Competition Law

British pubs, decoder cards, and the future of intellectual property licensing in the European Union after Murphy.

by Anastasios Kaburakis

With Lindholm, J, and Rodenberg, R.

October 4, 2011 marked a new era in global sports media rights. On this day, the Grand Chamber of the European Court... more October 4, 2011 marked a new era in global sports media rights. On this day, the Grand Chamber of the European Court of Justice (ECJ) delivered its judgment in FA Premier League et al. v. QC Leisure et al. & Murphy v. Media Protection Services Ltd (“Murphy”). Murphy decided upon the legality of a scheme whereby the holder of intellectual property rights to a sporting event licenses the right to broadcast the event on a national exclusivity basis.

Essential Facility Doctrine in Brazilian Telecommunications Sector

by José Antonio Batista De Moura Ziebarth

Co-authored with Gabriel Nascimento Pinto.

The telecommunications system went through a huge transformation during the 1990’s going from a constitutional based... more The telecommunications system went through a huge transformation during the 1990’s going from a constitutional based state monopoly to a private competitive structure, which required the creation of an independent regulatory body, ANATEL. This essay analyzes the consequences of this transformation as well as the application of the essential facilities doctrine in Brazil.

The ‘Feedback Effect’ of Applying EU Competition Law to Regulated Industries: Doctrinal Contamination in the Case of Margin Squeeze

by Hendrik Auf'mkolk

Journal of European Competition Law & Practice (2012) 3 (2): 149-162

Applying EU competition law to industries under sector-specific regulation can have ‘feedback effects’ on its... more Applying EU competition law to industries under sector-specific regulation can have ‘feedback effects’ on its substantive principles if the two regimes and their respective goals and standards of intervention are not clearly distinguished.

The emergence of a standalone rule against margin squeeze under EU competition law based on regulatory models of access pricing is a case in point.

An overly broad competition law rule may chill legitimate price competition and discriminate against vertically integrated firms, particularly in markets that lack the economic characteristics of regulated network industries.

Beyond the White Paper: Rethinking the Commission’s Proposal on Private Antitrust Litigation

by Jocelyn Delatre

Published in the Competition Law Review, Volume 8, Issue 1
Available at http://www.clasf.org/CompLRev/downloads/Vol8Issue1.htm

This paper provides a comparative study of group actions in existence in a number of Member States, with a particular... more This paper provides a comparative study of group actions in existence in a number of Member States, with a particular emphasis on the Danish, Portuguese, English, French and Dutch experience, comparing the different approaches taken and contrasting them with the propositions contained in the European Commission’s White Paper on Damages Actions for Breach of Antitrust law and Green Paper on Consumer Collective Redress. It focuses on the way these procedures function, on the choices the jurisdictions have made and the issues at the heart of the debate. The case is made that the opt-out group action model, based on the US class action has not been given sufficient consideration in the White Paper and the documents accompanying it, and has been dismissed, not because it was not the right model for the European Union, or because of its inherent defects, but for political reasons.

To that end,focus is placed on the European Commission’s White Paper with a snapshot analysis of the differences and similarities between these experiences. The paper shows that the opt-out model is already present in various jurisdictions in Europe, and through a comparative study of opt-in and opt-out models of collective actions in Europe, attempts to demonstrate that not only is the opt-out model effective, it may very well be superior in various ways to the models considered in the White Paper.

Export Cartels: Is it Legal to Target your Neighbour? Analysis in Light of Recent Case Law

by Marek Martyniszyn

Journal of International Economic Law (2012) 15(1): 181-222

Despite the growing sophistication of antitrust regimes around the world, export cartels benefit from special... more Despite the growing sophistication of antitrust regimes around the world, export cartels benefit from special treatment: they are almost universally tolerated, if not encouraged in the countries of origin. Economists do not offer an unambiguous policy recommendation on how to deal with them in part due to the lack of empirical data. This article discusses arguments for and against export cartels and it identifies the existing gaps in the present regulatory framework. The theoretical part is followed by an analysis of the recent case law: a US cartel challenged with different outcomes in India and South Africa, as well as Chinese export cartels pursued in the USA. The Chinese cases are particularly topical as the conduct at stake, apart from being subject to private antitrust actions before US courts, was also challenged within the WTO dispute settlement framework, pointing out to the existing interface between trade and competition. While the recent developments prove that unaddressed issues tend not to vanish, the new South–North dimension has the potential of placing export cartels again on the international agenda. Pragmatic thinking suggests looking for the solution within the WTO framework.

“Antitrust Cases and the Commitment Decision in the Energy Sector”, ROEC, Petroleum Industry Review Magazine, October 2011 (bilingual edition)

by Valentina-Andreea Dimulescu

In Romanian and English (see attached document)

"Legal Privilege and Competition Law"

by Lúcio Féteira

published in 'European Law Reporter' no. 11, November 2007

Case note (joined cases T-125/03 and T-253/03, Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. v Commission of the... more Case note (joined cases T-125/03 and T-253/03, Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. v Commission of the European Communities [2007], ECR II-03523)

“Regulation 1/2003 and the Interplay Between European and National Competition Laws”

by Lúcio Féteira

Chapter prepared for Jorge Miranda (ed.), “Estudos em Homenagem ao Professor Doutor Sérvulo Correia”, 4th volume (Coimbra, Coimbra Editora, 2011)

'Too close for comfort?’ – National Courts and the Recovery of Unlawfully Implemented State Aid

by Lúcio Féteira

published in 'European Law Reporter' no 5, May 2008

Case note (Case C-199/06, Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la... more Case note (Case C-199/06, Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la Communication v Société internationale de diffusion et d’édition (SIDE), ECJ (Grand Chamber) [2008] ECR I-00469)

UPFRONT ACCESS PAYMENTS, CATEGORY MANAGEMENT AND THE NEW REGULATION OF VERTICAL RESTRAINTS IN EU COMPETITION LAW: IMPORTING THE RETAIL SIDE OF THE STORY

by Ioannis Lianos

First published as Ioannis Lianos, “New Kids on the Block: Retailer-driven Vertical Practices and the New Regulation of Vertical Restraints in EU Competition Law”, (2010) The CPI Antitrust Journal June 2010 (2).

By integrating more fully the retailer power story, the new vertical restraints guidelines and block exemption... more By integrating more fully the retailer power story, the new vertical restraints guidelines and block exemption regulation provide for a more equilibrated regime for vertical restraints in Europe. The objective of the Commission was not only to address the important concern of retailer power and its possible anticompetitive effects in a retail sector that is characterized by increasing concentration, although not necessarily increasing profitability, but also to respond to the concerns (and political pressure) over big distribution and the power of multi-brand retailers that have been expressed at the national level, with the adoption of a hard or a soft law type of approach in order to regulate the relation between suppliers and retailers. By bringing these concerns within the realm of EU competition law, the Commission offers an alternative relief valve that takes more into account the effect of these practices on consumers than the regulations adopted at the national level.

The Quest for Appropriate Remedies In the Microsoft Antitrust EU Cases: A Comparative Appraisal November 2009

by Ioannis Lianos

Co-authored with Nick Economides
Published as "The Quest for Appropriate Remedies in the Microsoft Antitrust EU Cases: A Comparative Appraisal", in L. Rubini (ed.), Microsoft on Trial : Legal and Economic Analysis of a Transatlantic Antitrust Case, Edward Elgar, 2010, pp. 393-463

The study critically examines the competition law remedies imposed by the EU and the US to Microsoft Corp., following... more The study critically examines the competition law remedies imposed by the EU and the US to Microsoft Corp., following a series of antitrust investigations in Europe and the US.

‘Judging’ Economists: Economic Expertise in Competition Law Litigation - A European View (September 4, 2009). University College of London Centre for Law and Economics Working Paper No. 01-09. Also published at The Reform of EC Competition Law: New Challenges, , Ioannis Lianos & Ioannis Kokkoris, eds.,Kluwer, 2009, pp. 185-320

by Ioannis Lianos

The study focuses on the admissibility and assessment of economic expertise in EC competition law litigation. I start... more 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.

The Elusive Antitrust Standard on Bundling In Europe and In the United States In the Aftermath of the Microsoft Cases

by Ioannis Lianos

Ioannis Lianos (with Nicholas Economides), The elusive antitrust standard on bundling in Europe and in the United States at the aftermath of the Microsoft case, 76 Antitrust Law Journal No. 2 (2009). 483-567

This study analyzes and contrasts the U.S. and EU antitrust standards on bundling (in its various forms) and tying.... more 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.

Collusion in Vertical Relations Under Article 81 EC (September 1, 2007). Common Market Law Review, Vol. 45, No. 4, 2008

by Ioannis Lianos

The paper's starting point is that EC competition law does not draw any distinction between horizontal and vertical... more 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.

'Lost in Translation': Towards a Theory of Economic Transplants (August 30, 2009). Jean Monnet Working Paper 08/09 (NYU School of Law). Current Legal Problems (CLP), 2009, pp. 346-404

by Ioannis Lianos

The rise of economics as one of the main (some will advance the most important) “source” of competition law discourse... more 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.

The Vertical Horizontal Dichotomy in Competition Law: Some Reflections with Regard to Dual Distribution and Private Labels (May 5, 2009). PRIVATE LABELS, BRANDS AND COMPETITION POLICY, Ariel Ezrachi & Ulf Bernitz, (eds.), pp. 161-186, Oxford University Press, Oxford, 2009 .

by Ioannis Lianos

The vertical/horizontal distinction is an important feature of modern competition law.This paper will first examine... more 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.

Commercial Agency Agreements, Vertical Restraints, and the Limits of Article 81(1) Ec: Between Hierarchies and Networks. Published at 3(4) Journal of Competition Law and Economics 625-672 (2007).

by Ioannis Lianos

Commercial agency agreements benefit from a specific competition law regime with regards to the application of Article... more 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).

Categorical Thinking in Competition Law and the "Effects-Based" Approach in Article 82 EC, Published in in Ariel Ezrachi (ed.), Article 82 EC – Reflections on its recent evolution (Hart Pub. 2009), pp. 19-49

by Ioannis Lianos

The study critically examines  the current practice of the classification of abuses under Article 82. It then... more The study critically examines  the current practice of the classification of abuses under Article 82. It then explores the shortcomings of the current approach and stresses the need for a reconceptualisation of the current categorisation of abuses in Article 82. It  finally analyses the Commission
Guidance on its enforcement priorities in applying Article 82, and considers whether it constitutes a real effects-based approach and its possible implications for competition law enforcement

Competition Law and Intellectual Property Rights: Is the Property Rights' Approach Right? Chapter 8 in Cambridge Yearbook of European Legal Studies . John Bell & Claire Kilpatrick (ed.), Oxford: Hart Publishing, 2006, 153-186.

by Ioannis Lianos

I examine in this study the intersection of intellectual property law (IP) with competition law. The property rights... more I examine in this study the intersection of intellectual property law (IP) with competition law. The property rights rhetoric has been instrumental in providing some degree of deference to IP rights. For some time, the values of IP and competition law were perceived to be in conflict: Whereas IP law focuses on the reqard of inventive effort and the inventor's incentives to innovate, by conferring an exclusive right on the use of the invention, competition law emphasises teh dissemination of innovation by ensuring diffusion and access. Circumstances have nevertheless evolved. Innovation became an objective of competition law and the relationship between the two disciplines is no longer antagonistic, but complementary. IP protection has also expanded considerably and is often granted to trivial inventions. This evolution challenges the usefulness of teh property rights approach, which aimed at defending IP rights against a disproportionate application of competition law. The property rights rhetoric does not contribute to the understanding of the need to balance incentives to innovation with that of enhancing cumulative innovation to teh benefit of teh consumers. It is static as it visualises IP and competition law in separate spheres, rendering more difficult the establishment of a dialectical relationship between the two. I argue that the conceptualization of IP as a form of regulation provides instead a more adequate theoretical framework as it enables a harmonious interaction between competition law and IP, while also taking into account, in assessing the appropriate levels of IP protection, the specific circumstances of each economic sector.

Contribution of the United Nations to the Emergence of Global Antitrust Law, The

by Ioannis Lianos

Ioannis Lianos, The Contribution of the United Nations to Global Antitrust, 15 Tulane Journal of International and Comparative Law 415-463 (2007)

This Article examines the contribution of the United Nations Conference on Trade and Development (UNCTAD) to the... more 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.