Richard Whish QC (Hon) Liber Amicorum. Taking competition law outside the box, Nicolas CHARBIT and Sonia AHMAD (dir.), foreword by Wouter WILS

Nicolas Charbit, Sonia Ahmad (Editors)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

*This article is an automatic translation of the original article in French, provided here for your convenience. Read the original article.

The book is dense and reflects the many facets of Richard Whish’s work and activity.The first part is a review of the work of the author, who is well known as a prolific author and distinguished practitioner. His outstanding career is celebrated in the foreword by Wouter Wils. The contributions from various horizons are articulated in six parts of different sizes but of equal interest.

The first part is precisely rather short, but particularly rich in radical debate. The President of the Lithuanian Competition Authority does not hesitate to question, in a very brilliant and incisive way, competition as a value. It would be permissible to question it if a planned economy were to prove more effective in ensuring other values of public interest, such as protection of the environment, health and equality. In contrast, two RBB economists argue in favour of retaining consumer welfare as an anchor of competition policy and oppose the adoption of broader objectives. They also react negatively to a proposal that specifically concerns the UK CMA to allow it to act in the interests of the consumer without demonstrating that it is harmful to competition.

The second and longer part deals with Articles 101 and 102 TFEU. Several contributions take up the theme of subject-based restriction. One recalls Richard Whish’s efforts to explain it with his famous expression "object box", which is very popular, even if the expression was less widely used in France. It reinforces the idea that the notion corresponds to a presumption of anti-competitive effects that can be rebutted (simple and not absolute presumption). Discussions focus not only on the contours of the concept, the standard and the burden of proof, but also on its articulation with paragraph 3 of Article 101 TFEU. For a Hong Kong practitioner and academic, the clarification of the Bank Cards judgment was not sufficient and he advocates a "holistic" approach to the concept and paragraph 3. At the University of Singapore, discussions on the concept are being closely followed as its viability is important for effective implementation. The question of content raises the question of the crest line to be drawn between its fixed and secure character, on the one hand, and its possible elasticity as experiences are enriched, on the other. In any event, the debates will be given a new impetus by the judgment of the Court of Justice delivered on 30 January 2020 in the Generics case following a preliminary question from the Competition Appeal Tribunal. It is questionable how this judgment will be received in the United Kingdom and, above all, whether it will be able to shed light on the debates in the Union. The analytical framework applied to out-of-court settlement agreements appears particularly complex to qualify as restrictions by object and is a departure from the prima facie analysis advocated here. Another subject relating to the application of Article 101 TFEU had been defended vigorously and brilliantly by Richard Whish and Brenda Sufrin in an article published in 1987: the rejection of the American rule of reason in the application of Article 101 TFEU. David Bailey, co-author of Richard Whish since the seventh edition of his book Competition Law, intends to check their argument against subsequent case law and Regulation 1/2003. In his view, the effects-based approach makes it even less appropriate and necessary to take on board this concept, which is specific to US law. Finally, the coverage of Article 101 TFEU called for a contribution on vertical restraints. Online selling is currently the hot topic, in particular for selective distribution. It is from the point of view of strategies in terms of management of luxury goods that the room for manoeuvre of companies is studied with a view to the clarifications to be expected from the future exemption regulation and the guidelines that will accompany it. As for Article 102 TFEU, it is addressed by the study of the Commission’s effectiveness analysis grid, often criticised for not taking sufficient account of it. In a series of case studies, it is defended that this consideration is seriously carried out. Finally, tacit collusion under the qualification of collective dominance is considered through a review of the most plausible hypotheses so that this qualification remains a useful concept.

The third part is briefly dedicated to the procedure. The requirements of fairness in the procedure are examined through the conditions of access to the file and the necessary protection of confidential data. Negotiated procedures give rise to a twofold contribution: firstly, on the necessary refinement of the transaction in European Union law; secondly, in the questions raised by the hybrid transaction both for the companies in their choice to compromise or not, and for the Commission in the difficulties of appeals from companies that do not compromise.

The fourth part deals with implementation issues. According to the contributors, UK competition law is at a crossroads not only in terms of internal implementation policy choices but also as a consequence of Brexit. Some senior officials of competition institutions publicly question whether competition is sufficient in terms of protecting public interests. In addition, there are questions about the effectiveness of competition rules: the means of combating cartels; the need for more upstream and faster intervention to seize market power; the challenges of the digital economy, the opportunity for merger control reform and even the need to review once again the institutional architecture for implementing competition policy. Sir Peter Roth provides a detailed analysis of the institutional choices. As for Peter Freeman, he takes a critical look at all the reforms of competition law in Great Britain since 1948. The debate is also relaunched on the European Union side, with a Portuguese proposal to create an independent European competition agency to replace the European Commission, while reserving certain veto powers for it.

The fifth part presents several case studies: the Skanska, Ernst & Young judgments, the spectacular judicial and legal developments in the United Kingdom brought about by the air cargo cartel.

Finally, the sixth part, entitled "International perspectives", brings together testimonies on the contribution of European competition policy to the setting of fines in India, on advocacy in Singapore, but also on the choices that have been made to meet the challenges of the digital age, and finally on the constitutional foundations of competition policy in Argentina.

The contributors of this book have greatly honoured their friend with this anthology of inspired reflections that offer all readers stimulating avenues of analysis "in the manner of Richard Whish".

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  • University Paris I Panthéon-Sorbonne

Quotation

Catherine Prieto, Richard Whish QC (Hon) Liber Amicorum. Taking competition law outside the box, Nicolas CHARBIT and Sonia AHMAD (dir.), foreword by Wouter WILS, May 2020, Concurrences N° 2-2020, Art. N° 94123, pp. 272-273

Publisher Concurrences

Date 11 March 2020

Number of pages 518

Visites 133

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