Competition journals: Dec. 2004 - March 2005

1 General - Scope of application

European competition law with the test of the professional secrecy of lawyers, M. DENRUYTER (RDAI 6/2004, p. 751-795)

In this article, Muriel Denruyter argues for the extension of Legal Privilege to corporate lawyers. The purpose of this study, the author states at the outset, is "to demonstrate that it is not only the lawyer’s opinions, whether external or internal, that must be protected, but also the working documents prepared by clients for the purpose of obtaining from their external or internal lawyer a legal opinion necessary for the exercise of their rights of defence". After recalling the issues at stake in the debate and the state of Community case law, after examining the ratione materiae scope of professional secrecy, as well as the ratione personae scope of professional secrecy, the author reviews all the arguments in favour of such an extension. He places great hope in the possible follow-up to the order of the President of the Court of First Instance of the European Communities, Bo Vesterdorf, of 30 October 2003, in the case of Akzo v Commission, inviting the court hearing the case to rule on the extension of legal privilege.

Chronique Concurrence, Champ d’application des articles 81 et 82 CE (1er avril 2003 - 30 septembre 2004), J.-B. BLAISE and L. IDOT (RTD eur. 2004, p. 669)

This column on the scope of application of Articles 81 and 82 of the EC Treaty in the period from 1 April 2003 to 30 September 2004 will focus on developments in the still delicate implementation of the concept of effect on trade between Member States, which, as is well known, is of paramount importance since it is the criterion for the application of Community law. The guidelines on the effect on trade between Member States concept are therefore highly instructive, but also include an analysis of the latest developments in the case law on the subject, as well as a particularly incisive account of the restrictive policy conducted by the Competition Council, the authors speaking of the Council’s reluctance to apply the effect on trade criterion in accordance with Community case law....

The ne bis in idem principle: a stumbling block in the European criminal law area? A. WEYEMBERGH (Cah. dr. eur., 2004, 3-4, pp. 337-376)

Although the application of the ne bis in idem principle in competition law is not dealt with directly here, the in-depth analysis of the criminal aspects of the principle in this article will nevertheless be of interest, if only for the developments devoted to the difficulties linked to the very definition of the principle.

Le droit de la concurrence et les accords entre actionnaires, H. LESGUILLONS (RD aff. Int. 2/2005, p. 153-172)

Henri Lesguillons makes it possible to perceive the importance of shareholders’ agreements from the point of view of competition law, even though they are not directly apprehended by the latter, because this alone often betrays the objectives really pursued by the shareholders, much more so in any case than the articles of association. Being versatile in nature, they will, depending on the case, play a negligible, sensitive or decisive role in determining the rule of law applicable to the joint venture and in classifying a possible restriction of competition. Their consideration, alongside other legal and factual elements, is therefore essential in assessing whether a joint venture falls within the scope of merger control or antitrust law. They may also be indicative of anti-competitive practices (restrictions ancillary to the concentration, evidence of a cartel or even an abuse of a dominant position). Recalling that the competition authorities know this from experience, the author encourages the drafters of shareholders’ agreements to keep this evidence in mind when writing their agreements.

Vertical restraints and antitrust policy, R. A. POSNER (Univ. Chicago. Law Rev., Winter 2005, Volume 72, Num. 1)

In an issue largely devoted to antitrust, among some fifteen contributions to a symposium, this article presents a synthesis, illustrated by important case law, of the assessment made on certain characteristic vertical restraints and the study of situations in which such restraints may be considered legitimate. The author makes frequent references to the application of the principles identified to situations where an intellectual property right exists. In this issue, Exclusion and the Sherman Act, H. HOVENKAMP, focuses more on unilateral exclusionary practices, and thus on section 2 of the Sherman Act, than on multilateral conduct. The author focuses on the definitions given in recent case law (Verizon v. Trinko and Microsoft in the lead), as well as on three methods of assessment: the equally effective competitor test, the sacrifice test, and the competitor cost increase test (as well as discriminatory practices). Also noteworthy is A categorical rule limiting section 2 of the Sherman act: Verizon v Trinko, J. THORNE, in which the author presents the historical, jurisprudential and regulatory context of the now famous Verizon v Trinko decision of the United States Supreme Court of 13 January 2004 and discusses the lessons to be learned from it, both from the point of view of assessing prohibited practices within the meaning of section 2 of the Sherman Act and from the point of view of the interaction between regulation and competition in the telecommunications sector in the United States, taking into account the 1996 Telecommunications Act. Finally, mention should be made of Designing antitrust rules for assessing unilateral practices: a Neo-Chicago approach, D. S. EVANS AND J. PADILLA and Monopoly dominance or level playing field? The new antitrust paradox, R. A. EPSTEIN.

How economists can help short design competition rules: An EU and US perspective, D. S. EVANS (World Competition, 2005, Volume 28, Issue 1, pp. 93-100).

The author responds to this question by highlighting the role that economists can play in refining, solidifying or recasting the various tests that authorities and courts use in some cases to assess the anti-competitive effects of practices.

Does price discrimination intensify competition? Implications for antitrust, J. C. COPPER, L. FROEB, D. P. O’BRIEN AND S. TSCHANTZ (Antitrust L. J., 2005, Volume 72, Issue 2, p. 327-374).

Competition - Les banques dans le droit commun, J.-P. DE LA LAURENCIE (Banque, April. 2005, n° 668, p. 44)

Activity of the Paris Court of Appeal in the field of anti-competitive practices (March-June 2004), P. ARHEL (Petites affiches, 28 Feb. 2005, n° 41, p. 4)

Activity of the Community Courts in competition law (October-December 2004), P. ARHEL (Petites affiches, 14 March 2005, No. 51, p. 3)

Concurrence-Distribution: Panorama 2004, D. FERRIER (D. 2005, p. 148)

Chronique Concurrence, L. IDOT (Europe, Jan. 2005, No. 21; March 2005, pp. 22-23)

Chronique Droit interne de la concurrence, M. MALAURIE-VIGNAL (Contrats, conc., consom., Jan. 2005, p. 18 sq.; Feb. 2005, p. 14 sq.; Mar. 2005, p. 18 sq.)

Chronique Droit communautaire, S. POILLOT-PERUZZETTO (Contrats, conc., consom., Jan. 2005, p. 22 sq.; Feb. 2005, p. 19 sq.; Mar. 2005, p. 21 sq.)

2 Agreements

2.1 Concepts and principles

European competition policy on technology transfer in a transatlantic perspective, C. PRIETO (Europe, Jan. 2005, p. 6).

Once again taking a resolutely comparative perspective, Catherine Priéto undertook to compare the policy followed by the European Union in the area of technology transfer, whose regime is, since 1 May 2004, laid down by the block exemption regulation No. 772/2004 and its accompanying guidelines, with the solutions adopted on the other side of the Atlantic, with the aim of measuring the relevance of European choices. This comparison between two systems, both committed to the development of the knowledge economy, leads the author to identify divergences, the most important of which concerns competition within the same technology. In this article, which shows, thanks to the comparison made, behind the simple description of the mechanisms, the real stakes linked to intellectual property as a source of innovation, Catherine Priéto calls for a flexible application of the conditions laid down in the Community texts with regard to intra-technology competition. On the same subject, see also Le nouveau règlement d’exemption par catégorie des accords de transfert de technologie : une modernisation et une simplification, P.-M. LOUIS (Cah. dr. eur., 2004, 3-4, p. 377-404).

A new return to the concept of agreement (in connection with the judgment of the CFI of 14 October 2004, case T-56/02), L. IDOT (Europe, Dec. 2004, No. 12, p. 27); see also S. POILLOT-PERUZZETTO (Contrats, conc., consom., déc. 2004, n° 12, p. 36)

Laurence Idot comments here on the so-called German banks judgment, relating to bank charges for currency conversion in the Euro-German zone, at the end of which the CFI annulled the Commission’s decision of 11 December 2001. The author highlights here the strengthening of the proof of the agreement of wills between the parties to the cartel which is now incumbent on the competition authorities. The ECJ had already reverted, in the Bayer judgment of 6 January 2004, to a more civilist conception of the concept of agreement of wills in the context of vertical relationships; the CFI in this case in fact applied it to horizontal cartels.

Is the Common Agricultural Policy soluble in competition? Critical reading of the "French beef and veal" decision (Commission, 2 April 2003), H. COURIVAUD (Contrats, conc., consom., Jan. 2005, p. 6)

The author usefully recalls, in an openly critical manner, the stakes of the "French beef" decision, under which farmers’ associations, including the FNSEA, were sanctioned for agreeing to suspend the import of British beef and to set a minimum price, stakes that are nothing less than the application of competition law to the agricultural sector. Denouncing an excessively "liberal" reading of the Treaties by the Commission, Henri Courivaud pleads for the recognition of the specificity of agriculture as an object of sectoral public policy.

European Commission, Decision No. 2004/841/EC, 7 April 2004, Air France / Alitalia Linee Aeree Italiane SpA, L. IDOT (Europe, Feb. 2005, No. 2, p. 21).

The author comments here on the exemption decision taken by the European Commission with regard to the cooperation agreement (airline alliance) concluded between the airlines Air France and Alitalia. He points out that this decision, although it was taken just before the entry into force of Regulation 1/2003 on 1 May 2004, will remain in force until it expires, in accordance with Article 39 of Regulation 1/2003. Furthermore, the author points out that the new power conferred on the Commission by Article 9 of the Regulation to make commitments binding supersedes the disappearance of exemption decisions.

The Application of Competition Law to Professional Associations, A. CONDOMINES, (JCP ed. E 2005, p. 120)

EBU Order, P. IBAÑEZ (RDUE, 3/2004, p. 592)

A facet of the modernisation of EU competition law: the new exemption regulations, L. IDOT (Petites affiches, 1 Feb. 2005, No. 22, p. 5)

The EU’s new antitrust rules for technology and licensing: a turbulent harbour for licensors, F. FINE (Eur. Law. Rev., 2005, Volume 29, Issue 6, pp. 766-787).

2.2 Distribution

La nouvelle approche des restrictions verticales : évolution ou révolution ?, Ateliers de la concurrence de la DGCCRF (Rev. conc. consom. Jan. -mars 2005, n° 141)

In terms of vertical restraints, it is, with the exception of a brief detour to the selective distribution of perfume, essentially motor vehicle distribution and thus the implementation of exemption Regulation 1400/2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector, which was discussed at the competition workshops on 7 April 2004 . Two observations made by Professor Louis Vogel in the introductory presentation on "new generation" exemption regulations are of particular interest. Firstly, a question concerning the usefulness of exemption regulations in a system of "legal exception" such as the one introduced by Regulation 1/2003. Then a remark concerning the favour with which some competition authorities consider the adoption of discriminatory qualitative selection criteria or the discriminatory application of qualitative selection criteria, when the market share is below 30% and the agreement contains neither black nor red clauses.

The objective clause, S. LEBRETON-DERRIEN (RJ Com. 2004, p. 508)

3 Unilateral practices

3.1 Abuse of dominance

Discounts and Loyalty Bonuses (OECD Review 2005, Vol. 5, No. 2)

Loyalty rebates can have both anti-competitive and pro-competitive effects. The purpose of this roundtable and the discussion is to highlight these effects and to illustrate the different approaches to loyalty rebates in OECD member countries: systematic anti-competitive nature of loyalty rebates by dominant firms/economic balance sheet prior to any condemnation. The author of the background note discusses these differences of opinion, particularly through the cases relating to airline frequent flyer programmes, and also shows that loyalty discounts have primarily pro-competitive benefits. However, in certain circumstances, the author considers that these pro-competitive advantages may give way to anti-competitive effects, in particular where loyalty discounts reduce price transparency, facilitate anti-competitive coordination or lead to foreclosure of actual or potential competitors.

See also The granting of rebates by market dominant undertakings under Article 82 of the EC treaty, DR. H.-G. KAMANN AND E. BERGMANN (ECLR, Feb. 2005, Volume 26, Issue 2, pp. 83-89), in which the author sets out, inter alia, a typology of the principles for assessing rebates which he draws from the Michelin and British Airways judgments.

What does "Capable of eliminating all competition" mean, N. LE (ECLR, Jan. 2005, Volume 26, Issue 1, pp. 6-10).

By relying in particular on a literal analysis of certain passages from recent Community and US decisions relating to refusals of access and most often involving the theory of essential facilities, the author attempts to summarise the definition, place and intensity necessary for the elimination of all competition, a concept put forward in particular in the IMS Health case. In particular, the author examines the interactions between this condition and the condition of indispensability of the product or service (central element in the case of essential facilities) as well as the test of exceptional circumstances.

How to distinguish good from bad competition under article 82 EC: In search of clearer and more coherent standards for anti-competitive abuses, T. EILMANSBERGER (CMLR, Feb. 2005, Volume 42, Num. 1, pp. 129-177)

In line with the highly topical reflection on the revision of Article 82, the author presents here a clear and complete overview of the elements of analysis of abuses of dominant position and their application to the two categories of abuse (abuse of conduct and abuse of structure). Of particular note are the developments relating to causality and those relating to the need for an effect and/or an intention, both in their general presentation and in their application to structural abuses. The sequential analysis of the problems linked to denial of access is also appreciated, as it is very effective in clearly presenting the recent cases in this area, so frequently commented on in recent times, and their problems.

Limiting the scope of Article 82 EC: What can the EU learn from the U.S. Supreme Court’s judgment in Trinko in the wake of Microsoft, IMS, and Deutsche Telekom, D. Géradin (CMLR, Volume 41, Issue 6, pp. 1519-1553)

Building brick barricades and others barriers to entry: Abusing a dominant position by refusing to licence intellectual property rights, B. ONG (ECLR, apr. 2005, Volume 26, Issue 4, pp. 213-222)

3.2 Abuse of collective dominance

Activity of players’ agents and Community competition law, A. MARCHAND and A. DURAND (Lamy droit économique 2005, bull. E, n° 181, p. 1). See also on the same case, the Chronique Concurrence, L. IDOT (Europe, March 2005, No. 93)

497 million euros fine, C. DE WATRIGANT, (Comm. com. électr. 2005, chron., p. 12)

4 Restrictive practices

In search of greater effectiveness in the fight against practices restricting competition, Mr BEHAR-TOUCHAIS (RLC 2005/2, No 136, p. 39)

Starting from the idea that, in order to combat restrictive practices effectively, it might prove judicious, in the absence of miracle solutions, to multiply the opportunities to take legal action, Professor Béhar-Touchais suggests, not without first weighing up the advantages and disadvantages of his proposal, to give associations of suppliers, on the model of consumer associations, the right to take legal action to demand the cessation of restrictive practices, or even to seek a financial penalty against the person responsible for the practice, with the difficulty, which is not overlooked, of making the distinction between suppliers who deserve special protection under the law and those who, as owners of well-known brands or with market power, do not need it.

Resale at a loss as a restrictive practice - State of play of legislation in Europe, A. DE BEAUMONT (Ilec Bulletin, Feb. 2005, n° 360, p. 12)

In this article, Anne de Beaumont lists the various regimes relating to resale below cost as a restrictive practice in Europe. While Community law does not cover practices restricting competition, which are prohibited practices as such, without any necessary effect on the market, many States such as Spain, Ireland, Italy, Greece, Portugal and Belgium, after France, adopted provisions prohibiting resale below cost as early as 1963, and since the 1980s, many other States such as Spain, Ireland, Italy, Greece, Portugal and Belgium have adopted provisions prohibiting resale below cost.

There are, however, many differences in the analysis of these regimes, both in terms of the qualification of the practice and the conditions for its implementation and the applicable sanctions. For example, in some States, resale at a loss may also constitute an act of unfair competition or even an anti-competitive practice and may be considered as an abuse of a dominant position, in particular when the seller owns 50% or more of the total sales area of a province. Furthermore, these differences can also be observed with regard, on the one hand, to the exceptions to the prohibition of resale at a loss, i.e. the specific cases in which the legislation authorises resale at a loss and, on the other hand, to the penalties that may be imposed.

La qualification aléatoire de l’abus de puissance d’achat, de vente ou de relations de dépendance, S. DELORT (JCP éd. E 2005, 483, p. 512)

Four years after its insertion in the Commercial Code with the adoption of the NRE Act of 15 May 2000, Article L. 442-6 on abuse of economic dependence, abuse of purchase and abuse of sale is the subject of a very critical analysis here. Acknowledging initially the innovative nature of the concept, the author notes in particular that its criminalization in the law is too vague. She is dubious as to the demarcation between these concepts and abuse of dominant position, and stresses the redundancy of the concepts within the article itself, particularly between L. 442-6-I-2°a and L. 442-6-I-2°b. According to the author, the lack of rigour in these provisions leads to legal uncertainty for economic actors and contradictions both between jurisdictions and between the latter and the Commission d’examen des pratiques commerciales and the Conseil de la concurrence, in particular with regard to the development of back margins. Finally, in the economic field, the author considers that these provisions lead, on the one hand, to financial difficulties for suppliers and large retailers and, on the other hand, to price increases for consumers.

Le rapport de la Commission Canivet : enjeux et implications d’une réforme de la loi Galland en matière de baisse des prix à la consommation, D. FERRIER et D. FERRE (JCP éd. E 2005, 79, p. 72)

Jacob’s bill bans the distributors, J. PARIGI and S. AUBRIL (LSA 17 March 2005, No. 1898, p. 18)

Industry-commerce relations or the vain search for the perfect balance, C. PECNARD et G. ROBIC (Petites affiches, 18 March 05, n° 55, p. 6)

5 Concentrations

Doubts about non-structural remedies in merger control, P. BOUGETTE and C. MONTET (RLC 2005/2, n° 110, p. 9)

On the basis of three recent mergers, including the authorisation in many respects questionable granted by the Minister for Economic Affairs for the acquisition of Télé Monte-Carlo (TMC) by TF1, associated for the purposes of the case with AB, which validates the strategy of pre-emption of a market vis-à-vis competitors by an already dominant operator, the authors seek to investigate whether remedies of a behavioural nature, where structural remedies cannot be used, generate the right incentives of a market economy.

La modernisation du droit communautaire des concentrations, J. JORDA (AJDA. 2005, p. 179).

Reading by a publicist of Council Regulation 139/2004 on the control of concentrations between undertakings. See also, La refonte du contrôle des concentrations, G. DECOCQ (RJ Com. 2004, p. 270).

Who’s afraid of conglomerate mergers? A comparison of the US and EC approaches, R. BURNLEY (World Competition, 2005, Volume 28, Issue 1, pp. 43-70).

Turning to the difference in economic analysis between the European Union and the United States in the GE/Honeywell case, the author points out that, while some may have criticized the outdated nature of the Commission’s analysis, the Commission’s decision was well founded in law and that there was nothing to impose certain economic concepts on it or to prevent it from having its own political objectives and legal concepts.

L’exception d’entreprise défaillante - Approche comparée, P. DE MONTALEMBERT and L. NIEDOLISTEK (JCP éd. E 2005, p. 314)

The reform of the European control merger regulation in the aftermath of the Airtours Case - the eagerly expected debate: SLC v Dominance Test, J. KOKKORIS (ECLR, Jan. 2005, Volume 26, Issue 2, pp. 37-47)

6 State aid

What room for initiative for the national judge in State aid control? M. BAZEX and S. BLAZY (Dr. adm., Jan. 2005, No. 1, p. 20)

In this article, the authors analyse the national court’s decision on State aid in the light of Community case law and the control instruments provided for by Community law. The commented decision thus fully integrates Community case law and in particular the criteria identified by the ECJ in the Altmark case (ECJ, 24 July 2003) relating to compensation for public service obligations. The Court fully applies the principle of primacy of Community law over incompatible domestic rules when it considers that the rule of domestic law that a pecuniary decision creating a right may not be withdrawn after a period of four months cannot preclude the full effectiveness of Community law and the obligation on the State to draw the consequences of the illegality found.

The European Court of Justice clarifies power of the Council in state aid cases, K. VAN DE CASTEELE (CPN, 2004, Num. 3, Autumn, pp. 21-23).

The Court of Justice clarifies the concepts of State resources and imputability to the State: the Pearle BV case, A. ALEXIS (CPN, 2004, Num. 3, Autumn, pp. 24-30)

Is tax deferral or alleviation of fiscal sanctions a prohibited State aid, C. DAVID (JCP éd. E 2005, 274, p. 266)

7 Public sector

Les pratiques tarifaires des régies : l’affaire de la régie vendéenne comme modèle, S. DESTOURS (RLC 2005/2, No. 143, p. 51)

Review of a decision of the Competition Council which, in order to assess the alleged existence of predatory pricing, accepted as relevant the concept of incremental costs, a method of calculating costs which does not go without raising legitimate questions where those costs are borne by an undertaking entrusted with a public service mission and simultaneously offering services on a market on which there is a competing offer. See also La prise en considération de la règle de concurrence dans la tarification des services publics (à propos de la décision du Conseil de la concurrence n° 04-D-79 du 23 décembre 2004 relative aux pratiques de la Régie des passages d’eau de la Vendée), M. BAZEX et S. BLAZY (Dr. adm., March 2005, No. 3, p. 19), whose authors criticize the position of the Competition Council, which assessed the tariffs charged by this operator with regard to incremental costs without taking fixed costs into account, these authors supporting on the contrary an analysis in terms of "fully distributed costs".

French regulation of retail establishments: balances before liquidation? J. MAILHE (Petites affiches, 4 March 2005, No. 45, p. 3)

The author retraces the history of the regulation introduced in 1973 making the opening of sales areas subject to prior administrative authorisation and highlights the perverse effects of this system on small businesses, which it was supposed to protect, and the conditions of its implementation by the Departmental Commissions for Commercial Facilities, which also become judges of the economic opportunity of projects to open and extend sales areas. Finally, the author attempts to demonstrate that the very legality of French legislation and regulations in this field can be seriously challenged under Community law.

Impact of competition rules on the internal organisation of incumbent public service operators, M. BAZEX and S. BLAZY (Dr. adm., Dec. 2004, No. 12, p. 21)

In its Opinion 04-A-21 on the diversification of the activities of vertically integrated operators in a dominant position, the Competition Council proposed three ways of separating the different activities of these operators. The authors, relying on administrative case law and in the light of the spirit of Act No. 2004-803 of 9 August 2004 on the public service of electricity and gas, propose here to establish the criteria for choosing between these different modes of separation.

The decree of 27 April 2001 granting exclusivity to the MFP does not necessarily lead it to abuse its dominant position, S. GRANDVUILLEMIN (JCP éd. E 2005, 277, p. 280).

The granting of licences to occupy the public domain and competition law, note ss. CAA Paris 4 December 2003 (Société d’équipement de Tahiti et des Îles - SETIL), S. NICINSKY (AJDA 2005, p. 200).

Administrative police and competition law, note ss. CAA Douai 4 November 2004 (Société Autoforum du particulier), J. MICHEL (AJDA 2005, p. 79).

Should the judge review the relevance of the economic analysis used as a basis for a decision (in connection with the judgment of the Council of State of 24 October 2004, No. 256899, Sté. Bayer Pharma), M. BAZEX and S. BLAZY (Dr. adm., Feb. 2005, No 2, p. 29)

Participation of a company in several candidate groupings, (concerning the judgment of the Administrative Court of Appeal of Paris of 23 November 2004, No. 01PA01119, Dpt Seine-Saint-Denis), G. ECKERT (Contracts and Public Procurement, Feb. 2005, No. 2, p. 27)

Partnership contract (concerning the judgment of the Council of State of 29 October 2004, M. Sueur and others), A. MENEMENIS (Dr. adm., Jan. 2005, No. 1, p. 22) The divergence of approach between Community law and national law (in relation to the judgment of the Paris TA of 7 June 2004, Sté. Amelot Roissy), M. BAZEX and S. BLAZY (Dr. adm., Jan. 2005, No. 1, p. 27)

Council of State, 16 June 2004, Mutuelle générale des services publics and others, Conclusions of J.-H STAHL, Government Commissioner (RJEP/CJEG, Dec. 2004, No. 615, p. 548). See also, commentary on the judgment, S. GRANVUILLEMIN (JCP ed. E 2005, No. 7, 277, p. 281).

8 Procedures

8.1 General information

Council of State, 1 March 2004, No. 247733, Minister of the Economy v. Société Imagerie Médicale du Nivolet (RJDA, March 2005, No. 334, p. 277).

In this case, the Conseil d’État considered that the minutes and reports drawn up in the context of administrative competition investigations are administrative documents whose communication is governed by the provisions of the Act of 17 July 1978, even though these documents may serve as a basis for initiating proceedings before the criminal courts. It is, however, for the administration to which a request for the communication of such documents is made to determine whether it can be refused under the provisions of article 6 of the 1978 Act, in particular if it would be likely to prejudice the conduct of proceedings before a court or one of the secrets protected by law, including the secrecy of the investigation provided for in article 11 of the Code of Criminal Procedure.

Procedural autonomy in competition law - Is the relevance of precautionary measures to be assessed in relation to national law or Community law? E. CHEVRIER (D. 2005, p. 72)

8.2 Regulation 1/2003

Modernisation of Community competition law - Post-clearance review of the lawfulness of agreements by the national court, J.-M. MEFFRE and C. GUET (D. 2005, p. 361).

The authors examine the practical implementation by the national judge of the procedures for the application of Articles 81 and 82 EC under Regulation 1/2003.

La réforme du droit processuel européen des pratiques anticoncurrentielles, G. DECOCQ (RJ Com. 2004, p. 274)

8.3 Order 2004-1173 of 4 November 2004

La nouvelle procédure d’engagements prévue à l’article L. 464-2, I, du code de commerce : un " settlement " à la française en matière de concurrence, T. PICOT (RLC 2005/2, n° 183, p. 142)

L’ordonnance n° 2004-1173 du 4 novembre 2004 portant adaptation de certaines dispositions du code de commerce au droit communautaire de la concurrence, A. DECOCQ (RJ Com. 2004, p. 499)

8.4 Sanction Policy - Clemency - Settlement

Les sanctions judiciaires des pratiques anticoncurrentielles (Actes du colloque Université Paris I - DS Avocats du 29 avril 2004 (Petites affiches, 20 Jan. 2005, n° 14, p. 1-71)

In the context of Regulation 1/2003, which requires the courts to apply substantive Community law on anti-competitive practices, it is certainly a salutary undertaking to question its capacity to sanction conduct constituting such practices. In order to answer the question raised - do the rules of law applicable before the national courts allow the competition rules to be adequately sanctioned? "all the prerogatives of the judicial judge were scrutinised during this colloquium. The results of this examination show that the judicial judge is not without the means to implement the substantive law on anti-competitive practices, far from it, whether it is a question of finding evidence of the practices, issuing injunctions, imposing criminal sanctions, and, of course, the specificity of the judge in relation to the competition authorities, the power to repair the damage suffered, if necessary by resorting to expertise. So where does it come from, then, that so little is referred to the judicial judge? From this perspective, it may be tempting to try to encourage the victim, whether a consumer or a competitor, to denounce the practices more to the judge by "remunerating" them, i.e. by awarding them punitive damages. False good idea in truth..., as shown in a masterly and wise intervention by Robert Saint-Esteben. At a time when the Commission, which is about to publish a Green Paper on the subject, is actively campaigning for the development of private enforcement, wondering how to encourage private individuals to take over from the public authorities, to take action, the Commission is reminding us, over and above the principles, of some of the limits inherent in the mechanism of punitive damages, The distortions of competition that necessarily result from the awarding of any overcompensation to an operator operating on a market, not to mention the threat that this incentive mechanism poses to the successful completion of the leniency programmes, as shown, if need be, by the US authorities’ backtracking to limit the effects of the treble damages for a company party to a cartel that has also obtained leniency from the DoJ, is proving to be highly profitable.

Competition authorities and Article 6 ECHR: the singular case of OOO Neste, N. JALABERT-DOURY (RD aff. Int. 2/2005, p.207-217)

The author takes a sharp and critical look at an important decision of 3 June 2004, in which the European Court of Human Rights, detailing for the first time the conditions under which a competition procedure can be qualified as a criminal charge, justifying the respect of the guarantees provided by the European Convention for the Protection of Human Rights (ECHR), held that Russian competition regulations did not constitute a criminal procedure. The case has therefore raised high hopes among the competition authorities, who see this decision as a sign that many of their market regulation activities are not subject to criminal proceedings and therefore not subject to the ECHR. At the end of her analysis of the decision of 3 June 2004, Nathalie Jalabert-Doury concludes that, while the prospects remain intact for the most repressive competition procedures - she is thinking in particular of the fight against cartels - they are much more uncertain for the others, and even for those that lead to measures that are highly detrimental to companies, such as the dismantling of firms, which may no longer be subject to the same guarantees as competition procedures leading to real "sanctions" within the meaning of the decision. In doing so, she concludes, "the OOO Neste decision could give the competition authorities a taste for regulation rather than repression". To be continued...

La réforme de la politique de lémence aux États-Unis, C. PLAIDY (Contrats, conc., consom., déc. 2004, p. 7 sq.)

Cécile Plaidy offers a critical reading of the Antitrust Criminal Penalty Enhancement and Reform Act of 22 June 2004, which reinforces the effectiveness of the American leniency programme by limiting the civil liability of a company party to a cartel that has obtained leniency from the Department of Justice to the payment of simple damages and interest and by significantly increasing the amount of penalties incurred. The author recalls the limits of the reform.

The "Courage" doctrine: Encouraging or discouraging compensation for antitrust injuries, N. Reich (CMLR, Feb. 05, Volume 42, Num. 1, pp. 35-66)

Leniency programmes: An anaemic carrot for cartels in France, Germany and the UK, D. HENRY (ECLR, Jan. 2005, Volume 26, Issue 2, pp. 13-23)

9 Regulation

Actualités du droit de la concurrence et de la régulation, L. RICHER, P-A. JEANNENEY and N. CHARBIT (AJDA, 7 March 2005, p. 470)

Regulations and Freedoms, A. LEPAGE and G. DECOCQ (Comm. com. électr. 2005, p. 42)

Analyse de la libéralisation des industries de réseaux au travers de la jurisprudence du Conseil de la concurrence français, F. MARTY (RIDE, 2004, p. 435).

10 International policy

L’Assistance judiciaire américaine au soutien d’une plainte en droit communautaire de la concurrence, E. DE LA SERRE (RD aff. Int. 1/2005, p. 35-53)

Review of the US Supreme Court’s ruling in Intel v AMD and some of its consequences, both on transnational litigation as a whole and, more specifically, on Community competition law, and in particular as regards the effectiveness of the European leniency programme.

La nécessité d’un droit mondial de la concurrence, A. HEINEMANN (RIDE, Cahier à thème " L’OMC après Cancun ", 2004, Number 3, p. 293-324)

The author’s thinking in this article is based on the observation that a large number of countries now have their own competition rules and that the sometimes conflicting combinations of these cumulations of rights can pose a number of difficulties, in particular the multiplicity of counters or contradictory administrative decisions. He then makes an attempt, full of optimism and conviction but also realism and pragmatism, to identify the aspects that an effective transnational competition law could have. For the author, such a law would be in the interest of contributing to the technical resolution of the problems that transnational practices produce, of thwarting the idea of international trade based on unbridled capitalism and of responding to certain criticisms of globalization. After stressing the limits of a unilateral approach, altruistic though it may be, and of bilateral approaches, and after examining the characteristics of the various international bodies, the author identifies the WTO as the most appropriate forum. He then describes the material and institutional characteristics of a global competition law: based on a multilateral agreement, for maximum participation, its content could then be relatively modest and full of compromises (adoption of certain major principles and prohibition of hard-core cartels), even if some States go further in a plurilateral agreement (particularly for concentrations). The control of obligations should be ensured in the context of dispute settlement in an approach that is both de jure and de facto, so that commitments do not remain dead letters, it being understood that the principle of expediency would not be called into question and that this de facto control would be limited to that of the manifestly abusive exercise of discretionary power. In the end, the author also endeavours to put into perspective the place and interest of developing countries in the establishment of a global competition law that is sufficiently flexible to meet their specific needs. It should be noted that the author is quick to refer to the very ambitious and certainly long-term objective of establishing an international competition authority, and that he does not rule out, in a relatively optimistic conclusion, a successful outcome to the Doha Round on competition issues.

Antitrust sentencing after Booker, T. MUELLER and D. OLSKY (Global Competition Review, March 2005, Vol. 8, Issue 2)

In this article the authors explain how the 12 January 2005 decision (United States v. Booker) of the United States Supreme Court fundamentally changes the mechanism for setting criminal sanctions in the United States. The authors assess the possible consequences of this ruling on the future amounts of sanctions imposed for anti-competitive behaviour.

Review of Competition Law and Policy in the United Kingdom, M. WISE (OECD Review, 2005, Vol. 5, No. 3).

The author explains the history of competition policy and the development of competition law in the United Kingdom in the light of Community law. He explains that the Competition Act has adopted virtually all the main lines of European competition policy and should be supplemented by provisions on merger control and UK cooperation within the cooperation network. Under the Act, the United Kingdom had given priority to strengthening competition, including through the application of more dissuasive sanctions, including criminal sanctions, against anti-competitive behaviour. Finally, through a review of institutions, substantive and procedural rules, the author discusses the complexity of the competition policy system in the United Kingdom since the Competition Act 1998: the complexity of the institutional structure and the particular approach to problems in certain markets.

Review of Competition Law and Policy in Canada, M. WISE (OECD Review, 2005, Vol. 5, No. 1).

A world of uncertainty: economics and the globalization of antitrust, K. HEYER (Antitrust L. J., 2005, Volume 72, Issue 2, pp. 375-422).