Competition Journals: April - June 2009

1. General - Scope of application

Reforms of French competition law: the big game? Part [2] E. Claudel (RTD com. Jan-March 2009, p. 91-113).

In this very comprehensive article devoted to the overall reform of competition law in 2008, Emmanuelle Claudel goes back over the premises of the reform and scrutinizes all the measures concerning competition law.

See also, LME : la réforme enfin achevée par une seconde ratification de l’ordonnance du 13 novembre 2008, C. Vilmart (JCP éd. E, n° 25, 18 juin 2009, Actualités 298, p. 3)

The Competition Authority (after the law of 4 August 2008 and the ordinance of 13 November 2008) D. Ferrier and K. Biancone (D. 2009, No. 15, Study, p. 1031).

Exemption in times of economic crisis J.-L. Fourgoux and L. Djavadi (Cah. dr.entr., No. 3, May-June 2009, 15, p. 20).

Labour law, competition law, a new social contract B. Edelman (D. 2009, No. 23, Studies, p. 1547).

Audiovisual media: content and competition Competition Workshop, 30 September 2008 (Proceedings of the workshop are available at: http://www.dgccrf.bercy.gouv.fr/documentation/publications/actes_ateliers/medias_audiovisuels.pdf)

Merger of non-notifiable undertakings: the grey areas of competition law Competition Workshop, 9 December 2008 (Proceedings of the workshop are available at: http://www.dgccrf.bercy.gouv.fr/documentation/publications/actes_ateliers/rapprochement_entreprises.pdf)

2008 Annual Review of Domestic Competition Law I. Luc and M. Claudel-Picard (RJEP, No. 665, June 2009, p. 3).

Competition rules applicable to undertakings (1 January 2008 - 31 December 2008) , T. Fouquet, J. Sladic and E. Vanham (JDE, June 2009, No. 158, p. 115).

Competition law enforcement in the public health sector , P. Arhel (Petites affiches, 12 June 2009, No. 117 p. 7)

Activity of the Community Courts in competition law (December 2008) P. Arhel(Petites affiches, 30 March 2009, No. 63 p. 7)

Activity of the Paris Court of Appeal in the field of anti-competitive practices (December 2008-February 2009) , P. Arhel(Petites affiches, 21 Apr. 2009, No. 79 p. 5)

Competition Chronicle L. Idot (Europe, Apr. 2009, comm. 163-167; May 2009, comm. 195-201; June 2009, comm. 239-245, p. 29).

Competition Law Chronicle L. Idot & C. Prieto (DRC Jan. 2009, p. 113).

Competition Chronicle M. Bazex G. Decocq, M. Malaurie-Vignal & D. Bosco (Contracts, conc., consom mai. 2009, comm. 133 to 146, p. 38; June 2009, comm. 166 to 179, p. 0)

Economic Law Chronicle C. Anadon (RLDA May 2009, No. 2306 to 2312, p. 49; June 2009, No. 2361 to 2366).

Competition Chronicle (RJDA, May 2009, p. 545; June 2009, p. 537)

2. Agreements

2.1. General

The iPhone for everyone! How the attractiveness of a product can lead to the suspension of a commercial exclusivity agreement G. Muguet-Poullennec, G. Muguet-Poullennec (RLC 2009/19, No. 1362, p. 72).

Factors influencing the magnitude of cartel overcharges: an empirical analysis of the U.S. market , Y. Bolotova, J. M. Connor & J. Miller (Journal of Competition Law and Economics, 2009, Vol. 5, Issue 2, p. 361).

2.2. Distribution

An economic analysis of the use of selective distribution by luxury goods suppliers T. Buettner, A. Coscelli, T. Vergé & R. A. Winter (European Competition Journal, Vol. 5, Issue 1, p. 201).

The authors of this article defend the existence of certain particular characteristics of luxury goods, given the economic basis of competition policy in the area of distribution. They position themselves on some of the issues at the heart of the reflections on the ongoing reform of the BER and the Guidelines on Vertical Agreements and thus consider that the distinction between active and passive selling no longer makes sense on the Internet and that the limitation of "pure players" but also of sales on the Internet is necessary and legitimate for suppliers of luxury goods.

The main interest of this paper is the debate it generates and the response article that follows it. In Comments on the CRA paper entitled "An economic analysis of the use of selective distribution by luxury goods suppliers" (p. 227), S.K. Obe, H. Melin & S. Schropp present an opposing view, both on the objectives of vertical restraints and on the benefits that consumers can derive from them. Therefore, their conclusions and suggestions are different and more cautious than those set out above.

Taken together, these two articles offer a diversified approach to the arguments currently put forward by various stakeholders in the reflection on the ongoing reform of Community texts.

They will be usefully complemented by The Future of the Block Exemption Regulation and Online Distribution: Who still cares about vertical restraints? What is the role of the European Commission, A. Gurin (RLC 2009/19, n° 1380, p. 112), an article in which the author clearly presents, on Internet-related issues, the background and data of the various debates that the Commission will have to decide between now and the adoption of the future texts.

On the basis of all these elements, each one will then forge his or her own conviction...

Chronicle Distribution Law D. Mainguy, D. Mainguy, J.-L. Respaud and S. Destours (JCP éd. E, n° 19, 7 May 2009, Études, 1479, p. 24).

Chronicle Distribution Law , S. Lebreton-Derrien (RJ com 0, p. 0)

Distribution Chronicle M. Malaurie-Vignal and N. Mathey (Contracts, conc., consom May 2009, comm. 126-132, p. 24; June 2009, comm. 160-165)

3. Abuse of dominance

The practice of "tariff scissors" before the Court of Cassation: bis repetita! M. Chagny, M. Chagny (Comm. com. électr., June 2009, comm. 55)

Muriel Chagny reviews the recent case law on margin squeeze and clarifies the position of the Court of Cassation in the recent ruling of 3 March 2009 on the telecoms sector. Indeed, the author recalls that a margin squeeze practice can be condemned on the basis of the anti-competitive object or effect but above all that the indispensable nature of access to the upstream market does not necessarily have to be reported if it is shown that operators located on the downstream market are inevitably condemned to make losses. The condition of indispensability of access to the upstream market is therefore not an absolute condition .

Mandatory contracting remedies in the American and European Microsoft cases , W. H. Page (Antitrust Law Journal, 2009, Vol. 75, Issue 3, p. 787)

Almost all of this issue of the Antitrust Law Journal is devoted to a symposium entitled "The end of the Microsoft antitrust case? ». On this historical legal saga in both the United States and Europe, the authors of the twelve papers presented (most of which deal with the question of remedies) attempt to analyse the consequences (see, for example, Six years later: the impact of the evolution of the IT ecosystem, M. Iansiti & G. Richards, p. 705) and draw lessons (see, for example, Section 2 remedies and U.S. v. Microsoft: what is to be learned? R. B. Hesse, p. 847), sometimes very critical (see e.g. the article by C. Shapiro, with a very explicit title, Microsoft: a remedial failure, p. 739).

See also, for an article focusing on the substantive analysis carried out by the CFI (and in particular on the "test" used), The Microsoft judgment and its implications for competition policy towards dominant firms in Europe, C. Ahlborn & D. S. Evans (p. 887).

An institutionalist explanation of joint dominance M. Vatiero (World Competition, 2009, Vol. 32, Issue 2, p. 221).

Abuse of regulatory procedures - the AstraZeneca case F. Murphy & F. Liberatore (Part 1: ECLR, May 2009, Vol. 30, Issue 5, p. 223); F. Murphy (Part 2: ECLR, June 2009, Vol. 30, Issue 6, p. 289; Part 3: ECLR, July 2009, Vol. 30, Issue 7, p. 314)

Are excessive prices really self-correcting? , A. Ezrachi & D. Gilo (Journal of Competition Law and Economics, 2009, Vol. 5, Issue 2, p. 249).

Television by ADSL: yes to the Orange football exclusivity D. Roskis (JCP ed. E, No. 25, 18 June 2009, News 299, p. 5).

See also, Carton rouge aux opposants à Orange foot, P. Stoffel-Munck (Les Echos, 26-27 June 2009, p. 15), as well as Exclusivités audiovisuelles et communications électroniques : autour d’une récente décision du Tribunal de commerce de Paris du 23 février 2009, F. Fontaine and A. Fontaine. Veron Lefebvre (Revue Lamy, droit de l’immatériel, March 2009, n°47, p. 33)

The right amount of competition in parallel trade in pharmaceuticals G. Zambrano, G. Zambrano (JCP ed. E, No. 24, 11 June 2009, Studies, 1593, p. 28).

New litigation episode in the press distribution sector Mr. Chagny (Elect. Com. Comm., May 2009, Comm. 45)

United States - Rejection of the margin squeeze theory by the Supreme Court (note ss. Supreme Court, Feb. 25, 2009, Pacific Bell Telephone Co. v. LinkLine Communications Inc) L. Donnedieu de Vabres-Tranié (RLC 2009/19, No. 1376, p. 100).

Predatory pricing in a non-dominant market and abuse of dominant position: difficult links to forge V. Lefebvre-Dutilleul, P. Mottier and O. Ramos Garcia (RLDA May 2009, No. 2304, p. 41).

4. Restrictive practices

Late payment penalties for non-payment of invoices D. Mainguy, D. Mainguy (JCP ed. E, No. 22, 28 May 2009, 1543, p. 24).

Is the reform of trade relations by the EML compatible with the VAT Directive? N. Valluis, V. Delannoy and F. Manin (JCP éd. E, n° 12, 19 March 2009, 1304, p. 46).

Does the repercussion of a drop in activity on suppliers and subcontractors constitute a partial break in established commercial relations? L.-M. Augagneur, L.-M. Augagneur (JCP éd. E, No. 18, 30 Apr. 2009, 1446, p. 32).

Time-of-Payment Reform - Instructions for Practitioners A. Garnier and C. Baudoin (JCP éd. E, No. 18, 30 Apr. 2009, 1445, p. 29)

Prohibited competition - unfair competition and free riding (January 2008 - April 2009) Centre de droit de la concurrence Yves Serra (D. 2009, No. 21, Panorama, p. 1441).

5. Concentrations

Merger control in times of crisis - Business as usual? T. Oster (Cah. dr.entr., No. 3, May-June 2009, 17, p. 31).

Why we need to measure the effect of merger policy and how to do it D. Carlton (Competition Policy International, Vol. 5, Issue 1).

Analysis and Limitations of Retrospective Concentration Assessment P. Bougette (RIDE, 2/2009, p. 159).

The revised merger remedies notice - Some comments W. Berg & R. Lipstein (ECLR, June 2009, Vol. 30, Issue 6, p. 281).

See also, The European Commission’s revised remedies notice - the trustee’s perspective, M. de Valois Turk (ECLR, July 2009, Vol. 30, Issue 7, p. 332).

6. State aid

State aid and audiovisual: no aid without public resources D. Roskis and C.-M. Dorémus (JCP éd. E, No. 18, 30 Apr. 2009, News 208, p. 3).

State aid chronicle (1 January - 31 December 2008) M. Dony (JDE, May 2009, No. 159, p. 137).

Adapting State aid discipline to the current economic and financial crisis M. Bazex (D. Adm., June 2009, No. 6)

See also on the same subject, State aid control in times of crisis - The art of being constant, V. Kostrzewski-Pugnat and A.-C. Jeux (Cah. dr.entr., No. 3, May-June 2009, 18, p. 37).

Chronicle of public aid 2008 T. Fouquet (RMCUE, May 2009, No. 528, p. 326).

7. Public sector and competition

The impact of competition rules on the organisation of public undertakings M. Bazex (D. Adm., No. 25, May 2009)

Explaining the content of the Solaire Direct decision under the terms of which the French Competition Authority ordered EDF, as a precautionary measure, to cease all communication of commercial data resulting from its activity of exclusive sale of electricity at the regulated tariff to its subsidiaries active on competing markets, but also to cease all reference in its communication to the activity of its competing subsidiaries, Michel Bazex finally criticized the role and competence of the Authority. Indeed, he considers that such measures of a structural and structuring nature in terms of organisation for public undertakings should fall within the competence of the administrative authorities or sectoral regulators, but not within the competence of the competition authority which, except in matters of concentration, generally adopts measures of a behavioural nature. Regardless, however, of the authority in charge of these issues, competition law does have a definite and considerable impact on the organisation and operation of former public operators.

See also, La diversification des entreprises publiques et le jeu de la concurrence par les mérites, A. Bourdu and V. Bourdu. Varlamoff (Contracts, conc., consom May 2009, Focus, 30, p. 3).

News on competition law and regulation L. Richer, P.-A. Jeanneney, P.-A. Jeanneney and S. Nicinski (AJDA, March 23, 2009, Studies, p. 521).

Competition Chronicle: economic interventions by public bodies M. Bazex, F. Rolin & P. Subra de Bieusses (Contrats, conc., consom. mai 2009, chron., 3, p. 16).

The impact of taking account of competition requirements in the rules governing the organisation and operation of public services M. Bazex and S. Blazy (D. Adm. Apr. 2009, No. 4)

8. Procedures

8.1. General

Competition law proceedings before the European Commission and the right to a fair trial: no need for reform? D. Slater, S. Thomas & D. Waelbroeck (European Competition Journal, Vol. 5, Issue 1, p. 97).

European Commission interventions as Amicus Curiae in national competition cases: the preliminary reference in X BV K. Wright (ECLR, July 2009, Vol. 30, Issue 7, p. 309).

Institutional aspects of European Commission guidance in the area of antitrust law B. Smulders (Competition Policy International, Vol. 5, Issue 1).

The Competition Authority’s Hearing Officer: the end and the beginning of a suspense M. Dany and M. Le Moullec (RLDA June 2009, No. 2359, p. 37).

Protection of Business Secrecy - New version , B. Cheynel (RLC 2009/19, No. 1363, p. 79).

Loyalty of evidence in competition matters: resistance of the Paris Court (note ss. Paris, 1re ch. H, 29 Apr. 2009, Philips France) É. Chevrier (D. 2009, No. 20, p. 1352).

Dismissal of the action for compensation in the Airtours/First Choice case: did the Tribunal evade the issue? Mr. Thill-Tayara and J.-C. Bermond (RDAI/IBLJ, 1/2009, p. 65).

Independence and interdependence of courts and competition authorities (comparative law elements) S. Pietrini (Petites affiches, 27 March 2009, No. 62, p. 13).

8.2. Sanction Policy - Clemency - Settlement - Undertakings

Sanctionning cartel activity: let the punishment fit the crime G. J. Werden (European Competition Journal, Vol. 5, Issue 1, p. 19).

If only two ideas were to be retained from this dense and well-documented article, the first would be that cartels must be apprehended as serious crimes of property crime, such as theft or burglary. The second would be that, for the purposes of deterrence, substantial sanctions are necessary and cannot be limited to fines but must also concern natural persons...

See also, in the same issue and on a related theme, The case for a primary punishment rationale in EC anti-cartel enforcement, D. R. Little (p. 37).

Prohibition of cartels and abuses of dominant position - What sanction policy in times of crisis? O. de Juvigny and L. Faivre (Cah. dr.entr., n° 3, May-June 2009, 16, p. 24).

Does the European Commission provide parties with a proper opportunity to be heard on the level of fines? , S. Wisking (GCP, the online magazine for global competition policy, June 2009, Release 2)

V. also, in the same issue, three articles relating to the penalty imposed in the Intel case, in particular Headline-grabbing Intel fine hides Article 82 EC enforcement concerns, H. Pearson

The commitments procedure: state of play after the procedural communiqué of 2 March 2009 S. Grandvuillemin, S. Grandvuillemin (JCP ed. E, No. 22, 28 May 2009, 1542, p. 16).

Chronicle European Business Law (Community settlement procedure) G. Jazottes (RTD com. Jan-March 2009, p. 230).

9. Regulations

Contribution to the determination of the legal regime of regulation M. Bazex and S. Blazy (D. Adm. No. 6, June 2009, p. 40).

Commenting on the opinion of the Competition Authority on the wholesale market for audiovisual broadcasting services, the authors return to the role played by both sectoral and competitive regulation as a means of intervention by the public authorities in the economy, particularly when a market imperfection is found to exist as a result of an operator having significant market power. It is therefore interesting to note that the competition authority recommends that ex ante regulation be maintained when three criteria are met: (i) the existence of high and lasting barriers, (ii) the absence of evolution towards a situation of effective competition, and finally, (iii) the inadequacy of competition law to remedy the problems identified.

The situation of French airports after the 2004 and 2005 reforms , S. Braconnier et M. Juan (RJEP, n° 663, Apr. 2009, p. 3)

Unbundling through the back door... the case of network divestiture as a remedy in the energy sector , H. Von Rosenberg (ECLR. May 2009, Vol. 30, Issue 5, p. 237)

See also Liberalisation of the EU electricity market: Enough to power real progress? Analysis of ownership unbundling and the project for liberalization of the European Union electricity market, S. Manoussakis (World Competition, Vol. 32, Issue 2, p. 227).

10. International policy

Competition Policy Chronicle , N. Jalabert-Doury, L. Nouvel, D. Le Marec, P. Le More & A. Tercinet (RDAI/IBLJ, 5/2008, p. 655)

This column is devoted to the analysis of international competition law news. As usual, issue 6/2008 covers the latest developments in EU and national competition law, as well as international developments in the field. At the Community level, it deals in particular with the Commission’s annual report, the Commission’s private action for damages, the judgments of the CFI of 8 July 2008 on the organic peroxides cartel, Sony BMG of the ECJ of 10 July 2008 and Chronopost of the ECJ of 1 July 2008. An item is also devoted to national news with the Civil Justice Council’s report on class actions in the United Kingdom, the decision of the Hague Court of Appeal on the criminalisation of cartels and the LME in France. At the international level, the first decisions of the new Pakistani competition authority, the new merger control thresholds in China, the US presidential candidate programme, the pass-on defense in California, the OECD report on Ukraine and the Chile/Australia free trade agreement are discussed. All these comments and many more are available online on the journal’s website at http://www.iblj.com/fr-0-10/afarticle-1/62008779-795/politiques_de_concurrence.html.

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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.