Competition journals: April - June 2005

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1 GENERALITIES - SCOPE OF APPLICATION

Chronique Concurrence, Mise en œuvre des articles 81 et 82 CE (1er avril 2003 - 30 septembre 2004), J.-B. BLAISE and L. IDOT (RTD eur. 2005, p. 131)

In the second part of their column, this time devoted to the implementation of Articles 81 and 82 of the EC Treaty during the period from 1 April 2003 to 30 September 2004, the authors offer a very in-depth analysis of the case law concerning antitrust rules, but also of the texts adopted over the same period. The various regulations and communications making up the "modernisation package" adopted by the Commission for the application of Regulation 1/2003 are discussed in detail.

The correct approach to the use of empirical analysis in competition policy, P. FLORIAN and M. WALKER (ECLR, June 2005, Volume 26, Issue 6, pp. 320-327)

In this article, the authors present the good and bad uses of economic studies in the field of competition, with the aim of preventing them from being ignored or leading the authorities to erroneous conclusions. From a methodological point of view, the authors prohibit presentations based on a "black box" involving reliance on the expert and develop the quality criteria of a complex empirical analysis (sensitivity of the result to the chosen model, quality of the data and possibility of evaluating the results). They conclude in three stages: complex studies must be presented in such a way that they can be evaluated; in return, the authorities must therefore assess these analyses and possibly take them into account without dismissing them out of hand; finally, simple demonstrations can have a very strong evidential power and be complementary to complex studies.

Droit des contrats et régulation économique, J. RIFFAULT-SILK (RLC 2005/3, n° 258, p. 132)

First joint day Competition Council/Bundeskartellamt - Goethe Institute (Paris), 16 November 2004 (RLC 2005/3, No. 262, pp. 152-179)

Activity of the Paris Court of Appeal in the field of anti-competitive practices (July-December 2004), P. ARHEL (Petites affiches, 4 May 2005, n° 88, p. 3)

Activity of the Community courts in competition law (June-September 2004), P. ARHEL (Petites affiches, 18 Apr. 2005, No 76, p. 9)

Activity of the Community courts in competition law (January 2005), P. ARHEL (Rev. conc. consom. 2005, No 142, p. 1)

Activity of the Community courts in competition law (February-April 2005), P. ARHEL (Petites affiches, 11 Jul. 2005, No 136, p. 4)

Chronique Concurrence, L. IDOT and C. PRIETO (RDC 2005, pp. 305-318)

Chronique Concurrence, L. IDOT (Europe, Apr. 2005, p. 17; May 2005, p. 22; June 2005, p. 23)

Chronique Droit interne de la concurrence, M. MALAURIE-VIGNAL (Contrats, conc., consom., avr. 2005, p. 20; May. 2005, p. 16; June 2005, p. 17)

Chronique Droit communautaire, S. POILLOT-PERUZZETTO (Contrats, conc., consom., avr. 2005, p. 23; May 2005, p. 21; June 2005, p. 20)

Chronique Concurrence, E. CLAUDEL (RTD com. 2005, n° 1, p. 60)

The civil sanctioning of competition law infringements in the light of the acquis communautaire and Polish law: some comments after accession, Mr KOZAK, (RDAI 3/2005, pp. 375-388)

Conseil de la concurrence and DGCCRF: a charter for greater efficiency in the fight against anti-competitive practices (Actualités Concurrence, Consommation et Répression des Fraudes, March 2005, n° 184, p. 5)

Chronique décisions concurrence (RJDA, May 2005, No. 626 sq., p. 528, June 2005, No. 762, p. 643)

The use of own price elasticity of demand in competition law, A. TORRE (ECLR, Aug. 2005, Volume 26, Issue 8, pp. 468-473).

2 AGREEMENTS

2.1 Concepts and principles

Le concours de volontés entre entreprises, une notion protéiforme en droit communautaire des ententes, C. GRYNFOGEL (RJDA, June 2005, p. 551).

After recalling the notions of concerted practice and agreement respectively, the author explains, however, that this distinction is not easy to apply in practice. Thus, when the offence simultaneously takes on the characteristics of an agreement or concerted practice, the courts resort to the theory of a single offence per unit of purpose. This theory was devised by the Commission and enshrined by the CFI. Nevertheless, the author highlights its limitations and in particular the greater severity of the Community Courts’ approach to concerted practices with regard to agreements.

Why go to court in Europe? An analysis of cartel appeals 1995-2004, C. Harding and A. GIBBS (Eur. Law Rev., 2005, Volume 30, Issue 3, pp. 349-369)

This study is a response to the following article: The case for a radical reform of the infringement procedure under regulation 17, F. MONTAG (ECLR, 1996, Volume 17, Issue 8, pp. 428-437), which concluded from the analysis of appeals against Commission decisions sanctioning cartels that the system was in crisis and legally discredited. After a thorough study, the authors aim to show that this conclusion was erroneous, or at least excessive. First of all, they develop a certain number of the characteristics of the appeals in this area, and note in particular that the challenges most often concern individual participation in a consultation rather than the analysis of its illegality. Then they list some methodological points in the search for data on the issue. They then study both the sample taken into account by Montag with regard to his own arguments and the procedures launched, the means and the results of the appeals over the decade following Montag’s sample. The analysis then shows that appellate victories are not very numerous and consist mostly of a reduction of the fine rather than a reversal of the Commission’s analyses. They conclude by pointing out that the role of the CFI has in fact become more that of a moderator of sanctions than that of a guarantor of the Commission’s legal rigour, and that the mission of the councils will therefore be more to reduce fines than to seek total exoneration.

Les professions libérales et le droit de la concurrence : de la confrontation à la conciliation des finalités (text of the speech delivered at the 11th European Competition Day on 3 May 2005 in Luxembourg), C. PRIETO (text available on the website of the Ministry of Economy and Foreign Trade of the Grand Duchy of Luxembourg: http://www.eco.public.lu/actualites/conferences/2005/05/03_journee_conc/CPrieto_conc.pdf)

Joint selling v. joint production: a rational distinction, J.-P. GUNTHER, S. RAB, P. BELMIN (ECLR, July 2005, Volume 26, Issue 7, pp. 390-396).

The GDF decisions - The Commission is formal: territorial restriction clauses in gas contracts violate Article 81, C. CULTRERA (Competition Policy Newsletter, 1/2005, p. 45)

How an armistice turns into a cartel on the French beer market, A. RUTGEERTS (Competition Policy Newsletter, 1/2005, p. 63)

2.2 Distribution

Le contrôle de l’assistance dans le contrat de bière, T. LAMBERT (D. 2005, 21 Apr. 2005, No 16, p. 1085)

Abuse of economic dependence and lack of an equivalent solution, (note ss. Cass. com. 3 March 2004), R. DAVID (Rev. Lamy dr. aff. May 2004, n° 71, p. 28)

2.3 Public Procurement

Foreigners in the home or mixed economy excluded from in house contracts, F. ROLIN (AJDA, 25 Apr. 2005, No. 16, p. 898)

In his analysis of the ECJ ruling Stadt Halle, the author recalls the notion of in house relationships. These relations are those which are established within the same body on the occasion of services carried out by one department for the benefit of another. He then describes the current approach of Community case law on the classification of in house relationships. There are two possible approaches to classify an in-house contract: a personalist approach or a functionalist approach. The author situates the Stadt Halle judgment in the extension of Community case law, i.e. the personalistic approach, thus reaffirming the pre-eminence of the legal personality test for the qualification of an in house contract. The effect of that case-law is to exclude in particular all semi-public companies from the possible classification of an in-house relationship, so that the Community public procurement directives are applicable to them. After having raised two questions, left without any real answer, on the scope of the judgment in domestic law, the author finally approves the solution which puts a stop to any extensive interpretation of the concept of "in-house performance" in the name of legal certainty.

The submission of contracts concluded with SPCs to the Community "Public Procurement" Directives (obs. ss. CJEC 11 Jan. 2005), S. MARCIALI (Petites affiches 23 June 2005, No. 124, p. 14)

Le nouveau code des marchés publics : les principaux axes de la réforme, N. SYMCHOWICZ (Rev. Lamy dr. aff., April 2004, n° 70, p. 9) ; Bilan de la jurisprudence de la Cour de cassation sur le délit de favoritisme, J. MICHON (Petites affiches, 2 June 2005, n° 109, p. 4)

Chronique des marchés publics dans la jurisprudence communautaire (1er janvier 2003-30 juin 2004), S. RODRIGUES (Rev. Marché commun, avr. 2005, n° 487, p. 242)

The annulment of certain provisions of the Public Procurement Code and its consequences, (note ss. CE 23 Feb. 2005 - Association pour la transparence et la moralité des marchés publics and others), D. CASAS (RFD adm. May-June 2005, p. 483)

3 ABUSE OF DOMINANCE

3.1 Abuse of dominance

Abuse of market power: control of dominance or protection of competition, L. BOY (RIDE, 2005, pp. 27-50)

Beyond the very purpose of the article, Laurence Boy gives us here an interesting reflection on certain features of competition law in general. After a brief overview of the important currents of thought, she notes the originality of Community competition law. Her study of abuses of dominant position, in which she discusses the protection of competition and the problem of market access, leads her to illustrate the shift towards competition regulation and the sometimes blurred boundaries between a priori and a posteriori controls. Her developments on the abuse of economic dependence then lead her to study the relations between "large" and "small" competition law, and between economic law and contract law, in order to underline the relevance of a global vision of the subject. The author concludes by warning against certain currents in the economics of law that aim to impose solutions and instrumentalize the law.

Application of the concept of barriers to entry under article 82 of the EC Treaty: is there a case for review, O. AROWOLO (ECLR, May 2005, Volume 26, Issue 5, p. 247-257). Commentary on the decision of the ECJ of 29 April 2004, (IMS c/NDC), Case C-418/01, C. ZOLYNSKI (Rev. Eur. Case 2003 - 2004, No. 3, p. 463).

The author goes back to the IMS judgment in which the ECJ seeks a balance between copyright and competition law and more specifically between an exploitation monopoly of the owner of the intellectual property right and the need for competitors to obtain a licence to operate in order to enter the market. He rightly points out the different logics of these two rights. The interest of the judgment, in addition to applying the theory of the facilities essential to intellectual property, is to set out clearly the conditions which make it possible to characterise abuse of a dominant position and to take clear account of the interests of consumers in order to have the legal monopoly yielded. The author sees in this judgment the preservation of traditional copyright and an application of economic reasoning, limited to informational works, which should not be protected by copyright.

Price war between CanalSatellite and TPS, G. DECOCQ (Comm. com. electr. May 2005, No. 5, p. 45)

3.2 Abuse of collective dominance

Anticompetitive practices within oligopolies: the link between cartels and abuses of collective dominant position, E. GARCIA-ROSADO (RLC 2005/3, n° 259, p. 139)

Following an in-depth analysis of the situations in which both national and Community case law has been able to apply the concepts of agreement and abuse of collective dominant position, whether independently, concurrently or jointly, Eliezer Garcia-Rosado wondered whether it would not be logical to unify, with regard to merger control and antitrust law, the criteria for collective dominance and to abandon the requirement of links between undertakings, which would make it possible to apply the conditions laid down by the CFI in the Airtours judgment to non-competitive market situations where there are no economic or structural links between the oligopolists, which are currently not covered. See also on the same subject, Collective dominant position: towards a unified concept? P. RINCAZAUX and E. DIENY (RLC 2005/3, No 257, p. 125)

The FIFA regulations governing the activities of players’ agents under EC competition law, A. DURAND (Rev. Lamy dr. aff. 2005, No. 4984, p. 18)

4 RESTRICTIVE PRACTICES

Reform of trade relations: modernization or back to square one, E. VOISSET (Petites affiches, 9 May 05, No. 91, p. 3)

Only a few days after the "Jacob" bill was made public, Emmanuelle Voisset proposed an extremely detailed analysis of its Title VI on the "modernization of trade relations" and particularly on the heart of the reform, namely, on the one hand, the provisions relating to trade cooperation and, on the other hand, those relating to the redefinition of the threshold for resale at a loss. Already, the author pointed out real difficulties of interpretation on the delicate question of resale below cost, even going so far as to wonder whether the drafters of the draft did not, in a diffuse and perhaps unconscious way, wish to remove the prohibition of resale below cost, so much so that the definition they give of the threshold of resale below cost is of such a nature as to make its implementation impossible. We shall also see, with regard to the redefinition of the threshold of resale at a loss by the bill in favour of SMEs, Transparence tarifaire et interdiction de revente à perte, C. VILMART (RLC 2005/3, n° 207, p. 35). The author suggests that the prohibition of resale at a loss should be removed, a development that he considers in any case inevitable, considering that abuses of the practice of resale at a loss could very well be apprehended by competition law, by deleting the last paragraph of article L. 420-5 of the Commercial Code, which excludes from its application resales in their current state and, failing that, by civil law.

The length of the notice period for termination of a business relationship, C. BOURGEON and A. VAN EECKHOUT (RDC 2005, pp. 497-502)

In this article, the authors suggest that companies can reduce the legal uncertainty associated with the system governing the termination of established commercial relationships introduced by the NRE Act in Article L. 442-6, I, 5°, of the Commercial Code by introducing a clause upstream, at the time of signing the contract, allowing the length of the notice period to be varied, in particular according to the length of the relationship.

Nouvelle modernisation du droit de la concurrence, P. ARHEL (JCP éd. E 2005, n° 112, p. 739)

Canivet Report: the proposal for a "reversal of the burden of proof" on the reality of the services rendered and the proportionality of their valuation, F. TORT (RDC 2005, pp. 497-502)

Proceedings of the Petites Affiches Meetings of 22 March 2005 on the theme "Distribution practices: the impossible reform, under the scientific direction of M.-A. FRISON-ROCHE (Petites Affiches, 1 July 2005, No. 130) and more particularly, Des structures de marché responsables des dérives constatées dans le jeu des relations fournisseurs / distributeurs, M. GLAIS (p. 40-43)

5 CONCENTRATIONS

Modification of merger control: the good idea of the Canivet report, R. FABRE (Rev. Lamy dr. aff. March 2005, p. 5)

In this forum, the author supports the Canivet report’s proposal to strengthen merger control in the predominantly food retail sector by authorizing the Minister of the Economy to submit for review transactions which, although they do not exceed the mandatory notification thresholds, have the effect of increasing the new entity’s market share to 25%. Régis Fabre’s only reservation is that it suggests extending the measure to the entire distribution sector, in order to protect all independent networks. It should be noted that this proposal was, more or less, taken up by an amendment presented during the discussion of the bill in favour of SMEs before the Senate. Postponed, this amendment was finally judged by the Minister to be "probably contrary to the Constitution" ...

Le juge des référés et la décision autorisant une concentration, E. CHEVRIER (D. 2005, act., p. 1552)

First comment on the interim order of 19 May 2005, which for the first time suspends, pending examination of the case on the merits, a ministerial decision authorising a concentration, in this case the takeover of CCMX by Cegid. There is no doubt that this comment will be followed by many others, as the implications of this interim order seem numerous and important.

French merger control: is the consultation of the Competition Council still useful, F. BRUNET (RLC 2005/3, n° 185, p. 9)

The author of these lines, after an assessment that is hardly questionable, observes that the Competition Council seems to play a less important role since the introduction of the obligation to notify concentrations and the lowering of the "controllability" thresholds by the NRE Act in 2001, at least if we judge by the number of requests for the Council’s opinion from the Minister of the Economy. On the strength of this observation, it calls for an end to the French exception by setting up a single supervisory authority, a change that it considers inevitable. However, it is questionable whether the interim relief judge of the Conseil d’État did not answer in part the question put by François Brunet in the interim relief order he issued on 19 May 2005 suspending the ministerial decision authorising the takeover of CCMX by Cegid. Isn’t one of the main lessons of this decision precisely to show all the interest of moving into phase II, particularly in terms of saving time, as soon as the data in the case are complex and subject to interpretation? Indeed, in this case, would the companies not have ultimately gained from the minister seeking the opinion of the Competition Council? At the very least, can we think that the meaning of the minister’s decision, which was ultimately suspended pending an examination of the case on the merits, could have been significantly different after the Competition Council’s clarification?

A new substantive test for EU merger control, K. FOUNTOUKAKOS and S. FOUNTOUKAKOS. RYAN (ECLR, May 2005, Volume 26, Issue 5, pp. 277-296).

The authors present here a comprehensive review of the history of the Merger Regulation and the development of case law in this area, as well as the context of the reform that has taken place and the prospects of the new testing standard. Also noteworthy: Unilateral effects under the European merger regulation: how big is the gap, S. BAXTER and F. BAXTER and F. BAXTER. DETHMERS (ECLR, Jul. 2005, Volume 26, Issue 7, pp. 380-389).

L’impact de la concentration sur la discrimination par les prix dans le transport aérien européen, S. GIAUME, S. GUILLOU (Rev. éco. ind., 1er trimestre 2005, n° 109, p. 53)

The adage according to which "the more concentrated a market is, the more market power firms have and therefore the higher the prices" no longer applies, at least in a certain context! The authors analyse the influence of the nature of the concentration, in particular using the Hirschman-Herfindal index, which captures the competitive structure of a market, on the relationship between concentration and price discrimination in the European airline market. In this sector, the policy of price discrimination takes the form of the airlines’ ability to identify the characteristics of demand and to segment it by applying purchasing restrictions associated with certain tickets, constituting second- and third-degree discrimination according to Pigou’s classification. The main interest of this study is thus to show that concentration, which results in a strong inequality of market shares, has a negative influence on the level of prices, i.e. reduces prices. Furthermore, it suggests that a market structure characterised by a high inequality of market shares is likely to increase price competition. Indeed, the authors consider that it is mainly the inequality of airlines’ market shares that differentiates the concentration on one air route from another and not the number of competitors on a route.

Concentrations in the media sector: Business as usual? L. IDOT (Rev. int. dr. eco., Jan. 2005, p. 5)

This paper by Laurence Idot was presented at the colloquium "The evolution of European competition law. Whose regulation, which competition? ». It discusses the media sector, which is currently experiencing a trend towards closer links between operators. The question therefore arises as to the relationship between sectoral regulations and competition law with a view to preserving pluralism and cultural diversity in the media. Laurence Idot presents the two possible approaches to merger control in this sector, i.e. a conflicting competition approach, where competition law and sectoral regulation are difficult to reconcile, or a complementary approach. At the end of her analysis, she clearly opts for the latter approach and tempers criticism of media merger control by competition authorities that use "all the means at their disposal to preserve pluralism in this sector". In her view, the shortcomings attributed to them stem mainly from a lack of political will on the part of Member States to approximate their legislation in order to guarantee media pluralism. Moulinex v. Seb: The Conseil d’État rejects the application of the "failing company" exception, (note ss. CE 6 Feb. 2004 - Société Royal Philips Electronic et autres), R. DAVID (Rev. Lamy dr. aff., Apr. 2004, n° 70, p. 33)

Le contrôle des opérations de concentration au cours de l’année 2003, R. COLLIN and M. PONSARD (Dr. adm., November 2004, p 6)

6 STATE AID

Taxe d’aide au commerce et à l’artisanat :doute, absence de notification et renvoi, note ss. Cass. com. Nov. 16, 2004, (Société Galeries de Lisieux), S. LAGET (AJDA 2005, p. 79)

In its commentary on the judgment of 16 November 2004 in which the Commercial Chamber decided to stay proceedings, the Court of Justice of the European Communities was asked to give a preliminary ruling on the question whether Community law must be interpreted as meaning that a tax, such as the tax on aid to trade and craft industries, instituted by the law of 13 July 1972, based on the sales area of retail stores exceeding 400 m², the proceeds of which go into special accounts of the old-age insurance funds of shopkeepers and craftsmen for the allocation of special compensatory aid, which since law n° 81-1160 of 30 December 1981 has become severance pay, must be classified as State aid, in so far as it is borne only by establishments with a sales area of more than 400 m² or a turnover of more than EUR 460 000, and in so far as it would provide the future recipient of the allowance with a reduction in charges resulting from the possibility of reducing its possible financing to a supplementary pension scheme, Stéphane Laget considers that the Court of Cassation did not need to take this step, suggesting that the national court could have been content to annul the non-notified state measure as soon as there was still some doubt that could lead to the belief or even just the assumption that the measure could be aid.

Commentary on the decision of the CJEC of 29 June 2004 (Commission of the European Communities v. Council of the European Union), case C-110/02, M. SOUSSE (Rev. eur. aff. 2003-2004, No. 3, p. 471).

Where the Commission finds an aid to be incompatible and orders the beneficiaries to repay it, the Council of the European Union may authorise another aid in order for the beneficiaries to be repaid. This decision of the ECJ illustrates this tendency of the Council of the European Union to intervene on the basis of the procedure laid down in Article 88, § 2, paragraph 3 EC. In this decision, the ECJ reaffirms the limits to the intervention of the Council of the European Union in the field of aid control and insists in particular on the central role of the Commission in the monitoring and control of State aid. Thus, the Council’s power under the Article 88(3) procedure must remain limited.

Privatisation and state aid - Time for a new policy, I. SIMONSSON (ECLR, Aug. 2005, Volume 26, Issue 8, pp. 460-467)

The author of this article presents a critical reflection on the Commission’s position on State aid for privatisations. It develops the pro-competitive effects of privatisations, in particular with regard to transparency, analyses both the conditions under which privatisations may involve State aid and the way in which an allegation of State aid must be denied in such circumstances, and ends by challenging the procedure for privatisations envisaged in the Commission guidelines.

Retour sur 15 ans de jurisprudence française en matière d’aides d’État, B. CHEYNEL (RLC, May - July 2005, n° 3, p. 42)

The author makes an interesting analysis and presents, in particular, a summary of French case law on State aid in the form of chronological tables.

Commentary on the judgment of the CFI of 1 December 2004 (Kronofrance SA), S. POILLOT-PERRUZETTO (Contracts, conc., consom. April 2005, No. 69, p. 23).

Does the status of a public establishment contain State aid by its very nature? Commentaire de la décision du Conseil d’État du 16 déc. 2003 relatif aux aides d’État accordées par la France à EDF et au secteur des industries électriques gazières, M. BAZEX, S. BLAZY (Dr.adm., mai 2005, n° 5, p. 16)

Chronique des aides publiques - 2004, T. FOUQUET (Rev. Marché commun, juin 2005, n° 489, p 398)

7 PUBLIC SECTOR (EXCLUDING STATE AID)

The BdKEP decision: the application of competition law to the partially liberalised postal sector, M. MARTINEZ LOPEZ and S. OBST (Competition Policy Newsletter, 1/2005, p. 31).

The paper by Manuel Martinez Lopez and Silke Obst will be read with interest on the interesting BdKEP decision of 20 October 2004 on the application of competition law to the partially liberalised German postal sector, which decision, based on Article 86 EC, shows that the Commission is determined to pursue Member States that adopt or allow to flourish provisions that lead to an automatic abuse of a dominant position.

Competition and public services: determination of relevant costs, A. MAZIERES (AJDA, 27 June 2005, p. 1334).

Anticompetitive practices: the producers of autonomous plants must hold EDF liable before the administrative judge (note ss Cass. 1re civ. Sept. 29, 2004), P-A. JEANNENEY and L. AYACHE (AJDA, 27 June 2005, p. 1348)

La régulation des services publics en réseau : réflexions sur la recherche d’un équilibre entre l’ouverture à la concurrence et l’exigence de service public, F. F. LISSOUCK (RRJ, 2005-2, p. 841)

8 PROCEDURES

8.1 General information

Chronique Concurrence, E. CLAUDEL (RTD com. 2005, n° 1, p. 60)

In her column, Emmanuelle Claudel comes back, notably through an exhaustive commentary on the provisions introduced by Order 2004-1173 of 4 November 2004, on the various negotiated solutions - commitment acceptance procedure, settlement procedure - now available to the Competition Council to resolve the competition concerns raised more quickly. See also the developments devoted to these issues by Laurence Idot in her Chronique Concurrence à la RDC 2005, pp. 305-311.

Report of the Court of Cassation for 2004, A. MARCHAND (Lamy dr. éco., May 2005, bull. H, n° 184, p. 1)

Columns: Precautionary measures before the Competition Council: the "precautionary procedure" in question? (first part), O. FREGET, F. HERRENSCHMIDT (Rev. Lamy dr. aff., June 2005, n° 83, p. 13)

Chronique Concurrence, Validity of visits and seizures (obs. ss. Cass. crim. 9 Feb. 2005), A. MARCHAND (Rev. Lamy dr. aff., May 2005, n° 82, p. 26)

8.2 Regulation 1/2003

Antitrust law reform in Europe: one year of practice, L. IDOT (Europe, Apr. 2005, p. 6).

Summary record of the colloquium organised jointly by the European Commission and the International Bar Association in Brussels on 10 and 11 March 2005. In particular, the author shows that the Commission’s strategy of leaving the principle of institutional and procedural autonomy untouched so as not to delay the adoption of the Regulation proved ultimately to be a good one. Despite the overall positive outcome, the discussions showed that not all difficulties were resolved. For example, questions remain as to the authority of a decision by an NCA vis-à-vis national courts.

Chronique, Les règles de concurrence applicables aux entreprises, 1 January 2004-31 December 2004, B. VAN DE WALLE DE GHELCKE, B. VAN HEES, C. LOUVEAUX (Journal des Tribunaux de droit européen, Apr. 2005, No 118, p. 104)

The new EC competition policy: is private enforcement appropriate for the banking sector, I. M. CATLETT (Journal of Int. Banking Law and Regulation, 2005, Volume 20, Issue 7, pp. 305-314)

8.3 Acceptance of commitments

First case closed thanks to the commitment procedure, A. MARCHAND (Lamy droit économique 2005, bull. G, n° 183, p. 1)

Le Conseil de la concurrence ouvre le dialogue, M. THILL TAYARA (Les Echos, March 30, 2005, p. 13)

Undertaking procedure, Conciliation Council, Dec. 05-D-16, 26 Apr. 2005, relating to practices implemented by the Society of Dramatic Authors and Composers, A. MARCHAND (Rev. Lamy dr. aff., June 2005, No. 83, p. 27).

8.4 Sanction Policy - Clemency - Settlement

Du droit à la régulation de la concurrence : les programmes de lémence, L. VOGEL et J. VOGEL (JCP éd. E 2005, n° 865, p. 971)

In this highly synthetic paper, the authors provide a comprehensive overview of the main issues raised by the development of what they call competition regulatory procedures - commitments, settlement and leniency - including those arising from the simultaneous application of the no-objection (settlement) and simplified procedures.

Clémence et lutte contre les cartels, E. DIDIER and F. NINANE (Les Echos 31 March 2005, p. 12)

La pratique transactionnelle du Conseil de la concurrence (Actualités Concurrence, Consommation et Répression des fraudes, March 2005, n° 184, p. 1)

9 REGULATION

Generating profits? Can liberalized markets fit the electricity bill, M. GRIMSTON (Int. Energy Law & Taxation Review, 2005, 6, p. 127-139).

In this article, the author presents a critical, reasoned and constructive assessment of the process of liberalisation of electricity markets in Europe. After presenting the specificities of the electricity market, he reviews the main difficulties raised by liberalisation. In particular, he notes the difficulties related to the incentive to invest and the divergence of needs and objectives between consumers, potential investors or governments. It also discusses the interactions between market structure and the outcome of the process and raises the inevitable issue of rising prices. It stresses that liberalization is a complex reform that involves major changes and believes that the failures of the processes can be partly attributed to the fact that they were not orchestrated by specialists or with sufficient knowledge of the models and needs. He concludes by highlighting some points necessary for the success of a liberalization process, including investor confidence and the recognition that there is no single general and effective model of liberalization.

Study on "La fourniture d’électricité des entreprises locales de distribution hors de leur zone de desserte après la loi du 9 août 2004", G. BOUQUET (AJDA 2 May 2005, n° 17, p. 922)

The author criticizes the provisions of the Act of 9 August 2004 on the public electricity and gas service and on electricity and gas companies. This law introduced a provision that allows local distribution companies (LDCs) to supply electricity to eligible customers outside their service area. The author denounces this new provision, which is intended to give LDCs greater freedom, but which in fact makes the exercise of their activities subject to restrictive conditions.

Regulation and Contract: Summary of the 11th Regulation Forum, M.A FRISON-ROCHE (Petites affiches, 3 May 2005, n° 87, p. 3)

The author begins by presenting the topic discussed at the 11th Regulatory Forum on the place of contractual mechanisms in regulated sectors and outlines the questions arising from the new place of these mechanisms in these sectors. She then offers a summary of the forum.

Chronique relative à la modulation dans le temps des effets de l’annulation d’une décision de l’Autorité de régulation des télécommunications, (obs. ss. déc. CE 25 févr. 2005), C. LANDAIS, F. LENICA (AJDA 16 May 2005, n° 18, p. 997)

This decision follows France Telecom’s application to the Conseil d’État for the annulment of a decision by the ART in which the latter had enjoined France Telecom to modify its reference offer for access to the local loop. In this case, the Conseil d’État partially annulled the ART’s decision. The main interest of this decision lies in the modulation in time of the effects of the annulment. Indeed, the annulment will only take place after the expiry of a period of two months from the notification of the decision to the ART. In this case, the Conseil d’État derogates from the principle of the retroactive effect of disputed cancellations and thus allows the ART two months to take a new decision on the reference offer proposed by France Télécom. This decision also clarifies the ART’s obligations by insisting in particular on its obligation to publish in advance the calculation method used to build the reference offer. See also, La régulation ex ante comme moyen de faire émerger la concurrence (note ss. CE, sect., Feb. 25, 2005, No. 247866, France Télécom), M. SENAC DE MONSEMBERNARD (Dr. adm, Apr. 2005, No. 4, p. 26).

Actualités du droit de la concurrence et de la régulation, L. RICHER, P-A. JEANNENEY and N. CHARBIT (AJDA, 13 June 2005, p. 1216)

Analyse économique du droit : quelques points d’accroche (Cycle Chaire Régulation/Cour de cassation), edited by G. CANIVET, B. DEFFAINS and M.-A. FRISON-ROCHE (Petites affiches, 19 May 2005, No. 99, special issue, pp. 1-95)

Chronique de droit de la régulation n° 1, M. -A. FRISON-ROCHE (Petites affiches, 4 Apr. 2005, No. 66, p. 3)

10 INTERNATIONAL POLICY

The application of Community law by the British courts (2003/2004), E. SAULNIER-CASSIA, (RTD eur. January-March 2005, No 1, p. 105).

The study focuses on the High Court’s decision on State aid (Queen’s Bench Division, 27 Oct.2003, Bews Anthracite Ltd v. Dsk Anthrazit Ibbenburen Gmbh) which recalls that the Commission’s decision, ordering the recovery of aid unlawfully paid by a State, does not create any subjective rights vis-à-vis competitors. On the other hand, the study looks at the very interesting recent Court of Appeal decision Bernard Crehan v. Innterpreneur Pub Company in the beer sector. The Court of Appeal had referred to the ECJ the question whether provisions of English law, which do not allow a party to an unlawful agreement to claim damages from another party, are compatible with Community law. The answer was that Community law does not preclude a rule of national law which denies a party to a contract from relying on its own unlawful actions for the purpose of obtaining damages, provided that it is established that that party has a significant responsibility for the distortion of competition (ECJ, 20 Sept.2001, Courage v. Crehan, C-453/99). The United Kingdom judges then held that the applicant Crehan, who had no significant responsibility for the distortion of competition, was entitled to compensation for the damage caused to him by the contract and set this compensation at more than £130,000. Community law therefore prevailed over the application of contrary provisions of English law.

The Corte di cassazione takes "Courage". A recent ruling opens limited rights for consumers in competition cases, R. INCARDONA (ECLR, Aug. 2005, Volume 26, Issue 8, p. 445-450).

In line with the Courage judgment, this article presents a judgment of the Italian Court of Cassation on the possibilities for a consumer to be compensated for the additional costs resulting from a cartel, but also looks at the practical problems linked to private complaints in this area (in particular in the absence of class actions).

Global cartels, American retaliation. L’ère Empagran ?, M. REZZOUK (Rev. int. dr. éco., Jan. 2005, p. 51)

The author provides an assessment of the Empagran decision of the United States Supreme Court on the vitamin cartel prosecuted and convicted for price fixing, market sharing and other anti-competitive conduct aimed at illegally raising prices. In its decision, the Court, inter alia, blocked access to US courts for foreign purchasers of vitamins for transactions outside the United States. The author criticizes this solution, which is unfavourable to private parties who are victims of cartel practices, insofar as the Supreme Court refers back to the lower courts the task of judging the essential questions, such as the hypothesis of damage suffered abroad in connection with a domestic American damage.

Commentary, Paris Court of Appeal, 18 November 2004 (Thalès Air Defence / Euromissile), A. MOURRE (J. Clunet, April-June 2005, No. 2/2005, p. 357).

This article comments on the decision of the Paris Court of Appeal ruling on the appeal against the arbitral award in the Thales/Euromissile case and presents for the competition law specialist many interests. This is the first application by a French court of the ECJ’s Eco Swiss ruling, which includes the verification of compliance with EC competition law within the scope of the public policy review of arbitral awards. The Paris Court of Appeal goes further, however, by specifying the conditions and scope of this control with regard to two imperatives: the obligation to apply Community law and the necessarily limited nature of the control exercised over arbitral awards. Thus, the review carried out by the Court of Appeal must not call into question the assessment on the merits carried out by the arbitrators, to which the assessment of the prohibited nature of an agreement under Article 81 EC would amount, but, above all, the infringement of Community public policy relied on must be flagrant, effective and concrete. The author then justifies the position of the Court of Appeal, taking the view that it does not infringe Community law and remains within the limits of what is allowed by the procedural autonomy of the States. The author thus considers, contrary to part of the doctrine, that the Eco Swiss judgment does not require the national courts to review the conformity of the award with what the ECJ defines as Community public policy, but merely requires that the review be carried out in the same way for domestic mandatory requirements as for those of Community origin. Finally, the author discusses the practical implications of the solution adopted, in particular the fact that the award has the force of res judicata but that it will be binding only on the parties, without being able to prevent the European Commission from initiating administrative proceedings.

The European Commission’s decision against Microsoft: A violation of the antitrust agreements between the United States and the European Union, M. MÜLLER (ECLR, June 2005, Volume 26, Issue 6, pp. 309-315).

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Umberto Berkani, Alain Ronzano, Christelle Adjémian, Competition journals: April - June 2005, September 2005, Concurrences N° 3-2005, Art. N° 1027, pp. 163 - 167

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