Michael J. Frese ‘Civil Liability for Single and Continuous Infringements’ (2018) World Competition 41 (2) 179

Infringement decisions by competition authorities in Europe provide irrefutable, or at least prima facie evidence of antitrust violations in follow-on cases brought before national courts. This binding effect of infringement decisions is meant to ease the burden on injured parties seeking to obtain damages. Evidentiary rules applicable to investigations thus have a bearing on the outcome of civil litigation and the scope of potential damages exposure. The single and continuous infringement (SCI) is an example of such an evidentiary rule. This legal construct alleviates the burden on competition authorities to prove individual details of cartels whose membership and activities may have evolved over time. However, appropriate limiting principles are required to ensure that defendants are not paying for harm they have not caused or could not have prevented. This article, available here, discusses the evidentiary value of single and continuous infringement findings in follow on damages litigation, and explores the available limiting principles. It is structured as follows: After the introduction,…

Ariel Ezrachi on ‘EU Competition Law Goals and The Digital Economy’ (2018) Report for BEUC – The European Consumer Organisation

This paper – which can be found here – remarks that questions regarding whether certain conducts pose competition problems have become increasingly common in the face of new business strategies, new forms of interaction with consumers, the accumulation of data and the use of big analytics. It argues that answers can only be provided by taking into account the goals and legal framework of specific competition regimes. The author focuses on the EU. The paper thus outlines the goals and values of European Competition law, and looks at how they apply to digital markets. The report is structured as follows: The paper begins with an introduction to the constitutional foundations of European Competition law. Competition policy is one of several instruments used to advance the goals of the European Treaties. In this context, competition rules must be interpreted in the light of the wider normative values of the EU. These are not limited to economic goals such as promoting consumer welfare, but…

Anne C. Witt ‘The Enforcement of Article 101 TFEU: What has happened to the Effects Analysis’ (2018) Common Market Law Review (55) 417

This paper – which You can find here – focuses on the role that priority setting and institutional dynamics can have on public competition enforcement. It argues that, while the Commission has developed an impressive theoretical framework for assessing the effects of agreements on competition, there has in fact been very little effects analysis in the Commission’s decisional practice since 2005. Instead, most cases have been decided as ‘object restrictions’. The paper is structured as follows: A first section briefly retraces how the Commission came to endorse a more effects-based approach to EU competition law generally, and to Article 101 TFEU in particular. By the late 1990s, commentators had been long criticising the Commission for relying too heavily on form-based presumptions of legality and illegality in its assessments under Articles 101 and 102 TFEU. Commentators pressed the Commission to scale back the use of form-based presumptions in favour of more individual assessments in line with contemporary US antitrust law. The Commission…

Markus Reisinger ‘Asics vs Coty: Competitive effects of selective distribution systems in light of diverging court decisions’

Selective distribution systems are usually put in place in place to ensure that authorized distributors fulfil a certain quality standard, thereby avoiding losses in consumers’ brand valuation. Selective distribution systems often include clauses that allow manufactures to achieve better channel coordination in terms of prices, advertising, services, etc. A common way to do so is to restrict their selective retailers in advertising or pricing practices (e.g. to ensure that advertising campaigns or sales are coordinated). The paper – which can be found here – looks at recent German and EU cases on selective distribution systems, and tries to understand the differences between them. In the Asics case, the German Bundeskartellamt (BKartA) ruled that a selective distribution system by sport shoe manufacturer Asics, which included restrictions regarding online advertisement and price search engines, infringed competition law. By contrast, in the Coty case the European Court of Justice ruled that relatively similar clauses in the selective distribution system of a beauty products manufacturer were…

Maria José Schmidt-Kessen ‘Selective Distribution Systems in EU Competition and EU Trademark Law: Resolving the Tension’ (2018) Journal of European Competition Law & Practice 9(5) 304

The basic argument of this paper – which can be found here – is that the ECJ in Coty reversed its earlier judgment in Pierre Fabre as regards luxury products, in order to ensure that the treatment of selective distribution systems under EU trademark and competition law was aligned. A first section provides an overview of the treatment of online selling restrictions under European competition law. Some luxury brands fear that retailers might damage their valuable brands’ reputation by offering branded goods in an inadequate online environment, e.g. without adequate costumer service; and that allowing online sales by retailers could lead to an increase in trade of counterfeited goods over the internet. As such, they have imposed on their retailers considerable restrictions on the possibility of using the internet as a selling channel, often in the context of selective distribution systems. These restrictions have led to competition law cases being brought against manufacturers who impose them. These cases build on…

Giuseppe Colangelo and Valerio Torti, looks at ‘Selective Distribution and Online Marketplace Restrictions under EU Competition Rules after Coty Prestige’ (2018) European Competition Journal 14 (1) 81

This paper – which can be found here – looks at the Coty decision, and it structured as follows: Section 2 provides an overview of how EU competition law dealt with selective distribution systems pre-Coty. It begins by looking at the Metro decisions. In Metro I, the CJEU decided that the maintenance of a certain price level for specialist retailers and wholesalers was a legitimate goal. In this decision, the CJEU recognised that that selective distribution agreements are compatible with competition rules if they fulfil three cumulative conditions: (i) the characteristics of the product in question necessitate such a distribution scheme in order to preserve its quality or to ensure its proper use; (ii) resellers are chosen on the basis of objective criteria of a qualitative nature relating to the technical qualifications of the reseller and his staff and the suitability of his trading premises, laid down uniformly for all potential resellers and not applied in a discriminatory fashion; (iii) the…

Kai-Uwe Kuhn and Miroslava Marinova ‘The Role of the As-Efficient-Competitor After the CJEU judgment in Intel’ (2018) Competition Law and Policy Debate 4(2) 63

Before I begin my review, a disclaimer is in order: one of the authors was my student – the one who was not until recently the Chief Economist of the European Commission’s DGComp –, and this paper builds on her PhD. The paper – which can be found here – focuses on the relevance of the AEC test for the identification of abuses of a dominant position. It reads the Intel decision as creating a rebuttable presumption of illegality of exclusivity rebates, and as requiring the Commission to examine Intel’s arguments on whether the loyalty rebates could exclude an equally efficient competitor from the market. It also considers that the CJEU confirmed that the AEC test is the relevant benchmark to assess such a rebuttal. At the same type, the authors consider that the judgment raises a number of issues: (i) whether the AEC is an appropriate conceptual benchmark to identify anticompetitive conduct; (ii) in the light of the previous…

Pablo Ibáñez Colomo ‘The Future of Article 102 TFEU after Intel’ (2018) Journal of European Competition Law & Practice 9(5) 293

The author identifies two main takeaways from the Intel decision: (i) as a matter of principle, Article 102 TFEU is only concerned with the exclusion of rivals that are as efficient as the dominant firm. The departure from the market of rivals that are less attractive in terms of, inter alia, price, quality or innovation is deemed to be a natural outcome of the competitive process and as such unproblematic; (ii) practices are only caught by Article 102 TFEU insofar as they are capable of having anticompetitive effects. By the same token, it should always be possible for a dominant firm to provide evidence showing that, in the context in which it is implemented, the practice is incapable of having such effects. The article – which can be found here – seeks to explore these elements in more detail. It is structured as follows: Section II reviews the case and its background. I am not going to do that here (again), but it…

Pascale Déchamps and Gunnar Niels  ‘The One Billion Euro Question for Intel: Moore’s Law or Murphy’s Law?’ (2018) Journal of European Competition Law & Practice 9(2) 124

This paper – which can be found here – is structured as follows: It begins by recalling the context of the Intel case.  In the past, EU case law tended to follow a form-based approach: first determine dominance; then assess the form of the conduct. Once a company was found to be dominant, its ‘special responsibility’ not to impair competition meant that it could not engage in certain forms of behaviour, such as offering loyalty rebates. Little consideration was given to the likely effects of these practices on competition and consumer welfare in a given case. The Intel case, however, came after the Commission started promoting effects-based analysis in abuse of dominance cases. The idea was that practices that have the same effect on the market should be treated in the same way, regardless of their form. This took the form of a Guidance Paper, which was followed by a series of Commission cases and EU court judgments that ranged…

Mark Friend ‘Loyalty Rebates and Abuse of Dominance’ (2018) The Cambridge Law Journal 77(1) 25

This paper – which can be found here – argues that the Intel decision should be given a cautious welcome for signalling a move to a more economics-based approach in the assessment of loyalty rebates. On the other hand, the author thinks that the decision also represents a missed opportunity to provide a comprehensive analytical framework for one of the more unsatisfactory areas of EU competition law. The author begins by describing the EU case law on rebates. In line with AG Wahl’s Opinion, the author identifies two main strands in the case law: Since Michelin II, it has been clear that quantity rebates or discounts – linked solely to volumes purchased from the dominant undertaking – are generally considered not to give rise to foreclosure effects and are presumptively lawful. On the other hand, loyalty rebates have consistently been condemned ever since Hoffmann-La Roche. This case held that a dominant company will be guilty of an abuse whenever that…