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…

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…

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…

American Bar Association ‘Report on Antitrust Policy Objectives’

This is a fairly old paper  – available at https://www.americanbar.org/content/dam/aba/administrative/antitrust_law/report_policyobjectives.authcheckdam.pdf – that describes how, although most jurisdictions maintain that their competition laws “preserve competition”, the preservation of competition can mean different things in different places. It also discussing how these different meanings of competition can reflect the fact that antitrust laws can protect many different objectives. To my knowledge, this is one of the best description of the various goals of antitrust – it is comprehensive, to the point, and easy to read (for those interested, there is also a survey from the ICN on this). Even though jurisdictions adopt competition rules for differing reasons, each tends to describe its competition law initiatives in the same manner, as rules that aim “preserve competition.” However,  “preserving competition” is defined in different ways. Among the objectives that this paper identifies as informing the application of competition rules in different countries are: consumer welfare, total welfare, economic efficiency, protection and promotion of business rivalry,…

Joseph Drexl ‘The Transplantability of the EU’s Competition Law Framework into the ASEAN Region’

This paper by Josef Drexl – a chapter on a book on the ‘The Regionalisation of Competition Law and Policy within the ASEAN Economic Community – focuses on the transplantability of competition law systems across regions(in this case, from the EU to ASEAN). Basic argument: some elements of a competition system are transplantable, others are not. A full, successful transplant from the EU to ASEAN must take into consideration the goals of ASEAN competition law, the degree and potential of economic integration of the national economies, the level of economic development of these economies, the development of a competition culture in these countries, the comparative advantages of centralised and decentralised enforcement, and the willingness of ASEAN countries to surrender sovereignty in the field of competition law. In short, transplants depend on socio-economic conditions. I think we can all agree with this article of faith in spirit, even if I’m doubtful that anyone is very good at embracing it in practice –…