Competition journals: Oct. - Dec. 2016

This section of the review Concurrences selects articles and working papers on themes related to competition laws and economics, mainly, but not only, in the English and French languages. This compilation does not attempt to be exhaustive but rather a survey on themes important in the area. The survey usually covers publications over the last three months after release of the latest issue of Concurrences. Articles and working papers published on the Internet only are also welcome. Authors, editors and publishers are welcome to send their papers to : alain.ronzano@lactu-concurrence.fr for review in this section.

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1. General - Scope of application

The duration of anti-competitive practices: issues at stake and assessment criteria in French and European law A. Condoms (Contracts, conc., Nov. 2016, no. 11, Study 10)

The future of European competition policy L. Idot (Europe, Oct. 2016, No. 10, Alert 59)

Competition Authority - A page is (perhaps) turned (perhaps) at the Competition Authority D. Bosco (Contracts, conc., consum. Nov. 2016, no. 11, item 10)

Anti-competitive practices on a local scale: the role of the DGCCRF A. Marie (RLC 2016/55, No. 3073, p. 30)

Price discrimination: the position of competition authorities in the light of economic theory O. Sautel (RLC 2016/55, No. 3076, p. 43)

Activity of the European Union courts in competition law (March 2016, April 2016, May 2016) P. Arhel (Petites affiches, Nov. 24, 2016, No. 235, p. 6; Petites affiches, Dec. 19, 2016, No. 252, p. 21; Petites affiches, Dec. 27, 2016, No. 258, p. 8)

Activity of the Paris Court of Appeal in the field of anti-competitive practices (May to June 2016) P. Arhel (Small Posters, Sept. 29, 2016, No. 195, p. 10)

Competition Chronicle L. Idot (Europe, Oct. 2016, No. 10, comm. Nos. 354-360, 368-369, 375; Nov. 2016, No. 11, N) 408-415, 434-439; Dec. 2016, No. 12, comm. 469, 470, 482-485)

Competition Chronicle D. Bosco and G. Decocq (Contracts, conc., consom. Oct. 2016, No. 10, comm. 216 to 221; Nov. 2016, No. 11, comm. 238 to 242; Dec. 2016, No. 12, comm. 262 to 266; Jan. 2017, No. 1, comm. 16 to 21)

Competition Chronicle L. Idot, M. Behar-Touchais and C. Prieto (Contract Review, 2016-4, p. 718)

Competition Chronicle RJDA, No. 12/2016, Dec. 2016, p. 939; No. 1/2017, Jan. 2016, p. 55

One year of texts and case law in infrastructure law F. Monteagle (Energy-Environment-Infrastructure, No. 12, Dec. 2016, p. 15)

European Competition Law - Anticompetitive practices (1 Nov. 2015-30 Sept. 2016) L. Idot (Rev. Trim. Dr. Eur., 2016, pp. 816-833)

Competition as a Driver of Innovation: Clear as a Rule, More Complex in an Individual Case L. Kjølbye & L. Peeperkorn (Competition Law & Policy Debate, Vol. 2, Issue 3, pp. 21-31)

Antitrust Overhaul R.M. Steuer (Antitrust Law Journal, No. 3, 2016, pp. 681-703)

The Death of Antitrust Safe Harbors: Causes and Consequences L.M. Edwards & J.D. Wright (George Mason Law Review, Vol. 23, No. 5, pp. 1205-1250)

Special Issue: Antitrust and Regulatory Update (Review of Industrial Organization, Vol. 49, Issue 4,)

2. Agreements

2.1. General

The concept of agreement facilitator and its consequences V. Sélinsky (RLC 2016/54, No. 3054, p. 26)

The Ripple Effects of Online Marketplace Bans A. Ezrachi (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2868347)

"Close Your Eyes?" Navigating the Tortuous Waters of Conscious Parallelism and Signalling in the European Union... P.D. Camesasca & L.A Grelier (Journal of European Competition Law & Practice, Vol. 7, Issue 10, pp. 599-607)

Using Network Theory to Detect Dominant Cartel Firms P. Grau-Carles and M. Cuerdo-Mir (Journal of Competition Law & Economics, Vol. 12, Issue 3, pp. 541-556)

Cartel Sustainability in retail markets: Evidence from a health service sector U. Goto and T. Iizuka (International Journal of Industrial Organization, Vol. 49, pp. 36-58)

Industry structure and collusion with uniform yardstick competition: theory and experiments P.T. Dijkstra, M.A. Haan and M. Mulder (International Journal of Industrial Organization, Vol. 50, pp. 1-39)

Collusion in a price-quantity oligopoly A. van den Berg and I. Bos (International Journal of Industrial Organization, Vol. 50, pp. 159-185)

The concept of economic unity in European Union law A. Deroudille (European Union Law Review, 3/4 -2016, p. 555)

Competition - Liability of the parent company, CJEU, 16 June 2016, Evonik Degussa and AlzChem v Commission, Case C-155/14 P B. Blottin (Revue des Affaires Européennes, 2016/2, p. 309)

2.2. Distribution

Refusal of approval to the selective distribution network P. Wilhelm and É. Dumur (JCP ed. E, No. 1, Jan. 5, 2017, 1007)

Licensing and prospects for selective distribution networks: the Coty case P. Wilhelm and É. Dumur (JCP ed. E, No. 41, Oct. 13, 2016, 1539)

Online resale on marketplaces: which issue(s)? C. Grimaldi (Contract Review, 2016-3, p. 476)

Chronicle Distribution and competitor protection M. Malaurie-Vignal and N. Mathey (Contracts, conc., consom. Oct. 2016, No. 10, comm. 208 to 215; Nov. 2016, No. 11, comm. 231 to 237; Dec. 2016, No. 12, comm. 252 to 261; Jan. 2017, No. 1, comm. 5 to 15)

3. Abuse of dominance

Evaluating Appropriability Defenses for the Exclusionary Conduct of Dominant Firms in Innovative Industries J.B. Baker (Antitrust Law Journal, No. 3, 2016, pp. 431-461)

Appreciability and De Minimis in Article 102 TFEU P. Ibáñez Colomo (Journal of European Competition Law & Practice, Vol. 7, Issue 10, pp. 651-660)

Abuse of Dominance by Firms Charging Excessive or Unfair Prices: An Assessment F. Jenny (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2880382)

The Opinion of AG Wahl in Intel: Bringing Coherence and Wisdom into the CJEU’s Pricing Abuses Case-Law D. Geradin (Tilec Discussion Paper, No. 2016-034)

Naked Exclusion with Private Offers J. Miklós-Thal and G. Shaffer (American Economic Journal: Microeconomics, Vol. 8, Issue 4, pp. 174-194)

4. Restrictive practices

The commercial termination letter N. Dissaux (JCP ed. E, No. 42, Oct. 20, 2016, 1565)

Addressing the contractual imbalance through contract law reform: impact(s) on commercial distribution contracts V. Lasbordes-de Virville (RLC 2016/54, No. 3053, p. 19)

Nature of the action for damages for abrupt termination of an established commercial relationship: the CJEU creates surprise by imposing the contractual qualification D. de Lammerville and L. Marion (JCP ed. E, No. 39, Sept. 29, 2016, 1507)

Significant imbalance: between a progressive assertion in law of practices restricting competition and an unprecedented appearance in ordinary law of obligations J.-C. Grall and G. Mallen (RLC 2016/56, No. 3092, p. 20)

Nature of the indemnity action for abrupt termination of established commercial relations K. H. Beltz (JCP ed. G, No. 39, Sept. 26, 2016, 1017)

Abrupt breakup and liability of the headend company N. Mathey (JCP ed. E, No. 46, Nov. 17, 2016, 1599)

Termination of the contract under strict supervision or the requirement of proportionality of the sanction to the work S. Le Gac-Pech (JCP éd. E, No. 43-44, Oct. 27, 2016, 1575)

A civil fine may be imposed on the acquiring company for practices restricting competition committed by the acquired company Mr. Behar-Touchais (Contract Review, 2016-4, p. 683)

The law of practices restricting competition and the reform of contract law M Chagny (Rev. trim. Dr. Com., 2016.451)

The abuse of economic dependence: a sphinx rising from its ashes? (commentary on the new article 1143 of the Civil Code and on the proposal for a law to better define the abuse of economic dependence) E. Claudel (Rev. trim. Dr. Com., 2016.460)

A ban on resale at a loss from European waters? Mr. Chagny (Rev. trim. Dr. Com., 2016.477)

5. Concentrations

Third party intervention in the examination of a concentration by the Competition Authority M. de Drouas (Contracts, conc., consom. Oct. 2016, No. 10, Study 8) It is based on the observation that the process of third party intervention in the review of mergers by the Competition Authority is not very transparent and almost informal and that it is quite possible that a third party (competitors, suppliers, customers) may be unaware of a transaction, The Authority is currently examining the case, which could disrupt the market on which it operates, and the author of this article endeavours to show, in a practical manner and at each stage of the procedure, the approaches available to third parties to make their point of view known if the transaction raises competition concerns.

European Commission launches new public consultation on merger control in the European Union C. Paulhac (Contracts, conc., consom. Dec. 2016, No. 12, Alert 84)

Early implementation of concentrations notified to the Competition Authority - 3 questions to Isabelle de Silva (JCP ed. E, No. 46, Nov. 17, 2016, 908)

Merger control: the transaction amount as the new threshold for notifying concentrations in Europe M. Cousin (RLC 2016/54, No. 3055, p. 33)

European Merger Control and Innovation Competition: moving the goalpost? S. Müller & A. Stril (Competition Law & Policy Debate, Vol. 2, Issue 3, pp. 52-63)

An Empirical Comparison Between the Upward Pricing Pressure Test and Merger Simulation in Differentiated Product Markets L. Cheung (Journal of Competition Law & Economics, Vol. 12, Issue 4, pp. 701-734)

Unilateral Effects with Endogenous Quality B.P. Pinto and D.S. Sibley (Review of Industrial Organization, Vol. 49, Issue 3, pp. 449-464)

6. State aid

Clarification of the advantage constituted by the implicit State guarantee to its EPICs E. Glaser (RLC 2016/55, No. 3070, p. 16)

Public Funding of Innovation M. Engström (Competition Law & Policy Debate, Vol. 2, Issue 3, pp. 32-40)

Capacity Mechanisms and State Aid: Between PSOS, Market Liberalisation, and Security of Supply E. Righini & J.C. González Fernández (Journal of European Competition Law & Practice, Vol. 7, Issue 10, pp. 661-675)

IFP v Commission: Assessment of Public Establishments of an Industrial and Commercial Character Under State Aid Rules R. Saint-Esteben & P. Honoré (Journal of European Competition Law & Practice, Vol. 7, Issue 10, pp. 676-678)

State aid, the evidentiary problem, Trib. EU, 26 May 2016, Joined Cases T-479/11 and T-157/12 R. Lanneau (Administrative Law, No. 11, Nov. 2016, p. 35)

Fulfilment of the obligation to recover unlawful aid or interest thereon, EC, 15 Apr 2016, Assoc. Wind of Wrath! A. Sée (Administrative Law, No. 10, Oct. 2016, p. 36)

7. Public sector and competition

European Union law applicable to public contracts and concessions with a value below the thresholds provided for in Directives 2014/23/EU, 2014/24/EU and 2014/25/EU D. Dero-Bugny (European Union Law Review, 3/4 -2016, p. 529)

8. Procedures

8.1. General

The national court hearing applications for interim measures granting new State aid: syllogism or sophistry in the case-law of the Court of Justice? O. Peiffert (RLC 2016/56, No 3093, p. 38)

Evidence in competition law: the end justifies the means! J. Grangeon (RLC 2016/56, No. 3094, p. 43)

What’s in a name? The marginal standard of review of "complex economic assessments" in EU competition enforcement A. Kalintiri (Common Market Review, Vol. 53, Issue 5, pp. 1283-1316)

Access to File under European Competition Law I. Vandenborre, T. Goetz & A. Kafetzopoulos (Journal of European Competition Law & Practice, Vol. 7, Issue 10, pp. 641-647)

Quasi-Punitive Competition Law Proceedings (Feb 1 - Jul 31, 2016) L. Idot (Rev. Crim. Sc., 2016.599)

8.2. Sanction Policy - Clemency - Settlement

"Make a commitment," they said... - A review of the commitments policy of competition authorities ten years on F. de Bure and L. Bary (RLC 2016/54, No. 3056, p. 36)

Negotiated justice: the leniency procedure in Tunisian competition law J. Baccar (Contracts, conc., consom. nov. 2016, no. 11, Study 11)

Business and the Competition Authority: current developments in cooperation procedures A. Krenzer (RLC 2016/55, No. 3072, p. 26)

Securing the Legitimacy of Individual Sanctions in UK Competition Law J. Galloway, World Competition, forthcoming (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2884418)

8.3. Actions for damages

Arbitrability of EU Competition Law-Based Claims: Where Do We Stand after the CDC Hydrogen Peroxide Case? D. Geradin & E. Villano (Tilec Discussion Paper, No 2016-033)

9. Regulations

ARCEP’s move to digital Interview with S. Soriano (RLC 2016/56, No. 3091, p. 13)

Notaries: "Time stamping is an inadmissible lottery for public officers" P. Chassaing (Small Posters, Dec. 23, 2016, No. 256, p. 1)

Gas Tariff Regulation, CJEU, Sept. 7, 2016, aff. C.121/15, ANODE M. Bazex and R. Lanneau (Administrative Law, No. 12, Dec. 2016, p. 53) Far from calling into question its Federutility case law, the Court of Justice of the European Union, questioned by the Council of State on the compatibility of regulated tariffs for the sale of natural gas in France, reaffirms that, in principle, regulated tariffs would be incompatible with the objective of the directive on the creation of an internal market in natural gas. While that principle does, however, allow for exceptions, it seems that the Conseil d’État - which is now responsible for deciding the substance of the case - would, in the light of the conditions recalled by the Court, be able only to allow the maintenance of social tariffs and thus to decree the end of general tariffs. Pending the ruling of the Conseil d’Etat, the author - who does not hesitate to criticise the Court’s decision in certain respects, particularly with regard to the weakness of his arguments - proposes "to leave price determination free by then operating the objective of cohesion not through public service missions and the compensation of charges but through direct compensation of consumers". Let there be no mistake about it, this judgment of the Court returns to the principle of regulated tariffs not only for gas but also for electricity.

L’impact du droit de l’Union européenne sur les services publics en réseaux, Colloquium, 11 March 2016, Angers (Energy-Environment6Infrastructures, No. 10, Oct. 2016, p. 16)

10. International policy

"COP22: The Paris Agreement enters into force to combat multiple climate alerts". B. Laville (Energie-Environnement-Infrastructures, No. 11, Nov. 2016, p. 13)

The possible antitrust consequences of Donald Trump’s presidential election F. Souty (Contracts, conc., consom. Jan. 2017, No. 1, Alert 1)

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Authors

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Bastien Thomas, Mathilde Brabant, Emmanuel Frot, Christelle Adjémian, Alain Ronzano, Competition journals: Oct. - Dec. 2016, February 2017, Concurrences N° 1-2017, Art. N° 83517, pp. 263-266

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