Alison Jones and William E. Kovacic ‘Identifying Anticompetitive Agreements in the United States and the European Union – Developing a Coherent Antitrust Analytical Framework’ (2017) Antitrust Bulletin 62(2) 254

This is a very substantial paper on the appropriate analytical framework for identifying anticompetitive agreements . It can be found here. The paper focuses on how the debate on rules and standards, and on the balance of Type I and Type II errors, affects the analytical framework for identifying infringing agreements in the US and EU. From their standpoint, these debates have been influential in discussions about how to identify anticompetitive unilateral practices and mergers, but have not been relevant for similar discussions regarding horizontal agreements. Also, from their point of view: “the question of how agreements are to be analysed under both the US and the EU jurisprudence is also unduly opaque; it is frequently difficult to ascertain whether agreements, including joint venture and other horizontal collaboration and distribution agreements, are compatible with the law. In particular, confusion about the role and scope of per se rules, the role and scope of ancillary restraint doctrines, and how competing anti- and…

Jonathan Galloway ‘Securing the Legitimacy of Individual Sanctions in UK Competition Law’ (2017) World Competition 40(1) 121

This article – which you can find here – looks at attempts to impose individual sanctions for breaches of competition law in the UK. These sanctions include the recently amended criminal cartel offence – which can lead in imprisonment of up to five years – and the NCA’s power to apply for a competition disqualification order. Famously, the UK’s record in the enforcement of these sanctions is mixed (see below). To explain this state of affairs, the author identifies a tension between the economic theory of deterrence – which underpins the regime – and regulatory theory on the effectiveness sanctions – which, the author claims, has been ignored. The author points out that traditional deterrence theory relies on a combination of probability of detection and severity of punishment to create a perception of sufficiently high costs to deter wrongdoing. Yet when this leads to the imposition of very high penalties in order to counter a low probability of detection and…

Jens-Uwe Franck and Martin Peitz ‘Toward a Coherent Policy on Cartel Damages’ (2017) ZEW Discussion Paper No. 17-009

This paper – which can be found here – looks at who should have standing in private cartel damages claims. It is an economics paper, so it engages in a normative / most-efficient analysis of who should have standing to claim damages for antitrust infringements. It also looks into both the US and EU’s legal system in detail, to see whether / how their proposal could work. Their main argument is that cartelists should also be liable for damages caused to firms that supply the cartel or the cartel’s customers with complementary product components. What connects these classes of firms is that they may suffer a loss due to cartel‐induced underpayment. In response to the cartel’s output reduction, they may find it a profit‐maximizing strategy to lower their prices to mitigate the decline in demand, thereby effectively reducing the damage to the cartel’s purchasers. In particular, the authors develop a model which purports to demonstrate that the allocation and distribution of…

Pablo Ibanez Colomo and Alfonso Lamadrid ‘On the notion of restriction of competition: what we know and what we don’t know we know’

This paper is published in Gerard, Merola and Meyring, Bernd, (eds.) The Notion of Restriction of Competition: Revisiting the Foundations of Antitrust Enforcement in Europe. (Bruylant), and can be found here. One  who is not familiar with competition law would presume that the concept of restriction of competition must surely be well established, as otherwise how can one identify those practices that restrict competition? As anyone who is closer to the action knows , the concept is not really that well established in practice. This paper’s argument is that there is much greater consensus about the concept of restriction of competition in the EU that is usually acknowledged. Instead of presenting a normative view of what a “restriction of competition” should be, this piece systematically reviews the incremental contributions that the EU courts have made to the definition of the notion of restriction of competition, and finds broad agreement around some fundamental questions. In order to do this, the paper is…

Giancarlo Spagnolo and Catarina Marvão ‘Cartels and Leniency: Taking stock of what we learnt’

This paper, available at https://ideas.repec.org/p/hhs/hasite/0039.html, reviews the literature on the incentives of leniency applicants.  It is a really useful piece for anyone doing leniency work, and extremely thorough. It is not possible to  provide a summary of the paper: it reviews too many papers and possible scenarios (the first section looks at economic models, the second at empirical evidence). If there is a basic argument underpinning all of this, it seems to be that incentives to increase cartel enforcement results may not be well-aligned with maximising welfare /  may lead to excessively generous leniency conditions; and that leniency reduces collusion but that the EU is too nice to cartelists and extends leniency to far too many companies.

Wouter Wils ‘The Use of Leniency in EU Cartel Enforcement: An Assessment After Twenty Years’

This paper by Wouter Wils – available at https://www.concurrences.com/en/review/numeros/no-1-2017/articles/the-use-of-leniency-in-eu-cartel-enforcement-an-assessment-after-twenty-years – describes  20 years of leniency in Europe. In addition to some interesting statistics, it contains an overview of arguments for and against the use of leniency. It is useful for anyone doing bid-rigging / promoting the virtues of competition, but putting at risk the job of thousands of trainee lawyers who will no longer have a job searching for examples of the practical application of  leniency by the European Commission.