Niamh Dunne ‘Dispensing with Indispensability’ (2020) Journal of Competition Law & Economics 16(1) 74

‘Indispensability’ is the central concept underpinning the treatment of refusal to deal claims under EU competition law. Firms can normally refuse to share their infrastructure with would-be competitors, to supply an input, or to licence their intellectual property. Where the requested access is, however, deemed indispensable to effective competition in an adjacent market—an exceptional circumstance—dominant undertakings may find their default market freedom constrained, the rationale being that control of such an essential facility renders any refusal to deal disproportionately harmful. However, the conventional wisdom that instances of refusal to deal constitute an abuse only in the presence of indispensability has been challenged from multiple directions. This article, available here, surveys the departures from the orthodoxy that can be found in the jurisprudence. Section II introduces refusal to supply as an antitrust theory of harm. It has long been acknowledged that Article 102 TFEU may, in certain instances, proscribe refusals to contract with rivals by dominant undertakings. Yet refusal to deal…

Einer Elhauge ‘How Horizontal Shareholding Harms Our Economy—And Why Antitrust Law Can Fix It’ (2020) 10 Harvard Business Law Review 10(2) 207

This article, available here, argues that new economic proofs and empirical evidence show that horizontal shareholding in concentrated markets often has anticompetitive effect. The piece also develops new legal theories for tackling the problem of horizontal shareholding. When horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. Anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102. Part I describes how new proofs and empirical evidence have confirmed that high levels of horizontal shareholding in concentrated product markets can have anticompetitive effects, even when each individual horizontal shareholder has a minority stake. The last few years have seen a deluge of studies – involving economic modelling and empirical research – demonstrating how overlapping horizontal shareholding can lead to anticompetitive effect, even when each individual horizontal shareholder has a minority stake and without…

Frank Maier-Rigaud and Benjamin Loertscher ‘Structural v Behavioural Remedies’ (2020) CPI Chronicle April

Both antitrust and merger investigations at the EU level regularly conclude with the European Commission (“Commission”) accepting or imposing remedies. Despite the theories of harm underlying antitrust and merger investigations often being similar, if not identical, remedies in these two areas of competition law vary substantially. The predominance of behavioural remedies in antitrust cases stands in contrast to structural remedies relied upon in most merger investigations. This is surprising and begs the question of what are the factors driving the Commission’s remedies practice – which is the question that this paper, available here, seeks to address. Section II provides some background on the application of remedies under EU law. Under merger control, commitments accepted by the Commission “should be proportionate to the competition problem and entirely eliminate it.” Similarly, in antitrust enforcement the Commission can “impose any […] remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end”. The broadest classification for…

Julian Nowag and Liisa Tarkkila on ‘How much effectiveness for the EU Damages Directive? Contractual clauses and antitrust damages’ (2020) Common Market Law Review 57 433

Market actors often include clauses in contracts which determine the jurisdiction, and/or forum in which any claim arising from the contract may be heard; or clauses which prohibit reassigning a claim or joining a class action. In some situations, these clauses may make it more difficult to obtain full compensation for a competition law infringement. Antitrust victims can be forced to bring damages actions in jurisdictions or before arbitrational tribunals that have less favourable cost and evidential rules; they may also encounter language-related problems. Similarly, preventing forms of collective redress has obvious benefits for defendants whenever a large number of victims only suffered very small individual harm. This paper, available here, explores the extent to which the aims of the Damages Directive and development of a strong EU private enforcement system in Member States’ courts might be undercut by such contractual arrangements. It argues that EU law protects consumers against clauses that could hinder the full effectiveness of the right to compensation…

Jean-François Laborde ‘Cartel damages actions in Europe: How courts have assessed cartel overcharges’ (2019) Concurrences

The primary objective of this study, available here, is to analyse how national European courts have assessed cartel overcharges. In addition, it also provides figures on the development of cartel damages actions in Europe (how many cases were decided, in which countries, with which outcomes, etc.). It was completed with the help of lawyers, law professors, economists, national competition authorities and national judges from 30 European countries.   Now in its fourth edition, this study shows that national courts in Europe have handed down judgments in at least 239 cartel damages actions in 13 countries, relating to more than 63 cartels. In these judgments, courts have given many insights into how to assess cartel overcharges. Section I describes the methodology followed. The process employed for this research involved four steps. The cases were identified; copies of judgments were gathered; using a recent automatic translation service, judgments were translated into English; their content was then analysed. To identify cases, contributors were asked whether they…

Miguel Sousa Ferro ‘Antitrust private enforcement and the binding effect of public enforcement decisions’ (2019) Market and Competition Law Review 3(2) 51

This paper, available here, provides an overview of the binding effect of public enforcement decisions in follow-on competition law cases in Europe. It discusses the material, subjective and temporal scope of this binding effect. It also tackles other issues, such as the obligations of national courts vis-a-vis non-infringement decisions and ongoing investigations. Finally, it looks into some arguments put forward by litigants before national courts to avoid or circumvent the binding effect of public enforcement decisions. Sections II and III explain the basis for EU and national competition infringement decisions being binding in subsequent damages claims. It follows from Article 16(1) of Regulation /2003, which mainly codified preceding case law, that European Commission decisions identifying infringements of EU competition law which have become final (res judicata) are binding upon national courts in follow-on private enforcement actions. A national court can only escape this binding effect if it believes that the Commission’s infringement decision is invalid and the CJEU declares it to be…

OECD papers on the implications of the pandemic for competition law – merger control, cooperation agreements and exploitative pricing

This post reviews three OECD papers on the implications of the pandemic for competition law. Each paper focuses on a different topic. A first paper focuses on merger control in the time of COVID-19. In times of acute crisis, such as the one provoked by COVID-19, many firms may need to leave the market, which may trigger increased merger activity. Without thorough merger review, there is a serious risk that the economic crisis would result in higher market concentration and market power in several sectors. At the same time, the unparalleled economic uncertainty we are living through means that competition authorities face a number of challenges in the exercise of their merger control powers. A first challenge relates to how to conduct forward-looking competitive assessments in turbulent market conditions. Merger reviews assess the effects of transactions by comparison to the circumstances that would have prevailed without the transaction (i.e. a counterfactual). In most cases, the counterfactual starts from the competitive…

Andrew Leitch ‘Skanska: are jurisdiction challenges now an impossible undertaking?’ (2019) Competition Law Journal 18(3) 97

This paper is available here. Damages claims which follow on from European Commission (“Commission”) cartel decisions are, by their very nature, multinational in scope, with addressees of a Commission decision often domiciled across various EU Member States and even further afield. As multiple national markets are often affected by the anticompetitive conduct, potential claimants are also often domiciled across the EU and beyond. This can present potential claimants with a choice as to the jurisdiction in which they wish to pursue their damages claims, with the United Kingdom, Germany and the Netherlands emerging as the most popular jurisdictions. However, seising jurisdiction in the national court of a desired Member State can require the claim to be pursued against an anchor defendant that is not an addressee of a Commission decision. The ECJ’s Skanska judgment relieves claimants from the burden of having to establish that the non-addressee defendant participated in, or implemented, the cartel in order to sustain a claim against…

Felipe Irarrázabal ‘Competition and the plague’ (‘La libre competencia y la peste)

This piece is available here, but only in Spanish. The summary below reflects my own translation of the piece. Emergencies – such as wars and natural disasters – undermine the assumptions underpinning competition law and policy. Competition enforcement against cartels builds on the premise that fierce competition is highly beneficial for society, whereas firm cooperation will only create benefits in much more restricted situations. Competition enforcement also relies on legal procedures, which are by nature slow and lend themselves to sophisticated disputes. Covid-19 has forced authorities to enact exceptional regimes and pressured them to take urgent and even drastic measures. The coming economic recession will likely require similar measures. The main competition agencies in the world have started to react to this negative scenario. Several of them have declared that they will be alert to any possible violation of competition law. Others have specified that they will not accept excessive prices as a result of the crisis (although this legal…

Frederic Jenny ‘Economic Resilience, Globalization and Market Governance: Facing the Covid-19 Test’

Globalisation contributed to the rapid spread of COVID to all corners of the globe. The economic cost of fighting the virus froze a number of economies and disrupted global value chains, and is likely to be followed by several years of an economic depression that will dwarf the cost of the 2008 financial and economic crisis. The dramatic events of the first quarter of 2020 challenge some of the implicit assumptions underlying the design of our economic systems, and should make us think about some of the dilemmas and trade-offs that this crisis has foisted upon us. This piece, available as a working paper here,  is not mainly about competition – instead, it is a piece that thinks widely about the implications of this pandemic for the economic architecture underpinning globalisation, which also touches on competition. This is because, in the grand scheme of things, competition law and policy plays a relatively limited role when markets are not in equilibrium,…