Wouter Wils ‘Private Enforcement of EU Antitrust Law and Its Relationship with Public Enforcement: Past, Present and Future’ (2017) World Competition 40(1) 3

This paper – which can be found here – provides a short history of private enforcement of EU antitrust law and of its relationship with public enforcement. The paper is structured as follows: Chapter 2 looks at the situation before 2003, a period during which courts established that the Treaty’s competition provisions have direct effect and create rights for individuals, even as public enforcement predominated. Chapter 3 reviews the changes brought about by Regulation 1/2003, that allowed NCAs and national courts to fully implement competition law (up until then, the system required exceptions under Art. 101(3), which concerns efficiencies, to be approved by the European Commission). This Regulation contained a number of provisions that: (i) in line with Masterfoods, obliged NCAs and national courts to follow prior Commission decisions on antitrust infringements; and (ii) set up mechanisms for cooperation between the European Commission, NCAs and national courts concerning the private enforcement of antitrust rules. However, Regulation 1/2003 ultimately led to increased…

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…

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,…

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…

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…

Lisa Khan ‘Amazon’s Antitrust Paradox’

This is a bold paper which argues that competition law, as it stands, is not an apt gauge of competition in the twenty-first century marketplace—especially in the case of online platforms. It was published in the Yale Law Review, and can be found here. The argument is built around a critique of the way antitrust has (failed to) deal with Amazon. In particular, it argues that a close look at Amazon’s business strategy reveals that the current framework of antitrust— especially how it equates competition with “consumer welfare”, and “consumer welfare”  with short-term effects on price and output—fails to capture the architecture of market power in the twenty-first century marketplace. The paper holds that, instead, antitrust should analyse the underlying structure and dynamics of markets. Rather than pegging competition to a narrow set of outcomes, this approach would examine the competitive process itself. Animating this framework is the idea that a company’s power, and the potential anticompetitive nature of that power,…

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…