcoming

DAMIEN GERADIN, George Mason University School of Law, Tilburg University - Tilburg Law and Economics Center (TILEC)
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Private antitrust litigation is now a reality in the EU and the implementation of the 2014 Directive on actions for damages from competition law infringements will further stimulate such litigation. In 2013, the Commission also adopted a Recommendation on Collective Redress, which takes the form of a horizontal framework whose principles are set to apply to claims regarding rights granted under EU law in a variety of areas, including competition law. The Recommendation takes a conservative approach to collective redress, largely due to the fear that Member States may adopt mechanisms triggering unmeritorious litigation. Many in the EU consider that the US class actions regime has led to excessive litigation by entrepreneurial lawyers that, in the end, produce limited benefits to victims while creating significant costs to society. This view is, however, questionable since district courts, which are called to certify class actions, have in recent years exercised a more rigorous analysis of the claims presented to them. In addition, by opting for an “opt in? regime and the “loser pays? principle, while not authorizing contingency fees and punitive damages, the Recommendation may have made it harder for victims with small claims (i.e., individual consumers that have been overcharged for the goods they purchase) to obtain compensation for the harm suffered.

"Online Consumer Contracts: No One Reads, But Does Anyone Care?" Free Download
Jerusalem Review of Legal Studies, Forthcoming

SHMUEL I. BECHER, College of Management (Israel) - School of Law
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TAL ZARSKY, University of Haifa - Faculty of Law
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Electronic and virtual commerce is growing in size and scope. People are entering – without reading – into a greater number of contracts, which are becoming longer over time. Yet the volume, complexity and innovative nature of the electronic transactions render close inspection by courts an unattractive option. Regulators as well will have a difficult time keeping up with the novel challenges markets raise.

This essay is part of a symposium examining and celebrating the scholarship of Professor Florencia Marotta-Wurgler. Prof. Wurgler's important studies test – and at times undermine – some of the most basic assumptions of contract theory. The essay illuminates Prof. Wurgler's work by noting several insights related to the "law and technology" interface.

In Part I we set out with a preliminary look into Prof. Wurgler's methodology. Here we consider whether users' preferences and technological sophistication might have impacted the dataset used by Prof. Wurgler. In Part II we examine the possibility that alternative information flows educate users in various aspects of the standard form contract. We elaborate by considering the implications of such flows for Prof. Wurgler's findings and other aspects of her scholarship. We conclude by briefly reflecting on Prof. Wurgler's vision regarding the policy implications of her work.

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About this eJournal

This eJournal distributes working and accepted paper abstracts of articles, recently published articles, books, legislative reports, conferences, and other publications that address issues of interest to consumer law scholars and practitioners. Coverage includes legal issues pertaining to advertising, consumer reporting (including credit repair organizations), discrimination (including redlining), consumer disclosure (such as the Truth in Lending Act, the Real Estate Settlement Procedures Act, and consumer leasing), consumer fraud (including issues arising under the Federal Trade Commission Act, state UDAP statutes, odometer laws, referral sales, and bait and switch statutes), unconscionability, standard form contracts, consumer privacy (including telemarketing, spam, spyware, phishing, direct mail, financial privacy, common law privacy torts in consumer transactions, and online privacy), identity theft, data protection, cooling off rules (including door to door sales regulation), payment systems (such as credit and debit cards, internet payment issues, stored value cards (including gift cards and phone cards), and electronic transfers), warranties (including UCC warranties, lemon laws, and the Magnuson-Moss Warranty Act), consumer product safety, commercial speech doctrine, debt collection, repossession, predatory lending (including asset-based lending, equity stripping, flipping, balloon payments, negative amortization, loan packing, rate-risk disparities and yield-spread premiums), payday lending, usury, credit insurance, electronic shopping (including electronic signatures and records, formation of contracts, and payments), the holder in due course regulation, mortgages, student loans, repossession, foreclosure, regulation that pertains to consumer markets and enforcement of consumer laws (including class actions, preemption, arbitration, administrative enforcement, small claims courts and attorney's fees). The eJournal does not cover landlord-tenant issues or criminal law. The eJournal welcomes a broad range of methodological approaches, including conventional doctrinal analyses, law and economics approaches, historical discussions, socio-legal analyses, law and society approaches, discussions of consumer psychology that bear on legal issues, international law analyses and comparative law approaches.

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Advisory Board

Consumer Law eJournal

RICHARD M. ALDERMAN
Associate Dean, Director - Consumer Law Center, Dwight Olds Chair in Law, University of Houston Law Center

JEAN BRAUCHER
Roger Henderson Professor of Law, University of Arizona - James E. Rogers College of Law

MARK ELLIOTT BUDNITZ
Professor of Law, Georgia State University College of Law

MICHAEL M. GREENFIELD
George Alexander Madill Professor of Contracts and Commercial Law, Washington University in Saint Louis - School of Law

ALVIN C. HARRELL
Professor of Law, Oklahoma City University - School of Law

CREOLA JOHNSON
Professor of Law, Ohio State University - Michael E. Moritz College of Law

DEE PRIDGEN
Associate Dean and Professor of Law, University of Wyoming College of Law

IAIN D. C. RAMSAY
Professor of Law, University of Kent, Canterbury - Kent Law School

RALPH J. ROHNER
Professor of Law, Catholic University of America - Columbus School of Law

NORMAN I. SILBER
Associate Dean for Intellectual Life and Professor of Law, Hofstra University School of Law