It has become usual to present the Chicagoans as genuinely anti-structuralist. But things are slightly more complex. I learned recently that G. Stigler's views on deconcentration policies have not always been that straightforward:
"Many today probably do not know that George Stigler called for economy-wide industrial deconcentration in the early 1950s. Stigler’s recommendation was based on existing empirical economic research on economies of scale at the plant level in manufacturing that appeared to indicate that American industry was concentrated far beyond “efficiency requirements.” Stigler changed his position when he learned of various analytical flaws in the research and of empirical work inconsistent with deconcentration".
Source: Timothy J. Murris, "Improving the Economic Foundations of Competition Policy", (2003) 1 George Mason Law Review, 1 at p.9.
The bottom line: the brightest guys also make mistakes... but when they make one, they acknowledge it and change their mind. See link hereafter for the article.
Quick reminder: In December 2005, the three French Mobile operators (Orange France, SFR and Bouygues Telecom) were fined a record amount of €534.000.000 by the French Competition Council for illegal collusive behaviour.
However, the case is more important in respect of the two following facts: First, It is so far one of the rare 'private action for damages' case in the brave new world of Regulation 1/2003.
Second, it shows the stupidity of not having a kind of "class-action" avenue for matters of this kind: flooding courts with thousands of requests raise the threat of further paralyzing the overburdened judicial machinery. This is what is at the heart of the consumer association's action: building - through the absurd - its case for a collective legal remedy.
In my opinion, the consumer association is right (class action is likely to increase the efficiency of competition enforcement). People mistakenly equate class action procedures to the huge tobacco/pharma/hospitals disputes they see in crap US movies. But a class action procedure does not necessarily imply the award of treble damages (which is often perceived as a poor liability system in continental Europe). Neither does it create a systemic risk for operators to be brought to justice on a daily basis (at any rate, a decision from a competition authority will be necessary). A potential side-effect though: impairing the efficiency of leniency programmes adopted by the agencies?
A short note on an original paper found on the web a few days ago: Aiginger, McAbe, Mueller and Weiss have conducted two surveys among American and European Industrial Organization (IO) economists. The results of the surveys are interesting, and confirm the intuition that US economists are more in favour of "small antitrust" policies than their European counterparts. Here is a short extract summarizing the findings of the survey:
Compared to European IO economists, the Americans are
less likely to want to restrict research joint ventures (question 6)
more optimistic about the positive effects of mergers on profitability (19)
less likely to interpret the higher price-cost margins of large firms as a consequence of market power (20)
somewhat less likely to expect collusion in markets with only a few firms (21)
more likely to believe that market power is a short-run phenomenon (22)
more likely to believe that the importance of predation has been widely exaggerated (23)
more likely to believe that consumer protection laws generally reduce economic efficiency (24)
more likely to favor reducing the influence of regulatory authorities (7)
less likely to believe that the deregulation of telecoms has lead to new monopolies (25)
more willing to count producers’ surplus in addition to consumer’s surplus in regulatory policy (8)
less willing to use competition policy to attack tacit collusion (9)
less likely to condemn the exchange of information among competitors (10)
more likely to believe that international competition has made the regulation of monopolies an outdated policy (26)
more likely to believe that effective concentration has been reduced in the last two decades by globalization (27)
and less likely to think of the goal of antitrust policy as inducing firms to equate price and marginal or average cost (11)
The authors conclude as follows: "The responses to all of these questions indicate a greater willingness on the part of American IO economists to allow markets and firms to operate free from government intervention either in the form of regulation or competition policy".
A word of caution now. The surveys date back to 2001. My guess : things have probably not changed much since that time.
"Il faut rendre intelligible le débat juridique pour la société [...]. Le juge américain rédige sa décision avec une optique pédagogique. Les nôtres sont écrites par des juristes pour des juristes."
Quick translation: "The legal debate has to be made understandable to the whole society. The American judges draft their decisions in a pedagogic perspective. Our decisions are written by lawyers, for lawyers".
First, the lengthy IMPALA vs. Commission judgment, which I read in August. A lot of people - not only people belonging to the tiny competition law world - have expressed interest for this ruling. However, in light of the size and the wording of the judgment, I suspect most of these people have stopped reading it shortly after having started. In the past, ECJ rulings were far shorter and much more understandable. Nowadays, the judgments have become almost impossible to read. The point is valid for non-specialized lawyers (too complex) as well as for specialized lawyers (too lengthy and time-consuming). I only know a little number of competition lawyers that manage to read ECJ and CFI judgements in time.
Second, it is often forgotten that Guy Canivet is a highly esteemed competition lawyer. He wrote an excellent book which has long stood as a must-read on French competition law.
With a bit of delay, we attach the powerful speech given by Assistant Attorney General Thomas Barnet at the Annual George Mason University School of Law Symposium “Managing Antitrust Issues in a Global Marketplace”, which took place in Washington, DC on 13 September 2006 (see link at the end of this post).
Here is an extract of the speech, which particularly pleased me since it emphasizes that competition authorities should give particular attention to dynamic efficiency in cases involving IP rights:
A draft notice concerning various jurisdictional issues in the field of merger control - the notice should superseede the former four jurisdictional Notices adopted under the previous Merger Regulation (Notice on the concept of concentration; on the concept of full-function joint ventures; on the concept of undertakings concerned and; on calculation of turnover);
Draft amendments to the Notice on Immunity from Fines and Reduction of Fines in Cartel Cases (Leniency Notice);