Table of Contents. Part I

Transcription

1 Table of Contents FOREWORD Setting Priorities in Antitrust By Commissioner Margrethe Vestager Part I MAPPING THE NOTION OF RESTRICTION OF COMPETITION Restriction of competition A historical perspective By Sir Christopher Bellamy I. Ancient times II. The early law III to 2004: The Great Confusion IV onwards Identifying restrictions of competition Some comments from a law and economics perspective By Damien J. Neven I. A framework of sequential decisions II. Object and effect as sequential decisions III. Acquisition of more information IV. Conclusion The bifurcated approach and its practical impact on the establishment of harm to competition By Ben Smulders I. The implications of the bifurcated approach II. The bifurcated approach in the application of Article A. First Step of Analysis under Article 101(1) bruylant 5

2 B. Second Step of the Analysis under Article 101(3) III. The bifurcated approach in the application of Article A. First Step of Analysis under Article B. Second Step of Analysis under Article IV. Does it make sense to rely on efficiency defences? V. Burden of proof VI. Convergence in the application of the two provisions The object-effect dichotomy and the requirement of harm to competition: on the road to clarity after Cartes Bancaires? By Bernard A mory, Geoffroy van de Walle and Nathalie A. Smuha I. The court before Cartes Bancaires A. Standard of Harm: Capability or Sufficient Degree of Harm? B. Level of Scrutiny: Factors to Take into Account II. The court after Cartes Bancaires A. Preliminary Reference Rulings: ING Pensii and Maxima Latvija ING Pensii Maxima Latvija B. Appeals against the General Court: Dole and Toshiba Dole Toshiba C. The Way Forward: Still Scope for Clarification The Challenge of European Competition Network ConvergencE in the Definition of Harm to Competition By Imelda Maher I. Restriction by Object A. NCAs and Restriction by Object B. The Case of Retail MFN C. The Case of Pay-For-Delay Arrangements II. Institutional Tools A. Preliminary References B. The European Competition Network C. National Courts D. Mirroring bruylant

3 Part II RESTRICTION OF COMPETITION UNDER ARTICLE 101 TFEU What makes an agreement anti-competitive: Lessons from the past By Luc Gyselen I. Top line definition of an anti-competitive agreement II. Shortcomings of dualist Article 101 TFEU III. Time to rewrite Article 101? IV. Support for a monist version 2.0 of Article A. The Legislative History of Article 85 EEC / 101 TFEU B. CJEU Judgements V. How to rewrite Article 101? Information Exchanges and Price SIGNALLING: An Economic Perspective By Raphaël De Coninck I. Information exchanges A. Potential Efficiencies B. Potential Anticompetitive Effects II. Public announcements A. Invitation to Collude B. Price Signalling: Testing the Coordination Hypothesis Do the announcements provide a focal point for coordination? Do the announcements provide a plausible mechanism for coordination? Are there other reasons for the announcements (potentially pro-competitive), unrelated to a potential coordination mechanism? Are the announcements likely to lead to coordination (or to make coordination more sustainable) in the specific industry? National competition authorities investigations in hub-and-spoke arrangements: a critical review By Yves Botteman I. The great and elusive Hub-and-Spoke exchange A. Concerted Practice bruylant 7

4 B. Proving an Illicit Hub-and-Spoke Exchange C. A Hub-and-Spoke State of Mind II. Do Hub-and-Spoke exchanges affect competition? And does it really matter? III. Resale price maintenance ( RPM ): the non-hub-and-spoke exchange Part III RESTRICTION OF COMPETITION UNDER ARTICLE 102 TFEU What Makes a Unilateral Conduct Abusive: The Legal Perspective By Robert O Donoghue I. Fundamental concepts A. The Basic Definition of Abuse B. Uncertainty Surrounding the Definition of Exclusionary Conduct. 173 II. The categories of abuse under Article 102 TFEU A. Exploitative Abuses (Article 102(a)) Excessive prices Unfair contractual terms and conditions B. Exclusionary Abuses (Article 102(b)) The need for a unified basis for exclusionary abuses Article 102(b): the legal basis for defining exclusionary conduct Explanation of the limiting production test The Commission s policy rethink in the Guidance Paper C. Discriminatory Abuses (Article 102(c)) The need to distinguish different categories of discrimination Clarifying the treatment of discrimination under Article 102 TFEU (a) The analysis of exclusionary abuses that involve elements of discrimination (b) The analysis of discrimination by a dominant firm between nonassociated customers D. Tying Abuses (Article 102(d)) E. Leveraging Abuses Definition of leveraging bruylant

5 2. The need to distinguish procompetitive and anticompetitive leveraging Circumstances in which leveraging conduct amounts to an abuse (a) No independent abuse of leveraging (b) The need for a causal connection between the dominance and the abusive conduct (c) The relevance of associative links III. Anticompetitive effects under Article 102 TFEU A. The Need for Causation between Dominance and the Abuse Causation and Article 102 TFEU: conflicting statements Further recent exceptions: AstraZeneca and Rambus Resolving the conflict Causation in fact The use of counterfactuals B. The Standard for Anticompetitive Effects under Article 102 TFEU Criticism of the formalistic approach in earlier cases The gradual shift in the Commission s approach The current position The continued gulf between theory and practice An exception for a naked restraint? C. The Role of Consumer Harm Uncertainty as to the role of consumer harm under Article 102 TFEU Consequences of adopting a consumer harm criterion Consumer harm under the four clauses of Article 102 TFEU Proving consumer harm in practice D. The Role of Intent Evidence Intent evidence in pricing abuse cases Intent evidence in other types of abuse cases IV. Objective justification A. Defences of objective necessity B. Reasonable steps by a dominant firm to protect its commercial interest C. Efficiency defences The basic conditions for efficiencies Evaluating the approach to efficiency defences under Article 102 TFEU bruylant 9

6 Restriction of Competition and Exclusionary Abuse under Article 102 The Solution By John Temple Lang I. An unsatisfactory discussion A. The Simple Case Retroactive Rebates B. Exclusivity and Rebates C. Imprecise Language of the EU Courts The failure to consider some of the case law The concept of exclusionary abuse cannot be open-ended How much does this matter? II. So where do we stand now? A solution is available A. The Advantages of Article 102(B) as a Definition of Restriction of Competition and Exclusionary Conduct B. The Possible Disadvantages of Article 102(B) C. Is Article 102(B) Exhaustive, or Could There Be Another Category of Abuse? What makes a unilateral conduct abusive? An economic perspective By Adam Cellan- Jones and Andrea Lofaro I. No form of unilateral conduct is inherently anti-competitive II. Harm to competitors does not imply harm to competition A. Effects-based Approach B. Application to High-technology Industries Assessing abuse of dominance allegations in practice Google Assessing abuse of dominance allegations in practice Intel Assessing abuse of dominance allegations in practice Internet Explorer The Perindopril case: Patent Settlements and Acquisition of Technology By James K illick I. Market definition and generic entry A. The Perindopril Molecule B. The Econometric Assessment C. A Contextual Approach to Market Definition II. The blurred boundaries of competition on the merits and generic entry A. The Scope of the Alleged Abuse(s) bruylant

7 B. Acquisition of Technology as an Abuse C. Patent Settlements as an Abuse Unequal Treatment by Online PlatformS : A Structured Approach to the Abuse Test in Google By Renato Nazzini I. Article 102 and the need for legal certainty II. The concept of abuse and competition on the merits III. The special responsibility of the dominant undertaking IV. The search for clear legal principles: ruling out the application of the test for (exploitative or) discriminatory abuses V. Looking for the right exclusionary test in the Google case: extension of the input foreclosure framework Part IV The Influence of Merger Control on the Antitrust Notion of Restriction of Competition The Contribution of Merger Control to the Definition of Harm to Competition By Carles Esteva Mosso I. The convergence of merger control towards antitrust II. Influences of merger control on antitrust enforcement A. Market Power Analysis B. Market Definition C. Collective Dominance D. The Counterfactual E. Remedies III. Is there (or should there be) a single analytical framework for Article 101 TFEU and merger control? Article 101 And The Merger Regulation: A Single Analytical Framework? By Nicholas Levy I. Contribution of merger control to antitrust II. Are levels of intervention similar under Article 101 and the merger regulation? bruylant 11

8 Part V THE NOTION OF RESTRICTION OF COMPETITION: LESSONS AND PROSPECTS On the notion of restriction of competition : what we know and what we don t know we know By Pablo Ibáñez Colomo and A lfonso Lamadrid de Pablo I. What we know about restrictions of competition A. It is Necessary to Consider the Nature of the Practice and the Context of which it is Part It is necessary to look beyond the formal aspects of the practice It is necessary to consider the counterfactual A restriction of a firm s freedom of action is not necessarily a restriction of competition B. A Practice May Restrict Competition by Object or Effect C. Institutions Matter II. What we don t know we know about restrictions of competition A. The Divide between Restrictions by Object and by Effect An apparent puzzle in the case law: the role of effects in by object infringements Sorting out the puzzle: is the practice plausibly pro-competitive? Explaining the outliers B. The Analysis of Restrictive Effects on Competition Temporal dimension: actual or potential effects Threshold of effects: capability or likelihood Appreciability and de minimis What is a restrictive effect? The Notion of Restriction of Competition: Economic Prospects By Avantik a Chowdhury I. Where are we now? II. Lessons and practical implications A. The Counterfactual and the Theory of Harm B. Long-run Consumer Welfare C. An overall Economic Approach bruylant

9 The Notion of Restriction of Competition in the Post-Modernisation Context By Cecilio Madero I. The notion of restriction of competition II. Alignment of Articles 101 and A. By Object / by Nature vs by Effect Restrictions B. Efficiencies as a Defence that the Parties Can Prove The Notion of Restriction of Competition in the Post-Modernisation Context : some practical thoughts regarding Vertical Restraints By Andrew Renshaw bruylant 13