Competition journals: March - June 2008

Berkani, Umberto; Ronzano, Alain; Adjémian, Christelle

Sep 2008

Competition journals: March - June 2008

KEYWORDS

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

1. General - Scope of application

Interactions between competition and consumer policy, M. Armstrong (Competition policy international, spring 2008, vol. 4, issue 1, p. 97).

The author gives us here a rich and interesting reflection on the relationship between competition and consumer policy. He first describes the benefits of the former for consumers and then identifies the specific situations in which state intervention can be useful from their point of view, most of which relate to a need for information. It then carries out the reverse work of analysing situations in which certain elements of competition policy on the one hand and consumer policy on the other may be detrimental to consumers. The author concludes by highlighting areas where further research is needed, in particular on some of the conflicting objectives of consumer policy itself or between consumer policy and competition policy.

"La parole est aux avocats!", H. Calvet (entr. with) (Petites affiches, 2 Jul. 2008, No. 132, p. 3)

On the draft ordinance, submitted for public consultation, under Article 23 of the law on the modernisation of the economy adopted on first reading by the National Assembly on 17 June 2008, authorising the government to reform the Competition Council by means of an ordinance in order to create a new competition authority by entrusting it, in particular, with the processing of applications for authorisation of concentrations, a competence which today falls within the remit of the Minister.

Projet de loi de modernisation de l’économie: le volet "concurrence", P. Arhel (JCP éd. E, 15 May 2008, No. 20, Actualités, 239, p. 3)

Competition" component of the draft law on the modernization of the economy (Petites affiches, 27 May 2008, No. 106, p. 4)

Mobilize competition, contractors, etc. - on the bill to modernize the economy, M. Chagny (JCP éd. G, 14 May 2008, No. 20, News, p. 3)

The preliminary draft ordinance establishing the competition authority, L. Idot and CH. Lemaire (JCP ed. G, N°26, 25 June 2008, News, p. 6)

Réflexions sur le projet d’ordonnance portant création de l’Autorité de concurrence, C. Vilmart (JCP éd. E, 26 June 2008, No. 26, Actualités, 326, p. 3)

On the same issue, see also: Réussir l’Autorité de la concurrence, P. Rey (Les Échos, 2 June 2008, p. 15).

Quelles garanties pour les entreprises devant la future autorité de concurrence, P. Poels (Les Echos, 13-14 June 2008, p. 17)

The Attali report and the reform of competition law: Tabula rasa or minimal adjustments, M. Debroux (RLDA Apr. 2008, n° 1577, p. 33)

Competition and organisation of the health system of 10 October 2007 (proceedings of the Competition Workshop of 7 March 2007) (Competition & Consumer Affairs, No. 158, April 2008, pp. 20-42)

Presumption of liability of parent companies for their subsidiaries under Community law of anti-competitive practices, A. Krenzer (RLC, 2008/15, No 1116, p. 111)

Is there retroactivity in competition law, M. Behar-Touchais (DRC, Jan. 2008, p. 61).

Rapport de la Cour de cassation pour 2007 en droit économique, C. Anadon and J.-B. Auroux (RLDA, May 2008, No. 1634, p. 36)

Activity of the Community Courts in competition law (1st quarter 2008), P. Arhel (Petites affiches, 23 June 2008, No 125, p. 11)

Technology Standards, Patents and Antitrust, F. Lévêque ET Y. Ménière (CRNI, 2008, Vol. 9, Issue 1, p. 29)

The French competition council and parallel trade in the pharmaceutical industry: a step ahead of EU case law, F. Herrenschmidt (World Competition, June 2008, Vol. 31, Issue 2, p. 235)

Microsoft and more - Developments under articles 81 and 82 EC in 2007, J. Kallaugher ET A. Weitbrecht (ECLR, July 2008, Vol. 29, Issue 7, p. 418)

Chronique annuelle 2007 de droit interne de la concurrence, I. Luc ET M. Claudel-Picard (RJEP, n° 654, June 2008, p. 2)

Chronique Concurrence, E. Claudel (RTD com., January-March 2008, p. 54)

Chronique Concurrence, L. Idot (Europe, Apr. 2008, comm. 123-125; May 2008, comm. 157-159; June 2008, comm. 197-202, p. 24)

Chronique Concurrence, M. Bazex, G. Decocq, M. Malaurie-Vignal & D. Bosco (Contrats, conc., consom., Apr. 2008, comm. 102 to 110, p. 33; May 2008, comm. 130 to 137, p. 17; June 2008, comm. 158 to 169, p. 32)

Chronique de droit communautaire de la concurrence, G. Decocq (RJ Com. 2008/2, p. 96)

Chronique de droit économique, C. Anadon (RLDA Apr. 2008, No. 1579 to 1585, p. 43; May 2008, No. 1635 to 1639, p. 40)

Chronique Concurrence (RJDA, May 2008, p. 570; June 2008, p. 706)

2. Agreements

2.1. General

"Publicly distancing" oneself from a cartel, D. Bailey (World Competition, June 2008, Vol. 31, Issue 2, p. 177)

The article seeks to analyse the frequently debated, but rarely retained by the French and Community competition authorities, question of the public distancing of an undertaking from the anti-competitive content of meetings between competitors. The author sets out the conditions which, in his view, must be met for an undertaking to be considered to have publicly distanced itself and comments on the high level of proof required.

2.2. Distribution

The demise of Dr Miles: some troubling consequences, R. D. Blair (Antitrust Bulletin, Spring 2008, Vol. 53, Issue 1, p. 133)

This issue of the Antitrust Bulletin is devoted entirely to an analysis, including an economic analysis, of the work of the U.S. Supreme Court under Justice Robert’s chairmanship. In this article, the author summarizes the terms of the various debates surrounding minimum price maintenance and the change in position from the Dr. Miles decision to the recent Leegin decision. He concludes by pointing out the practical difficulty, if not impossibility, of applying the rule of reason advocated in the Leegin decision and concludes that the Court wanted, without saying so, to make fixed prices legal per se.

3. Abuse of dominance

The rise and fall of the essential facility doctrine, U. Müller et A. Rodenhausen (ECLR, May 2008, Vol. 29, Issue 5, p. 310)

The authors set out to investigate the existence of a doctrine linked to the concept of "essential facility", studying the various cases in which this concept, whether or not it has clearly stated its name, has been approached first in American case law and then in Community practice. They then analyse the economic and non-economic justifications given to the "idea" of essential facility. Finally, they underline the uncertainty of the current situation, both in Europe and in the United States. The authors conclude from their research that the expression "essential facilities doctrine" is incorrect, as it has never existed as such in the United States and has only been sketched out in various situations in Europe. They conclude that devising a doctrine, even the broader doctrine of "essential facilities", on the basis of situations so closely related to the facts of the case and to the sectors concerned is a delicate and as yet unfulfilled task.

4. Restrictive practices

De l’avenir des pratiques dites "restrictives de concurrence", A. Decocq (RJC, 2/2008, p. 96)

Regards critiques sur la rupture brutale des relations commerciales établies, K. Le Couviour (RTD com., Jan.-March 2008, p. 1)

5. Concentrations

EC Merger control: does more economics bring increased legal certainty in the assessment of conglomerate mergers, M. Wija (International Trade Law & Regulation, 2008, Vol. 14, Issue 3, p. 61)

The price effects of horizontal mergers, M. Weinberg (Journal of Competition Law and Economics, June 2008, Vol. 4, Issue 2, p. 433).

A priori and a posteriori merger controls: how to increase the effectiveness of competition policies, P. Bougette & F. Venayre (Revue d’économie industrielle, 1st quarter 2008, n° 121, p. 9)

Ryanair and more - EU merger control in 2007, A. Weitbrecht (ECLR, June 2008, Vol. 29, Issue 6, p. 341).

Les concentrations sous étroite surveillance, T. Oster (Les Échos, 29 May 2008, p. 15)

6. State aid

Le régime de la restitution des aides d’État (note ss. CJCE, 12 Feb. 2008, aff. C-1999/06, CELF c/ Side), M. Bazex & S. Blazy (D. Adm, No 4, April 2008, p. 24)

Commenting on the CELF decision, the authors recall the very interesting conclusions reached by the ECJ with regard to state aid that was not notified but was finally declared compatible by the Community Courts: on the one hand, the Court considers that the national court is not obliged to order the recovery of aid for breach of the obligation to notify; on the other hand, the solution would be different if the aid had been declared incompatible with the common market by the Commission. On the other hand, the Court held that the beneficiary of non-notified aid (subsequently declared or not compatible) must, however, compensate the undue advantage in the form of default interest.

7. Public sector and competition

Mixed economy companies between general interest, public service and competition (note ss. CE 5 oct. 2007, UGC-Ciné-Cité), D. Moreau (RJEP, n° 652, April 2008, p. 27)

David Moreau comments on the ruling handed down by the Conseil d’État in the UGC-Ciné-Cité case, according to which it is considered that the operation of a cinema by a local SPC does not constitute, in the absence of obligations imposed by the shareholder community, a public service mission. However, such a task may be in the general interest. Consequently, the Conseil d’État took the view that such an operation does not require a prior call for competition. On this last point, the author makes a number of criticisms: is the management of activities of general interest by SPCs in conformity with Community law where no explicit contract is concluded between the SPC and the public entity? He points out that Community law requires effective competition when a private person takes over activities that meet a need specified by the public entity. In this sense, the author considers that the mere fact that a public authority creates an SPC already reveals a public need in itself, thus implying a prior call for competition.

Services of general economic interest and universal service in EU law, W. Sauter (Eur. Law Rev., 2008, Vol. 33, Issue 2, p. 167).

Treaty of Lisbon: the public service, F. Chaltiel (Petites affiches, 30 May 2008, No. 109, p. 6)

L’apport de la protection de la libre concurrence à la théorie du contrat administratif, C. Yannakopoulos (RDP 2008, n° 2, p. 421)

Right to reparation for public persons who are victims of an anti-competitive cartel (note ss. CE 19 Dec. 2007, aff. Campenon Bernard et al.), J. Martin (JCP éd. G, 11 June 2008, No. 24, Jurispr., 10113, p. 38).

Le droit communautaire à la poursuite du marché public, J-B. Auby (D. Adm, n° 4, April. 2008, p. 1)

La mise en concurrence du renouvellement des concessions hydroélectriques au milieu du gué, F. Sabiani (D. Adm, n° 6, June 2008, p. 9)

Les personnes publiques face aux pratiques anticoncurrentielles, M. Adam & D. Berlin (Les Échos, 26 May 2008, p. 14)

1986-2006: Assessment of twenty years of privatization, S. Perrotet (RJEP, n° 652, April 2008, p. 3)

Chronique Concurrence : interventions économiques des personnes publiques, M. Bazex, F. Rolin & P. Subra de Bieusses (Contrats, conc., consom., avr. 2008, comm. 1 à 7, p. 16)

8. Procedures

8.1. General

Communication of the Rapporteur’s note to the Government Commissioner and ECHR (note ss. ECHR, 14 Feb. 2008, Assoc. Avenir d’atel v. France), F. Melleray (D. Adm, No. 4, April 2008, p. 34).

The author provides a very instructive reminder of the ECHR case law on the communication of rapporteurs’ notes to the public prosecutor’s office at the Court of Cassation, the participation of rapporteurs in deliberations and the resulting adaptations within different levels of jurisdiction in France, and sets out the content of the recent ECHR judgment in the Assoc case. Atel’s future, in which the High Court held that the failure to communicate the note from the adviser-rapporteur to the parties, but of which the Government Commissioner was aware, did not violate the requirements of the right to a fair trial, since the note contained only a simple summary of the documents in the file, which were accessible to all the parties. The author considers, on the other hand, that the reality is quite different and that the adviser-rapporteur is not satisfied with a mere summary of the documents in the case file in his note to the Government Commissioner....

Legal Privilege: Quand l’intérêt de l’entreprise rejoint celui des juristes, O. Chambaud (Petites affiches, 16 May 2008, n° 99, p. 3)

See also, with regard to the CFI’s Akzo Nobel judgment of 17 September 2007 (cases T-125/03 and T-253/03), the chronicle of A. Dawes (RDUE, 1/2008, case-law, p. 157).

The ne bis in idem principle in competition law, M. Petr (ECLR, July 2008, Vol. 29, Issue 7, p. 392).

The other way around: liability of community institutions for losses incurred to misapplications of EC competition law (Schneider III), D. Mykolaitis (International Trade Law & Regulation, 2008, Vol. 14, Issue 3, p. 52)

Parallel competence and the power of the EC Commission under regulation 1/2003 according to the Court of first instance (ECLR, May 2008, Vol. 29, Issue 5, p. 286)

Editorial comments: A little more action please! - The white paper on damages action for breach of the EC antitrust rules (CMLR, June 2008, Vol. 45, Issue 3, p. 609)

The consecration of group actions in Europe - Would crossing the Atlantic have softened the "Frankenstein Monster"?, I. Veillard & B. Volders (RJ Com. 2008/2, Studies, p. 67)

ETI judgment (note ss. CJEC 11 Dec. 2007, case C-280/06), J. Figus Diaz (RDUE, 1/2008, case law, p. 163).

The role of economic analysis in the judge’s control of compliance with environmental regulations (see note ss. CE, ord. Ref. 19 March 2008, Assoc. Générale des producteurs de maïs), M. Bazex & S. Blazy (D. Adm, n° 5, May 2008, p. 25)

8.2. Sanction Policy - Clemency - Settlement - Undertakings

Commitment procedure for anti-competitive practices: state of play, P. Kipiani (RLC, 2008/15, No 1117, p. 114)

The main purpose of this article is to present an overview of the implementation of the undertaking procedure throughout the European Union. Even if France makes intensive use of this procedure, which has made it look like a good pupil within the European Competition Network, it is not the only one to have embarked on the adventure of negotiated solutions, alternatives to sanctions. No less than 21 Member States have, following Regulation 1/2003, introduced into their legislation a commitment procedure, sometimes simply modelled on the Community procedure laid down in Article 9 of Regulation 1/2003, sometimes by introducing a more original mechanism, following the example of the English or Italian procedure.

Commitment procedure: Formalization of the decision-making practice of the Competition Council, P. Arhel (Petites affiches, 21 May 2008, No. 102, p. 8)

Synthèse sur les engagements en matière de concurrence, É. Chevrier (D. 2008, n° 16, Actualité, p. 1044)

Compliance and internal company organisation (proceedings of the Competition Workshop of 7 March 2007) (Competition & Consumer Affairs, No. 158, April 2008, pp. 60-80)

Competition: employees and the commitments made, B. Mounier-Kuhn & E. Dieny (Les Échos, 15 May 2008, p. 13)

Community competition law: concept of single and continuous infringement and calculation of fines (note ss. T-101/05 and T-111/05, BASF EG and UCB SA v Commission), J.-C. Zarka (JCP éd. E, 8 May 2008, No 19, 1589, p. 29).

9. Regulations

Le pouvoir réglementaire des autorités administratives indépendantes ; Réflexions sur son objet et sa légitimité, A. Haquet (RDP 2008, n° 2, p. 393)

Starting from the premise that the regulatory power exercised by independent administrative authorities, in particular regulatory authorities, is illegitimate, but noting the usefulness and effectiveness of the latter, the author wonders what arguments can be put forward to justify such power. The impartiality and independence of these authorities, their effectiveness and their expertise are thus put forward.

Competition in telecommunications networks with call externalities, E. Baranes & L. Flochel (Journal of Regulatory Economics, 2008, Vol. 34, Issue 1, p. 53).

The new Community regulation on public transport services by rail and road, S. Martin (D. Adm, n° 4, April 2008, p. 36)

10. International policy

The Diametrically opposed principles of US and EU antitrust policy, D. De Smet (ECLR, June 2008, Vol. 29, Issue 6, p. 356).

Awarding exemplary (or punitive) antitrust damages in EC competition cases with an international element - The Rome II regulation and the Commission’s white paper on damages, M. Danoy (ECLR, July 2008, Vol. 29, Issue 7, p. 430).

LIST OF PERIODIC REMAINS

A.

LEGAL NEWS - ADMINISTRATIVE LAW (AJDA)

NEWS FROM THE NETWORK INDUSTRIES IN EUROPE

ADMINISTRATION AND TERRITORIAL COLLECTIVITIES

AMERICAN ECONOMIC REVIEW

AMERICAN LAW AND ECONOMIC REVIEW

ECONOMIC ANALYSES

ANTITRUST

(THE) ANTITRUST BULLETIN

ANTITRUST LAW JOURNAL

SOURCE ANTITRUST

B.

BANK

BERKELEY TECHNOLOGY LAW JOURNAL

NATIONAL ASSEMBLY GAZETTE

ILEC NEWSLETTER

RAPID BUSINESS LAW BULLETIN (BRDA)

C.

(LES) CAHIERS DE DROIT EUROPEEN

CORPORATE LAW BOOKLETS (FROM THE LAW WEEK)

CHICAGO LAW REVIEW (UNIVERSITY OF)

COMMON MARKET LAW REVIEW

COMMUNICATION - ELECTRONIC COMMERCE

COMMUNICATION & STRATEGIES

COMPETITION AND REGULATION IN NETWORK INDUSTRIES

INTERNATIONAL COMPETITION POLICY

COMPETITION POLICY NEWSLETTER

COMUTER AND TELECOMMUNICATIONS LAW REVIEW

PUBLIC CONTRACTS AND PROCUREMENT

CONTRACTS-COMPETITION-CONSUMER

GOVERNMENT CONTRACTS

CORNELL LAW REVIEW

D.

ADMINISTRATIVE LAW

PROCUREMENT LAW

COMPANY LAW

CRIMINAL LAW

E.

(LES) ECHOS/ ISSUES LES ECHOS

ECONOMIC INTUITION

(THE) ECONOMIST

EMORY LAW JOURNAL

EUROPE

(THE) EUROPEAN ANTITRUST REVIEW

EUROPEAN COMPETITION JOURNAL

EUROPEAN COMPETITION LAW REVIEW

EUROPEAN INTELLECTUAL PROPERY REVIEW

EUROPEAN LAW REPORTER

EUROPEAN LAW REVIEW

EUROPEAN VOICE

F.

FAIR TRADING

FORDHAM LAW REVIEW

G.

(THE) PALACE GAZETTE

GLOBAL ANTITRUST WEEKLY

GLOBAL COMPETITION REVIEW

H.

HARVARD LAW REVIEW

I.

INSTITUTE ANTITRUST LAW AND POLICY FORDHAM CLI

INTERNAT. COMPANY AND COMMERCIAL LAW REVIEW

INTERNAT. ENERGY LAW AND TAXATION REVIEW

INTERNAT. JOURNAL OF INDUSTRIAL ORGANIZATION

INTERNAT. TRADE LAW AND REGULATION

J.

COURT JOURNAL. EUROPEAN LAW

INTERNATIONAL LAW JOURNAL CLUNET

JOURNAL OF INTERNAT. BANKING LAW AND REGULATION

JOURNAL OF COMPETITION LAW AND ECONOMICS

JOURNAL OF ECONOMIC LITERATURE

JOURNAL OF ECONOMIC PERSPECTIVES

JOURNAL OF INDUSTRIAL ECONOMICS

JOURNAL OF LAW AND ECONOMICS

JOURNAL OF LAW ECONOMICS & ORGANIZATION

JOURNAL OF LEGAL STUDIES

JOURNAL OF REGULATORY ECONOMICS

K.

L.

ECONOMIC LAW

LAMY PUBLIC BUSINESS LAW

M.

(THE) MONITOR (OF PUBLIC WORKS AND BUILDING)

N.

NORTHWESTERN JOURNAL OF INTERNATIONAL LAW AND BUSINESS

O.

OREGON LAW REVIEW

P.

(THE) SMALL POSTERS

ECONOMIC PROBLEMS

PROCEDURES

INDUSTRIAL PROPERTY

Q.

R.

RAND JOURNAL OF ECONOMICS

DALLOZ COLLECTION

REVIEW OF ECONOMICS AND STATISTICS

JOURNAL OF POLITICAL ECONOMY

JOURNAL OF INDUSTRIAL ECONOMICS

JOURNAL OF INTERNATIONAL BUSINESS LAW

CASE LAW REVIEW

CASE LAW REVIEW OF BUSINESS LAW

OECD REVIEW ON COMPETITION LAW AND POLICY

COMPETITION AND CONSUMER REVIEW

ENERGY REVIEW

LEGAL RESEARCH JOURNAL - PROSPECTIVE LAW

JOURNAL OF CRIMINAL SCIENCE AND COMPARATIVE LAW

EUROPEAN BUSINESS REVIEW

CONTRACT REVIEW

REVIEW OF COLLECTIVE PROCEDURES

PUBLIC LAW REVIEW

REVIEW OF THE COMMON MARKET AND THE EUROPEAN UNION

EUROPEAN UNION LAW REVIEW

(THE) ECONOMIC JOURNAL

ECONOMIC AND SOCIAL JOURNAL

FRENCH ADMINISTRATIVE LAW JOURNAL

INTERNATIONAL JOURNAL OF COMPARATIVE LAW

INTERNATIONAL JOURNAL OF ECONOMIC LAW.

INTERNATIONAL JOURNAL OF COMPETITION

PUBLIC ENTERPRISE LAW REVIEW

LAMY COMPETITION REVIEW

LAMY DROIT DE L’IMMATERIEL MAGAZINE

LAMY BUSINESS LAW REVIEW

QUARTERLY CIVIL LAW REVIEW

QUARTERLY REVIEW OF COMMERCIAL AND ECONOMIC LAW

QUARTERLY REVIEW OF EUROPEAN LAW

S.

LEGAL WEEK - COMPANY EDITION

LEGAL WEEK - GENERAL EDITION

T.

TEXAS INTERNATIONAL LAW REVIEW

TULANE LAW REVIEW

U.

(THE) NEW PLANT

V.

W.

WORLD COMPETITION

X.

Y.

YALE LAW JOURNAL

YALE JOURNAL OF INTERNAT. LAW

Z.

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

Competition journals: March - June 2008

1. General - Scope of application

2. Agreements

3. Abuse of dominance

4. Restrictive practices

5. Concentrations

6. State aid

7. Public sector and competition

8. Procedures

9. Regulations

10. International policy

LIST OF PERIODIC REMAINS

Authors

Quotation

All reviews

Recent events