Competition journals: Jan. - April 2008

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1. General - Scope of application

Group action and anti-competitive practices: Prospects for development in the United Kingdom, C. Prieto (D. 2008, Chron., p. 232)

At a time when the European Commission is publishing its White Paper on damages actions for breach of EC antitrust rules, it is interesting to take a look, as Catherine Prieto invites us to do, at the reflections - in many ways iconoclastic from a French point of view - currently underway in the United Kingdom on private enforcement. The author argues with the voluntarism that we know her for a reflection of the same kind to finally be established in France. Reviewing the often audacious proposals of the Office of Fair Trading (OFT) so that the development of private actions finally reinforces the public repression of anti-competitive practices, Catherine Prieto insists in particular on the need - a concern also expressed in the Commission’s White Paper of 2 April 2008 - to open collective actions allowing the grouping of individual claims for compensation of victims of infringements of competition rules not only to individual consumers, but also to SMEs, which like consumers suffer sporadically from low-value damages, and which, like consumers, are often deterred from bringing individual actions for damages because of the costs, delays, uncertainties, risks and constraints involved. It is important to realise that companies, and in particular smaller companies, are not only the perpetrators of anti-competitive practices, but also often the victims, as customers. More generally, it is also worth noting the call to replace the expression "competition culture", which lends itself to all kinds of misinterpretation, with the "compliance culture" proposed by the FOT. See also, Private enforcement of competition law, the hidden story: Competition litigation settlements in the United Kingdom, 2000-2005, B. J. Rodger (ECLR, Feb. 2008, Vol. 29, Issue 2, p. 96).

Responsibility of company managers and employees in the context of anti-competitive practices: Perspectives, B. Mounier-Kuhn and E. Dieny (JCP éd. E, 14 Feb. 2008, No. 7-8, 1232, p. 20)

In this article, Béatrice Mounier-Kuhn and Emmanuel Dieny identify the main sources of liability for an employee or the manager of a company in the context of competition proceedings. They also discuss their role as actors in the fight against anti-competitive practices. From the three lessons that emerge from this overview of the sources of liability of company members with regard to competition law, two interesting reflections are worth noting. The first is that the development of employee training programmes on competition law (compliance programme) has, or will have, a direct impact on the responsibility of company members. By informing them of their rights and duties in this area, such training makes it more difficult or even impossible to invoke good faith or to act in the company’s favour. Consequently, it will be easier for the company to justify and impose the sanction. Even if the primary aim of such programmes is obviously not to facilitate the sanctioning of company personnel, but to better manage competition law internally. The second leads the authors to consider that, if the liability of the company’s employees increases in the future, the question will increasingly arise of the divergent interests between the company and its employees (in particular its managers), which may justify the interest of the latter in having their own counsel, distinct from that of the company.

The challenges of economic proof in a decentralized and privatized european competition system: Lessons from the American experience, A. I. Gavil (Journal of competition law and economics, Mar. 2008, Vol. 4, Number 1, p. 177).

In this article, the author underlines, in the light of the American experience but also of that of the European Commission, the importance that economic evidence has taken on in competition cases and questions the existence in Europe of a procedural tool that would allow this type of evidence to be provided effectively in the context of the privatisation and decentralisation of Community competition litigation. In particular, he returns to the preference expressed by the Commission in its Green Paper on damages actions for experts appointed by the courts rather than by the parties’ experts, whereas he considers that these are complementary and not substitutable. It therefore warns against the impossibility for parties to reach the standard of economic evidence sufficient to convince the judge or the national competition authority, a difficulty which it identifies as one of the potential obstacles to the desired process.

Consommateurs, les ententes vous spolient, E. Combe, April 14, 2008 (http://www.telos-eu.com/fr/article/consommateurs_les_ententes_vous_spolient)

Integrating strategic behavior in competition analysis, R.L. Smith, D.K. Round and R. Trindale (Antitrust Bulletin, Fall-Winter 2007, Vol. 52, Number 3-4, p. 633).

From Freiburg to Chicago and beyond — The first 50 years of European Competition Law, A. Weitbrecht (ECLR, Feb. 2008, Vol. 29, Issue 2, p. 81)

La règle de raison et le droit communautaire de la concurrence, "inelegantia juris" ?, G. Rivel (D. 2008, Chron., p. 237)

Effective competition or effective competition? L’ordre concurrentiel en trompe-l’il, F. Riem (RIDE, Vol. 22, Issue 1, 1/2008, p. 67)

Originator/generic drugs: The hospital pharmacist as arbiter of the development of competition in the service of quality, B. Sabatier, E. Dieny and D. Bégué (RLDA Jan. 2008, n° 1422, p. 65)

Regard sur l’évolution du droit de la concurrence - Entretien avec M. Petite, O. Dufour (Petites affiches, 19 Feb. 2008, No. 36, p. 3)

The instruments of soft law in Community policies: A vector for a better articulation between competition policy and economic and social cohesion policy, N. Rubio (RTD eur., Oct.-Dec. 2007, p. 598)

La coopération entre autorités spécialisées et juridictions des différents États membres au service de la création du droit communautaire de la concurrence, Centre d’études juridiques et comparatives de l’Université Paris Ouest-Nanterre La Défense (Petites affiches, 28 Jan. 2008, No. 20, p. 12).

New match sheet for the duration of sports rights, S. Destours (RLDA Jan. 2008, No. 1405, p. 38)

Activity of the Community Courts in competition law (3rd quarter 2007), P. Arhel (Petites affiches, 11 Feb. 2008, No 30, p. 5)

Activity of the Cour de cassation and the Conseil d’État in competition law (April to December 2007), P. Arhel (Petites affiches, 6 March 2008, No. 48, p. 3)

Activity of the Paris Court of Appeal in the field of anti-competitive practices (November 2007-January 2008), P. Arhel (Petites affiches, 4 Apr. 2008, n° 69, p. 5)

Chronique Concurrence, E. Claudel (RTD com. Oct-Dec. 2007, p. 698)

Chronique Concurrence, L. Idot (Europe, Jan. 2008, comm. 17-20; Feb. 2008, comm. 57-69; Mar. 2008, comm. 92-94)

Chronique Concurrence, M. Bazex G. Decocq and M. Malaurie-Vignal (Contrats, conc., consom., Feb. 2008, comm. 43 to 51, p. 23, March 2008, comm. 79 to 86, p. 28)

Competition Chronicle (RJDA, Jan. 2008, p. 85; Feb. 2008, p. 191; Mar. 2008, p. 311; Apr. 2008, p. 446)

Chronique de droit de la concurrence interne et communautaire, G. Decocq et A. Laquièze (JCP éd. E, 6 March 2008, No. 10, 1314, p. 17)

Chronique de droit économique, C. Anadon (RLDA Jan. 2008, n° 1406 to 1411, p. 41; Feb. 2008, n° 1473 to 1477, p. 54; March 2008, n° 1531 to 1533, p. 42)

Chronique de droit de la distribution, S. Lebreton-Derrien (RJC, Nov. Dec. 2007, No. 6, p. 421)

Actualité du droit de la concurrence et de la régulation, L. Richer, P.-A. Jeanneney and S. Nicinski (AJDA, 7 Apr. 2008, n° 13/2008, p. 675)

Droit de la Communauté et de l’Union européenne - Procédures communautaires quasi-répressives, L. Idot (Revue de science criminelle et de droit comparé, 2008-1, pp. 168-283)

2. Agreements

2.1. General

De quelques variations sur le même thème : L’échange d’informations et le droit de la concurrence, C. Grynfogel (RJDA mars 2008, n° 3, Chron., p. 221)

In this article, the author suggests that readers go back to the very foundations of the concerted practice whereby members of an oligopoly regularly exchange certain strategic and confidential information. In his critical assessment of French case law in the recent Parisian palaces and mobile telephony cases, the author insists on the classification of a cartel, even if the object of these exchanges is neither price fixing nor market sharing, Catherine Grynfogel then discusses the conditions required for such a concurrence of wills to be punishable, it being understood that the Court of Cassation refuses to consider that such exchanges of information may constitute an anti-competitive practice per se, such as to reduce or eliminate the uncertainty of operators as to the behaviour of the other members of the oligopoly. For the oligopoly, it is important to demonstrate in concrete terms the anti-competitive object or effect, even if potential, of such exchanges of information.

The minimum resale price in the USA: Who is entitled to do law?, J. S. Martin and N. Herbatschek (RLC, 2008/14, No. 1041, p. 184)

The question of whether vertical agreements in the United States imposing minimum resale prices are illegal per se was given renewed prominence in 2007 by the Supreme Court’s decision of 28 June 2007 in the Leegin case. Breaking with nearly a century of case law, the Supreme Court decided, admittedly by a narrow majority, that "per se rule" was no longer applicable to vertical agreements on minimum resale prices between manufacturers and distributors, raising in passing the fundamental question of who in the US system, the Supreme Court or Congress, should be responsible for changing the legal rules that have been applicable for such a long time. This is the purpose of the paper by John S. Martin and Nicolas Herbatschek.

On cartel deterrence and fines in the European Union, M. Motta (ECLR, Apr. 2008, Vol. 29, Issue 4, p. 209).

The author gives us here an analysis of the Commission’s cartel activity, particularly with regard to the objective of deterrence. He begins by commenting on the duration of the last cartels sanctioned, the role that leniency played in their detection and the cumulative amount of sanctions imposed. It then looks at the two components of deterrence, the amount of fines imposed and the likelihood of a cartel being sanctioned. On these points, the author’s opinion is fairly positive about the results of the 2002 Leniency Notice and the 2006 Notice on the method of setting fines. He considers that deterrence could be strengthened by the following means: continuing to develop the transparency and predictability of sanctions, setting up a settlement procedure that would make it possible to reduce procedural time and transfer resources from the decision-making process to the detection of cartels, developing private actions, introducing administrative sanctions or prohibitions on the exercise of leadership for the managers involved, in order to align incentives for firms and individuals, and developing, or even imposing, codes of good conduct or compliance programmes in companies. The author ends by contradicting two "myths" about sanctions. Firstly, he points out that the idea that a company could go bankrupt because of a fine is not very credible. He notes that the cap on penalties does not seem to achieve an efficient company and that a disappearance as a result of a fine would result from the company anticipating that it would not be effective enough to survive in the competitive environment that would follow the decision in the market or would be positive for the market, more efficient after such a disappearance. Secondly, it considers the idea that a fine would ultimately be paid by consumers through a price increase to be implausible, as there are no theoretical or empirical arguments to support such an idea. It should be pointed out that the author presents in the annexes to his article, on the one hand, a simple to follow and meaningful model to simulate the minimum level of fines and, on the other hand, a summary table of cartels sanctioned by the Commission.

The genesis of cartel investigations: some insights from examining the dynamic interrelations between U.S. civil and criminal antitrust investigations, V. Ghosal (Journal Of Competition Law and Economics, Mar. 2008, Vol. 4, Number 1, p. 61).

Competition: Difficult to challenge the Commission, N. Coutrelis and S. Caussanel (Les Échos, 5 March 2008, p. 13)

2.2. Distribution

Selective distribution and internet : The possibility of excluding "pure players" is confirmed, M. Malka (Expertises des systèmes d’information, Feb. 2008, p. 55)

Distribution: Is the Internet changing the game?, O. Hayat and F.-P. Lani (Expertises des systèmes d’information, Feb. 2008, p. 58)

Actualité jurisprudentielle du droit de la distribution automobile (janvier à décembre 2007), C. Claude (Contrats, conc., consom., févr. 2008, Chron., 2, p. 11)

Exclusive distribution for the benefit of a powerful operator does not constitute an anti-competitive practice (note ss. Cons. conc., Dec. No. 07-D-37), M. Chagny (Comm. com. électr., Jan. 2008, No. 10, p. 41)

Chronique distribution, M. Malaurie-Vignal and N. Mathey (Contracts, conc., consom., Jan. 2008, comm. at, p. 21; Contracts, conc., consom., Feb. 2008, comm. 38 to 42, p. 19, March 2008, comm. 67 to 78)

3. Abuse of dominance

The Microsoft judgment and the implementation of Article 82 EC: What lessons for effects-based analysis? (note ss. CFI 17 Sept. 2007 - Microsoft Corp. v. Commission), J. Gstalter (RTD eur., Oct.-Dec. 2007, p. 742)

This detailed analysis of the various contributions of the Microsoft judgment of 17 September 2007 will be read with interest by a connoisseur of issues concerning the application of the competition rules to the new technologies sector. See also, with regard to the same judgment, Microsoft judgment: La modernisation de l’article 82 TCE en marche, G. Dezobry (RMCUE Jan. 2008, n° 514, p. 63) and Microsoft judgment: Abuse of a dominant position, refusal of licence and tying, N. Petit (JDE, Jan. 2008, n° 145, Comment, p. 8), as well as "To be interoperable or not to be: that is the question", M. Behar-Touchais (Comm. com. électr., March 2008, Études, 10, p. 8)

Discount policies in US and EU antitrust enforcement models: Protecting competition, competitors or consumer welfare, V. Auricchio (European Competition Journal, Dec. 2007, Vol. 3, Number 2, p. 373).

Bundled Discounts, Leverage Theory, and Downstream Competition, J. Simpson and A.L. Wickelgren (Amer. Law and Econ. Review, Fall 2007, Vol. 9, Number 2, p. 370).

The Role of Investments in Refusals to Deal, A. Van Rooijen (World Competition, Mar. 2008, Vol. 31, Issue 1, p. 63)

The conflict between economic freedom and consumer welfare in the modernization of article 82 EC, L.L. Gormsen (European Competition Journal, Dec. 2007, Vol. 3, Number 2, p. 329).

4. Restrictive practices

Une nouvelle loi sur les relations commerciales, P. Arhel (Petites affiches, 24 Jan. 2008, No. 18, p. 9)

Pending a more thorough reform of competition law due to take place in spring 2008, Parliament adopted the law, promulgated on 3 January 2008, for the development of competition at the service of consumers, which includes two main measures concerning industry/commerce relations: the modification of the calculation of the threshold for resale at a loss, allowing distributors to pass on to consumers the entire back margin; the introduction of an agreement formalising the entire commercial negotiation process. On the same subject, see also La loi Chatel n° 2008-3 du 3 janvier 2008 : Quelles incidences dans les relations fournisseur-distributeur, D. Ferré, N. Genty et E. Deberdt (RLDA Feb. 2008, No. 24, p. 41); La réforme des pratiques commerciales : Loi n° 2008-3 du 3 janvier 2008, D. Ferrier and D. Ferré (Contrats, conc., consom.., Feb. 2008, Study No. 2, p. 6); La réforme des pratiques commerciales - Loi n° 2008-3 du 3 janvier 2008, D. Ferrier (D. 2008, n° 7, p. 429); Un peu de concurrence, beaucoup de droit de la consommation - À propos de la loi n° 2008-3 du 3 janvier 2008, L. Leveneur (JCP éd. E, 30 Jan. 2008, n° 5, 69, p. 3); La formalisation contractuelle du résultat des négociations commerciales entre fournisseurs et distributeurs, F.-X. Testu and J. Herzele (JCP ed. E, 24 Jan. 2008, No 4, 1113, p. 27).

About the Hagelsteen report - Three questions to Didier Ferrier (D. 2008, No. 10, p. 680). See on the same subject, Avis de tempête sur les négociations commerciales ?, D. Delesalle and Y. Toreau (Les Échos, 10 March 2008, p. 17); Concurrence: Oui à la négociabilité des tarifs et des CGV, É. Chevrier (D. 2008, No. 8, p. 468); La négociabilité des tarifs et des conditions générales de vente (Hagelsteen report), G. Notté (JCP éd. E, 20 March 2008, No. 12-13, 150, p. 4); M.-D. Hagelsteen, (this issue of Concurrences, section Interview, supra)

Chronicle of a death foretold? La législation d’urbanisme commercial sous les feux croisés du Conseil de la concurrence et de la CLCF, G. Marson (Contrats, conc., consom., mars 2008, Focus, 13, p. 2)

5. Concentrations

Merger analysis and the treatment of uncertainty: Should we expect better, M.-L. Katz and H.-A. Shelanski (Antitrust Law Journal, 2008, Vol. 74, Issue 3, p. 537).

In an article that is both methodologically pleasing and substantively pedagogical, the authors address one of the challenges of merger control, the management of the uncertainty inherent in the analysis conducted, the competitive risk identified and the likelihood of its occurrence. On the issue of the effects of the transaction, as well as on the delineation of relevant markets and the burden of proof, the authors examine what is done in practice and what should be done in theory, while taking care to identify potential objections to this theoretical approach and the possibilities offered by the law to use it. They conclude by pointing out that an unsophisticated approach to uncertainty can lead to errors about the effects of a concentration on consumer welfare, which can work both ways, and conclude by setting out several principles to be followed in conducting the analysis, including: estimating the probabilities of each situation and calculating the expected net benefits; not adopting arbitrary probability thresholds or cut-off dates; and conducting an integrated analysis rather than conducting each part of the analysis in isolation.

Cross-boarders mergers in the EU: The Commission v. the member States, M. Harker (European Competition Journal, Dec. 2007, Vol. 3, Number 2, p. 465)

Merger remedies in the European Union: An overview, M. Motta, M. Polo and H. Vasconcelos (Antitrust Bulletin, Fall-Winter 2007, Vol. 52, Number 3-4, p. 603)

The European Commission’s new guidelines on the assessment of non-horizontal mergers - Great expectations disappointed, A. Petrasincu (ECLR, Apr. 2008, Vol. 29, Issue 4, p. 221)

Does the Microsoft judgment mark the end of the outsourcing of the control of merger commitments, J.-P. Gunther and D. Tayar (RLC 2008/14, No 1039, p. 169).

The Ryanair-Aer Lingus decision: A new standard of quality, D. Spector and A. Chapsal (RLC 2008/14, No. 959, p. 12)

Concentration between regional press groups, A. Decocq (RJC, Nov. Dec. 2007, n°6, p.410)

6. State aid

The Commission’s State Aid Action Plan - Progress and limits of economic analysis in Community State aid control, J.-Y. Chérot (AJDA, 24 Dec. 2007, Studies, p. 2412).

In this very enlightening paper, Jean-Yves Chérot, returning to the delicate issue of the fundamental implications of the application of economic analysis in the Community control of State aid, takes stock of the state of thinking, not only within the Commission but also outside it. While there is general agreement that economic analysis should be better taken into account in State aid control on the basis that the current rules allow aid that can significantly distort competition and, at the same time, subject aid with little effect on competition to detailed controls that are too costly in administrative terms and that the system would be more effective if a more coherent effects-based approach to aid were applied, views remain divergent as to how this could be achieved.

The new Environmental aid guidelines (2008-2014) (Optimal incentives for green investments and renewable energy), P. Thieffry (Petites affiches, 24 Jan. 2008, No 18, p. 9)

France condemned for failure to recover State aid incompatible with the common market, M. Chagny (Comm. com. électr., March 2008, No 39, p. 32)

Can general measures be... selective? Some thoughts on the interpretation of a state aid definition, B. Kurcz and D. Vallindas (CMLR, 2008, Vol. 45, Issue 1, p. 159).

7. Public sector and competition (excluding State aid)

Conflit autour de la notion de service public culturel d’exploitation cinématographique, O. Amiel (AJDA, 14 Jan. 2008, Studies, p. 23)

In this article, the author provides a useful reminder of the conditions under which public film exhibition services can be developed, in other words, cinemas installed and managed by municipalities, particularly in order to respond to the lack of private initiative. This reminder is all the more useful as it is illustrated in the most recent news, since the company UGC, joined in its offensive against the municipal cinema by its competitor MK2, is challenging before the administrative judge the creation of a cinema in Noisy-le-Grand and especially the extension of the municipal cinema of Montreuil-sous-Bois, the Georges Méliès. In the latter case, it will probably be up to the judge to determine whether the parties are in a competitive relationship, since the closest private cinema is located in a neighbouring commune, in Rosny-sous-Bois, more than four kilometres away . The author’s conclusions are partly in line with the observations made in the April 2008 "Competition and Cinema" report on the application of competition law in the field of cinema. The working group chaired by Anne Perrot and Jean-Pierre Leclerc, recalling that the legal framework largely authorizes the intervention of local authorities, but requires that conditions of equal competition be respected, suggesting, if it is considered that these principles are not sufficiently respected by local authorities, to more clearly frame their interventions, while respecting the free administration of local authorities, for example, by obliging municipal cinemas operating in competition with private exhibitors to make programming commitments. Alternatively, the report suggests imposing on them, as it is already the case for the payment of subsidies, the definition of a precise film project by means of agreements or specifications binding on the managers of the establishment. Compliance with these obligations could be verified by the cinema ombudsman in a pre-litigation capacity, and by administrative or financial judges.

La définition du service public dans le domaine économique: les incertitudes de la jurisprudence, note ss. EC, Order of 11 January 2008, Canal + and Kiosque Sport, M. Bazex and S. Blazy (D. Adm. No. 3, March 2008, p. 38).

The authors criticize the position taken by the Council of State in that judgment, according to which it held that the challenge to the decision of the Professional Football League to produce the images of certain matches itself and to market the exploitation rights did not fall within the jurisdiction of the administrative court in the absence of implementation by the League, in this case, of prerogatives of public authority. The authors take the view that, in the light, in particular, of the case law of the Dispute Tribunal, the League’s decision could have had the character of a prerogative of public authority and come within the jurisdiction of the administrative court, which is recognized in terms of the relationship between "general interests and competition".

UMTS Licensing: The granting of UMTS licences by a public authority in return for the payment of royalties is not an economic activity (notes ss. ECJ, 26 June 2007, Case C-284/04, T-Mobile Austria GmbH and a. v. Austria), L. Vallée (RJEP, No. 1, Jan. 2008, p. 13).

Public procurement and services of general economic interest (note ss. CJEC, 18 Dec. 2007, aff. C-220/06), F. Lichère (D. Adm. No 3, March. 2008, p. 25)

Actualité du service public social (AJDA, 4 Feb. 2008, Dossier, p. 176-197)

Public Service and Competition: The Convergence of Rights, G. Kalflèche (AJDA, Dec. 24, 2007, Studies, p. 2420)

La libéralisation des services postaux - Les enjeux de l’ouverture totale à la concurrence, A. Met Domestici (RMCUE, n° 515, Feb. 2008, p. 114)

Entre service public et concurrence européenne - quinze ans de valse-hésitation énergétique française... et d’incompréhension mutuelle, M. Derdevet (RMCUE, n° 516, March 2008, p. 169)

Access to public procurement: Forgetting positive discrimination in favour of SMEs, D. Moreau (RJEP, n° 650, Feb. 2008, p. 10)

Community law: Service contracts subject to reduced advertising obligations, ss. ECJ, 13 Nov. 2007, Case C-507/03, Commission v Ireland (D. Adm. No 1, Jan. 2008, p. 32)

The need to reconcile the status of public shareholders with the Community principle of the free movement of capital, M. Bazex and S. Blazy (D. Adm. n° 1, Jan. 2008, p. 45)

8. Procedures

8.1. General

Un premier regard sur la "dépénalisation de la vie des affaires", H. Matsopoulou (D. 2008, n° 13, Chron., p. 864)

Far from envisaging decriminalisation as far as competition law is concerned, the working group on "the decriminalisation of business life", chaired by President Coulon, suggests, on the contrary, strengthening criminal law enforcement, at least for natural persons, and improving the link between administrative and criminal law enforcement. In substance, if the Coulon Commission recommends limiting criminal repression to natural persons only, in order to put an end to the possible double punishment of legal persons, it suggests maintaining and even reinforcing the criminal sanctions incurred by natural persons, by considerably increasing the quantum of the fine provided for in Article L. 420-6 of the Commercial Code in order to be truly dissuasive. For the rest, the Coulon Commission proposes to improve the link between administrative and criminal sanctions, by extending the leniency procedure to criminal proceedings via a procedure for approval of leniency by the public prosecutor’s office, which it considers indispensable since the transmission of documents and the reporting of criminal acts to the public prosecutor’s office are, for the Competition Council, a duty and not an option. With regard to the criminal provisions of the regulations on transparency and practices restricting competition (Title IV of Book IV of the French Commercial Code), the working group’s suggestions are more surprising. It envisages the transfer to the Competition Council of the administrative repression of infringements that are currently punishable under criminal law under Title IV of Book IV of the Commercial Code, despite the fact that this body’s mission is not the regulation of commercial relations but, quite differently, the competitive regulation of markets. On the other hand, the Coulon Commission, which is calling for the establishment of a group action reserved for an approved association, intends to limit its application to consumer law alone, thus excluding, if the words have any meaning, compensation for damage caused by anti-competitive practices. See also on the "competition" aspect of the proposals of the working group chaired by President Coulon, Competition law: decriminalisation is not the solution, D. Blanc (AJ Pénal 2/2008, p. 69); Decriminalisation of business life: "build a balanced, coherent work, by proposing clear rules", interview with Jean-Marie Coulon (RLDA March 2008, n° 1542, p. 56)

Acts interrupting the statute of limitations according to the Court of Cassation (Competition & Consumer Affairs, No. 157, January-March 2008, p. 6)

The Court of Cassation has recently handed down a number of very instructive rulings on prescription. This article summarizes them, and it should be noted, first of all, that only the acts of the rapporteurs interrupt the statute of limitations, whereas the responses of the parties to the proceedings before the Competition Council are not interrupted by the statute of limitations. Secondly, the article highlights the difference between national law and Community law as to whether or not it is necessary for the investigation of an act of a rapporteur for it to be interrupted, which is possible under the principle of the procedural autonomy of the national competition authorities. Finally, the authors note with surprise the position of the Court of Cassation, which does not consider the transmission of documents by an examining magistrate to a rapporteur of the Competition Council as interrupting the statute of limitations, unlike an "soit transmis".

L’imputabilité des pratiques anticoncurrentielles, O. Ancelin-Menais (JCP éd. E, 3 April 2008, No. 14, 1428, p. 15)

L’entrée du droit de la concurrence dans le règlement "Rome II" : Bonne mauvaise idée ?, V. Pironon (Europe, Feb. 2008, Study n° 2, p. 6)

Akzo judgment: A lost opportunity, L. Garnerie (Law & Heritage, Nov. 2007, No. 164, News, p. 6)

Mise en oeuvre dans le temps des règles afférentes à la compétence exclusive de la Cour d’appel de Paris en droit de la concurrence, A. Desmazières de Séchelles (JCP éd. E, 6 March 2008, No. 10, 1308, p. 13)

8.2. Sanction Policy - Clemency - Settlement - Undertakings

La procédure de non-contestation des griefs en droit français de la concurrence : Chronique d’un retour en force, F. Zivy (RJEP, n° 651, March 2008, p. 3)

Fabien Zivy gives us here a real little procedural guide on the non-contestation of grievances, in the light of the other alternative procedures to sanctions available to the Competition Council, namely leniency and commitments. This is also a very topical issue, as the Commission is considering setting up a similar procedure. After a very detailed presentation of the conditions, the procedure and the advantages/disadvantages of this procedure of non-contestation of the objections through the analysis of the decisions prior to 2007, the author explains the jurisprudential advances of this year 2007, rich in lessons in this field. Thus, we are reminded that only the no-challenge procedure is intended to apply to all anti-competitive practices (horizontal and vertical agreements and abuse of dominant position) and can be requested over a relatively long period of time. It is implemented after the notification of the objections, whereas leniency and commitment procedures are implemented exclusively upstream of the notification of the objections. Furthermore, a very precise explanation of the reduction of the fine is given (percentage reduction/reduction in absolute terms) and the question of how this procedure for the non-contestation of objections is linked to leniency. Through the analysis of several decisions, the author recalls that while a second-tier leniency applicant can obtain up to 50% reduction of a fine, a party that does not contest the objections can thus only obtain a lower reduction: of the order of 10% when the commitments are not such as to bring about substantial improvements to 25-30% when the commitments are substantial and even innovative. Finally, the author analyses precisely the commitments considered by the Competition Council as being of added value in obtaining a reduction in the penalty, depending on whether the practice is a cartel or an abuse of a dominant position, and proposes that the idea of abandoning the obligation to offer commitments as a condition for the implementation of the procedure for the non-contestation of objections should be taken up again and that, ultimately, only the condition of non-contestation of objections should be retained, as the Commission seems to envisage in the near future.

The reiteration of anti-competitive practices (Competition & Consumer Affairs, No. 157, January-March 2008, p. 2)

Commenting on the Competition Council’s decision on the broadband Internet sector, the DGCCRF’s Competition and Consumer Affairs magazine devotes an article to the conditions for implementing the reiteration of an anti-competitive practice in French and Community competition law. It is thus recalled that the reiteration of such a practice is a factor of aggravation of sanctions and that reiteration means that it is indispensable that a previous final decision finding a similar infringement has been issued, either by a national competition authority or by the European Commission. A decision on protective measures or commitments, on the other hand, cannot be regarded as an earlier decision. It is also interesting to note that the perpetrator of the first anti-competitive practice must be the same as the perpetrator of subsequent infringements or be the economic successor of the perpetrator of the anti-competitive practice already sanctioned. Finally, the repetition of anti-competitive practices now exposes, as recent case law shows, to much higher financial penalties. For example, the Competition Council has increased the penalty for repeated practices by 50%, while the European Commission, in its latest guidelines of 2006, has set a penalty increase of up to 100% for each infringement found.

Le projet de transaction de la Commission européenne: La modernisation du droit processuel des ententes continue, V. Ledoux and J.-C. Roda (Contrats, conc., consom., ; Feb. 2008, Focus, p. 2). See also, About the "transaction package" presented by the Commission, L. Idot (Europe, Jan. 2008, Focus, p. 2)

The commitment procedure: The control of the Paris Court of Appeal (Competition & Consumer Affairs, No. 157, January-March 2008, p. 4)

Forensic economics: An introduction with special emphasis on price fixing, J. M. Connor (Journal Of Competition Law and Economics, Mar. 2008, Vol. 4, Number 1, p. 31)

European antitrust in search of the perfect fine, P. Manzini (World Competition, Mar. 2008, Vol. 31, Issue 1, p. 3)

Damages actions for the infringement of EC competition law: compensation or deterrence, P. Nebbia (Eur. Law Rev., Vol. 33, Issue 1, p. 23).

Vitamins litigation: Unavailability of exemplary damages, restitutionary damages and account of profits in private competition law claims, A. Mcdougall and A. Verzariu (ECLR, Mar. 2008, Vol. 29, Issue 3, p. 181)

Alrosa judgment, J. Figus Diaz (RDUE 4/2007, jurispr., p. 941)

Cartels: No extradition for Mr. Norris - The rejection by the House of Lords of the American request for extradition of a British citizen involved in a cartel should not be an illusion, Mr. Debroux (Les Échos, March 19, 2008, p. 13)

Second leniency application by the Competition Council, S. Grandvuillemin (JCP éd. E, 28 Feb. 2008, No. 9, 108, p. 3)

Administrative sanctions, penal sanctions, decriminalization, J-B. Auby (D. Adm. No. 2, Feb. 2008, p. 1)

9. Regulations

Fixing gas tariffs in public distribution, Conclusions under EC, 10 Dec. 2007, Powéo, P. Collin (RJEP, n° 651, March 2008, p. 25).

The authors, also taking up the analysis made by the Competition Council, which was asked for an opinion by the Conseil d’État in this case, set out the mechanism for setting Gaz’s regulated tariffs in France, the constraints weighing on the public authorities and why, in this case, no anti-competitive practice was found against the incumbent operator which, through the regulated tariffs, tended to prevent its competitors from entering the market. See also, La place des données économiques et concurrentielles dans la détermination des tarifs réglementés du gaz, M. Bazex et S. Blazy (D. Adm. No. 2, Feb. 2008, p. 1).

Autorité de régulation économique : L’émergence d’une catégorie nouvelle ?, M. Collet (RJEP, n° 651, March 2008, p. 15)

Liberalisation of rail transport and integration of the European rail transport market, C. Salque (D. Adm. No. 3, March 2008, p. 9)

La libéralisation des services postaux - Les enjeux de l’ouverture totale à la concurrence, A. Met Domestici (RMCUE, Feb. 2008, n° 515, p. 114)

Broadband regulation in Europe - Present ad Future, M. Cave (CRNI, Dec. 2007, Vol. 8, Number 4, p. 405)

Vertical arrangements, market structure, and competition: An analysis of restructured US electricity markets, J.-B. Bushnell, E.-T. Mansur and C. Saravia (American Economic Review, Mar. 2008, Vol. 98, No. 1, p. 237)

10. International policy

China’s new anti-monopoly law: Towards a new competition law, G. Rougier-Brierre and A. Lunel (RDAI/IBLJ, 2/2008, p. 185)

After a 15-year gestation period, China finally has a new Anti-Monopoly Law covering all aspects of competition law (concerted practices, abuse of dominant position, merger control). A compromise text, the Law takes over many existing provisions and grants broad discretionary powers to the future Anti-Monopoly Executive Authority. Nevertheless, the Law recognizes the increasing sophistication of merger control in China (introduction of the notion of change of control, enhanced economic analysis, formalization of the "phase 1/phase 2" system, corrective measures, etc.), which has already been observed in practice for several months. The national security control regime is maintained. The influence of Community law and international practice is clear, but the actual extent of that influence will depend largely on the composition and objectives of the new Anti-Monopoly Authority.

Chronicle of competition policies, L. Nouvel, D. Le Marec, P. Le More and A. Tercinet (RDAI/IBLJ, 1/2008, p. 69)

This column is devoted to the analysis of international competition law news. At the Community level, the draft settlement procedure in the antitrust field, the CFI judgment of 17 September 2007 upholding the Microsoft conviction (Case T-201/04), the Commission decision of 28 November 2007 imposing a fine of more than €486 million on the members of the flat glass cartel, the Non-horizontal Merger Guidelines and the Notice of 26 October 2007 on the effective implementation of decisions to recover unlawful state aid are dealt with. An update is also given on the latest national legislative developments with the adoption of a new leniency programme in Belgium and the important reform of competition law in Spain. At national level, two cases are of particular interest: the Devenish/Sanofi-Aventis case of 19 October 2007 in England on private enforcement and the Düsselfdorf Court of Appeal case of 4 October 2007 concerning long-term gas supply contracts in Germany. On the international level, the column discusses the adoption of the Guidelines on the application of merger law to international companies in Israel, the new leniency programme in Russia and the ultimate conviction of a member of the graphite electrode cartel in Canada.


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— 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 (February 2008 - April 2008). Articles and working papers published on the Internet only are also welcome. Authors, editors and publishers are welcome to send their papers to aronzano@ccip.fr for review in this section. The list of periodicals reviewed can be checked at the end of the article.

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Umberto Berkani, Alain Ronzano, Christelle Adjémian, Competition journals: Jan. - April 2008, May 2008, Concurrences N° 2-2008, Art. N° 17197, p. 208

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