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…

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,…

Francisco Costa-Cabral, Leigh Hancher, Giorgio Monti and Alexandre Ruiz Feases ‘EU Competition Law and Covid-10’

This paper, which is from the whole of Tilburg’s competition department, as far as I can tell, is available here. It explores how EU competition enforcement might be affected by the COVID-19 pandemic. The authors recommend that competition authorities should be watchful of excessive prices and price discrimination, and rely on interim measures if necessary. Collusion should remain an enforcement priority, but a procedural pathway to review agreements that may be in the public interest should be adopted. In merger control, the Commission’s strict interpretation of the failing firm defence is appropriate but, in general, a more sceptical attitude towards mergers may be warranted during this period. Advocacy will play a key role: competition agencies can both point to existing regulations that limit competition and monitor proposed emergency legislation that would harm competition for no good reason. A first section provides an overview of the nature of competition law in the midst of a crisis. Competition law is a political enterprise,…

Harry First and Stephen Webber Wallace ‘Pairing Public and Private Antitrust Remedies’ in Albert A. Foer Liber Amicorum, Concurrences (Forthcoming)

Discussions on private competition remedies most often deal with questions of optimal deterrence and effectiveness. Lost in conversation is the basic idea that antitrust violations cause economic harm, and that those victimised by that harm should be entitled to damages from those who have violated the law. This is the underappreciated compensatory function of antitrust. Section 4A of the Clayton Act is a powerful, yet historically underused enforcement tool that empowers the United States to obtain treble damages for anticompetitive conduct when the government is itself the victim. The paper, which can be found here, focuses on whether the US government should not only pursue public enforcement activities, but also engage in private enforcement claims to be compensated for losses as a result of anticompetitive conduct. It examines the limited use of Section 4A, and discusses some possibilities for future cooperation between public and private plaintiffs that could advance the compensatory goal of antitrust. It is structured as follows: Section I looks…

Miriam C. Buitem ‘The Ambivalent Effect of Antitrust Damages on Deterrence’ (2019) CPI Antitrust Chronicle Ju

The possible undermining effect of damages actions on leniency programs has been hotly debated. The concern is that the prospect of damages claims may discourage colluding firms from applying for leniency, since the leniency program only shields them from public fines, not from civil damages. Civil damages may contribute to the goal of preventing cartels by increasing the expected costs of starting a cartel. However, civil damages may not enhance antitrust deterrence if colluding firms believe it to be unlikely that competition authorities will detect their cartel. For leniency programs to put cartel members in a prisoners’ dilemma, confessing must be more attractive than staying quiet. If civil damages are substantial, leniency may not sufficiently improve a colluding firms’ position as compared to their non-reporting co-conspirators, and hence their incentive to apply for leniency will decrease, together with the overall odds of cartel detection. This note, available here, discusses the ambivalent effect of antitrust damages actions on deterrence. It considers how fines…

Nicole Rosenboom and Daan in ’t Veld ‘The Interaction of Public and Private Cartel Enforcement’ (2019) World Competition 42(1) 87

Despite its broad title, this article – available here – investigates mainly the interaction between leniency programmes and civil damages claims.  Most competition authorities have adopted leniency programmes to uncover cartels. To increase the overall deterrent effect of competition law, many jurisdictions have also introduced private competition enforcement, which increases the total potential financial exposure of cartel members. The impact of private competition enforcement – and particularly the concomitant increase in the liability of potential leniency applicants – on leniency programmes has been discussed in the literature, but there is an absence of empirical studies. This article tries to fill this gap by studying the empirical impact of private competition enforcement on leniency. It uses two methods: surveys of Dutch firms and competition lawyers, and econometric conjoint analysis. The authors conclude that firms’ decisions to apply for leniency are affected by the magnitude of the personal penalty to which directors are subject and the amount of fine reduction following a successful leniency application….

OECD work on Crisis Cartels (2009)

The OECD background paper on this topic was written by Professor Simon J. Evenett in 2011, and can be found here. The purpose of this paper is to consider whether changes in policies towards cartel formation are merited during economic crises and associated recoveries. The paper is structured as follows: Sections two defines crisis cartels. The term crisis cartel is used to refer to a cartel that was formed during a severe sectoral, national, or global economic downturn. Such cartels can occur without state permission or legal sanction, which may trigger enforcement; or they may be permitted, even fostered, by a government, which may trigger advocacy. The impact of a crisis on the incentive of firms to cartelise will depend on the nature of the crisis, be it sectoral, national, or international. In thinking through the impact of each type of crisis on the behaviour of cartel members, one must identify the ways in which the crisis affects the business…

Peter Georg Picht and Gaspare Tazio Loderer on ‘Framing Algorithms: Competition Law and (Other) Regulatory Tools’ (2019) World Competition 42(3) 391

Algorithmic market conduct, and intervene where algorithms risk distorting competition. In effect, the collusive potential of algorithms and algorithm-driven resale pricing have already been the subject of enforcement. However, it is still not clear whether competition law has, in its present form, the necessary tools and techniques adequately to control algorithms. This article, available here, looks at what other areas of the law, which are more advanced in this respect, can teach competition law. Its second section looks at how financial markets regulation and data protection law deal with algorithm-based market activity. Financial markets were among the first to deploy algorithms broadly and intensely. As a result, financial market regulation developed a comparatively detailed set of rules on algorithmic trading early on. European data protection law is another area that already has in place certain elements of a legal framework for algorithmic (market) activity. This includes the General Data Protection Regulation (GDPR) and the ePrivacy Regulation. These two regulatory regimes share…