Bjorn Lundqvist ‘Joint Research and Development Collaborations Under Competition Law, with a Layman’s Economic Viewpoint’ (2017) Stockholm University Research Paper No. 3

This paper – which you can find here – looks into the antitrust treatment of joint research and development agreements (“joint R&D”) under both EU and US law. The paper begins by providing (yet another) overview of the literature on competition and innovation. The basic conclusion is that it is  uncertain whether competition promotes or detracts from innovation, but we all know this by now. Informed by these observations, the paper then looks at the EU and US treatment of joint R&D agreements. In the US, after a few old cases, joint R&D was subject to its own antitrust regime by the National Cooperation Research (and Production) Act in 1984 – which applies a rule of reason for innovation markets, and precludes treble damages if the agreement was notified to the competition agencies. In effect, the author argues, this created a safe harbour for R&D collaborations. These developments led to the adoption of the R&D Block Exemption at about the same time…

Patrick Actis Perinetto and Natalia Latronico ‘The Bitter Medicine: Competition Law and Parallel Trade in the Pharmaceutical Sector’ (2017) World Competition 40(10 93

This article – which you can find here – is a rather straightforward piece on restrictions on parallel trade of pharmaceutical products as a competition law infringement. It begins by analysing the most relevant features of parallel trade in the pharmaceutical sector. In Europe, a prohibition of restrictions on cross-border trade under EU competition law is coupled with the fact that the main purchaser of pharmaceuticals are the member states, which are free to adopt their own approach with respect to pricing and public reimbursement. Given the resulting price differentials between member states, parallel trade occurs as wholesalers take advantage of the arbitrage possibilities by exporting products from a low-price country to a high-price one and pocketing the margins. Having established this, the paper moves into reviewing the main strategies used by companies to counter such parallel trade. Such practices include refusal to deal/prohibition of exports, vertical integration, quota systems and dual pricing schemes. The paper identifies each strategy in turn,…

Ariel Ezrachi ‘The Ripple Effects of Online Marketplace Bans’ (2017) World Competition 40(1) 47

This paper – which you can find here – assesses the economic and legal implications of online marketplace bans in order to determine what treatment they should be subject to under competition law. The discussion opens in Chapter 2 with a review of different types of online marketplaces. Online marketplaces bring together large numbers of sellers and buyers, and in doing so facilitate dynamic competition, both in relation to greater inter-brand competition and in relation to intra-brand competition. Nonetheless, there are various types of such marketplaces, which could be distinguished on the basis of their particular characteristics. These include: (a) whether online marketplaces are pure or hybrid intermediaries (pure intermediaries are merely platforms for buyers and sellers, while hybrid intermediaries provide a sales platform but also act as retailers on their own platform); (b) open or closed marketplaces (any seller can gain access to an open marketplace, while closed marketplaces impose access restrictions); (iii) the type and quality of the interface on…

Pedro Caro de Sousa ‘Free Movement and Competition in the European Market for Pharmaceuticals’ in in Pablo Figueroa and Alejandro Guerrero Perez (eds.) EU Competition and Trade Law in the Pharmaceutical Sector (Elgar), Chapter 13

This is a paper of mine – which you can find here – that looks at the interaction of free movement and competition law as regards the pharma sector in Europe. Very few industries are as profoundly influenced by regulation as the pharmaceutical industry. All aspects of the life-cycle of new drugs are regulated, from patent application, to marketing approval, commercial exploitation, patent expiration and competition with generics. The nature of demand for drugs, the identity of drugs brought to market, and the nature of competition in the drug market over time are all shaped by regulation. Throughout much of the world, administrative regulation, rather than competition policy, dominates efforts to afford consumers and governments adequate access to affordable drugs. As a result, the nature of competition in this market is sui generis. A significant number of infringements to competition law in this sphere across the world are concerned with practices that seek to take advantage of or manipulate the…

Thibault Schrepel ‘A New Structured Rule of Reason Approach For High-Tech Markets’

This paper attacks, the assumption that a number of practices in high tech markets should be presumed to be legal. It was published in the Suffolk University Law Review, and can be found here. It seeks to build on Easterbrook’s framework for designing efficient antitrust rules, and to develop a structured rule of reason framework that could apply to the new economy.  It does this by: (i)  distinguishing between per se rules and rule of reason standards; (ii)  reviewing the arguments for and against the adoption of per se rules, in order to explain why per se rules are not appropriate for high tech markets; (iii) lastly, developing an approach that replaces per se rules with an “administrable” structured rule of reason applicable in innovation and high tech markets whenever “the practice has not proven to be pro-competitive in every case”. The paper provides a decent overview of the discussion about rules and standards in antitrust. Further, it makes one…

Asda Stores Ld & Ors v MasterCard 2017 EWHC 93 (Comm)

This decision – available here – concerns a standalone claim for damages against MasterCard brought before the English courts. As some of you will know, disputes over the legality of Multilateral Interchange Fees (MIFs) and various payment card-schemes has been ongoing for well over a decade.  In the US, it included a decision on the legality of the American Express System which has found its way to the Supreme Court docket. In this case, which follows a decision by the European Commission – but is not a follow on claim since the practices in question, while similar, are not the same ones that were subject to the Commission’s decision – the English courts had to decide whether the level at which MasterCard set its MIFs was illegal, and hence whether damages are due. You may be pleased to hear that the decision is long and complicated – if nothing else, because it conducts an in-depth effects based assessment that hinges…

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…

Daniel Sokol ‘Troubled Waters Between U.S. and European Antitrust’

This is an article-length review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle, a book on the differences between EU and American antitrust. It was published in the Michigan Law Review, and can be found at https://repository.law.umich.edu/mlr/vol115/iss6/10/. The review is interesting because: (I) it provides an overview of the book and its arguments, which is quite useful; (II) it describes how the different goals of antitrust and institutional framework on both sides of the pond lead to different enforcement priorities and allocation of powers to enforcement agencies; (iii) it assesses in some detail how single firm conduct is differently pursued on both sides of the Atlantic; and (iv) it compares different enforcement practices regarding cartels in Europe and the US. The main argument of both the book and the article is that: “With its steadfast economic focus, antitrust in the United States has a clear goal. In…

Giorgio Monti and Goncalo Banha Coelho ‘Geo-Blocking Between Competition Law And Regulation’

This paper – available at https://www.competitionpolicyinternational.com/geo-blocking-between-competition-law-and-regulation – looks at the European Commission’s initiative to prevent geo-blocking. As I understand it, this is a short version of a larger report requested by the European institutions. Geo-blocking refers to those practices by sellers which make it costly or impossible for consumers with residence in one Member State to obtain goods and services from other Member States. They also include the rerouting of customers away from websites hosted in other Member States to a website hosted in the Member State from where they are based (e.g. customers in Italy rerouted from a “.pt” version of an online store to its “.it” version), without their consent. The paper begins with a review of the main rules in European Competition law devoted to the prevention of restrictions to cross-border competition – which cover mainly contractual restrictions to this type of trade (Art. 101 TFEU) or abuse of dominant position (Art. 102 TFEU). However, no rules…

Francisco Costa-Cabral, Orla Lynskey, ‘Family ties: The intersection between data protection and competition in EU law’

This article – published in (2017) Common Market Law Review 54 11 – looks at the relationship between privacy and competition law (in the EU). The authors state that, instead of getting into a discussion of whether public policy considerations regarding data privacy should be considered as part of consumer welfare, they are looking instead at the elective affinities between privacy and competition law. Curiously, they seem to reach a conclusion related to competition assessment (i.e. the impact of data protection on consumer welfare): “data protection conditions offered to individuals can reflect the parameters of quality, choice, and innovation” The paper makes two primary arguments:  that data protection law– a framework designed to identify and achieve an optimal level of personal data protection – can provide the normative guidance that competition law lacks in relation to non-price competitive parameters;  it develops a normative benchmark to assess whether certain competition law commitments and remedies should be accepted. The structure of the paper…