Legal reviews

Competition journals: Oct. - Jan. 2006

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1. General - Scope of application

A new development in the relations between the Competition Council and competition law jurisdictions, C. LEMAIRE and D. BLANC (JCP éd. E, 9 Nov. 2006, No. 45, 2590, p. 1879)

In this very useful article, the authors examine the relations and reciprocal influence of the Competition Council and the civil, but also criminal and administrative courts on their respective litigation, not only in the field of anti-competitive practices but also in merger control, in the light of recent or ongoing developments brought about by the modernisation of Community and national competition law (Regulation 1/2003 and amicus curiae proceedings, development of private actions in competition law, specialisation of jurisdictions, etc.). With respect to the influence of the courts on the Competition Council’s litigation, Christophe Lemaire and Dominique Blanc first identify the risks related to the development of private actions for objective litigation. According to them, these risks are threefold: the "publicity" that accompanies private action could jeopardize the investigations carried out by the competition authorities; the fear of civil sanctions could discourage members of a cartel from denouncing it to the competition authorities in order to benefit from leniency programs, the authors stating solutions that could neutralize this risk; the development of private actions could lead to a bottleneck for the competition authority. Secondly, they are interested in the already perceptible renewal of criminal proceedings based on article L. 420-6 of the Commercial Code, welcoming this development while warning against the risks of divergent case law, especially since the law of 9 March 2004, known as the Perben II law, makes it possible for the criminal judge to punish the natural person and/or legal entity found guilty of the offence provided for in article L. 420-6 of the Commercial Code; this leads them to propose an overhaul of the relations between the Council and the criminal judge in order to better articulate criminal and administrative procedures. In addition to the introduction of mandatory and reciprocal notification and information mechanisms, they would also review the extension of criminal sanctions to legal entities resulting from the Perben II Act on anti-competitive practices, since such sanctions duplicate those that the CMF may impose. With regard to the Competition Council’s influence on litigation before the courts, the proposals concerning the development of private actions are worth noting. Christophe Lemaire and Dominique Blanc propose, following the German model, a better sequencing of public and private actions, involving, on the one hand, the suspension of the limitation period for civil actions for the time necessary for the action of the competition authority and, on the other hand, the binding effect before the courts conferred on certain decisions of the Council that have become final. In considering whether it is appropriate to go further, the authors, rejecting the idea of giving the Council the possibility of awarding damages in cases in which it is seized, are more open to the prospect of offering victims the possibility of applying directly to the Paris Court of Appeal after the Council’s decision to obtain damages, drawing inspiration from the system set up in the United Kingdom by the Enterprise Act 2002 and amending, inter alia, the role of the Competition Appeal Tribunal. In conclusion, they propose that a public text be drawn up, common to the Council and the courts, taking stock of their various means of cooperation.

Competition and free movement - A look at the latest developments, L. IDOT (RAE - LAE 2005/03, p. 391)

In this article, Laurence Idot looks at recent and ongoing developments in the relationship between the two pillars of the internal market, competition law and free movement law. The relationship between competition and free movement has undergone a profound change in forty years of Community construction. While the objectives remain complementary, there is increasing overlap as free movement applies to private measures and as competition law takes account of certain conditions in national regulations. However, the two areas seem to be moving further apart as competition law acquires its autonomy in the light of the growing importance of economic reasoning. However, this conclusion cannot apply to recently liberalised sectors subject to ex ante regulation. Here, the confrontation between competition law and regulatory law has profoundly renewed the analysis.

Competition law, chance or constraint for the company?, F.-H. BORET, A. DECOCQ, G. DECOCQ, S. DOMINGUEZ, L. DONNEDIEU DE VABRES-TRANIE, J.-L. FOURGOUX, M. GLAIS, M. MALAURIE-VIGNAL, M. MASON, J. MONEGER, C. MONTET, A. MOURRE, J. PHILIPPE, I. SIMIC, D. THEOPHILE, C. VILMART (Contracts, conc., consom., Dec. 2006, p. 4, studies 21 to 30)

On the occasion of the 20th anniversary of the Order of 1 December 1986, which founded modern internal competition law, the review Contracts Competition Consumer had the happy idea of dedicating a special issue to this event by asking companies, or at least those responsible for defending their interests, what they thought, twenty years later, of the work they had helped to shape. Entitled "Competition rights: an opportunity or a constraint for business", this issue attempts to answer the following questions: how do businesses perceive competition rights? Are they satisfied by these provisions? What complaints do they have? What reform of these provisions would they like to see adopted by the authorities? What would they not want to see changed? In the words of Professor Georges Decocq, director of this special issue, the idea is to rediscover the spirit that animated most of the promoters of the Ordinance when it was drafted. Of the ten or so contributions that make up this very rich dossier, we will linger on the article devoted to the analysis of the unilateral effects of horizontal mergers by the French competition authorities by Didier Théophile and Igor Simic, but also on the article by Jérôme Philippe, Mathilde Mason, Sébastien Dominguez and France-Hélène Boret, on the advent of cooperation procedures before the Competition Council: leniency, commitments, settlement, as well as the paper with the rather iconoclastic conclusions of Joël Monéger on the reforms of Community competition law, theatre of appearances: about the relations between Community and national authorities. We will also see the Competition Dossier "La réforme de 1986, 20 ans après..." (Journal des Sociétés, déc. 2006, n° 38, p. 28) composed of seven contributions, both retrospective and prospective, by Guy Canivet, Michel Pédamon and André Decocq, Dominique Brault, Claude Lucas de Leyssac, Muriel Chagny, Daniel Fasquelle and finally Didier Ferrier.

Assessing consumer detriment, P. EVANS (ECLR, Jan. 2007, Vol. 28, Issue 1, p. 26).

The author notes that references to consumer welfare and consumer harm in competition law have never been as frequent as they are now, but that, paradoxically, very few precise definitions and studies are devoted to these concepts. There is therefore, in his view, some confusion as to the definition of the consumer, his behaviour and the conclusions that can be drawn from it in the competition analysis. The author therefore undertakes in this article to provide an overview of the definition and role of the consumer. To do so, he looks in particular at the lessons of economic theory and the report published in 2000 by the Office of Fair Trading on the issue of consumer harm. The interest of this article is that it combines a clear presentation of the terms of the debate and a deepening of the reflection. The author first of all describes the various concepts relating to the reference to the consumer in competition law, whether in terms of preconceived ideas or technical elements. He then tries to move the debate forward by nuancing or refining the assessments generally made with regard to the consumer in competition law and by presenting some recommendations on how the most elementary questions should be approached.

DRM interoperability and intellectual property in Europe, M. VALIMAKI & V. OKSANEN (Eur. Int. Prop. Rev., Nov. 2006, Vol. 28, Issue 11, p. 562)

This article takes a cross-cutting look at the issue of DRMs and how they are dealt with by intellectual property, consumer and competition rights. It compares the content of these rights on this issue and their ability to respond satisfactorily and rapidly to the problems raised. The author thus examines Community texts and case law, but also discusses the Norwegian and French treatment of the issue. On this occasion, he briefly discusses the DADVSI Act and the Competition Council Decision No. 04-D-54 (Apple/VirginMega).

Competition in two-sided markets: the antitrust economics of payment card interchange fees, B. KLEIN, A.V. LERNER, K.M. MURPHY & L.L. PLACHE (Antitrust Law Journal, 2006, Vol. 73, Issue 3, p. 571).

As the opening of a symposium on Antitrust issues in payment card systems, this contribution provides a useful summary, both of technical issues of competitive analysis, such as questions of operation and price determination in two-sided markets, and of the presentation of the sector and, more specifically, the issue of interchange fees. From the same issue and symposium, see Defining relevant product markets in electronic payment network cases, R.B. HESSE & J.H. SOVEN (p. 709). On this subject, see also the proceedings of the symposium in this review, Banque, Finance et Concurrence, Paris, 30 Nov. 2007, Round Table "Means of payment", published in this review No. 1-2007.

Advocate general Jacobs’ contribution to competition law, V. KORAH (Fordham International Law Journal, 2006, Vol. 29, Issue 4, p. 716)

Mixed bundling, profit sacrifice and consumer welfare, D. CRANE (Emory Law Journal, 2006, Vol. 55, Issue 3, p. 423).

What regulations for the activity of professionals dealing with companies in difficulty? The European point of view - The European Commission’s competition policy in the liberal professions sector, S. DE WAELE (Petites affiches, 19 Oct. 2006, No. 209, special issue on The treatment of business difficulties in the single European market, p. 42)

Activity of the Community Courts in competition law, P. ARHEL, (February-March 2006) (Small Posters, Oct. 16, 2006, No. 206, p. 4) ; (June 2006) (Small Posters, Oct. 30, 2006, No. 216, p. 6); (July-August 2006) (Small posters, 20 Nov. 2006, No. 231, p. 4); (September 2006) (Petites affiches, 18 Dec. 2006, No. 251, p. 10 and Petites affiches, 19 Dec. 2006, No. 252, p. 13)

Activity of the Competition Council: the report, P. ARHEL (Petites affiches, 8 Dec. 2006, No. 245, p. 7)

Activity of the Paris Court of Appeal in the field of anti-competitive practices (January-March 2006), P. ARHEL (Petites affiches, 3 Jan. 2007, n° 3, p. 3)

Chronique de droit communautaire de la concurrence, G. DECOCQ (RJ Com. 2006/3, p. 304)

Chronique de droit interne de la concurrence, C. CARON and G. DECOCQ (JCP éd. E, n° 39, Sept. 28, 2006, 2405, p. 1610)

Gazette de droit de la concurrence, edited by J. PHILIPPE and T. JANSSENS (Pal. Gaz. Nov. 1-4, 2006, pp. 2-30)

Chronique Droit de la Concurrence, L. IDOT et C. PRIETO (DRC, Oct. 2006, p. 1099)

Chronique Concurrence, L. IDOT (Europe, Oct. 2006, comm. 285-291; Nov. 2006, comm. 324-332; Dec. 2006, comm. 370-373)

Chronique concurrence, M. BAZEX, G. DECOCQ AND M. MALAURIE-VIGNAL (Contracts, conc., consom., Nov. 2006, p. 13)

Chronique Concurrence, E. CLAUDEL (RTD com., July-Sept. 2006, p. 568-585)

Competition Chronicle (RJDA, Nov. 2006, p. 1078; Dec. 2006, p. 1187, Jan. 2007, p. 92)

Developments in EC competition law in 2005: An overview, S.B. VÖLCKER (CMLR, 2006, Vol. 43, Issue 5, p. 1409).

Chronique de droit économique, B. CHEYNEL (Rev. Lamy dr. aff. 2006/10, p. 51)

2. Agreements

2.1 General information

Collective bargaining and Community competition rules, C. DELIYIANNI-DIMITRAKOU (RID comp. 3-2006, p. 788)

In this article, the author examines, in the light of the solution adopted by the Court of Justice in 1999 in the Albany, Brentjens and Drijende Bokken cases, the fate, from the point of view of competition law and, more particularly, from the point of view of the prohibition of restrictive agreements, of collective agreements whose content increasingly tends to go beyond the traditional field of improving pay and working conditions to include restrictions on the supply and demand of goods and services. Mrs Deliyianni-Dimitrakou argues for a broad interpretation of the principle that collective agreements with social aims are not covered by Article 81(1) EC, taking the view that they make a dynamic contribution to the achievement of Community policies on competitiveness and employment. Moreover, it defends the idea that, by unifying the cost of labour and thus preventing undertakings from resorting to unfair competition practices based on the reduction of social charges, the objectives of collective agreements do not differ from those of the competition rules .

The CFI reaffirms the absence of a rule of reason in Community law, E. DIENY (RD aff. Int. 5/2006, p. 681)

Anticompetitive nature of the exchange of periodic confidential information in an oligopolistic market (note ss. Paris 26 Sept. 2006, Hôtel Le Bristol et a.), A.-L. SIBONY (JCP éd. G, n° 50, 13 déc. 2006, II, 10204, p. 2341)

2.2 Distribution

La procédure d’engagements au soutien du commerce en ligne dans la distribution sélective (suite et fin), M. CHAGNY (Comm. com. électr., oct. 2006, n° 145, p. 44)

Brief commentary on Competition Council Decision No. 06-D-24 of 24 July 2006, under which it is accepted that the head of a selective distribution network may reserve the sale of the contractual products on the Internet only to authorised distributors with a physical point of sale, and may therefore exclude "Internet only" resellers. See also, La distribution sur internet dans le cadre d’un réseau, D. FERRIER (D. 2006, point of view, p. 2594).

Pratique du droit des réseaux de distribution, É. BACCICHETTI (Petites affiches, Nov. 13, 2006, No. 226, p. 6)

The specific regime of non-affiliation clauses, vertical agreements implemented on the national market for perfumes and cosmetics, territorial exclusivity clause in the event of the franchisor opening a website, exclusive supply clause imposed on selective distributors, these are the topics addressed in this issue by the column "Practice of distribution network law" whose commented decisions cover the period from January to July 2006.

Sanction for refusal of approval: two years of gross margin (obs. ss T. com. Lyon, 15 September 2006), R. BERTIN (Petites affiches, 12 Dec. 2006, No. 247, p. 15)

Denial of distributor approval, commentary under Cass. com. 19 Sept. 2006, Sté. Orphée (RJDA, 1/07, p. 33)

Le contrat de franchise (special issue produced with the assistance of the law firm Simon associés) (Petites affiches, Nov. 9, 2006, No. 224, pp. 2-57)

2.3 Public Procurement

L’offre foncière communale et la libre concurrence, B. LAMORLETTE and M. PONSARD (Les Échos, 17 Nov. 2006, p. 10)

3. Abuse of dominance

Le droit de propriété confronté à la théorie des infrastructures essentielles, G. CANIVET (Rev. Lamy dr. aff. 2006/11, n° 658, p. 79)

In a particularly stimulating concluding speech delivered during the debates organized by the Cercle des économistes in July 2006, Guy Canivet reviewed the most recent developments in the application by competition authorities and courts of the theory of critical infrastructure, particularly when it conflicts with the industrial property rights of the holder of the facility. Lingering on the restrictive criteria that now govern its implementation, Guy Canivet shows very clearly the difficulty that the judge faces when he decides to open or, conversely, not to give access to the essential facility: is there not a risk of giving competitors a lazy premium by opening access to the facility too widely? Conversely, by denying access, do we not lose the chance of seeing the competitor participate in economic progress through its own innovations? It is difficult for the judge to decide ex ante without always knowing what the competitors will do with the access that would be offered to them to the indispensable infrastructure?

Exclusionary conduct, effect on consumers, and the flawed profit - sacrifice standard, S.C. SALOP (Antitrust Law Journal, 2006, Vol. 73, Issue 2, p. 311).

Among the contributions to a symposium on exclusionary conduct (Identifying exclusionary conduct under Section 2) published in this issue of the Antitrust Law Journal, echoing Community reflections on Article 82 EC, this article is particularly interesting. The author presents a number of exclusionary practices in a clear and problematized manner, and puts several standards of analysis into competition to deal with them, including the consumer harm approach and the profit sacrifice approach. At the end of a well-documented analysis, which includes reflections on the impact of false positives and false negatives as well as on the question of anti-competitive intent, the author believes that the consumer harm approach should be favoured. He notes that, despite the criticisms made of this approach, which would be complex and could lead to the sanctioning of behaviour that is beneficial to competition, the profit sacrifice approach is just as complex and much more uncertain as to the behaviours sanctioned and should therefore only be used as evidence, but not as the sole standard. The author further notes that the consumer harm test, which is used in merger control and section 1 of the Sherman Act, would have the merit of unifying the litigation and making the doctrine more consistent. From the same issue and the same symposium, we note Identifying exclusionary conduct under section 2: the "no economic sense" test, G.J. WERDEN (p. 413).

The meeting competition defence principle - A defence for price discrimination and predatory pricing, M.A. GRAVENGAARD (ECLR, dec. 2006, Vol. 27, Issue 12, p. 658).

Contrat de travail et pratiques anticoncurrentielles : liaisons dangereuses, C. NEAU-LEDUC (RLC, 2006/9, n° 621, p. 23)

4. Concentrations

The rights of third parties in administrative merger control proceedings: an aspect of French law, L. IDOT (RID comp. 3-2006, p. 747)

Laurence Idot’s article is timely. At a time when the services of the Minister of the Economy are considering how to strengthen the transmission of information by third parties in the context of market tests, which, with the development of the economic analysis of mergers, are becoming increasingly important, and are wondering whether it would be appropriate to introduce an obligation to cooperate with third parties, Laurence Idot proposes to review, in a particularly thorough paper, the rights and duties of third parties, a disparate category broadly understood as those who are not the notifying parties, at all stages of the procedure, whether it be the right to be informed or the duty to inform, or the right to appeal to the administrative judge against the Minister’s decision.

The rights of third parties in administrative merger control proceedings: an aspect of German law, F. BIEN (RID comp. 3-2006, p. 771)

Same approach, but on the German side where the legislator has chosen to restrict the possibilities open to third parties to challenge the validity of the authorisation of a merger before the competent courts.

The Court of first instance’s Impala judgment: a judicial counter-reformation in EU merger control, S.V. VOLCKER (ECLR, Nov. 2006, Vol. 27, Issue 11, p. 589).

The author provides in this article his analysis of the content and consequences of the CFI’s Impala judgment of 13 July 2006, which annulled the Commission’s decision in the Sony/BMG merger. The author discusses both the direct consequences of this judgment in the case concerned and its consequences for future mergers, both in terms of substance and procedure. On the merits, the main thrust of the judgment is of course the analysis of situations of collective dominance and the use of the Airtours criteria. On the procedure, the author returns to the questions relating to the place of the statement of objections and to the elements that the Commission’s decision must necessarily contain when it diverges from the statement of objections. He also goes back over the Court’s requirements as regards investigation and the source of information. The author concludes by asking how this judgment will affect merger decision-making practice. See also, The GE/Honeywell judgment - In reality another merger defeat for the Commission, J. KILLICK (ECLR, Jan. 2007, Vol. 28, Issue 1, p. 52).

Are European competition authorities wrong? Estimating market power from abnormal stock returns, B. DUMONT (Antitrust Bulletin, Summer 2006, Vol. 51, Issue 2, p. 411).

Protectionism: an obstacle to cross-border mergers in Europe, K. VAN MIERT (RLC, 2006/9, No. 616, p. 9).

Judicial review of merger control decisions in the European Union, F. TODOROV & A. VALCKE (Antitrust Bulletin, Summer 2006, Vol. 51, Issue 2, p. 339)

5. State aid

Actualité de l’impact des règles relatives aux aides d’État sur le droit fiscal, B. TOULEMONT ET J. DU PASQUIER (Petites affiches, 5 Dec. 2006, No 242, p. 4)

The authors of this paper invite the reader to look regularly at the State aid regime, which is constantly evolving under the action of the ECJ and the European Commission. In particular, they examine the impact of State aid rules on tax law, in order to fully understand the effects of Article 87 of the EC Treaty on domestic legislation, especially in tax law.

Taxe d’aide au commerce et à l’artisanat and Community rules on State aid (CJEC 27 October 2005 Nazairdis SAS and Others v Organic, cases C-266/04 to C-270/04, C-276/04 and C-321/04 to C-325/04) J.-M. FEVRIER (Rev. recherche juridique - Droit prospectif 2006-2, pp. 1079-1089)

Effect of a Commission decision on claims for reimbursement, obs. under ECJ 5 Oct. 2006, Case C-368/04, L. IDOT (Europe, Dec. 2006, No. 12, p. 24).

La contractualisation des aides à l’agriculture, un instrument au service de la protection de l’environnement, L. DESFONDS (Rev. recherche juridique - Droit prospectif 2006-2, p. 889-917)

Framework for procedural autonomy and recovery of aid, L. IDOT (Europe, Dec. 2006, No. 12, p. 24).

Services of general interest - Recent developments, F. CHALTIEL (Revue du Marché commun et de l’Union européenne, No 503, Dec. 2006, p. 637)

New Guidelines on State aid promoting risk capital investments in SMEs, B. TRANHOLM SCHWARZ (Competition Policy Newsletter, 2006, No. 3, p. 19).

State aid, public service and Community law - Elements of clarification on the validity of public service compensation, A. MET-DOMESTICI (AJDA, 16 Oct. 2006, p. 1881)

6. Public sector (excluding State aid)

The impact on competition of public regulation, M. BAZEX and S. BLAZY (D. Adm. n° 12, Dec. 2006, p. 22)

Commenting on Competition Council Decision No. 06-D-30 concerning the cartel on the resale prices of taxi licenses in Marseille, the authors consider that other anti-competitive practices result from the very existence of the applicable regulations. Indeed, in addition to the licences that can be acquired directly from a taxi seller, which require the payment of a relatively high price and constitute a real investment for the taxi operator, it is possible to acquire licences free of charge from the public authorities (the Prefecture). This inequality between taxi operators is thus considered by the authors as causing market malfunctioning, by placing taxi operators who have acquired their licence free of charge in a much more favourable position than those who have had to acquire it against payment on the so-called secondary market. They thus criticise the harmful consequences of certain public regulations granting property rights in markets open to competition.

The exorbitant nature of the specific action of the State in the light of the principle of the free movement of capital, M. BAZEX and S. BLAZY (D. Adm. n° 11, Nov. 2006, p. 30)

A truly topical issue is that addressed by the commentary on the ECJ’s ruling of 28 September 2006 on the golden shares that Member States may hold in certain companies. Indeed, the holding of a golden share allows a State to oppose certain strategic decisions of a company, such as a transfer of activities or an investment and, by doing so, create discrimination between shareholders but, above all, an infringement of the principle of free movement of capital. The Court thus authorises the holding of such specific shares only if they are justified by the existence of a genuine objective of general interest.

The takeover bid for BAA plc or the limits of a historical model of airport privatisation, N. CHAPIER-GRANIER (RFDA, Nov-Dec 2006, p. 1175)

In the light of the privatisation of certain French airports, the author, retracing the history of the privatisation of several English airports (BAA), explains the use made of regulation by the British authorities as the only instrument for protecting the general interest, which proved to be insufficient in this case; economic patriotism did not play a role, moreover, although BAA was the subject of a public offer by a major Spanish construction company, Ferrovial. The author thus proposes to remedy the dangers of privatizing activities of general interest by introducing more far-reaching regulation including a right of supervision over the governance of these so-called crucial operators holding this type of activity.

Le Conseil constitutionnel programme l’extinction des tarifs réglementés de vente dans le secteur de l’électricité, C. CLARENC (Petites affiches, 4 Jan. 2007, No. 4, p. 3)

In the context of the constitutionality review of the privatisation of GDF, the Constitutional Council took up the controversial issue of maintaining regulated sales tariffs in the liberalised markets for the supply of natural gas and electricity, condemning this maintenance outside and beyond the "current contracts". The author proposes here a particularly detailed analysis of the decision of the Constitutional Council.

Europe and the completion of the internal market: how can Article 86 of the EC Treaty play a useful role, N. LENOIR, D. ROSKIS, C.-M. DOREMUS (Gaz. Pal., 11-12 Oct. 2006, p. 2)

La notion d’obligation de service public en droit communautaire, A. CHAMINADE (JCP éd. G, n° 43-44, 25 oct. 2006, I, 182, p. 1991)

Actualités du droit de la concurrence et de la régulation, L. RICHER, P-A. JEANNENEY and N. CHARBIT (AJDA, 25 Dec. 2006, p. 2437)

8. Procedures

8.1 General information

Scope of the Competition Council’s jurisdiction on referral from the Court of Appeal, E. DIENY (JCP éd. E, No. 43-44, 26 Oct. 2006, 2545, p. 1831).

In this critical paper, Emmanuel Dieny goes back over a few questions - procedural and substantive - raised by the decision n° 06-D-18 of 28 June 2006 of the Competition Council in the film advertising case. In the first place, the author challenges the Council’s power to examine in rem a case in which it had already rejected a referral, considering that, having "cleared its referral", it should strictly adhere to the scope of the additional investigation ordered by the Court of Appeal. Secondly, the author calls for a clarification of the definition of collective dominance. Lastly, he notes that the procedure for accepting undertakings necessarily takes place before the notification of the grievances.

The application of EC competition law and the European convention on human rights, V.O. BENJAMIN (ECLR, dec. 2006, Vol. 27, Issue 12, p. 693)

Le droit d’accès au dossier en matière de concurrence et le juge communautaire (note ss. TPICE 7 June 2006, joined cases T-213/01 and T-214/01), J.-C. ZARKA (JCP éd. E, n° 46, 15 nov. 2006, II, 10185, p. 2125)

The application of the "non bis in idem" principle to international agreements - the end point in a thirty-year discussion? (Archer Daniels Midland, Showa Denko and SGL Carbon judgments), B. KOTSCHY (RDUE 3-2006, p. 712)

8.2 Sanction Policy - Clemency - Settlement - Undertakings

La clemence: nouvelle étape de la convergence des droits de la concurrence en Europe, C. LEMAIRE (Europe, déc. 2006, n° 12, p. 4)

This very informative article on the model leniency programme just adopted by the members of the European Competition Network, recalls the divergences between the different leniency programmes existing within the EU, which are a source of difficulty for companies, and envisages the harmonisation of certain substantive and procedural rules that NCAs have achieved through this text. Christophe Lemaire explained the convergence of the substantive rules and in particular the conditions of eligibility and the nature of the information to be provided to NCAs. A common terminology has thus been adopted, identifying the cases in which a company can benefit from leniency; but the author regrets that this terminology has not been taken up by the Commission in its draft Communication to amend the leniency regime. The NCAs have also decided to harmonise the definition of what they mean by termination of cartel participation and the obligation to cooperate, both of which are substantive conditions for the filing of a leniency application. Finally, the author discusses the convergence that NCAs have achieved in the implementation of these rules, in particular the general adoption of the marker mechanism and the oral leniency application procedure, in order to limit the risks of disclosure of such information in other proceedings. See also on the same subject, Harmonisation of European competition leniency systems, P. ARHEL (JCP ed. E, No 41, 12 Oct. 2006, 433, p. 1705) which constitutes a first presentation of the mechanism aiming at the harmonisation of leniency programmes initiated by the Commission and the members of the European Competition Network (ECN) around the "model programme" of leniency developed by the ECN. The main objective of this smooth harmonisation of the 20 (soon to be 22) leniency programmes in force in the Union is to minimise as far as possible the problem of multiple leniency applications. To this end, it has been decided to develop a "model leniency programme", which, as its name suggests, is the ideal leniency programme or at least acceptable to all NCAs and the Commission. It contains the essential elements that ECN members consider should be common to all programmes. It sets out the treatment that the leniency applicant can expect from any ECN member authority. Most importantly, the ECN Model Leniency Programme introduces a uniform model for a summary leniency application at national level where the application for immunity is made in cases involving more than three Member States. In such cases, the ECN members consider that the Commission is ’particularly well placed’ to examine a case pursuant to point 14 of the Network Notice if the cartels have effects on competition in more than three Member States, thereby establishing a ’3+’ system. However, in order for the ECN Model Leniency Programme to be applied in practice, it is imperative that all existing national programmes adopt or align themselves with it. The ECN members have committed themselves to make every effort, within the limits of their competence, to align their respective programmes with the ECN Model Leniency Programme. Leading by example, the Commission has made public and submitted for consultation a draft Notice on Immunity from fines and reduction of fines in cartel cases to replace the Notice of 13 February 2002. The Commission’s draft Notice seeks to mirror as closely as possible the model of the ECN leniency programme. As for the Competition Council, it reacted promptly by announcing that the French leniency programme, as clarified by the Competition Council in its procedural notice of 11 April 2006, which is already largely in line with the ECN Model Programme, should be amended in the very near future to ensure convergence with the ECN Model Programme. On this subject, which is currently the subject of much discussion, see Designing a European solution for a "one stop leniency shop", C. GAUER & M. JASPERS (ECLR, Dec. 2006, Vol. 27, Issue 12, p. 685) and Harmonisation of the leniency system at Community level, P. WILHELM AND F. VEVER (Contracts, conc., consom., Nov. 2006, Focus, p. 2). For an American perspective, The legacy of Stolt-Nielsen: A new approach to the corporate leniency program, D.C. KLAWITER & J.C. (eds.). EVERETT (Antitrust Source, dec. 2006, available at www.antitrustsource.com).

The Commission revises its Guidelines for setting fines in antitrust cases, H. DE BROCA (Competition Policy Newsletter, 2006, No. 3, p. 1).

The European Commission is now demonstrating a real determination to deter the perpetrators of anti-competitive practices. It therefore wishes to set fines, within the legal limit of 10% of the total turnover of each company party to the cartel or abuser of a dominant position, at a sufficiently dissuasive level, not only with a view to penalising them (specific deterrence), but also with a view to deterring other companies from engaging in or continuing anti-competitive behaviour (general deterrence). In order to achieve these objectives, the Commission has amended its Guidelines on the method of setting fines applicable to cases whose Statements of Objections were notified as from September 2006 and which Hubert de Broca develops in this article (see also from the same author, The European Commission’s new Guidelines on Fines, ConcurrencesNo 4-2006, pp. 37-45). From now on, the determination of fines will refer to the value of sales of goods or services in relation to the infringement, as well as to the duration of the infringement, in order to deter companies from engaging in illegal behaviour. The methodology used by the Commission to determine the amount of the fine involves two steps: the setting of a basic amount for each of the undertakings engaged in the anti-competitive practice, which is then subject to an upward and/or downward adjustment depending on the existence of aggravating or attenuating circumstances. Finally, in order to ensure that its penalties have a sufficiently deterrent effect, the Commission may now increase the amount of the fine imposed on undertakings whose turnover is particularly large in relation to the goods and services to which the infringement relates and may decide to increase the penalty so as to exceed the amount of the unlawful gains made as a result of the infringement, ultimately in a fairly discretionary manner since the Commission does not indicate any scale or schedule for such specific increases. See also, The 2006 Guidelines on the method of setting fines, E. BARBIER DE LA SERRE (RLC, 2006/9, No 620, p. 14), which gives a detailed presentation of the new Commission Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 published in the OJEU of 1 September 2006, which, according to the author of the paper, are both fairer and more severe. See also, New increase in antitrust fines: the Commission has its reasons that the company does not know, F. BRUNET AND H. KANELLOPOULOS (D. 2006, Viewpoint, p. 2458) and Optimal fines in cartel cases and the actual EC fining policy, E.L. CAMILLI (World Competition, 2006, Vol. 29, Issue 4, p. 555).

Private law sanctions for anti-competitive conduct: aspects of German law, W. MÖSCHEL (RID comp. 3-2006, p. 735)

The main interest of this paper is to expose, through a critical approach, the contributions of the seventh reform of the German law against restrictions of competition on private sanctions for anti-competitive practices. It is interesting, at a time when some people in France, particularly in the Competition Council, are looking to Germany for inspiration, in the hope that the legislator will be able to draw on it, to become more familiar with the German model, which, for example, has adopted the principle of the authority of res judicata, the finding of an infringement being therefore binding on the courts seized of the compensation for competitive harm. On this subject, see Les poursuites privées en matière de pratiques anticoncurrentielles : pistes de réflexion, I. HOEPFNER-LEGER (JCP éd. E, n° 48, 30 Nov. 2006, 2710, p. 2050) as well as Private antitrust litigation in Europe: What fence is high enough to keep out the US litigation cowboy, J.S. MARTIN (ECLR, Jan. 2007, Vol. 28, Issue 1, p. 2).

The Manfredi judgment of the ECJ and how it relates to the Commission’s initiative on the EC antitrust damages actions, E. DE SMIJTER and D. O’SULLIVAN (Competition Policy Newsletter, 2006, n° 3, p. 23).

This judgment of the ECJ, delivered on 13 July 2006 on a preliminary question, confirms the Commission’s current priorities for the effective reparation of victims of anti-competitive practices. On the basis of the recitals of the Courage v Crehan judgment, the authors hope that this reasoning will also apply to practices falling under Article 82 EC and note in particular that the Court does not require proof of fault, where there is an infringement of competition law, before damages can be claimed. Also highlighted is the way in which damages can be defined and quantified, so that they can cover not only actual losses but also loss of profit, the limit being only unjust enrichment. Finally, the authors note that a number of issues in the Green Paper are not decided by the Court, such as the effective access to evidence required by the plaintiff to bring an action for damages, the scope of persons entitled to bring an action, the different forms of collective actions, the cost of such proceedings or the coordination between civil proceedings for damages and those before NCAs. Despite this, this judgment shows how much the Court, in interpreting the principles of equivalence and effectiveness, is keen to achieve harmonisation of national rules to provide better compensation to victims of anti-competitive practices.

Coordination of public and private enforcement. Combining the respective advantages of French administrative and judicial procedures, N. JALABERT-DOURY (RD aff. Int. 6/2006, p. 803)

In this article, Nathalie Jalabert-Doury explains the various procedures, their advantages and disadvantages, that victims of anti-competitive practices can use to obtain evidence. The option of filing a prior complaint with the competition authority, which has significant investigative resources at its disposal and whose decision will support a claim for compensation before the civil court, is thus examined. The second option is that of referring the matter to the civil judge, to whom the victim may ask to refer the matter to the competition authority for an opinion. Moreover, the support of competition authorities to the courts has recently been strengthened by facilitating their intervention as amicus curiae. Lastly, the author recalls the rules applicable to the communication to third parties and to the courts of evidence held by the competition authorities.

The Court kicks in on civil compensation for damage caused by a breach of the competition rules, P. IANNUCCELLI (RLC, 2006/9, No. 650, p. 67)

See also in the same review, the paper by Muriel Chagny, Le contentieux indemnitaire des pratiques anticoncurrentielles: la Cour de justice invité au débat sur le Livre vert (RLC, 2006/9, No 659, p. 86).

How high do cartels raises prices? Implications for optimal cartel fines, J. M. CONNOR & R. H. LANDE (Tulane Law Review, 2006, Vol. 80, Issue 2, p. 513)

This article is one of the contributions to an American Antitrust Institute symposium on competition law remedies (Thinking creatively about remedies) to which the Tulane Law Review devotes most of this issue.

Implementing instruments - Sanctions, injunctions, undertakings, settlements and leniency, C. LEMAIRE, D. LESCOPS, I. LUC and N. LUC. MOUY (Le Moniteur, 17 Nov. 2006, Cahier détaché n° 2)

When parents pay for their children’s wrongs: attribution of liability of EC antitrust infringements in parent-subsidiary scenarios, A. MONTESA & A. GIVAJA (World Competition, 2006, Vol. 29, Issue 4, p. 555)

9. Regulations

The regulation of network activities in Germany in search of legal legitimacy - The example of electricity and natural gas, BC. PIELOW AND H. COURIVAUD (Contracts, conc., consom., Nov. 2006, Study, p. 4)

Actualités du droit de la concurrence et de la régulation, L. RICHER, P-A. JEANNENEY and N. CHARBIT (AJDA, 25 Dec. 2006, p. 2437)

Time to deregulate - Commission consultation on a new EU framework for electronic communications, I. BERNAERTS (Competition Policy Newsletter, 2006, No. 3, p. 7).

Public funding for broadband networks - recent developments, L. PAPADIAS, A. RIEDL & J. GERRIT (Competition Policy Newsletter, 2006, n° 3, p. 11)

10. International policy

Competition policies, N. JALABERT-DOURY, L. NOUVEL ET D. LE MAREC (RD aff. Int. 6/2006, p. 803)

The 6/2006 issue of the always excellent chronicle of Competition Policies held by the Revue de droit des affaires internationales (RDAI/IBLJ) Nathalie Jalabert-Doury with Laurent Nouvel and Delphine Le Marec sweeps, as usual, the current state of Community competition law, but also that of national laws, including US law, without forgetting international developments in the field, with a report on the annual conference of the ICN held in Cape Town on 5 May 2006. This issue includes a very enlightening study on the coordination of public and private enforcement.

Le droit algérien de la concurrence à la croisée des chemins, S. LAGHOUATI, F. FASSIER et A. MEBROUKINE (RD aff. Int. 1/2007, p. 691)

Authors

Quotation

Umberto Berkani, Alain Ronzano, Christelle Adjémian, Competition journals: Oct. - Jan. 2006, February 2007, Concurrences N° 1-2007, Art. N° 12717

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