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1GENERALITES - SCOPE OF APPLICATION
Les barrières à l’entrée, un concept qui se lézarde ?, F. JENNY (RLC 2005/5, Editorial, p. 3)
Welcoming remarks on the difficulties that competition authorities have in understanding the blurred concept of "barriers to entry" on some sides and on ways to dispense with the use of this concept.
Acts Grieving and Competition Law, J.-M. THOUVENIN (Contracts, conc., consom., Nov. 2005, p. 15)
Raising the question of the admissibility of appeals for abuse of power against certain decisions of the Competition Council before the administrative judge, Jean-Marc Thouvenin proposes in this article a definition of the "act adversely affecting", wishing to go beyond the sole criterion of the effects on the legal system in order to take into account the effect on the legal or social "experience" of the litigant, as is the case when an undertaking is recognised by a competition authority as holding a dominant position, in that this classification is likely to limit its margins of manoeuvre.the undertaking has a dominant position on the relevant market.
The role of quantitative analysis to delineate antitrust markets: an example. Blackstone/Acetex, B. DURAND and V. RABASSA (Competition Policy Newsletter, 2005, No. 3, Autumn, p. 118).
This article is an opportunity to highlight the creation of a new section, that of the Chief Economist, in the Commission’s Competition Policy Newsletter. In this article, the authors rely on the analysis of the geographical dimension of the relevant market during the Blackstone/Acetex merger to recall the specificities of the relevant market in competition law, present the contribution that quantitative methods can make to its definition and describe the use, in situation, of certain techniques, commenting on their contributions but also their limits.
Markets are instruments not values, E. PITT (ECLR, Jan. 2006, Vol. 27, Issue 1, p. 1).
With a caveat to the rise of economics in competition law, the author of this article aims to illustrate, through four examples (the reasons for operators to reach agreement, the evolution of governments’ conceptions of cartels, the elements taken into account for exempting a practice and the need for varied competences within the authorities), that a purely and purely economic approach is not desirable and that the factual, social, human and practical aspects of market problems should not be forgotten.
Logique économique et logique juridique, M. MALAURIE-VIGNAL (Contrats, conc., consom., nov. 2005, p. 21)
How political’s is Europe’s competition policy, P. GUILFORD, M. TSCHERNY, T. BROOKES and T. T. PRICE (The European Antitrust Review 2006, p. 8).
Activity of the Court of Cassation and the Council of State in competition law (August 2004 - May 2005), P. ARHEL (Petites affiches, 21 Oct. 2005, No. 210, p. 5)
Activity of the Competition Council: the report, P. ARHEL (Petites affiches, 23 Dec. 2005, No. 255, p. 3)
Chronique Concurrence, L. IDOT (Europe, Oct. 2005, p. 26; Nov. 2005, p. 22; Dec. 2005, p. 20)
Chronique Droit interne de la concurrence, M. MALAURIE-VIGNAL (Contrats, conc., consom., nov. 2005, p. 27; déc. 2005, p. 18)
Chronique Droit interne de la concurrence, C. CARON et G. DECOCQ (JCP éd. E 2005, Cah. dr. entr. n° 1, p. 25)
Competition Chronicle (RJDA, Nov. 2005, p. 1120; Dec. 2005, p. 1201; Jan. 2006, p. 61)
Regulating competition in the enlarged European Union: favouring partnership between institutions, S. BELMONT (Journal des sociétés, No 28, Jan. 2006, p. 18)
Developments in EC competition law in 2004: An overview, S. B. VÖLCKER (CMLR, 2005, Vol. 42, Issue 6, p. 1691)
2ENTENTS
2.1 Concepts and principles
Cartel regulation under French law: a pragmatic approach, M. LÉVY and N. G. ASSADI (The European Antitrust Review 2006, p. 114).
EU competition policy, vertical restraints, and innovation: an analysis from an evolutionary perspective, W. KERBER and S. KERBER. VEZZOSO (World Competition, 2005, Vol. 28, Issue 4, p. 507).
2.2Distribution
Un an de droit des contrats de distribution intégrée, D. FERRIER (JCP éd. E 2005, Cah. dr. entr. n° 6, n° 34, p. 24)
Un an de droit de la distribution par diffuseurs, P. GRIGNON (JCP éd. E 2005, Cah. dr. entr. n° 6, n° 35, p. 27)
Un an de droit de la grande distribution, M.-A. ANDRE (JCP éd. E 2005, Cah. dr. entr. n° 6, n° 36, p. 32)
Conditions for the conclusion of a quantitative selective distribution contract (note ss. Cass. com. 28 June 2005, M. CHAGNY (JCP éd. E 2005, No. 1701, p. 2001).
The Paris Court of Appeal has made an interesting clarification on several disputed topics in franchise law, Y. MAROT (Petites affiches, 8 Dec. 2005, No. 244, p. 9)
Le contenu et la finalité de l’obligation d’information pré-contractuelle en franchise (à propos de TGI Nîmes, 19 Jan. 2005), Y. MAROT (JCP éd. E 2005, n° 1775, p. 2087)
2.3Public procurement
Highly supervised procurement for the contracting entities, C. CABANES and B. CABANES. NEVEU (Le Moniteur, Nov. 18, 2005, p. 100)
The order of 6 June 2005 on contracts awarded by persons not subject to the Public Procurement Code, which came into force on 1 September 2005, and the decree of 20 October 2005 defining the obligations of advertising and competitive bidding, with which contracting entities carrying out network activities will have to comply, are commented on here. In particular, the authors detail the new dematerialized procedures for awarding contracts, the aim of which is to increase the accessibility of markets to the greatest number of economic operators.
3ABUSES OF DOMINATION
Exclusive rights and abuse of dominant position (About some recent developments), L. IDOT (Small posters, 25 Nov. 2005, No. 235, p. 5)
At a time when the public consultation on the Commission’s consultation document on abuse of a dominant position, which could lead to the publication of guidelines, the feedback proposed by Laurence Idot on the contributions of recent case law on exclusive rights is proving particularly useful. It is true that the articulation of competition law with the national regulations at the origin of these rights raises many difficulties, particularly when intellectual property rights are involved. In this respect, the author detects a twofold movement affecting, on the one hand, the qualification of abusive practices, which has been extended, and, on the other hand, the treatment of the latter, which has been diversified, in particular through the introduction of new instruments such as the acceptance of undertakings.
Entre chien et loup, ou la loyauté mal récompensée, A. WINCKLER (RLC 2005/5, No. 405, p. 113)
Behind the somewhat sibylline title of this article lies a formal attack on the Michelin, British Airways and, more recently, Royal Canin jurisprudence of the Competition Council on loyalty rebates, jurisprudence accused not only of ignoring the latest contributions of economic theory, but, above all, for having lost sight of the objectives pursued by the Court of Justice in its judgments in Hoffman-La Roche and Akzo, in which the prohibition of loyalty rebates was suspended on demonstration that they in fact generate exclusivity and, therefore, a risk of exclusion. In so doing, this paper illustrates the tendency of a growing part of the doctrine to warn competition authorities against what are known as Type II errors, in which the authorities prohibit or sanction a practice that should have been authorized, rather than against what are known as Type I errors, in which they authorize a practice or transaction that should have been prohibited....
L’absence d’alternative satisfaisante, une limite opportune au droit d’accès, imposé par la théorie des facilités essentielles (note ss. Cass. com., 12 Jul. 2005), G. FRANÇOIS (JCP éd. E 2005, n° 1700, p. 1994)
In this commentary on the ruling handed down on 12 July 2005 by the Court of Cassation in the case opposing Messageries lyonnaises de presse and Nouvelles messageries de presse parisiennes, Gwennhaël François reviews in detail the essential contribution of this ruling, namely the requirement that both the competition authority and the court ensure that there is no satisfactory alternative before implementing the theory of essential facilities.
Symposium - Aspen Skiing 20 years later (Antitrust L. J., 2005, Vol. 73, Issue 1, p. 59)
In this issue, the Antitrust Law Journal presents seven contributions from a symposium aimed at taking stock of the assessment of refusal to contract in American law, twenty years after the very important decision of the United States Supreme Court in Aspen Skiing v. Aspen Highlands Skiing and following the no less important decision in Verizon v. Trinko of January 2004, in which the Supreme Court revisited its 1985 case law. Of particular note is Aspen Skiing and Trinko: antitrust intent and "sacrifice", M. LAO (p. 171), in which the author argues that the characterization of refusal to contract should include an assessment of intent, particularly subjective intent, and avoid an exclusive test based on a test of sacrifice. Marina Lao notes that the test of sacrifice, which has taken an important place in Trinko jurisprudence, is neither necessarily revealing nor necessarily reliable. She goes on to point out that, since economic tools alone do not make it possible to distinguish between exclusionary and pro-competitive conduct, the assessment of intent can be a useful indicator. In this respect, it notes that the assessment of subjective intent, which is often rejected because it is considered difficult to establish, is frequently used in other types of litigation and could therefore also be useful in antitrust. Also of note in this issue is Is there life in Aspen after Trinko? The silent revolution of section 2 of the Sherman Act, E. M. FOX (p. 153). On the follow-up to the Trinko case, see also Exclusionary conduct after Trinko, F. X. SCHOEN (New York University Law Review, Nov. 2005, Vol. 80, No. 1, p. 1625, available at http://www.law.nyu.edu/journals/lawreview/issues/vol80/no5/NYU507.pdf).
The paradox of predatory pricing, D. A. CRANE (Cornell Law Review, Nov. 2005, Vol. 91, Issue 1, p. 1, available at: http://organizations.lawschool.cornell.edu/clr/91_1/Crane_Cornell_Law_Review_91_1.pdf)
The author gives us here a complete, documented and problematized study of the examination of predatory pricing, which is paradoxical in principle because competition authorities sanction, in order to guarantee low prices, prices that are considered anti-competitive and paradoxical in practice in particular because firms may be led to increase their prices and deviate from low competitive and lawful prices to avoid the risk of prosecution for predatory pricing. The author thus presents strategies related to predatory pricing and then describes the risks of deviation in pricing that predatory pricing rules can create. While acknowledging that there is no complete solution to the paradox, the author then outlines a series of avenues that may help to reduce the scope of the paradox.
Misuse of patent and drug regulatory approval systems in the pharmaceutical industry: an analysis of US and EU converging approaches, J.-P. Guither and C. BREUVART (ECLR, dec. 2005, Vol. 26, Issue 12, p. 669)
On the occasion of the AstraZeneca case, the authors take stock of US and EU cases and compare the relevant market and substantive assessments in cases involving the pharmaceutical industry, now under the close scrutiny of the competition authorities. Also of note is AstraZeneca: The first abuse case in the pharmaceutical sector, N. FAGERLUND and S. FAGERLUND. B. RASMUSSEN (Competition Policy Newsletter, 2005, No. 3, Autumn, p. 54).
Public service obligations and refusal to sell by pharmaceutical companies, R. SUBIOTTO and S. GENEVAZ (RLC 2005/5, No 406, p. 120)
Eighty million euros fine for refusal of access to an essential infrastructure, G. DECOCQ and H. LECUYER (Comm. com. électr., Dec. 2005, No. 190, p. 36)
Strict interpretation of the conditions of the theory of facilities essential to intellectual property rights, D. PONGE (Expertises des systèmes d’information, nov. 2005, n° 297, p. 386)
4 RESTRICTIVE PRACTICES
La réforme des pratiques commerciales: loi n° 2005-882 du 2 août 2005, D. FERRIER et D. FERRE (JCP éd. E 2005, n° 1530, p. 1812 or Contrats, conc., consom., nov. 2005, p. 7)
In this feature article, Didier Ferrier and Dominique Ferré review the various innovations of Law 2005-882 of 2 August 2005, whose stated objective is to bring about a significant drop in the prices of consumer goods. The authors attempt to highlight, whenever necessary, the limits, ambiguities and even shortcomings of the new system. We will also see about the same law of August 2, 2005, Loi Dutreil: what new relations between suppliers and distributors, M. DANY, A. DOWDING and R. FABRE (Lamy dr. éco.., oct. 2005, bull. A, n° 188); A new reform of the law on restrictive commercial practices and tariff transparency by the law in favour of SMEs of 2 August 2005, D. FASQUELLE and L. ROBERVAL (Petites affiches, 6 déc. 2005, n° 242, p. 4); The law in favour of SMEs and the modernisation of commercial relations or how to make it complicated when you can make it simple, J.-L. FOURGOUX (Gaz. Pal., 18-20 Sept. 2005, p. 2); Modernisation of commercial relations: a new era, J.-C. GRALL, T. LAMY, N. GEAY, C. GRASS (Rev. Lamy dr. aff., Sept. 2005, n° 85, p. 26); Le volet concurrence de la loi du 2 août 2005 en faveur des PME : de la "facturologie" au "bidouillage", C. VILMART (Gaz. Pal. 20-22 Nov. 2005, p. 2). We will also see the dossier devoted to the new mechanism resulting from the law of 2 August 2005 and the "Dutreil II" circular of 8 December 2005 on commercial relations in the last issue for 2005 of the Cahiers de droit de l’entreprise, and in particular the very interesting papers on Les nouvelles conditions générales de vente et d’achat, by R. VILMART (Gaz. Pal. 20-22 Nov. 2005, p. 2). FABRE (JCP éd. E 2005, Cah. dr. entr. n° 6, n° 38, p. 40) and on Coopération commerciale et services distincts rendus par les distributeurs, by R. RENAUDIER (JCP éd. E 2005, Cah. dr. entr. n° 6, n° 39, p. 43).
Circular of 8 December 2005 on commercial relations, P. ARHEL (JCP éd. E 2005, act., n° 371, p. 2135)
First commentary on the "Dutreil II" circular of 8 December 2005 on commercial relations, which clarified, especially on the services provided by the distributor and on the calculation of the threshold for resale at a loss, the new legal framework governing relations between trade and industry, as set out in Law 2005-882 of 2 August 2005.
Les enchères électroniques "inversées" encadrées par la loi (loi du 2 août 2005 en faveur des petites et moyennes entreprises), N. GENTY et J. HUET (Contrats, conc., consom., déc. 2005, p. 9)
On the same subject, Réglementation des enchères à distances et prohibition des prix abusivement bas des vidéogrammes, G. DECOCQ (Comm. com. électr., Nov. 2005, No. 175 p. 34)
La théorie du parasitisme au secours des marques d’usage notoire imitées (note ss. Orléans, 2 Jul. 2004), M. POUMAREDE (Petites affiches, 20 Oct. 2005, No. 209, p. 13)
5CONCENTRATIONS
Le contrôle des concentrations dans les industries de réseau : particularités et enjeux, D. SEVY, (RLC 2005/5, n° 344, p. 9)
After a well-documented presentation of the specificities of merger control when applied to the network industries sector (telecommunications, energy, post, rail transport), taking into account the economic particularities of these sectors - the launching of mergers in markets that are still not very competitive, the uncertainty of the analysis due to the recent emergence of the competitive process, the importance of behavioural remedies - David Sevy pleads for a subtle and cautious approach to these operations so as not to neglect the significant potential for efficiency gains that they contain.
Guidelines on French merger control (BRDA 24/05, No 33, p. 18)
In one of the first comments of the French Merger Control Guidelines published online in July 2005, the author highlights the main lessons to be drawn from reading this reference document, which has been carefully considered by the DGCCRF.
Details of the litigation concerning the authorisation of economic concentration, C. LANDAIS and F. LANDAIS. LENICA (AJDA, 21 Nov. 2005, Chron., p. 2167)
Review of both the interim order of 19 May 2005 and the ruling of the Conseil d’État of 20 July 2005 on the merger between Cegid and CCMX. The authors insist on what, in their view, are the three main contributions of these decisions - clarification of the conditions of admissibility of applications against decisions authorizing an economic concentration, setting the conditions of access to the judge in the summary proceedings for suspension of concentration proceedings, and the praetorian initiative of seeking the opinion of the Competition Council. We will also see Les nouvelles techniques de contrôle du juge administratif, M. BAZEX (Dr. Admin., n° 10, oct. 2005, p. 16).
Standard of proof and scope of judicial review in EC merger cases: everything clear after Tetra Laval? L. PRETE and A. NUCARA (ECLR, dec. 2005, Vol. 26, Issue 12, p. 692).
Collective dominance under EC merger control - After Airtours and the introduction of unilateral effects is there still a future for collective dominance, F. DETHMERS (ECLR, Nov. 2005, Vol. 26, Issue 11, p. 638).
The attempted merger between General Electric and Honeywell: a case study of transatlantic conflict, J. GRANT and D. J. NEVEN (Journal of Competition Law and Economics, Sept. 2005, Vol. 1, No. 3, p. 595).
6 STATE AID
The interpretation of the criterion of the use of State resources by the Court of Justice: indicative of a formalistic reading of Article 87 of the EC Treaty? (Reflections on the Pearle judgment), D. TAYAR and A. GIRAUD (Petites affiches, 2 Dec. 2005, No 240, p. 4)
Based on an analysis of the European Court of Justice (ECJ) Pearle judgment of 15 July 2004, this study examines the ECJ’s use of the use of state resources test. They find a purely formalistic approach, which results in different treatment of measures with identical effects. Moreover, they observe that other conditions for the classification of State aid are also given a formalistic interpretation in the Court’s case law, so that State aid comes to stand out from the rest of competition law where the analysis of the concrete effects of the practices concerned is the rule. At the end of their examination, David Tayar and Adrien Giraud, echoing positions already defended in the ReviewConcurrences’s columns, expressed the hope that the Community courts would adopt a more economic approach to State aid.
The July 2005 "package" on services of general economic interest: "codification" of the Altmark case-law or taking it over from the Commission, L. IDOT (Europe, Oct. 2005, p. 4)
L’évolution de la politique des aides à finalité régionale 1956-2004, P. OLOFSSON (Competition Policy Newsletter, 2005, n° 3, Autumn, p. 17)
Les aides régionales aux entreprises dans les zones rurales, l’apport de la loi du 23 février 2005 relative aux développement des territoires ruraux, M. SOUSSE (AJDA, 31 oct. 2005, p. 2060)
Competition policy (Commission public consultation on measures to improve State aid for innovation), P. MATTERA, S. ARMATI, A. AGUADO and M. LAI (EDR, 3/2005, p. 614).
State aid and failing companies: a policy to be clarified so as not to protect competitors but competition, S. BELMONT (Journal des sociétés, No 28, Jan. 2006, p. 19)
State Aid Chronicle, G. JAZOTTES, (RTD com. July-Sept. 2005, p. 629)
7PUBLIC SECTOR AND SPECIAL AND EXCLUSIVE RIGHTS
La concurrence loyale entre personnes publiques et entreprises privées dans les procédures d’appel à la concurrence : un rêve d’égalité à l’origine d’une utopie (CAA Douai, 9 June 2005), C. BETTINGER (Petites affiches, 21 Nov. 2005, n° 231, p. 4)
Under what conditions may a public person intervene in a procedure for the award of a public order? The author of this article considers that after many years of sloppiness, administrative case-law seems to have decided to exercise in concreto control over the conditions of formation of the prices proposed by the bidding public person in order to verify whether or not they are predatory. Such a change in case law is likely, in his view, to restore a climate of confidence that is all too prone to break down.
Semi-public companies. Bilan et perspectives, Colloque Sénat, 27 May 2005 (RFDA, No. 5, Sept. - Oct. 2005, p. 946)
Under the chairmanship of Professor Laurent Richer and Deputy André Santini, the debates reproduced focused in particular on the various public service delegation contracts concluded by semi-public companies, on the future of these companies, particularly with regard to the In House and, finally, on the increase in competitive constraints they have to face, in particular the problem of State aid and the obligations arising from public procurement procedures. Finally, the question of the competitive tendering of the private capital of semi-public companies is addressed.
Conditions of regularity of public tariffs under competition law, Mr BAZEX (Dr. Admin., No 11, Nov. 2005, p. 19)
Highly anticipated was the decision of the Paris Court of Appeal in the so-called "vedettes vendéennes" case, which defines the notion of incremental cost. Considering, contrary to the Competition Council, that the notion of incremental cost includes specific variable costs and possibly a part of fixed costs, the author agrees with the position of the Paris Court of Appeal, but then criticizes its application. Indeed, the author considers that the Court corrected the excessive nature of the Council’s decision to exclude all fixed costs from the concept of incremental cost, in line with what is done in the field of electronic communications. However, he criticizes the Court for excluding insurance, major repairs and fixed investment costs from the incremental costs, thus departing from the general requirement of cost-orientation of prices.
Risk in the administrative contract or the necessary recognition of the economic dimension of the contract, T. KIRAT, F. MARTY and L. VIDAL (RID éco., 2005/3, p. 291).
L’articulation des normes en droit public de la concurrence (note ss CE 20 Apr. 2005), S. NICINSKI (AJDA, 31 Oct. 2005, p. 2064).
Les conditions de création d’un service public dans un environnement concurrentiel (note ss CE 18 May 2005), S. NICINSKI (AJDA, 14 Nov. 2005, p. 2130).
La concurrence des officines de pharmacie et des pharmacies mutualistes, A. LECA (RRJ, 2005-3, p. 1475)
8PROCEDURES
8.1General
The TV-ADSL ruling of the Court of Cassation: the advent of the "référé concurrence" before the Competition Council? F. HERRENSCHMIDT (Lamy dr. éco., déc. 2005, bull. C, n° 190)
In this brief commentary on the judgment of 8 November 2005, in which the Court of Cassation stated that the Competition Council did not have to establish the existence of a presumption of infringement in order to grant protective measures, Fleur Herrenschmidt deduces from the Court’s sole requirement that the facts denounced appear likely to constitute a practice contrary to Article L. 420-1 or L. 420-2 of the French Commercial Code the possibility of a truly decentralized, autonomous and effective application of Community competition law by the French competition authority.
National competition authorities and Article 234 of the Treaty. A strange judgment of the Court of Justice, H. TAGARAS and M. WAELBROECK (Cah. dr. eur., 2005, 3-4, p. 351)
The authors present in this article a critical analysis of the judgment of the European Court of Justice Syfait v. GlaxoSmithKline. After a clear and precise description of the place of the national authorities and courts in the European competition system resulting from Regulation 1/2003 and the control powers retained by the Commission, the authors return to the arguments raised by the Court to deny the Greek competition authority the character of a court or tribunal that conditions the admissibility of a preliminary question. They are thus surprised, first of all, at the overall assessment made by the Court. They then examine the first three elements put forward by the Court and specific to the Greek authority (supervision of the Minister, personal independence of the members and independence of the authority vis-à-vis its secretariat) and contest the positions adopted, both from a material point of view and in that they go against previous case-law. Finally, the authors dwell on the argument consisting in denying legal standing to an authority because of the possibility for the Commission to relinquish it (under Article 11(6) of Regulation 1/2003). This last element of the Court’s overall assessment in this case, which gives the judgment its scope in that it applies to all national competition authorities, is criticised for its own logic but also for the delicate consequences it could have. In conclusion, the authors, conscious of the delicate balance to be struck in the admissibility of questions referred for a preliminary ruling, advocate an overall reform rather than variations on a case-by-case basis. On this subject, see also The concept of "jurisdiction" within the meaning of Article 234 EC after the Syfait, J.-C. GRALL and C. judgment. GRASS (Lamy dr. éco., nov. 2005, bull. B, n° 189), as well as La nature juridique des autorités nationales de concurrence, M. BAZEX (Dr. Admin., n° 10, oct. 2005, p. 30).
Comparing antitrust enforcement in the United States and Europe, D. H. GINSBURG (Journal of Competition Law and Economics, Sept. 2005, Vol. 1, No. 3, p. 427).
Comparisons between the American and European systems for applying and enforcing competition rules are useful at a time when the Commission is in the process of preparing a Green Paper on the subject. These comparisons are all the more useful because they are made from within the American system, by a magistrate who is trying to usefully highlight the advantages of private enforcement and the powerful tool provided by the possibility for companies, which have a direct and pecuniary interest in it, to denounce anti-competitive behaviour. But the author also warns against the abuses that this kind of system can generate and warns that companies obviously tend to preserve their own interests rather than to preserve competition or consumers.
Justification of provisional measures and appeal against the decision ordering them, E. CHEVRIER (D. 2005, act., p. 2870)
Rejection of complaint by the European Commission (note ss. CFI, 26 Jan. 2005 - Laurent Piau) (Journal des Tribunaux - European law, 2005, No. 123, Nov. 2005, p. 278)
8.2 Regulation 1/2003
Regulation 1/2003 and the principles of effectiveness and equivalence, P. OLIVIER (Cah. dr. eur., 2005, 3-4, p. 351)
Peter Olivier retraces the history and case law of Regulation 1/2003, in particular by examining the fundamental principles of effectiveness or efficiency and the principle of equivalence of national procedures in the application of Community law. As a basis for good cooperation between the Commission and the national competition authorities and for the harmonisation of Community law, the author lists all the obligations incumbent on the competition authorities on the basis of these principles, while noting, however, that the question of national proceedings against natural persons should be excluded from the scope of application of these principles. The author also elaborates on the difficult and controversial question of the extent to which a party that has suffered financial loss as a result of a cartel or abuse can recover damages even if it has passed on that loss to the purchasers of its products. Finally, it recalls that NCAs, on the basis of these principles of efficiency and equivalence, are required to provide for and apply effective, proportionate and dissuasive sanctions in the event of an infringement of Articles 81 and 82 of the EC Treaty.
The Modernisation of European Community competition law: achieving consistency in enforcement, D. J. GERBER and P. CASSINIS, Part I (ECLR, Jan. 2006, Vol. 27, Issue 1, p. 10), Part II (ECLR, Feb. 2006, Vol. 27, Issue 2, p. 51).
Concurrent jurisdiction under regulation 1/2003 and the issue of case allocation, S. BRAMMER (CMLR, 2005, Vol. 42, Issue 4, p. 1383).
8.3 Sanction Policy - Clemency - Settlement
The basis for the financial penalty applied to the anti-competitive conduct of an undertaking belonging to a group, O. BEATRIX and P. VEGLIS (RJEP/CJEG, Nov. 2005, No 625, p. 410)
In this brief article, Olivier Beatrix and Patrick Veglis review the interpretation of Article L. 464-2-I, paragraph 4 of the French Commercial Code, the wording of which seems to diverge significantly from the intention expressed during the debates on the NRE Act. When a company belongs to a group, should the basis for the financial penalty be limited to the turnover of the subsidiary alone or should it extend to the turnover of the group to which it belongs? Fearing that a reading far removed from the letter of the law prevails, these authors call for an interpretation by the Competition Council and the Paris Court of Appeal.
Administrative action put to the test under the new transaction procedures, M. BAZEX and S. BLAZY (Dr. Admin., n° 12, Dec. 2005, p. 20)
The authors, commenting on a decision of the Competition Council relating to the adoption of commitments by the National Stud farms, raise some very interesting questions about the difficulties of applying this commitment procedure to public establishments and more particularly with regard to the principles of administrative action. Indeed, they raise the question of a possible irregularity in the procedure on the ground that a public establishment, when it is vested with regulatory power, must proceed unilaterally and not by negotiation, as in the present case in the commitment procedure, unless it applies the case-law of the Council of State on ’price commitments’. Difficulties in the application and monitoring of such procedures are also put forward by the authors, in particular with regard to the power of the Competition Council to monitor commitments entered into by public institutions, owing to the nature of administrative acts and the possible incompetence of the Council in favour of administrative order.
La sanction de la concurrence déloyale et du parasitisme économique et le rapport CATALA, D. FASQUELLE and R. MESA (D. 2005, p. 2666)
In this brief point of view, Daniel Fasquelle and Rodolphe Mésa draw our attention to a very innovative proposal set out in the preliminary draft reform of the law of obligations and the law of prescription resulting from the report of the Commission chaired by Professor Pierre Catala: the introduction into French law of the concept of punitive damages. The idea is all the more interesting in that the proposed wording of article 1371 of the Civil Code provides, on the one hand, that part of the damages awarded may be allocated to the Public Treasury, which will at least make it possible to limit the unjust enrichment of the victim (see, however, the reservations of the authors on this point) and, on the other hand, that punitive damages will not be insurable.
Competition and criminal liability of legal persons: an unexpected effect of the Perben II Act, F. BRUNET (Gaz. Pal. 16-17 Nov. 2005, p. 2)
In this paper, the author endeavours to present the consequences for the implementation of the criminal provisions of article L. In this paper, the author sets out the consequences for the implementation of the criminal provisions of article L. 420-6 of the Commercial Code of the adoption of Law No. 2004-204 of 9 March 2004, known as "Perben II", article 54 of which abolished the principle of speciality presiding over the implementation of the law.The criminal liability of legal persons, such that the latter may be held criminally liable for the fraudulent actions of their directors or employees, in particular when they have played a personal and decisive role in the design, organization or implementation of anti-competitive practices, which according to F. Brunet does not go without raising serious theoretical and practical difficulties, so much so that the author suggests that the provisions of article L. 420-6 of the Commercial Code be removed from the scope of application of the new article L. 121-2 of the Criminal Code.
Remedies and sanctions in article 82 of the EC Treaty, E. WIND (ECLR, dec. 2005, Vol. 26, Issue 12, p. 659).
The implementation of Regulation 1/2003 and some of its novelties in terms of sanctions is the occasion for the author to make a presentation of the different remedies for abuse of dominant position and their evolution. The article illustrates his remarks with references to recent cases in this field, from the commitments concerning Coca-Cola to the Microsoft sanction, and part of the developments are devoted to the presentation and assessment of private enforcement issues.
See also, Antitrust remedies revisited, E. CAVANAGH (Oregon Law Review, Spring 2005, Vol. 84, Issue 1, p. 147, available at http://www.law.uoregon.edu/org/olr/archives/84/841cavanagh.pdf), which provides a comprehensive overview of the American sanction system, identifies problems and suggests a number of improvements, both substantive and procedural, and United States v. Microsoft: Did consumers win? D. S. EVANS, A. L. NICHOLS and R. SCHMALENSEE (Journal of Competition Law and Economics, Sept. 2005, Vol. 1, No. 3, p. 497), in which the authors assess the extent to which the remedies ultimately imposed in the US version of the Microsoft case struck the right balance, from a consumer perspective, between punishing an illegal action and not unduly limiting Microsoft’s future competitive opportunities.
9REGULATIONS
Actualités du droit de la concurrence et de la régulation, L. RICHER, P-A. JEANNENEY and N. CHARBIT (AJDA, Dec. 19, 2005, p. 2377)
In particular, the expected decision of the Conseil d’État of 7 November 2005, Compagnie Générale des Eaux in the so-called "joint subsidiaries" case, is commented on. As a procedural reminder, the Competition Council had considered that it was anti-competitive, and more particularly an abuse of a collective dominant position, for parent companies, which had the capacity to do so, not to bid for tenders when they owned better placed joint subsidiaries. In this case, the Competition Council had for the first time applied the provisions of article L. 430-9 of the Commercial Code and referred the case to the Minister of the Economy. A debate ensued on which authority was competent to hear the appeal against this decision. The Court of Cassation had held that the judiciary was not competent to apply article L. 430-9, in favour of the administrative court. As the author comments, the Council of State, to which the matter is referred, recognizes its own jurisdiction by applying, in part, constitutional case law which, "with the exception of matters reserved by nature to the judicial authority", which is not the case under article L. 430-9, falls within the jurisdiction of the administrative court, "decisions taken by the public authorities". On the merits, however, the Council of State dismisses the appeal, on the ground that only the Minister’s decision may be challenged; the Council’s decision being regarded only as a preparatory act. Also, Abuse of a dominant position: the referral to the Minister by the Competition Council is not subject to appeal, F. AUBERT (AJDA, 21 Nov. 2005, p. 2151).
The law of 20 May 2005: the new regulation of postal activities, F. FAGES and S. RODRIGUES (AJDA, 10 Oct. 2005, p. 1896)
Here is a very enlightening commentary on Law No. 2005-516 of 20 May 2005 on the regulation of postal activities, which transposed - with delay - the Community directives applicable to the postal sector. Placing the lengthy parliamentary discussion that preceded the adoption of the text in its political and economic context, the authors conclude that the French legislator went beyond what was required by the Community provisions in terms of opening up to competition.
The concurrent application of competition law and regulation: the case of margin squeeze abuses in the telecommunications sector, D. Geradin and R. O’Donoghue (Journal of Competition Law and Economics, June 2005, Vol. 1, No. 2, p. 355).
The opening of European postal markets: slowness and resistance, A. SIZE (Dr. Admin., Oct. 2005, p. 7) Wholesale mobile telephony market in France: towards an absence of regulation, S. JUSTIER (Comm. com. électr., Oct. 2005, p. 17)
Chronique de droit de la régulation, (under the direction of M.-A. Frison-Roche) (Petites affiches, Dec. 26, 2005, No. 256, p. 3)
Le nouveau régime juridique du transport du gaz en France, P. LOMBART (RJEP/CJEG, Nov. 2005, n° 625, p. 397)
Les contradictions de l’Europe de l’énergie, C BARTHELEMY (Les Échos, 25-26 Nov. 2005, p. 12)
10INTERNATIONAL POLICY
German competition law: the silent revolutions of summer 2005, P. LE MORE (RD aff. int. 05/2005, pp. 651-660)
Here is a short and very welcome news article (in French and English) on the most recent reform of the German competition law. Its author, Pauline Le More, provides a summary analysis of the main provisions introduced by the seventh amendment of the Law on Restraints of Competition, some of which respond to the necessary adaptation of national law to the latest developments in Community law introduced by Regulation (EC) 1/2003, while the second and most innovative part of the reform promotes private actions in Germany, i.e. those actions for damages brought by the victim of anti-competitive behaviour on the basis of an infringement of Articles 81 or 82 EC and the corresponding national provisions before the German courts.
Distribution and exercise of competences between the Union and the Member States in competition law in the West African Economic and Monetary Union (WAEMU), M. BAKHOUM (RID éco., 2005/3, p. 319).
Competition policies, N. JALABERT-DOURY, L. NOUVEL ET I. SIMIC (RD aff. int. 6/2005, p. 771)
