Competition journals: April - June 2013

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1. General - Scope of application

The ambivalence of the aims and technical instruments of competition law > J.-P. CHAZAL, T. PICOT and D. WAKED (Cah. dr. entr., May 2013, n° 3, Interview, p. 0)

Focusing on the ambivalence of the aims and technical instruments of competition law, this round table examines the main purpose sought by competition law. If several purposes, such as price reduction, consumer protection, economic or consumer welfare, market protection or economic progress can be identified, the question arises as to whether these purposes are compatible or contradictory. The authors also return to the issue of environmental constraints and ask, in particular, whether the limited nature of natural resources and the depletion of energy resources should not also be taken into account in competition law. Finally, part of the round table is devoted to developing countries, before taking stock of econometric tests.

Exclusion as a Core Competition Concern > J.B. BAKER (Antitrust Law Journal, 3, pp. 527-589)

Baker argues for placing exclusionary practices back at the centre of competition law enforcement, on the same level as collusive practices. He argues that exclusion has effects that are just as anti-competitive as collusion and that the justifications generally put forward to explain this asymmetry in the treatment of the two practices are unfounded.

Attention Rivalry Among Online Platforms > D.S. EVANS (Journal of Competition Law and Economics, 9, 2, pp. 313-357)

How to evaluate the competition between online sites? Evans shows that it is based on the attention paid by Internet users to these sites. This allows two companies to provide different types of services while competing for the same good: consumer attention. This perspective profoundly changes the analysis of competition in online markets and the article details the consequences.

AFEC Symposium 2013 > M. CHAGNY, N. MATHEY, M. PONSARD, L. VOGEL, J. MUNOZ MOLDES, F. ROSATI, C. CHAMPALAUNE, N. JALABERT-DOURY, V. JAUNET and S. PIETRINI (Contracts, conc., consum. May 2013, File 1-10)

The Essence of Antitrust: Protecting Consumers and Small Suppliers from Anticompetitive Conduct > J. B. KIRKWOOD (Fordham Law Review, Vol. 81, 2013, p. 2425)

The game of competition > G. DECOCQ (Contracts, conc., consum. May 2013, Benchmark 5)

Consumer welfare > M. MALAURIE-VIGNAL (Contracts, conc., consom. June 2013, Benchmark 6)

Welfare standards in US and EU Antitrust Enforcement > R. D. BLAIR and D. D. SOKOL (Fordham Law Review, Vol. 81, 2013, p. 2497)

Judges and the economy, a French mistrust > P. CAHUC and S. CARCILLO (D., 28 March 2013, Interview, no. 12, p. 824)

Activity of the European Union courts in competition law (December 2012) > P. ARHEL (Petites affiches, 20-21 May 2013, No. 100-101, p. 4); (Petites affiches, 22 May 2013, No. 102, p. 6)

Activity of the Paris Court of Appeal in the field of anti-competitive practices (September 2012 to January 2013) > P. ARHEL (Small posters, 8-9-10 May 2013, n°s92-93-94, p. 3)

Competition rules applicable to undertakings >T. FOUQUET, V. GIACOBBO-PEYRONNEL, J. SLADIC and É. VANHAM (JDE, no. 196, Feb. 2013, Chronicles, p. 71).

Competition Chronicle > L. IDOT (Europe, Apr. 2013, comm. 175-179, p. 30; May 2013, comm. 216-221)

Competition Chronicle > D. BOSCO, G. DECOCQ and A. SEE (Contracts, conc., consum. Apr. 2013, comm. 81 to 87; May 2013 comm. 118 to 122; June 2013 comm. 136 to 141)

Economic Law Chronicle > C. MATHONNIERE (RLDA Apr. 2013, 81, Nos. 4543-4546, p. 45; May 2013, 82, Nos. 4582-4586, p. 40)

Chronicle Competition Law > M. BEHAR-TOUCHAIS, L. IDOT and C. PRIETO (RDC 2013/1, Jan. 2013, p. 139)

Competition Chronicle > (RJDA, No. 4, Apr. 2013, p. 332; No. 5, May 2013, p. 421; No. 6, June 2013, p. 502)

Clouds behind the Clouds > A. ORTIZ (World Competition, Vol. 36, Issue 1, p. 61)

Does Retailer Power Lead to Exclusion? > P. REY AND M.D. WHINSTON (RAND Journal of Economics, 44, 1, pp. 75-81)

2. Agreements

2.1. General

Expedia judgment: application of de minimis thresholds by national competition authorities > A. FROMONT (JDE, Jan. 2013, No. 195, P. 13)

Following the Tele2 Polska judgment of the ECJ of 3 May 2011, the Court of Justice clarified in the "Expedia" judgment the status of the de minimis guidelines vis-à-vis national competition authorities (NCAs). Considering that the NCAs are not bound by these guidelines, the author considers that such a position, on the one hand, is logical and, on the other hand, from the point of view of uniformity of law, is not likely to create great disparities while recognizing that legal certainty for companies is, on the other hand, weakened.

See also, "Expedia v. Competition Authority and Others", J. PROBST and F. LÜTZ (RDUE, 4/2012, case law, p. 748).

Competition and private justice (notes ss. CJEU, 7 Feb. 2013, Case C-68/12, Protimonopolný úrad Slovenskej republiky v Slovenská sporiteľňa a.s.) > L. ROBERT (RLDA May 2013, 82, No 4592, p. 58)

E.ON Ruhrgas v. Commission" Judgment > N. TUOMINEN (RDUE, 3/2012, case-law, p. 547)

Hub and Spoke Practices: Law and Economics of the New Antitrust Frontier > G. LUCA ZAMPA and P. BUCCIROSSI (Competition Law International, Vol. 9, No. 1, p. 91)

Vertical price fixing: myths and loose thinking > W. MOESCHEL (European Competition Law Review, Vol. 34, Issue 5, p. 233)

Regulating information exchange in EU- no further restrictions by object but enough room for safe harbours > L. KÄIS (European Competition Law Review, Vol. 34, Issue 7, p. 352)

2.2. Distribution

Distribution networks and internet sales > A. MENDOZA-CAMINADE (JCP ed. E, No. 15, 11 Apr. 2013, 1202, p. 43)

See also, Prohibition of resale on the internet: first round? D. Ferrier (D., 11 Apr. 2013, Études et commentaires, No. 13, p. 887); L’éviction des cybermarchands fera-t-il long feu feu? M. CHAGNY (Comm., Elect. Com. No. 4, Apr. 2013, Comm. 43)

Quantitative selective distribution of motor vehicles: no need for objective and non-discriminatory criteria > A. M. TERCINET (JCP ed. E, No. 13-14, 28 March 2013, 1186, p. 47)

Online sales of medicinal products: the opinion of the Competition Authority > V. PIRONON (Comm, Elect. Com., No. 4, April 2013, Comm. 44)

Competition Authority sanctions a cartel in the entertainment ticketing sector > V. PIRONON (Comm, Elect. Com., May 2013, No. 5, Comm. 56)

Distribution law > D. MAINGUY, J.-L. RESPAUD and S. DESTOURS (JCP éd. E, n° 15, 11 Apr. 2013, 1200, p. 32)

Chronicle Distribution and competitor protection > M. MALAURIE-VIGNAL and N. MATHEY (Contracts, conc., consum. Apr. 2013, comm. 75 to 80; May 2013 comm. 112 to 117; June 2013 comm. 130 to 135)

Empirical Evidence on the Role of Nonlinear Wholesale Pricing and Vertical Restraints on Cost Pass-Through > C. BONNET, P. DUBOIS, S.B. VILLAS BOAS AND D. KLAPPER (Review of Economics and Statistics, 95, 2, pp. 516-529)

The Council of State partially suspends the application of the new regime for the online sale of medicines on the Internet > J.-L. FOURGOUX (RLDA April 2013, 81, No. 4541, p. 41)

3. Abuse of dominance

Coerced Reciprocity and the Leverage Theory > K.T. COATNEY AND S. SHAFFER (Journal of Competition Law and Economics, 9, 2, pp. 473-493)

Market Dominance and Search Quality in the Search Engine Market > I. LIANOS AND E. MOTCHENKOVA (Journal of Competition Law and Economics, 9, 2, pp. 395-418)

New storm warning in mobile telephony > M. CHAGNY (Comm., Elect. Com., No. 5, May 2013, Comm. 55)

An opinion to be followed on the competitive situation of WNVOs . > M. CHAGNY (Comm, Elect. Com., No. 6, June 2013, Comm. 70)

Microsoft condemned by the European Commission for failure to comply with its commitments > V. PIRONON (Comm, electr. com., June 2013, No. 6, comm. 69)

Final curtain or another around on Post Danmark? > C. BERGQVIST (European Competition Law Review, Vol. 34, Issue 6, p. 287)

Article 102 TFEU: How to Claim the Application of Objective Justifications in the Case of prima facie Dominance Abuses? > T. VAN DER VIJER (Journal of European Competition Law and Practice, 2013, Vol. 4, No. 2, p. 121)

4. Restrictive practices

Case law of the European Court of Justice on the interpretation of the Unfair Commercial Practices Directive > L. GONZALEZ-VAQUE (RDUE, 3/2012, Articles, p. 447)

Should we burn the distribution rights? > D. MAINGUY (D. 23 May 2013, Studies and Commentaries, No. 18, p. 1222)

The future of the ban on resale below cost in France in the light of the CJEU decision of 7 March 2013 > A. BERG-MOUSSA (JCP ed. E, No. 21, 23 May 2013, 370, p. 5)

See also, Twenty years later: towards a ban on resale at a loss in France? L. IDOT (Europe, May 2013, No. 5, alert 23); The late ban on resale below cost? L. ARCELIN (Contrats, conc., consom. juin 2013, n° 6, alert 34)

Commercial planning reform in the light of urban planning and competition law > P. LE MORE J.-M. TALAU (Contracts, conc., consom. April 2013, No. 4, study 6)

Change of management of the dealership company and sudden termination of the dealership contract: long live the intuitu personae clause! > F. BUY (JCP éd. E, No. 16, 18 April 2013, 1225, p. 31)

Precariousness of use of the exclusive relationship of the application of Article L. 442-6, I, 5° of the Commercial Code > N. MATHEY (JCP éd. E, n° 20, May 16, 2013, 1278, p. 35)

5. Concentrations

The "affair" of the leaks from the Canal Plus and TPS merger before the Conseil d’État (Conseil d’État) > P. IDOUX (RJEP, April 2013, No. 707, p. 3)

Professor Pascale Idoux comments on the two judgments dated 21 December 2012 of the Council of State in the so-called Canal Plus/TPS case. This article deserves to be read as the author analyses and summarises the procedural lessons learned, particularly with regard to the rights of defence, in merger control before the Competition Authority. It also sheds light on the role and powers of the various parties involved, namely the Minister of the Economy, the Competition Authority and its supervisory authority, the Council of State, in merger control proceedings and the failure to honour commitments made in such proceedings.

The administrative judge’s control over concentration operations in the audiovisual sector > M. BAZEX (D. Adm. No. 4, April 2013, p. 28)

When devolution renders commitments entered into at the time of the concentration unjustified > D. CREVEL-SANDER (RJEP, March 2013, n°706, p.13)

Daniel Crevel-Sander discusses a subject that is relatively little covered in the "competition" literature but which could, in the current context of asset disposals acquired after merger commitments have been entered into, be somewhat topical. It concerns the question of the future of commitments and the powers of companies to have commitments abrogated or modified as a result of the divestiture of assets previously acquired subject to commitments. Indeed, in the event of devolution, the commitments entered into become unjustified and without cause. The author thus comments on two cases relating to EDF acquisitions (EnBW acquired in 2001 and resold 9 years later and Hidrocantabrico acquired in 2002 and resold 2 years later). According to this study and to a most useful experience feedback for any competition lawyer, it can be retained from these two cases that the Commission considers that a devolution does not make its authorisation decision subject to commitments null and void but only gives it a power to adopt a decision to repeal the commitments for the future in view of the change of circumstances. The means at the disposal of undertakings requesting the Commission to revoke a commitment are, in the extreme, a ’failing act’, but this requires a prior request for revocation.

Does Merger Control Work? A Retrospective on U.S. Enforcement Actions and Merger Outcomes > J.E. KWOKA, JR. (Antitrust Law Journal, 3, pp. 619-650)

This paper provides a meta-analysis of horizontal mergers in the United States, focusing in particular on their post-clearance effects. Although based on a limited sample size, it reveals some interesting patterns. It is also part of a trend that underscores the importance of conducting ex post analyses of mergers, an exercise that is too often neglected.

The Odile Jacob judgments of the Court of Justice of 6 November 2012 > U. VON KOPPENFELS (RLC 2013/35, No. 2251, p. 8)

Competition Law in Merger Transactions: Managing and Allocating Risk in the New Normal > R. STEUER, J. SIMAL and J. ROBERTI (Competition Law International, Vol. 9, No. 1, p. 32).

The Converted Missionary: Germany revises its Merger Control Regime > S. HIRSBRUNNER (Competition Law International, Vol. 9, No. 1, p. 67)

Impact Evaluation of Merger Control Decisions > O. BUDZINSKI (European Competition Journal, 9, 1, pp. 199-224)

6. State aid

Annual digest of State aid case law (December 2011 - November 2012) > L. AYACHE and S. GHADDAD (RUE, February 2013, n° 565, p. 102)

Annulment of the judgment of the Court of First Instance in the France Télécom case / Concept of aid and State resources > L. IDOT (Europe, May 2013, No. 5, comment 221

See also, La régulation en matière d’aide d’État, M. Bazex (D. Adm. March 2013, n° 5, p. 47)

Local and regional aid to firms in difficulty > H. GROUD (D. Adm. No. 6, June 2013, p. 12)

7. Public sector and competition

The "in house" still under construction > C. DEVES (Contracts and Public Procurement, April 2013, P. 7)

The author refers to the Econord judgement of the Court of Justice of the European Union and the judgement of the Court of Administrative Appeal of Lyon of November 2012. These two rulings differ in that they give a more restrictive interpretation of the condition of similar control (a condition stemming from the Teckal case law) in the case of joint control held by local authorities that are shareholders in a local public company (LPC), so as not to open up too widely the "in house" exception to the rules of public procurement (in these cases, the municipalities in question held a very minority stake of less than 2% in the LPC). The author analyses here the conditions for the effectiveness of similar control - a deficient condition whose contours are insufficiently specified - and stresses the risks incurred in this respect by the French SPL, since the law of 28 May 2010 does not guarantee such control by each shareholder of the SPL. Finally, the author wonders about the difficulty of reconciling the "in house" exception with competition law, since the SPL may allow a private operator to be entrusted with a public service mission without complying with the rules of public procurement, in particular those relating to advertising and competitive bidding. The question of the questioning of the bases of administrative law by the emergence of LPSs, which is attractive for local authorities but not secure, is even raised.

See also, Contracts between public persons and competition law, as contracts are not subject to the rules on advertising and competitive tendering. G. ECKERT (AJDA, 29 April 2013, No. 15, p. 849); "Econord" judgment: details of the "in house cooperative" exception in public procurement. T. BOMBOIS and C. DUBOIS (JDE, Feb. 2013, n° 196, p. 53); La conception française du service public à l’épreuve du droit de l’Union européenne. C. KALOUDAS (Revue de l’Union européenne, mars 2013, n°566, p. 156)

Rowing the competition in the subway > G. CLAMOUR (RLC 2013/35, No. 2282, p. 61)

8. Procedures

8.1. General

"Hello, professional secrecy... no, but hello what! » > D. PIAU (Gaz. Pal., 4 June 2013, No. 155, p. 10)

In this article, the author proposes an initial commentary on five judgements handed down by the Criminal Chamber of the Court of Cassation on 24 April 2013 concerning the procedure for inspections and seizures carried out by competition authority officials on the basis of article L. 450-4 of the Commercial Code, and more specifically on the practice of global seizure of computerized messaging and the fate that should be reserved for documents relating to the correspondence between the lawyer and his client. Rejecting the solution proposed by the competition authorities consisting in the return by destruction of the documents concerned by the protection of lawyer/client correspondence, the Court states that the principle that "the power granted to the agents of the Competition Authority to seize documents and computer media is limited by the principle of freedom of defence, which requires that the confidentiality of correspondence exchanged between a lawyer and his client and relating to the exercise of the rights of defence be respected". In his paper, the author attempts to assess the scope of these judgments, the analysis of which raises real hopes for companies and their counsel, but is not easy.

Chron. "European Union law - Quasi-repressive proceedings in competition law". > L. IDOT (CHR No. 1-2013, pp. 167-180)

Judicial access of victims of anti-competitive practices to the file of the Competition Authority after Act No. 2012-1270 of 20 November 2012 on overseas economic regulation > M. CHAGNY (D., 11 Apr. 2013, Studies and Comments, No. 13, p. 851)

Competition investigations: the new methods of the European Commission - The rights of defence of companies at risk > M. GINER ASINS (JCP ed. G, No. 23, 3 June 2013, 661, p. 1142)

The Commission’s "blind" investigations: the "Nexans" ruling > J. PROBST & F. LUTZ (RDUE, 1-2013, p.192)

Evidentiary requirements inherent in the procedure for precautionary measures before the Competition Authority > P. DEPREZ and P. BONNET (JCP éd. E, n° 21, 23 May 2013, 1299, p. 25)

Scope of the annulment finding limited participation in a complex infringement: cross-checking the Coppens judgment > G. MUGUET-POULLENNEC and É. BARBIER DE LA SERRE (RLC 2013/35, No. 2293, p. 81).

E.ON Energie AG v. European Commission" judgment > G. LO SCHIAVO (RDUE, 4/2012, case law, p. 753)

How to use the injunction and settlement system for local anti-competitive practices and new rules of the game > T. PICOD and J. BOMBARDIER (RLDA April 2013, 81, No. 4540, p. 36)

The powers of the interim relief judge confronted with the abusive dissolution of a company: highlighting the summary proceedings-competition procedure > M.-C. LASSERRE (Small posters, 8 Apr. 2013, No. 70, p. 6)

Chronicle " Fundamental Rights in the European Union" (in French only) > O. DE SCHUTTER (JDE, n° 198, April 2013, p. 151)

Prevention of antitrust violations: which role for compliance programs? > G. CODACCI PISANELLI (European Competition Law Review, Vol. 34, Issue 5, p. 267)

The lack of justiciability of the Competition Authority’s opinions and recommendations (regarding the judgment handed down by the Conseil d’État on 11 October 2012, No. 357193, Sté Casino Guichard-Perrachon) > P. IDOUX (RJEP, May 2013, No. 19, p. 19)

For a new use of QPCs in competition matters > M. LOMBARD (RJEP, March 2013, Repère, p. 1)

Returning to the obvious failure of QPCs criticizing in various respects the procedure followed by the Competition Authority, the author pauses for a moment on a practice of this authority, which sometimes finds the anti-competitive effects of certain laws. The author thus invites us to take ownership of this practice by renewing the use of the QPC, no longer to limit the powers of the Competition Authority, but to try to extend before the judge the critical findings of this Authority of certain acts of the legislator. However, as the author admits, the task is far from easy, since the conditions for the admissibility of such a QPC are not easy to meet.

8.2. Sanction Policy - Clemency - Settlement - Undertakings - Damages Actions

On the road to group action - Proceedings of the colloquium held on 26 April 2013 at the Maison du Barreau (Paris), > Colloquium organised under the scientific direction of the Institut de Recherche Juridique de la Sorbonne (University of Paris 1 Panthéon-Sorbonne), the Institut Droit éthique et Patrimoine of the University of Paris Sud, the Centre de droit pénal et de criminologie, Axe Justice et procès of the University of Paris Ouest Nanterre La Défense, in partnership with the DGCCRF (Gaz. Pal. 15-16 May 2013, special issue, No. 135-136, pp. 1-55)

See also, Preliminary draft of the "Hamon" law: contributions to competition law, A.-.S. CHONE-GRIMALDI (JCP éd. E, n° 15, 11 Apr. 2013, News, p. 9) ; French class action: lawyers on the side of the road - A draft a minima group action was finally presented by Benoit Hamon (Gaz. Pal. 5-7 May 2013, News, n° 125-127, p. 7) ; For the group action in French law, D. MAINGUY and M. DEPINCE (JCP éd. E, n° 20, May 16, 2013, News, 355, p. 9) ; Open letter to Pierre Moscovici and Benoît Hamon on the project of a French class action, C. LEGUEVAQUES (Petites affiches, 28 May 2013, n° 106, p. 4) ; L’action de groupe à la française, c’est pour bientôt, O. DUFOUR (Petites affiches, 25 Apr. 2013, n° 83, p. 3) ;

Towards a Class Action Regime for Competition Litigation: An Assessment of the Government’s Proposals > C. BROWN and S. CAMPBELL (CPI Antitrust Chronicle, April 2013 (1))

Summary applications for clemency: the beginning of a second era > A. KRENZER (RLC 2013/35, No. 2305, p. 117)

The Hearing Officer: Thirty Years Protecting the Right to Be Heard > B. HOLLES (World Competition, Vol. 36, Issue 1, p. 5)

On the breach by Article L. 464-2, I, paragraph 4, of the Commercial Code of conventional and constitutional standards > B. BOULOC (RLDA April 2013, 81, No. 4553, p. 74)

Microsoft" shutdown > J. PROBST (RDUE, 3/2012, case law, p. 551)

ICI v. Commission" Judgment > M. ABENHAÏM (RDUE, 3/2012, jurisprudence, p. 557)

EU Antitrust Fines and their M&A Implications > J. MODRALL (Competition Law International, Vol. 9, No. 1, p. 47)

9. Regulations

Liberalized Markets" Chronicle >S. DEPRE, E. DE LOPHEM, D. SCHRIJVERS and P. VERNET (JDE, n° 198, April 2013, p. 151)

Bringing Together European Energy Markets: The New Regulation on Guidelines for Trans-European Energy Infrastructure (TNE-E) > S. FISCERAUER (European Energy and Environmental Law Review, April 2013, p. 70)

One year of regulation of the electronic communications market > P. ACHILLEAS AND L. BINET (Communication on Electronic Commerce, May 2013, No. 5, p. 18)

Cancellation of third tariffs for the use of public electricity networks (TURP 3) > F. ALADJIDI (RJEP, March 2013, p. 17)

On 28 November 2012, the Conseil d’État, acting on a referral from Direct Energie, handed down a ruling annulling the tariffs for the use of public electricity distribution networks in force since 1 August 2009, in particular in that they were higher than the weighted average cost. The RJEP publishes here the conclusions of the public rapporteur, which are not without a touch of irony and are certainly critical of the arguments put forward, in particular by the Energy Regulatory Commission.

Price signals and long-term equilibrium: reconsidering forms of organisation on electricity markets > D. FINON, C. DEFEUILLEY AND F. MARTY (Economics and Forecasting, forthcoming)

10. International policy

— 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. Articles and working papers published on the Internet only are also welcome. Authors, editors and publishers are welcome to send their papers to aronzano@ccip.fr for review in this section.

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Alain Ronzano, Bastien Thomas, Emmanuel Frot, Mathilde Brabant, Christelle Adjémian, Competition journals: April - June 2013, September 2013, Concurrences N° 3-2013, Art. N° 53045, p. 217

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