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…

Louis Kaplow ‘On the relevance of market power’

This article was published in the Harvard Law Review, and can be found at https://harvardlawreview.org/2017/03/on-the-relevance-of-market-power/. This is a book-length all-out attack on the conception of “market power” as it is currently applied. Like most  law and economics literature, it is concerned with how best to design laws in order to maximise the social benefit of law enforcement. While the argument is not easy to encapsulate, I think the main point is that greater market power – understood as  “the degree to which price can profitably be elevated above a competitive level, often taken as marginal cost” – does not necessarily mean that greater anticompetitive effects must follow. Instead, market power can have a variety of different effects, depending on the specific impact of the relevant practices on welfare. As such – and unlike what we do today – the concept of market power should be derived backwards from the level at which an antitrust infringement should be found, based on the impact that…

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…

Lisa Khan ‘The New Brandeis Movement: America’s Antimonopoly Debate’

This paper is a full-blown defence of the New Brandeis movement by one of its most visible proponents. It is to be published in the Journal of European Competition Law & Practice and can be found here: https://academic.oup.com/jeclap/advance-article/doi/10.1093/jeclap/lpy020/4915966 The paper begins by mapping out the emergence of the New Brandeis (or anti-monopoly) movement as a reaction to growing concentration in the American economy. The movement takes its name from Louis Brandeis, who served on the US Supreme Court between 1916 and 1939 and was a strong proponent of America’s Madisonian traditions—which aim at a democratic distribution of power and opportunity in the political economy. The movement is anchored in the following pillars: There are no such things as market ‘forces’. The Chicago School assumes that market structures emerge in large part through ‘natural forces.’ The New Brandeisians, by contrast, believe the political economy is structured through law and policy. The goal of antimonopoly laws is to ensure that citizens are…

Ajinkya M. Tulpule ‘Compliance And Enforcement in a Blockchain(ed) World’

This paper,  by a senior staff member of the UK’s Financial Conduct Authority, is the first attempt I know of to address the implications of the blockchain for competition law. It can be found here: https://www.competitionpolicyinternational.com/compliance-and-enforcement-in-a-blockchained-world/ The paper first defines key terms to ensure that the reader understands the main concepts related to the blockchain, which are obscure to the uninitiated – concepts such as “distributed ledger”, ‘smart contract”, and, let’s be honest, “blockchain”. A second section then lists the potential benefits of blockchain technologies in the enforcement of competition law. According to the author, the most pertinent utility of a blockchain in competition enforcement is likely to be related to obtaining and processing large volumes of transactional and non-transactional data – which can be relevant for merger control, cartel investigations and, at a minimum, for monitoring commitments in abuse of dominance matters. The third and last section is devoted to the potential of the blockchain for the implementation of competition…

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…

Massimo Motta and Chiara Fumagalli ‘On the use of price-cost tests in loyalty discounts and exclusive dealing arrangements: Which implications from economic theory should be drawn?;

You can find this paper in (2017) Antitrust Law Journal, 81(2): 537–85. The paper looks at  loyalty rebates and the use of price cost tests. It begins by describing recent European and American case law on the matter, and highlights differences in the judicial approaches on both sides of the Atlantic (i.e. the classic distinction between European formalism and American effects-based tests). The authors then distinguish between economic tests of predation and exclusionary rebates, while noting that both include common economic mechanisms that can involve sacrificing profits.In the last and most important section, they argue that rebates and contracts containing conditions regarding how much buyers purchase from rival suppliers can raise serious anti-competitive concerns. From this point of view, a stricter treatment of exclusive contracts and some loyalty discounts might be justified – which may imply that evidence of above-cost prices may work as a safe harbour for predation, but not for exclusive dealing and loyalty rebates. Overall, I think…

Maurice E. Stucke ‘Reconsidering Antitrust’s Goals’

This is a more recent paper to the ABA one identified in the post below, which has the advantage of also being an analytical / critical piece. To be clear, I do not necessarily support or condone the criticisms set out in the paper – but I do like how his analysis makes one think about what antitrust should be about. The article can be found at http://lawdigitalcommons.bc.edu/bclr/vol53/iss2/4/. While mainly focused on the US, the paper is interesting for its (critical) description of how our current understanding of antitrust as being mainly devoted to promoting consumer welfare and efficiency came about (interesting tidbit: before 1975, the US Supreme Court had never mentioned “consumer welfare” in an antitrust case); and of how this “official” understanding conflicts with the proliferation of antitrust goals to be found in laws across the world (which leads to a useful review of such antitrust goals, mainly relying on ICN work). The critical part is also interesting for…

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,…