The Financial Crisis – three lessons for antitrust
The first of a series of three postings on antitrust and the financial crisis: did antitrust, in general, and a “lack of enforcement”, in particular, contribute to the financial crisis?
Antitrust
Antitrust refers to a field of economic policy and laws dealing with monopoly and monopolistic practices. Antitrust law or antitrust policy are terms primarily used in the United States, while in many other countries the terms competition law or policy are used. Some countries have utilized the phrases Fair
Trading or Antimonopoly law. The intellectual basis for antitrust economics or policy is the sub-field of industrial organization economics which addresses issues arising from the behaviour of firms operating under different market structure conditions and the effect this has on economic performance. Most antitrust or competition laws have provisions dealing with structure such as mergers, monopoly, dominant market position and concentration, as well as behaviour, such as collusion, price fixing, and predatory pricing.
Source: OECD
Undertakings with a (seemingly) divided self: Beware
It is commonly accepted that, pursuant to the principle of intragroup immunity, Article 101 TFEU cannot catch agreements or concerted practices between entities that belong to the same undertaking. Article 101 TFEU requires coordination between at least two undertakings: everything that happens within a single undertaking simply cannot be covered by Article 101 TFEU. Yet,…
Standardisation and the Commission’s new horizontal guidelines
The European Commission is currently preparing new guidelines for the assessment of horizontal cooperation agreements under Article 101 TFEU. A draft was presented for public consultation in May this year and the final version is expected before year’s end. The section on standardisation agreements has been updated in the light of recent experiences (such as…
Bonfire of the quangos – a burning desire to reform the UK competition regime
UK competition rules and enforcement infrastructure When it comes to competition law enforcement, does the UK pursue a different path to its European counterparts? Well, it is British tradition to favour a common sense approach and we have been known to criticise the arcane bureaucracy of certain supra-national institutions. These preferences will surely be revealed…
New U.S. Merger Guidelines Suggest Increased Focus on Deals in High Tech and Pharmaceutical Sectors
In August 2010, the U.S. antitrust agencies released the final version of their revised Horizontal Merger Guidelines, which they use to analyze the competitive implications of mergers between competitors. Whereas the prior (1992) version of the Guidelines had sought to provide a precise, step by step framework for analyzing horizontal mergers — centered around defining…
The power of pre-existing agreements
In two recent decisions, the Commission considered the impact of cooperation agreements that the notifying parties had entered into before the notified transaction and came to two different conclusions. In Iberia/British Airways (decision of 14 July 2010), the Commission was confronted with combined shares of 70-80% for time-sensitive passengers on two city pairs, London-Madrid and…
The scope of judicial review in question
In a speech delivered last week at the IBA annual competition conference, Commissioner Almunia engaged the audience on the sensitive topic of due process and competition enforcement. Among the reasons justifying his overall satisfaction with the current EU enforcement system, he mentioned the review by the European courts, which forms “an integral part of competition…
Concerted practices, greyhounds, swans and alcoholmeters
Adam Smith wrote in the Wealth of Nations that “two greyhounds, in running down the same hare, have sometimes the appearance of acting in some sort of concert. Each turns her towards his companion, or endeavours to intercept her when his companion turns her towards himself. This, however, is not the effect of any contract,…
The General Court’s Judgment In AstraZeneca, Interacting With Regulatory Authorities
In my last post, I discussed the General Court’s findings on market definition and dominance analysis in its AstraZeneca judgment. In this post, I review the Court’s findings on abuse. In its decision, the Commission held that Astra had abused its dominant position (1) by providing patent authorities misleading launch date information when applying for…
The end of access to essential facilities in Germany in practice?
On June 10, 2010, the Düsseldorf Court of Appeals issued a decision that increased the hurdles for obtaining access to essential facilities in Germany in practice (see WuW/DE-R 2941 et seq.). The case concerns interim proceedings against a FCO decision. The FCO had found that Scandlines, the owner and operator of the ferry port Puttgarden,…