Competition journals: Oct. - Dec. 2004

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1 General - Scope of application

The new competition policy of the European Union, M. MONTI, (RDUE, 2/2004, p. 137)

This article by the former European Commissioner for Competition, taking stock of the reforms carried out or initiated during his term of office, highlights developments concerning the control of state aid and, more particularly, the forthcoming introduction of an instrument enabling the Commission to direct its control towards aid that poses a significant threat to competition in Europe, as it is already doing in the field of antitrust. By introducing the "significant impact" criterion, the aim is, in selecting aid measures on the basis of their impact in terms of distortion of competition, not to introduce a mechanism to replace the de minimis rule, but rather to introduce a simplified procedure, allowing the Commission to free up more resources to deal with the most serious infringements. It will also be interesting to read about two ongoing projects: the development of private enforcement, which the Commission intends to encourage, and the review of the policy on abuse of a dominant position.

Activity of the Court of Cassation and the Council of State in competition law, P. ARHEL (Petites affiches, 18 Nov. 04, No. 231, p. 4)

Pierre Arhel gives us the main lessons to be drawn from a dozen judgments handed down by the Court of Cassation and, incidentally, by the Council of State during the period from February to July 2004. Various procedural issues are addressed, but also substantive issues, such as the automatic abuse of a dominant position or the failing firm exception.

Le statut ambivalent au regard de la politique communautaire de concurrence des accords de nature culturelle et des aides d’État, L. MAYER-ROBITAILLE (RTD eur. 2004, p. 477)

Is there a specific fate reserved for cultural goods by competition law? Do agreements of a cultural nature and State aid relating to culture benefit from a more lenient regime? It is to these questions that Laurence Mayer-Robitaille attempts to answer, referring, beyond the Community texts specific to competition law prohibiting anti-competitive agreements and unilateral practices or declaring certain aid incompatible, to specific provisions, such as Article 151 of the EC Treaty. At the end of its study, it calls on the Community institutions to take into account, in the application of the principles of free competition, the cultural variable when it comes to agreements of a cultural nature and State aid relating to culture.

Barriers to entry in antitrust analysis, R. P. MCAFEE and H. MIALON (RLC 2004/1, No. 1, p. 12)

In order to overcome the divisions that have emerged among economists regarding the definition of entry barriers, the authors propose to distinguish between so-called "economic" and "antitrust" entry barriers. The former are defined as a cost that is borne by the new entrant and that existing firms do not (or have not) had to bear, while the latter are characterized by a cost that delays entry and thus reduces social welfare relative to immediate entry at equal cost, it being specified that while most economic entry barriers are antitrust, many antitrust entry barriers are not economic.

The deregulation of legal services, J.-P. GUNTHER (Gaz. Pal. 3-5 Oct. 2004, p. 4)

The point of view of part of the legal profession on the European Commission’s plan to see the removal of unjustified restrictions of competition affecting the access to and exercise of the liberal professions, in particular that of lawyer.

"La politique européenne de concurrence est soumise à la critique", J. QUATREMER (Petites affiches, 20 Dec. 2004, No. 253, p. 3).

Detailed report of a colloquium held on 6 December 2004 in Brussels on the subject of "European competition and trade rules in the face of globalisation".

Un an d’actualité du droit de la concurrence (2003), ASSOCIATION FRANÇAISE D’ETUDE DE LA COMPETRENCE (AFEC) (Petites affiches, 9 Dec. 2004, No. 246, p. 1-87)

Chronique Concurrence, L. IDOT (Europe, Nov. 2004, No. 11)

Chronique Droit interne de la concurrence, M. MALAURIE-VIGNAL (Contrats, conc., consom., oct. 2004, n° 159, p. 18)

Chronique Droit interne de la concurrence, C. CARON et G. DECOCQ (JCP éd. E 2004, p. 1876)

Chronique Droit communautaire des affaires, GILBERT PARLEANI (JCP éd. E 2004, 1599, p. 1728)

Les limites de l’économie de marché, R. NELSON (Problèmes économiques, 10 Nov. 2004, n° 2.862, p. 40)

Developments in EC competition law in 2003: An overview, S. B. VÖLCKER (CMLR, Vol. 41, Issue 4, p. 1027)

Using stationarity tests in antitrust market definition, M. FORNI (Am. Law. Econ. Rev., Fall 2004, Vol. 6, Issue 2, p. 441).

Intellectual property and competition, C. LUCAS DE LEYSSAC (JTDE, Dec. 2004, No. 114, p. 295).

Information exchange under EC competition law, A. CAPOBIANCO (CMLR, Vol. 41, Issue 5, p. 1247).

Quelques réflexions de circonstance sur la concurrence bancaire, O. PASTRE, (Rev. écon. Indus., No. 106, 2nd quarter 2004, p. 93).

2 Agreements

2.1 Concepts and principles

Scope of judicial review under Article 81 EC, D. BAILEY (CMLR, Vol. 41, Issue 5, p. 1327).

Application of Article 81(3) of the EC Treaty to technology transfer agreements: new rules, J. AZEMA (Rev. Lamy dr. aff. 2004, No 74, Sept. 2004, p. 9; by the same author, Droit de la concurrence et accords de transfert de technologie, (RLC 2005/1, No 103); V. ég. Le nouveau règlement d’exemption par catégorie des accords de transfert de technologie : une modernisation et une simplification, P.-M. LOUIS (Cah. dr. eur. 2004, n° 3-4, p. 377)

Intellectual properties: unity or diversity? - competition law, J.-L. RESPAUD (JCP éd. E 2004, Cah. dr. entr. n° 4, p. 39)

Comments - CFI Judgement, Case T-203/1, Manufacture française des pneumatiques Michelin v Commission, C. ROGUES (ECLR, Nov. 2004, Vol. 25, Issue 11, p. 688)

2.2 Distribution

Report of the "Canivet Commission" ... towards a new reform, D. FERRIER (D. 2004, p. 3054)

The author proposes a critical reading of the Canivet Commission’s report. See also Relations fournisseurs/distributeurs (Rapport Guy Canivet), G. NOTTE (JCP éd. E 2004, 225, p. 1701); La Commission Canivet préconise une réforme en profondeur des dispositions actuelles issues de la loi Galland, J.-C. GRALL (Rev. Lamy dr. aff. 2004, n° 76, nov. 2004, p. 6); Haro sur le seuil de revente à perte et sur certaines pratiques commerciales, M. BEHAR-TOUCHAIS (Lamy droit économique 2005, bull. C, n° 179, p. 1); Chronique de droit de la distribution, D. Mainguy et alii (JCP éd. E 2004, Cah. dr. entr. n° 6, p. 17, n° 11)

Anti-competitive practices and restrictive practices: the contribution of the latest Sony case, O. BENOIT (BRDA 23/2004, No 27, p. 14)

Here, Olivier Benoit goes back in detail to the case that pitted Competition against its main supplier Sony, a case on which the Paris Court of Appeal was the last to rule in a decision of October 5, 2004. It focuses on the two important points of this case, namely the definition of abuse of economic dependence and the validity of the "sign clause". He also discusses the contribution of this case to the dynamics of the reform of the Galland Act.

In relations between professionals, the refusal to honour an order is not necessarily at fault, J.-C. SERNA (JCP éd. G 2004, II,10181, p. 2164)

Delays in payment: companies will have to get into the norm, J.-L. FOURGOUX (Les Echos, Nov. 3, 2004, p. 15)

2.3 Public Procurement

Multiple subcontracting by the same firm, which is also a candidate, in the context of a call for tenders for the award of a public contract: competition law and administrative judge, Conclusions of A. GUEDJ relating to TA Paris 16 March 2004 (Petites affiches, 26 Nov. 2004, No. 237, p. 17).

Public procurement and competition: freedom, equality, transparency, J.-C. GRALL and E. LE MORHEDEC (Rev. Lamy dr. aff. 2004, n° 75, oct. 2004, p. 15)

3 Unilateral practices

Competition law and copyright: between conflict, coexistence and conciliation, A. GENDREAU and D. REDON (RJDA 12/2004, p. 1151)

Antoine Gendreau and Denis Redon in turn question the "exceptional circumstances" retained by the ECJ in its judgment of 29 April 2004 (IMS Health), the same circumstances that can lead to a finding that the refusal by the holder of an intellectual property right to grant access to a competitor is abusive, and more specifically the condition relating to the existence of an obstacle to the appearance of a new product, which is difficult to combine with the other condition, albeit cumulative, according to which the refusal must be such as to exclude all competition on a derivative market. In any event, the authors conclude that the ambiguity of the rules applying the rules laid down by the Court prevents any predictability and consider that the degree of control of competition law over copyright will remain uncertain. See also, Anti-competitive refusals to grant copyright licences: reflections on the IMS saga, B. ONG (EIPR, Nov. 2004, Vol. 26, Issue 11, p. 505). In this article, the author revisits the current recurring debate about the tensions that have arisen between intellectual property and competition law and suggests that competition law rules are not always the most appropriate. The author compares and contrasts the features of the IMS case and those of the Magill case. In his view, in cases such as Magill, the application of competition law is the most legitimate, as intellectual property law is used to deny access to information necessary to offer competing products. But this is not the case, according to him, in cases such as IMS, where the competitor’s request concerns the direct use of the very object of the intellectual right acquired by the holder. Relying in particular on American case law and doctrine, the author then explains how intellectual property law could be used effectively in this type of case.

The European commission’s case against Microsoft: Kill Bill ?, R. PARDOLESI and A. RENDA (World Competition, Winter 2004, Vol. 27, Issue 4, p. 513)

World Competition magazine takes a close look at the Microsoft case through three articles, including this one criticising the Commission’s technical and economic assessment in its decision of 23 March 2004.

Does the law of predatory pricing and cross-subsidisation need a radical rethink, C. RITTER (World Competition, Winter 2004, Vol. 27, Issue 4, p. 613).

Integrating new economic learning with antitrust doctrine (Antitrust L. J., Oct. 2004, Vol. 72, Issue 1), proceedings of a conference including: Exclusionary distribution strategies by dominant firms, striking a better balance, A. I. GAVIL (p. 3).

4 Restrictive practices

La rupture des relations commerciales à la croisée du droit commun et du droit communautaire, C. LACHIEZE (JCP éd. E 2004, 1815, p. 1966)

After a few years of application, Christophe Lachièze draws up a mixed assessment of the judge’s implementation of Article L. 442-6-1 5° of the Commercial Code sanctioning the abrupt termination of any established commercial relationship, Christophe Lachièze deplores the fact that it has not been possible to provide companies with the legal security they aspire to, insofar as it remains difficult to fix in advance the length of the notice period that must be respected for the termination not to be abrupt.

Remarques sur les conditions de la violence économique, Y.-M. LAITHIER (Petites affiches, 22 Nov. 2004, No. 233, p. 12 and 23 Nov. 2004, No. 234, p. 5)

The author, by confining himself solely to civil law without considering abusive practices against an economic partner who is in a position of economic dependence under the provisions of the Commercial Code, shows the particular interest and renewed usefulness of articles 1111 et seq. of the Civil Code in punishing economic violence.

Commission d’examen des pratiques commerciales et les conditions " générales " d’achat, H. NARAYAN-FOURMENT (D. 2004, p. 3207)

Hélène Narayan-Fourment gives us a very critical reading of Opinion No. 04-04 of the Commission d’examen des pratiques commerciales, which she analyses as a systematic condemnation of the general conditions of purchase established by distributors, even when they are not abusive.

Preference Pact and Franchise Agreement, A. DE WYNCKELE-BAZELA (D. 2004 No. 34, chron., p. 2487)

5 Concentrations

The new Merger Control Regulation - New rules for companies in an enlarged Union or a further step in the search for a stable regime, A. PAPPALARDO (RDUE, 2/2004, p. 155)

The author has chosen to focus in this study on the most salient and problematic points of the new EU merger control rules - the new test, the consideration of efficiencies and the allocation of cases. It also returns at length, in the light of developments devoted to the strengthening of the judicial review carried out, to the various Commission censorship judgements by the Court of First Instance of the European Communities in the Airtours, Tetra Laval and Schneider Electric cases. On the same reform, we shall also see, La nouvelle réglementation des concentrations en droit communautaire: une évolution sous le signe du pragmatisme, O. GUERSENT and C. WINCKLER (RLC 2004/1, n° 1, p. 12) and Le nouveau règlement relatif aux concentrations, P. GOFFINET ET P. NIHOUL (JTDE, oct. 2004, n°112, p. 231)

Specificities of the merger control regime applied to private equity transactions, P. DE MONTALEMBERT and O. ANCELIN (JCP éd. E 2004, 1509, p. 1626)

In this study, the authors take stock of the specific issues faced by investment funds in the area of concentration, whether the transaction qualifies as a concentration, which amounts to asking whether the acquiring fund will be able to exert a decisive influence on the management of the target after the transaction has been completed, whether it concerns its controllability (with the specific aspects of the calculation of the turnover achieved by the fund, linked on the one hand to the intensity of the control exercised by the management company over the undertakings it manages and on the other hand to the influence exercised by the unit-holders of the fund on the management company), or whether it concerns the competitive analysis carried out on the merits.

Court of First Instance, 3 April 2003, BaByliss SA v Commission, Case T-114/02, V. FAURE (RAE, Sept. 2004, No 2003-2004/1, p. 125).

Commenting on the CFI’s judgment in the SEB/MOULINEX case, which partially annulled the Commission’s decision authorising in phase I, subject to conditions, the merger of these two companies, the author here takes stock of the CFI’s control of the merger control commitment procedures before the Commission by comparing the rights of third parties in the commitment procedure with the requirement of effectiveness which must underlie any decision of this type.

The Court of Cassation extends a hand to the administrative judge in the a posteriori control of concentrations, S. DESTOURS (RJDA 11/2004, p. 1059)

Les engagements, forme moderne de l’interventionnisme ou retour de l’ordre public de direction (chron. " droit interne de la concurrence "), C. CARON and G. DECOCQ (JCP éd. E 2004, 1739, p. 1876).

The concept of control in the merger control regulation, M. BROBERG (ECLR, dec. 2004, Vol. 25, Issue 12, p. 741). Die failing company defense in der deutschen, europäischen und US-amerikanischen Fusionkontrolle, U. GASSNER UND M. BRAUN (Recht der Internationalen Wirtschaft, dec. 2004, Vol. 50, Issue 12, p. 891)

6 State aid

Europe, public service and competition - Reflections and suggestions on the Green Paper (Proceedings of the AJE-AFEC colloquium of 13 May 2004 (Petites affiches, 30 Nov. 2004, n° 239, p. 1-56)

What is a service of general interest? How should services of general interest be organised, managed and structured? How can their effectiveness be assessed in economic and social terms? How can we ensure real and effective competition between public service delegations? How should public services be financed, what compensation is permissible under State aid rules and, finally, what evaluation methods should be used? These are the questions, identified by the first President Canivet in his opening speech, which served as a framework for the colloquium of 13 May 2004, which could not have been held without the fruitful collaboration between two associations - the French Association for the Study of Competition and the Association of European Lawyers. Devoted to a question at the heart of the political debate on the future of the management and operation of the economy in the context of European integration - services of general interest - and served by a particularly topical issue - the Altmark ruling of the ECJ, the Commission’s Green Paper and then its White Paper made public the day before this event - this colloquium could only give rise to interesting exchanges. The contribution of the speakers - economists and lawyers from a wide variety of backgrounds - political decision-makers, judges and magistrates from both the judiciary and the administration, managers of companies performing public service tasks, academics, lawyers and representatives of the competition authorities - made them truly fascinating. Through the reflections and suggestions that the participants were given to hear and that can now be read to everyone, the proceedings of this colloquium provide a reference contribution to the debate on the future of public services in Europe .

Exclusive or special rights and State aid, A. ALEXIS (RDUE, 2/2004, p. 185)

In this paper, Alain Alexis questions the consideration under Community state aid rules of exclusive and special rights, such as UMTS licences or pollution rights, when Member States grant such special rights free of charge to operators, while other States grant them in return for the payment of fees, sometimes considerable. Does the advantage enjoyed by operators who have obtained the licence free of charge, as compared to those who have paid for it, constitute State aid within the meaning of Article 87 of the EC Treaty? Reviewing the five criteria which, according to that provision, must be met for State aid to be involved, the author notes that only the concepts of State resources and advantage are likely to be problematic. To examine whether there is an advantage is tantamount to asking whether the payment of a royalty for the use of exclusive or special rights constitutes a normal burden on the undertaking which bears it. This raises the question of the analytical framework within which the concept of normal charges should be assessed: the State level, leaving Member States completely free to decide on the financial conditions for the granting of exclusive or special rights, or the Community level with, in the long term, with a view to the completion of a genuine "internal market", an application with a view to the State aid mechanism, with a notification obligation, possible implication of compensation for services of general economic interest, ...

L’établissement public industriel et commercial face au droit communautaire: la décision du 16 octobre 2002 de la Commission européenne relative aux aides d’État à Électricité de France, M. CHENEVOY-GUERIAUD (RD prosp., 2004, p. 1955)

Review of the European Commission’s decision of 16 October 2002 ordering the repayment of aid granted by the State to Electricité de France. The author deals, however, only with the Commission’s challenge to EDF’s EPIC status. Does the classification as aid of the unlimited guarantee deriving from EPIC status, and in particular the fact that a public establishment such as EDF cannot be subject to bankruptcy or insolvency proceedings, not lead to the disappearance of the favourable EPIC scheme, at least where the company does not perform any public service task? Concluding that the formula of the industrial and commercial public establishment is gradually being phased out in a context of the opening up of markets to competition, Marie Chenevoy-Gueriaud points out that the EPIC is not necessarily the necessary form to be applied to the management of services of general economic interest or certain public service activities, the essential point being that its replacement by the corporate form preserves the existence of a public sector and its capacity to evolve. On this question, we will also read with benefit the commentary that Laurent Richer devoted to the law of 9 August 2004 on the public service of electricity and gas and on electricity and gas companies, and especially the author’s observations on the modification made by the law of the status of EDF and GDF and their transformation into companies, with the corollary of the abolition of the State guarantee through the abandonment of the principle of unseizability and the possible submission to the law of collective procedures: Une nouvelle conception du service public de l’électricité et du gaz, L. RICHER (AJDA. 2004, p. 2094). It would be advisable to read the proceedings of the colloquium "Concurrence publique, Bilan et prospectives contentieuses" organised in the Sorbonne on 25 May 2004 (RJEP/CJEG, No. 613, Oct. 2004). The first part of the debates, reproduced here, dealt with the topic of "public supply versus private demand" or in other words the conditions of intervention of public entities as operators on the market. The first speaker, C. LEMAIRE, dealt with the question of the Competitive Advantages of Public Entities. He thus listed, in the context of an in concreto approach, the advantages linked to the status, the regime and the privileged relations that public persons may have with the State compared to private operators. The question of the frequent holding by public operators of reserved areas or the management of public services, the special status of their staff or the non-application of provisions relating, on the one hand, to means of forced execution against public persons and, on the other hand, to the law on the reorganisation and judicial liquidation of companies was also addressed. In the context of preventing a breach of equality in the conditions of competition, the author then develops the particular requirement of transparency and independence imposed on these public operators, as well as the application of the State aid regime and the repression of anti-competitive practices such as cross-subsidies and predatory pricing that may be used by public entities on the market. The second speaker, A. DELION, returned in detail to the issue of State Guarantees and their evolution. The author first presented the different forms that State guarantees could take for operators in the market and then outlined the evolution of public policy in the granting of such guarantees. He noted that after a fairly long period of laxity, since 2001, a strict regime had been introduced. Finally, the author addresses the particular problem of the guarantee which he considers to be automatically granted by the State to public institutions, by virtue of their status alone, whereas C. BARTHELEMY, whose presentation focused specifically on La garantie implicite, gratuite et illimitée de l’État aux établissements publics: mythe ou réalité, defended the opposite thesis, illustrating it with regard to the proceedings brought against France by the European Commission concerning the status of EDF. Finally, S. NICINSKI addressed the problem of the pricing of public data.

Competition, Subsidies and State Aid (OECD Review of Competition Law and Policy, 2004, Vol. 6, Nos. 1 & 2, p. 129)

Tax aid may constitute State aid, E. ROYER (AJDA. 2004, p. 2189).

State aid: the European Commission on the road to experimentation, M. BAZEX and S. BLAZY (Dr. adm., Nov. 2004, n° 11, p. 33)

Impact of the competition rules on the internal organisation of incumbent public service operators (concerning the decree of 9 September 2004 defining the organisation and allocation of the State in the undertakings which it controls), M. BAZEX and S. BLAZY (Dr. adm., n°12, Dec. 2004)

7 Regulation and liberalisation

7.1 General information

Contract, competition, regulation, M.-A. FRISON-ROCHE (RTD civ. 2004, p. 47)

Marie-Anne Frison-Roche seeks to assess the place of the contract in competitive markets, but also in regulated markets. Not without first identifying certain infringements of competition law on the contract, she seeks to reconcile competition and contract: don’t the competition authorities give the contract the upper hand when they increase the number of procedures for commitments, transactions and even leniency? Furthermore, should we not admit that the regulation of markets in the process of liberalisation is largely based on the conclusion of contracts, to the point where they become the nerve centre of the market? In doing so, far from witnessing the decline of the contract under the blows of competition policy, it is rather a renewal of the contract as a regulatory tool that we seem to be calling for.

Regulation and dispute settlement: presentation of the theme and summary of the 10th Regulatory Forum, M.-A. FRISON-ROCHE (Petites affiches, 22 Oct. 04, No. 212, p. 6)

Le droit des communications entre réglementation et régulation, L. RAPP (AJDA. 2004, p. 2047)

Regulations and Freedoms, A. LEPAGE and G. DECOCQ (Elect. com. comm. 2004, chron. 124)

Actualités du droit de la concurrence et de la régulation, L. RICHER, P-A. JEANNENEY and N. CHARBIT (AJDA, Dec. 6, 2004, p. 2309)

L’intervention des collectivités territoriales dans le domaine des télécommunications, R. ALLEMAND (AJDA, 1 Nov. 2004, p. 2025)

Interconnection and Access Decree: Graduated Tariff Control, W. MAXWELL (La lettre des télécommunications, 13 Sept. 2004, No. 150, p. 9)

Innovation and the new regulatory framework for electronic communications in the EU, I. DOBBS & P. RICHARDS (ECLR, Nov. 2004, Vol. 25, Issue 11, p. 716).

Electricity and Gas: Review of Sectoral Reforms in the United Kingdom (OECD Review of Competition Law and Policy, 2004, Vol. 6, Nos. 1 & 2, p. 211)

Professionals: Review of Sectoral Reforms in the United Kingdom (OECD Review of Competition Law and Policy, 2004, Vol. 6, Nos. 1 & 2, p. 317)

Article L. 1425-1 of the General Code of Territorial Authorities relating to the intervention of local authorities in the field of electronic communications, L. CRAPART (Collectivités-Intercommunalité, No. 10, Oct. 2004)

7.2 Public competition law

Application of competition law to public activities: The division of roles between the State Council and the Competition Council, M. BAZEX and S. BLAZY (Dr. adm., No. 10, Oct. 2004, p. 27)

Commenting on the judgment of the Council of State of 16 June 2004 concerning the Mutuelle générale des services publics (MFP), the authors return, on the one hand, to the division of competences between the Competition Council, which is asked for its opinion, and the Council of State, which rules on the legality of a text, and, on the other hand, to the concept of abuse of an automatic dominant position in French and Community law. See also, Abuse of a dominant position in the mutual insurance sector, P. CASSIA and E. CASSIA. SAULNIER (Europe, Nov. 2004, n° 370, p. 23) and Chronique droit interne de la concurrence, M. MALAURIE-VIGNAL (Contrats, conc., consom. nov. 2004, n°155, p. 21)

Urban planning and competition: on the application of competition rules to commercial urban planning, N. CHARBIT (Dr. adm., No. 10, Oct. 2004, p. 21)

The author comments here on three rulings of the Council of State, recalling that competition rules fall within the scope of legality control and must therefore be observed by commercial equipment commissions. These commissions are now required to ensure that their authorization to open a business does not place a company in a position that necessarily leads it to abuse its dominant position. The author thus observes that this case law has extended the scope of the prohibition of abuse of a dominant position hitherto reserved for litigation, i.e. the ex post control of anti-competitive practices, to the ex ante control exercised by the commissions taking these authorisation decisions, which must not automatically place the entity benefiting from the authorisation in a position to abuse its dominant position. It then raises the question of whether the Conseil d’État will recognise, after the automatic abuse, the automatic cartel.

Conditions of access to a pontoon at the risk of competition rules, note ss. CE 30 June 2004 (Département de la Vendée), S. NICINSKY (AJDA 2004, p. 2094).

The author comments here on a decision of the Council of State of 30 June 2004 (Department of Vendée) authorizing, notably under cover of compliance with the rules of competition, privileged access to port facilities for the undertaking entrusted with a public service to the detriment of private operators not required to provide such a service, by granting special facilities for the use of the public domain. In his note, the author wonders whether the Council of State has reversed its case law on the Société des autobus antibois. See also, Tribunal administratif de Nice, Société Trans Côte d’Azur v. Préfet des Alpes-Maritimes, A. LE MONNIER DE GOUVILLE (Gaz. Pal. 27-28 Oct. 2004, p. 12).

The exclusivity of the jurisdiction of the administrative court in competition matters (in relation to the application of Article L. 430-9 of the Commercial Code), M. BAZEX and S. BLAZY (Dr. adm., Oct. 2004, p. 26; see also RJDA 11/04, No. 1270, p. 1132)

Petits retours sur le concours de compétences pour l’application des règles de concurrence sur le domaine public, P. LANDRY (Gaz. Pal. 7-9 Nov. 2004, p. 3)

8 Procedures

8.1 General information

Court of Justice, 11 February 2003, Criminal proceedings against Hüseyin Gözütok and Brügge, Joined Cases C-187/01 and C-385/01, Principe ne bis in idem, L. RINUY (RAE, Sept. 2004, No. 2003-2004/1, p. 119).

Although these judgments do not materially concern competition law but criminal procedure, their reading and that of this commentary deserve special attention with regard to the application of the ne bis in idem principle not only within a national legal order but also between the different national legal orders. Moreover, this commentary is of interest to competition law practitioners in that it deals with decisions by which the public prosecutor definitively terminates criminal proceedings to which the ECJ recognises the applicability of the ne bis in idem principle and its consequences as regards the remedies available to victims, particularly since the recent adoption of new commitment procedures at both Community and French level.

Notification of objections and report; observation and reply memorandum on Competition Council Decision No. 04-D-48 "Tenor" (D. 2004, p. 2995)

Courage Ltd v Crehan and the enforcement of article 81 EC before national courts, A. ANDREANGELI (ECLR, dec. 2004, Vol. 25, Issue 12, p. 758).

8.2 Regulation 1/2003

Chronique Droit spécial du contrat - droit de la concurrence, L. IDOT (RDC 2004, p. 947)

This column examines whether voluntary commitments by companies suspected of anti-competitive practices will replace unilateral injunctions by the competition authority, even if they are accompanied by periodic penalty payments.

Decentralisation of EC competition law enforcement: judges in the frontline, K. LENAERTS & D. GERARD (World Competition, Fall 2004, Vol. 27, Issue 3, p. 313)

The authors of this article provide a comprehensive overview of the environment in which judges in the Member States will have to play the role assigned to them by Regulation 1/2003. It examines the material competences of the courts, their place within the European institutional framework for competition, the procedural rules applicable and the different sources of advice and information useful for the handling of cases. The study ends with an interesting comparison with the application of competition rules by the courts in the United States.

Dawn of a new era? Powers of investigation and enforcement under regulation 1/2003, D. A. J. GOLDFINE & K. M. VORRASI (Antitrust L. J., Oct. 2004, Vol. 72, Issue 1, p. 159)

8.3 Order 2004-1173 of 4 November 2004

Adaptation of French law to Regulation No. 1/2003, L. IDOT (Europe, Dec. 2004, No. 425, p. 26).

Adaptation du droit national au droit communautaire de la concurrence, P. ARHEL (JCP éd. E 2004, 1857, p. 2010; see also Lamy droit économique 2005, bull. C, No. 179, p. 8)

8.4 Sanction Policy - Clemency - Settlement

L’évolution de la politique de la Commission européenne en matière d’amende, Igor SIMIC and Pascale GEFFRIAUD (RD aff. int. 6/2004, p. 835-863)

In this paper, the authors not only set out the principles governing the determination of fines by the European Commission, but also review the most recent decision-making practice and case law, which have profoundly changed the Community’s policy on fines. Resituating the significant movement towards increasing the amount of fines imposed on cartels in the perspective of the fight against hardcore cartels and the need for the competition authority to display a policy of dissuasive sanctions in order to ensure the success of the leniency programmes put in place, Igor Simic and Pascale Geffriaud provide a critical analysis of the criteria taken into account by the European Commission in its decision-making practice.

Discovering discovery - US discovery of EC leniency statements, K. NORDLANDER (ECLR, Oct. 2004, Vol. 25, Issue 10, p. 646)

The appropriateness of criminal sanctions in the enforcement of competition law, P. H. ROSOCHOWICZ (ECLR, dec. 2004, Vol. 25, Issue 12, p. 752).

9 International Policy

The future of Euro-American cooperation in the field of competition, M. PALLEK (Cah. dr. eur., 2004, 1-2, pp. 95-155)

The great interest of this quite remarkable study is to place the issues at stake in Euro-American cooperation in a historical, political and legal perspective. Thus, Markus Pallek shows us the dialectical relationship that exists between the cooperation agreements between the American and European competition authorities, on the one hand, and the temptation for States to apply their own competition rules extraterritorially, on the other. In fact, the better the cooperation mechanisms between the competition authorities work, the less temptation there will be for states to apply their competition rules extraterritorially. This is, in a way, the raison d’être of these agreements. It is therefore important that the first-generation cooperation agreements of 1991 and 1998, which embarked on the path of "positive comity", be followed as soon as possible by the second-generation agreements, the purpose of which is to allow the exchange between competition authorities of confidential information on and/or from companies, without the latter having to give their consent to the transmission of data by waiving the confidential nature of the information transmitted (confidentiality waiwers). However, despite the wishes expressed on both sides of the Atlantic, such second-generation agreements have not yet come into being. The author explains the more or less admitted reluctance to enter into such agreements. Against a backdrop of exacerbated economic competition between the two blocs, it appears that the objective pursued is not quite the same for the two partners. On the American side, it would only be a matter of obtaining evidence located abroad that would otherwise be elusive. On the European side, the aim would be to reduce the number of measures leading to extraterritorial application of competition rules. The great merit of this study is also to show the obstacles encountered in the practical implementation of any draft second-generation agreement. The exchange of confidential information between competition authorities is not self-evident. According to Mr. Pallek, the first step is to break the deadlock of Article 28 of Regulation 1/2003, which prevents further enforcement of cooperation agreements. However, the legitimate interests of undertakings in ensuring that their business secrets are protected must also be taken into account, as required by the Community judicature. The author calls for a balance to be struck between two legitimate interests, that of the competition authorities to carry out investigations and that of undertakings to have their business secrets protected. Must be read.

Life after Empagram, L. GREENFIELD and D. OLSKY (Global Competition Review, Nov. 2004, Vol. 7, Issue 9, p. 26)

The authors comment on two American court decisions (Sniado v. Bank Austria AG and United States v. LSL Biotechnologies), handed down after the Supreme Court decision in the Empagram case, which suggest a rather restrictive interpretation of the conditions under which American victims of anti-competitive practices may bring proceedings before a US court for practices implemented outside the USA.

Focusing on the European perspective of judicial dialogue: issues in the area of competition law, C. BELLAMY (Tex. Int. Law. Journal, Fall 2004, vol. 39, Issue 3, p. 461), intervention from the colloquium "Globalization and the Judiciary: Key Issues of Economic Law, Business Law, and Human Rights Law".

Chronique Politiques de concurrence, N. JALABERT-DOURY (RD aff. int. 5/2004, p. 665)

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Umberto Berkani, Alain Ronzano, Christelle Adjémian, Competition journals: Oct. - Dec. 2004, February 2005, Concurrences N° 1-2005, Art. N° 1078, pp. 139 - 143

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