The Antitrust Hotch Potch

Antitrust on Youtube

Found on youtube:  a preview of a TV programme on US antitrust enforcement. 35 minutes with J. Connor, R. Pitofsky and others. The purpose of the video is educational: a didactic journey throughout US antitrust history. I am not aware of anything similar in the EU. Given that people spend more time before screens than behind books, the thing could hopefully inspire the Commission's advocacy strategy. I've always felt that competition advocacy through wide audience brochures and costly leafltets was useless.

See here for the full DVD on amazon.

Scientific Commons

The University of St Gallen has developped a web-interface that identify scientific repositories and indexes free access papers and articles available on the web.

Some interesting stuff came out when I typed the tags "antitrust" and "competition policy". A welcome initiative to add to your bookmarks, together with ssrn and google scholar.

Scholarship - Energy Mergers

I just discovered that the EUI and the Florence School of Regulation have a working papers series. D. Newbery recently published a paper entitled "What are the issues in Mergers and Acquisitions arising from Electricity Markets Restructuring" in that collection.

The paper will undoubtedly trigger docrinal debate as Newbery takes strong positions on a number of controversial and unpopular issues in practice. In a nutshell, he argues that the Commission should very closely scrutinize (and resist) energy mergers, as substantial market power may exist at very low market share and concentration levels. In addition, the author supports the instrumentalization of the merger Regulation as a means to achieve the single market policy objectives.

To know more on that issue, see M. Piergiovani's paper in the Journal of Network Industries (2003, vol. Vol. 4, n° n° 3. - pp. 227-269), as well as a book edited by Damien on remedies in Network Industries.

€€€€€

Here we go, the amount of the fine inflicted to the elevators' oligopoly is.......

€992 312 200

Clearly the biggest fine ever in EC competition law history. Check here for the press release.

Elevation

The Commission is poised to inflict the highest fine ever imposed in the history of European competition policy. Four elevators makers (Kone, Otis, ThyssenKrupp and Schindler) which have allegedly engaged into illicit price-fixing could be fined at least 900 millions € fine, sources report.

While awaiting the official decision (due on Wednesday), the market has already sanctioned the elevators producers. Reuters for instance reports that shares in Kone slipped on Monday after media reported the possible fine. In fact, this illustrates the "snowball effect" of a competition agency's decision to inflict a fine. Other side effects include possible bankruptcy, consumers distrust, likelihood of private damages actions, etc.

A paper by W. Wils on the new Commission's guidelines for setting fines was recently posted on SSRN. Check it out here.

Draft Guidelines on Non-Horizontal Mergers

The Commission is about to adopt guidelines on non-horizontal mergers. Though most would admit that these mergers only create problems in limited circumstances, the Commission once again manifests its desire to (i) come up with another set of soft-law prescriptions and (ii) replicate what has been done in the past by the US agencies.

A quick review of the text: besides the coverage of upstream/downstream foreclosure, coordinated effects are for once mentioned as an area of concern when it comes to vertical mergers.

I am more puzzled by the silence of the Commission on the interface between the ECMR and Article  82 EC. If my recollections are good, the Court mentioned in Tetra Laval that the assessment of the risk of conglomerate (and by extension vertical) competitive harm should factor in the fact that Article 82 EC applies ex post to conglomerate and vertical exclusionary conducts.

No doubt stakeholders will flood the Commission with comments. No doubts either that the stakeholder's consultation process will trigger its usual lot of Commission bashing...

The image above is about the AOL/Time Warner merger, a classic example of non-horizontal (vertical) transaction. I found it extremely funny.

Elhauge and Geradin Casebook on Global Antitrust Law

Modern antitrust law is global antitrust law. Markets are becoming increasingly global, or at least multinational. Mergers between large corporations must typically get approval in both the United States and in the EU, and other nations too. Cartels in one nation affect supply in others, and countries are increasingly entering into treaties with each other about the content or enforcement of competition laws. Thus, businesspeople, lawyers, and lawmakers can no longer content themselves with understanding only the antitrust and competition law of their home country. Modern antitrust law also differs from traditional antitrust law in that it now reflects the dominance of the economic model of analysing antitrust and competition policy.

Against this background, this new casebook represents the first comprehensive effort to examine US and EC competition law cases and decisions within a common analytical framework strongly based on economic theory. It is an innovative casebook addressed to all students, not only from the US and Europe, but also from all jurisdictions having competition laws, providing an in-depth analysis of the two major global antitrust regimes in the world, and a summary of the parallel antitrust laws elsewhere in the world. As such it will also serve as a useful reference for practitioners, competition officials, and policy-makers interested in competition law.

For the leaflet and a discount order form (20%): Download global_competition_law.pdf

French as a Reference Language for EU Legal Affairs?

A(nother) bunch of sovereignists has recently proposed establishing French as the reference language  for EU legal affairs.  In practice, this would mean that legal interpretative disputes could be surmounted by using the French version as the reference text.  Chris Dickson, a journalist a the famous EU newspaper Agence Europe, interviewed me yesterday on that issue.  Here's a translation of the article.

(EU) EU/LAW: Will the French be made reference language for legal affairs? 

Brussels, 07/02/2007 (Agence Europe) - The Comite pour la langue du droit europeen (CPLDE) visited the European institutions in Brussels on Wednesday 7 February to campaign for French to become the reference language for EU legal documents. The French language is good for detail and accurate expression, explained CPLDE President Maurice Druon at a press conference. He said it was not about trying to make French a compulsory language in Europe, even for legal affairs. His aim is simply for a decision to be made among the 23 linguistic versions of EU legislation of the benchmark when deciding on differing interpretations, and he argued that French was the ideal candidate.

Language differences can certainly lead to problems of interpretation but it is far from certain that French would be the best solution. Asked to give concrete examples, Druon referred to the infamous Resolution 242 of the United Nations, where the difference between the vague 'withdrawal from territories' and the more specific 'retrait des territoires' means that only the French version covers all the territories in question and this had led to implementation problems that continue to this day.

Linguistic interpretation when deciding on ambiguous cases has long been in existence. This is nothing new, Nicolas Petit, a specialist in competition law at Liege University in  Belgium, told Europe, adding that focussing interpretation on the French language is not necessarily very logical. He gave an example. During the 1960s, explained Petit, specialists studied the interpretation of Article 82 of the Treaty (competition), discovering that the Dutch term 'machtpositie' was more explicit and more manageable from a legal point of view than the French version 'position dominante'. Maurice Druon may not like it but it comes to business and competition, French would not necessarily be the safest language legally, said Petit.

The CPLDE's ideas, expressed in beautiful French by the different nationalities on the CPLDE do not express a genuinely urgent political strategy. It is more an expression of principle, explained a spokesperson for the EPP-ED group at the European Parliament, who organised the CPLDE's visit. If the committee wants to take action and get genuine pan-European political backing, it might be wiser to promote a solution less closely aligned with French interests. (cd)"

Note that Maurice Druon is also the author of "Les rois maudits", a great saga on the French kings in the middle ages.