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1. General - Scope of application
The status quo is not an option, G. Niels, F. Barnes, J. Kavanagh (Competition Law Insight, Vol. 10 (2011), Issue 7, p. 3)
Many professions in the financial sector have been in the hot seat lately. This is the case of the audit sector in the UK. The article recalls the harsh conclusions of various reports that have examined this sector since 2006, which have notably pointed out the role of audit firms in the financial crisis. It presents the solutions, notably in terms of structural remedies mentioned by the Commission in its 2010 report, while recognising the complexity of the task in view of the auditors’ missions.
Network Neutrality: A Competition Angle, F. Maier-Rigaud (CPI Antitrust Chronicle, Vol. 8, No. 2)
The article addresses from a competition law perspective the much debated issue of "net neutrality" (i.e. ensuring that information flows are treated in the same way on the Internet without organising priority according to their source or content). He recalled the conclusions of OECD work on this subject: as long as consumers and innovation are protected, Internet service providers ("ISPs") can organise the priorities they wish; the lack of market power of vertically integrated ISPs must be guaranteed; switching costs must be reduced; regulation must be articulated with ex-post interventions by competition authorities.
Credit Rating Agencies and Competition Law, N. Petit and N. Neyrinck (CPI Antitrust Chronicle, Vol. 8, No. 2)
This article examines the possibilities for intervention under European competition law against CRAs. It provides an overview of the credit rating industry and argues that there are economic grounds for intervening against CRAs on the basis of antitrust prohibition or abuse of individual or collective dominant position (while retaining a bold theory for some abuses). An interesting prospective work, proposing, turnkey, a theory of harm.
Adversarial Economics in Antitrust Litigation: Losing Academic Consensus in the Battle of the Experts. R. Haw (Northwestern University Law Review, available on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1852832)
The article notes that the use of economic expertise in litigation tends to obscure the theoretical consensus among economists. In the context of litigation, marginal disagreements may appear to be more important than they really are, while issues that are not debated may appear to be totally blocked. In the United States, the Supreme Court has encouraged the delegation of some antitrust reasoning to economists. When judges are confronted with a dispute between experts, they must either rule themselves on the economic grounds or ask jurors to resolve the dispute as a question of fact. Both of these practices remove much of the advantage of resorting to experts. The article examines several reforms that would make expert testimony less adversarial and assesses their ability to better reveal the true distribution of expert opinion on an economic issue.
QPC, competition authorities, economic and financial regulatory authorities: institutional perspectives, M.-A. Frison-Roche (Petites affiches, 29 Sept. 2011, No. 194, p. 25)
News on competition law and anticompetitive practices: corporate groups in anticompetitive practices law, V. Pironon (Petites affiches, 6 Oct. 2011, No. 199, p. 3)
French participation in the European Competition Network after the EML: an untimely divergence? C. Barreau (Contrats, conc., consom., n° 10, oct. 2011, Study 13)
Divergent approaches to competition between, essentially, the US Supreme Court and the Court of Justice of the European Union, C. Mosséri-Marlio (RUE, No. 548, May 2011, p. 302).
Urban commercial planning and competition law , M. Malaurie-Vignal and F. Riem (JCP éd. E, n° 34, 25 August 2011, 1579, p. 26)
How to articulate law and economics in competition law enforcement , G. Muizon and O. Muizon, eds. Freget (RLC, 2011/27, No. 1829, p. 98).
Game and Law , V. Da Silva (JCP ed. G, No. 39, Sept. 26, 2011, 1029, p. 1714)
Activity of the Court of Cassation in competition law (April to June 2011), P. Arhel (Petites affiches, 24 August 2011, No. 168, p. 6)
Activity of the Community Courts in competition law (March 2011) (April to May 2011) (June 2011), P. Arhel (Petites affiches, 4 Jul. 2011, No 131, p. 5; Petites affiches, 18 Jul. 2011, No 141, p. 6; Petites affiches, 17 Aug. 2011, No 163, p. 7)
Chronique Concurrence, L. Idot (Europe, June 2011, comm. 225 to 226, p. 26; Jul. 2011, comm. 258 to 263, p. 26; Aug. 2011, comm. 308 to 314; Oct. 2011, comm. 356 to 361)
Chronique Concurrence, M. Bazex, D. Bosco, G. Decocq, and C. Prébissy-schnall (Contracts, conc., consom., Jul. 2011, comm. 169 to 174; Aug. 2011 comm. 193 to 200; Oct. 2011, comm. 216 to 222)
Chronique de droit économique, C. Mathonnière (RLDA, June 2011, 61, n° 3490 to 3505, p. 41; Jul. 2011, 62, n° 3549 to 3557, p. 57)
Chronique Concurrence, (RJDA, No. 7, Jul. 2011, p. 612; No. 8-9, Aug.-Sep. 2011, p. 691; Oct. 2011, p. 784)
Chronique droit de la concurrence, J. Philippe and M. Trabucchi (Gaz. Pal., 17 Sept. 2011, No. 260, p. 15)
Chronique annuelle 2010 de jurisprudence de la Cour de justice de l’Union européenne, F. Donnat (RJEP, n° 688, Jul. 2011, p. 3)
The European Commission’s CDS Investigations: How to Balance Stability and Competition in the Financial Sector? B. Lebrun and T. Balthazar (CPI Antitrust Chronicle, Vol. 9, No. 2).
The relevant market: an acceptable limit to competition analysis? C. TOWNLEY (European Competition Law Review, Vol. 32, Issue 10, p. 490).
Buyer power in antitrust investigations: a review, A. Pera and V. Bonfitto (European Competition Law Review, Vol. 32, Issue 8, pp. 414-425).
Too Big to Exist, B. Orbach and G. Campbell (Arizona Legal Studies, May 2011)
Joint venture analysis after American Needle, A. Devlin and M. Jacobs (Journal of Competition Law and Economics, Vol. 7, Issue (3) p. 543)
The role of private labels in antitrust, C. Doyle and R. Murgatroyd (Journal of Competition Law and Economics, Vol. 7, Issue (3), p. 631)
Is Multimedia Convergence to be Welcomed? J. Thanassoulis (Journal of Industrial Economics, vol. 59, 2, pp. 225-253, 2011)
Visa and the General Court, A. Luke and M. Jephcott (Competition Law Insight Vol. 10 (2011), Issue 7, p. 13)
Design and Implementation of Screens and Their Use by Defendants, R. Abrantes-Metz (CPI Antitrust Chronicle, Vol. 9, No. 2)
V. also, on the same theme in the same issue of this journal, U. Laitenberger and K. Hüschelrath, The Adoption of Screening Tools by Competition Authorities (CPI Antitrust Chronicle, Vol. 9, No. 2) and, in an earlier issue, R. Abrantes-Metz, Libor Litigation and the Role of Screening: The Need for Enhanced Compliance Programs (CPI Antitrust Chronicle, Vol. 7, No. 2).
Cartel Detection and Duration Worldwide, J. M. Connor (CPI Antitrust Chronicle, Vol. 9, No. 2)
How to Catch a Thief - Corporate Leniency and The Irrepressible Challenge Of Cartel Detection - Finding A Better Way, G. Schnell and A. Dumas-Emard (CPI Antitrust Chronicle, Vol. 9, No. 2)
The article, which incidentally recalls the historical origin of the word cartel, starts from the observation of the relative ineffectiveness of an anti-cartel policy now based mainly on leniency, despite the increase in the number and amount of sanctions. He notes in particular its lack of ethics (is it fair to treat two companies that have committed the same anti-competitive practice differently?) and the risk of contradiction with private actions. He pleads for the development of whistleblowing and private actions.
Indirect Information Exchange: The Constituent Elements of Hub and Spoke Collusion, O. Odudu (European Competition Journal, Vol. 7, No. 2, p. 205).
The Object Box: Law, Policy or Myth? S. King (European Competition Journal, Vol. 7, No. 2, p. 269).
From Mobile Phones to Cattle: How the Court of Justice is Reframing Approach to Article 101 of the EU Treaty, A. Andreangeli (World Competition, Vol. 34, Issue 2, p. 215).
In a commentary on the Irish beef case, the article returns to the concepts of object and effect and asks whether the case law should replace the opposition between object and effect with a gradation of practices according to their seriousness.
Bid rigging in the EU public procurement markets: some history and developments, M. Maci (European Competition Law Review, Vol. 32, Issue 8, pp. 406-413).
Chronicle Distribution and protection of the competitor, M. Malaurie-Vignal and N. Mathey (Contracts, conc., consom., Jul. 2011 comm. 156 to 168; Aug. 2011 comm. 187 to 192; Oct. 2011 comm. 211 to 215)
3. Abuse of dominance
Antitrust in High-Tech Industries, R. W. Crandall and C.L. Jackson (Review of Industrial Organization, Vol. 38, 4, pp. 319-362, 2011).
This article examines three major cases of abuse of dominance proceedings in the United States in the computer and telecommunications sectors: IBM, AT&T and Microsoft. Crandall and Jackson’s central argument is that government-imposed structural remedies have had little benefit to consumers. One of the reasons is the inability of competition authorities to anticipate developments in these inherently very dynamic sectors. For example, the complaint against IBM was dropped after 13 years of proceedings, as it was no longer justified in the light of market developments. Conversely, the government had a resounding success against AT&T by imposing its dismantling. The authors show, however, that the pro-competitive evolution of the US telecom sector is not the consequence of this radical decision. Finally, the competitive pressure on Microsoft is mainly due to the innovation of its competitors and not to certain remedies imposed by the government. The authors conclude that it is difficult to implement effective remedies in these sectors. They point out, however, that in each case interconnection restrictions are often at the heart of abuses of industry dominance and that by addressing these issues in the AT&T and Microsoft cases, the government remedies have had pro-competitive effects. Conversely, remedies acting on corporate structure, although easier to monitor, do not appear to have beneficial consequences.
Les stratégies de ciseau tarifaire : analyse économique et mise en perspective des pratiques décisionnelles européenne et américaine, F. Marty (RLC, 2011/27, n° 1832, p. 107)
In the EU the Court of Justice Rules (Again) on Margin Squeeze, J. Ruiz-Calzado (ICC Antitrust Chronicle, Vol. 7, No. 1)
When are excessive prices unfair? P. Akman, (Journal of Competition Law and Economics, Vol. 7, Issue (3), p. 403).
AstraZeneca’s Abuse of IPR-Related Procedures: A Hypothesis of Antitrust Offence, Abuse of Rights and IPR Misuse, M. Maggiolino and M. L. Montagnani (Wolrd Competition, Vol. 34, Issue 2, p. 245).
4. Restrictive practices
Disclosure standards for vertical contracts, A. Arya and B. Mittendorf (RAND Journal of Economics, vol. 42, 3, (2011), p. 595-617)
This article analyses the consequences of revealing the terms of contracts between suppliers and distributors. The disclosure of information is often considered beneficial for the consumer because it intensifies competition between companies. The authors study this problem within the framework of a theoretical model whose intuitions are clearly shown through an example. When each distributor is tied to a separate supplier (e.g. in the case of franchises), the latter seeks to intensify competition on the downstream market to increase its market share. Making prices public intensifies this effect, to the benefit of consumers and businesses. Conversely, where a single supplier sells its products to all distributors, its aim is to reduce downstream competition in order to avoid a damaging price war between its retailers. In this case, public prices help the supplier to increase its prices by offering a price monitoring tool to its distributors, while confidentiality makes this exercise more difficult. Thus, disclosure of the terms of a vertical contract does not necessarily have beneficial effects for consumers. The interest of the article is to underline that the structure of the market, and in particular of the upstream market, has a direct impact on the benefits to be expected.
Incentives for input foreclosure, R. Inderst and T. Valletti (European Economic Review, Vol. 55 (2011), 820-831).
The European Commission’s guidelines indicate that the likelihood of foreclosure in a vertical merger is higher where upstream margins are low and downstream margins are high. Inderst and Valletti show that while this reasoning is intuitive, it can be wrong. They point out that there is no direct relationship between margin levels and foreclosure incentives and that it is necessary to look at the causes of the upstream and downstream margin levels in order to draw conclusions. For example, a highly competitive downstream market, thus with low margins, may increase the incentives for foreclosure since it will provide a decisive advantage against the vertically integrated firm’s downstream competitors. Moreover, the increase in the entrants’ price has more impact on the final price of the good when competition is intense since non-integrated distributors cannot reduce their margins in order to limit the increase in the final price. These two effects do lead to the conclusion that lower downstream margins strengthen the incentives to foreclose, and not the other way round. The article therefore offers a healthy warning against jumping to hasty conclusions based on too superficial a reading of the guidelines.
The Effect of Most-Favored Customer Clauses on Prices, J. Chen and Q. Liu (Journal of Industrial Economics 59 (3): 343-71).
CFMs are generally considered anti-competitive because they tend to set prices at high levels. They can also be a means for companies to implement a price cartel. This article empirically assesses the effects of a CFC implemented by Best Buy, a major seller of electronic equipment in the United States. Contrary to theoretical predictions, the authors find that the prices of Best Buy and its competitors have fallen following the introduction of the CBM. The interest of the article lies in its originality, since empirical studies on CFCs are rare, and in its conclusions on the pricing policies applied by firms.
Vertical Mergers, Foreclosure and Raising Rivals’ Costs -Experimental Evidence, H.-T. Normann (Journal of Industrial Economics, Vol. 59, 3, (2011), pp. 506-527)
Economics provides a foundation for foreclosure theories while cautioning that the probability of observing foreclosure in practice is low. Indeed, a supplier that is integrated with one distributor will in most cases have an incentive not to stop supplying other distributors rather than leave that market to other suppliers. The key problem is the inability of the integrated supplier not to give in to such a temptation, even though it might ex ante have wanted to foreclose. The author of this article uses experimental economics, which bases its conclusions on observing behaviour in an economic game, to observe whether foreclosure is implemented in practice. His results show that markets where firms are integrated are characterized by higher prices. He thus establishes the existence of foreclosure, but in a broad sense, since the supplier does not stop serving non-integrated distributors. In addition to providing empirical results on a controversial issue in competition economics, the article provides an opportunity to learn about experimental economics, whose methods are increasingly being applied to competition economics.
Antitrust and Vertical Integration in "New Economy" Industries with Application to Broadband Access, B.M. Owen (Review of Industrial Organization, vol. 38, pp. 363-386, 2011).
Can the Constitutional Council really decide without worrying about the appropriateness (regarding the decision of the Constitutional Council of 13 January 2011 on the significant imbalance), Mr. Behar-Touchais (RLC, 2011/27, n° 1795, p. 41).
From constitutional case law on restrictive practices to the directive on payment periods: two conceptions of abuse, L.-M. Augagneur (JCP éd. E, n° 30-33, 28 Jul. 2011, 1555, p. 25)
Flexibility or rigour in the provision of services under Article L. 441-7 of the French Commercial Code? Un enjeu à risque différés à l’heure de l’arrêt des relations commerciales, J.-M. Vertut (RLDA, June 2011, 61, n° 3489, p. 35)
Litigation under Article L. 442-6 of the Commercial Code: a first assessment, D. Le Goff (Petites affiches, 6 Oct. 2011, No. 199, p. 8)
Assessment of the significant imbalance within the meaning of Article L. 442-6, I, 2°, of the French Commercial Code, G. Chantepie (JCP éd. E, n° 40, 6 Oct. 2011, 1701, p. 19)
Significant imbalance or a significant infringement of contractual freedom? M.-V. Jeannin, M.-V. Jeannin (Petites affiches, 6 Oct. 2011, No. 199, p. 15).
Compensation for the abrupt termination of established business relations, E. Schulte and E. Schulte. Le Morhedec (JCP éd. E, No. 37, Sept. 15, 2011, Échos de la pratique, 466, p. 5).
Special Issue: The 2010 Horizontal Merger Guidelines, (Review of Industrial Organization, vol. 39, 1-2, 2011)
The Review of Industrial Organization devotes its August issue to the 2010 U.S. merger guidelines. Many contributions on the subject will be read with interest. Choosing Among Tools for Assessing Unilateral Merger Effects, G.J. Werden and L.M. Froeb (European Competition Journal, vol. 7, 2, (2011), 155-178).
Werden and Froeb put into perspective the recent debate on the estimation of unilateral effects in mergers and in particular on the use of the UPP index. They thus clarify the issues at stake and discuss the appropriate tools at the different stages of notification.
The failing Firm Defence: Alive and Well, T. D. Fina and V. Mehta (Antitrust Source, Vol. 10, Issue 6)
The article reviews the application of the failing firm theory in U.S. law, recalling its origins (the crisis of the 1930s) and briefly commenting on the two most recent cases Scott & White (2009) and Seahawk (2011).
Omnicare: 7th Circuit Gives Judicial Guidance on Premerger Information Exchange, N. Brumfield, R. Farrington and H. Allen (Antitrust Source, Vol. 10, Issue 5)
While there are virtually no precedents in European law, the article takes stock of the most recent US case law on the exchange of confidential information in the context of mergers.
"China Inc. under Merger Regulation review: the Commission’s approach acquisitions by Chinese public undertakings, O. Stemsrud (European Competition Law Review, vol. 32, Issue 10, p. 481).
The article is devoted to the analysis of mergers involving Chinese state-owned enterprises, which has been addressed in several very recent cases before the Commission. It considers that the Commission applies special treatment to these companies and exercises a form of foreign investment control in this context.
Corporate Restructurings; Debt-for-Equity Swaps: Competition Law Perspectives, P. Palmigiano and J. Sherer (CPI Antitrust Chronicle, Vol. 7, No. 2)
The authors focus on the special case of debt-for-equity swaps, where financial institutions take a stake, sometimes controlling and often for a limited period, in the capital of one of their borrowers when the latter defaults. In view of the characteristics of these operations, the authors question the usefulness of any specific treatment, such as an automatic waiver of the standstill obligation.
The emerging role of open-source software in merger analysis, S. Sher, C. Biggio, R. Shehadeh and J. Lutinski, (European Competition Law Review, Vol. 32, Issue 7, p. 323)
Le régime des opérations de concentration entre opérateurs de réseaux (on the EC judgment, 23 Dec. 2010, sté. Mr Bricolage and Bric’Oléron), M. Bazex (D. Adm., No. 7, Jul. 2011, p. 18)
Le régime des prises de participation des pouvoirs publics dans le secteur privé (concerning the ADLC decision of 25 January 2011 on the takeover by the FSI of a group of companies), M. Bazex (D. Adm., n° 8-9, August-September 2011, p. 45)
In this commentary, the author explains the role attributed by the State to the Fonds Stratégique d’Investissement (FSI), notably as a tool for implementing industrial policies, but above all, he addresses the question of the application of merger control to equity investments made by the FSI. However, it expresses some reservations as to the classification of these investments as State aid.
The application of the Merger Control Regulation, J.-F. Bellis and C. Nassogne (JDE, n° 181, Sept. 2011, p. 210)
Merger Law Chronicle, D. Bosco (Contracts, conc., consom., Jul. 2011, Chron. 2)
Merger Simulation in an Administrative Context, J. Baker (Antitrust Law Journal, Vol. 77, Issue 2, p. 451)
6. State aid
From the "Monti-Kroes" or "post-Altmark" package to the "Almunia" package, L. Idot (Europe, Oct. 2011, Alert 58)
What is a public subsidy? Y. gaudemet (RJEP, No. 689, August 2011, p. 1).
7. Public sector and competition
Competition law and regulation news, S. Nicinski and E. Glaser (AJDA, 2011, p. 18) Nature of the contract concluded between EDF and a photovoltaic electricity producer (concerning the T. confl. judgment of 13 Dec. 2010, Sté. Green Yellow v/ EDF), V. Loy (RJEP, No. 688, Jul. 2011, p. 17).
Loyalty of proof of anti-competitive practices: necessity is not the law, B. Cheynel (RLC, 2011/27, No. 1803, p. 59).
Let’s protect the records of the competition authorities! J. Philippe and M. Trabucchi (Gaz. Pal., 17 Sept. 2011, No. 260, p. 3)
Balancing Efficiency and Justice in EU Competition Law: Elements of Procedural Fairness and their Impact on the Right to a Fair Hearing, J. Flattery (Competition Law Review, Vol. 7 (2011), Issue 1, p. 53).
The Hearing Officer in EU Competition Law Proceedings: Ensuring Full Respect for the Right to be Heard? N. Zingales (Competition Law Review, Vol. 7 (2011), Issue 1, p. 130).
Quimica: further developing the rules on parent company liability, M. Olaerts and C. Cauffman (European Competition Law Review, vol. 32, Issue 9, pp. 431-440)
Breaking the EU Antitrust Enforcement Deadlock: Re-Empowering the Courts? D. Gérard, (European Law Review, Issue 36 (4) p. 457)
The dramatic increase in the level of fines, combined with the increased use of negotiated procedures and the modernisation of the substantive rules, have profoundly changed the implementation of competition law over the last decade. The article argues that such a transformation will only be sustainable if EU courts can fully review appeals against sanction decisions. In particular, the article proposes to increase the powers of the Court of First Instance by giving it full jurisdiction.
A challenge for Europe’s judges: the review of fines in competition cases, I. Forrester (European Law Review, Issue 36 (2) p. 185).
EU Anti-trust Enforcement Powers and Procedural Rights and Guarantees: The Interplay between EU Law, National Law, the Chart of Fundamental Rights of the EU and the European Convention on Human Rights, W. P.J. Wils (World Competition, Vol. 34, Issue 2, p. 190).
8.2. Sanction policy - Clemency - Settlement - Undertakings - Damages actions
Dear transparency... Reflections on the communiqué of the LACL on the method for determining financial penalties, Mr. Cousin (RLDA, July-August 2011, 62, n° 3546, p. 41)
See also, on the same theme in the same issue of the same journal, Mais pourquoi l’Autorité de la concurrence refuse de mobiliser les outils de la théorie économique dans la détermination des sanctions pécuniiaires? G. de Muizon (RLDA, July-August 2011, 62, n° 3547, p. 47); Sanctions for anti-competitive practices: towards greater predictability and transparency? D. Roskis and C.-M. Dorémus (JCP éd. E, n° 29, 21 Jul. 2011, 1538, p. 27); L’avertissement et l’incantation, G. DECOCQ (Contrats, conc., consom., Jul. 2011, repère 7); Communiqué of 16 May 2011 relating to the method for determining monetary penalties (Gaz. Pal., 17 Sept. 2011, n° 260, p. 13)
Cartel Proof, Imputation and Sanctioning in European Competition Law: Reconciling Effective Enforcement and Adequate protection of Procedural Guarantees, A. Scordamaglia (Competition Law Review, Vol. 7 (2011), Issue 1, p. 5).
Antitrust Fines, Seeking Justice, A. Al-Ameen (Competition Law Review, Vol. 7 (2011), Issue 1, p. 83)
Implications of settling an EU cartel investigation for a prospective damages defendant: bad or good? C. Cook (Global Competition Litigation review, Issue 4(2), pp. 57-66).
The article compares the European Commission’s settlement procedure with the "ordinary" procedure to determine the impact of the former on possible litigation (private enforcement). Of the six elements that the authors identify as characteristic of the settlement, they consider that two differences (discussions with the Commission prior to the notification of objections; shorter statement of objections and decision) are favourable to the company being sued by the Commission insofar as they are likely to make compensation litigation more difficult; three are neutral (access to the file earlier in the procedure but more limited than in the ordinary procedure; drafting of a settlement proposal; no hearing) and one is ambiguous (shorter administrative procedure and less likelihood of appeal).
Relationship between Public and Private Enforcement: Quod Dei Deo, Quod Caesaris Caesari, A. Komninos (available on SSRN: http://ssrn.com/abstract=1870723)
The paper by Assimakis Komninos addresses the issue of the status of private actions - private enforcement - in the overall context of competition law enforcement in Europe and its relationship with public enforcement. The author proposes to revisit the different objectives and functions entrusted to competition law enforcement (cessation, reparation, deterrence, punishment) and examines whether, and to what extent, there is room, in view of these objectives and functions, for each of the two modalities of competition law enforcement. It then sets out the principle that private enforcement is independent of public enforcement and focuses on the question of the effect of decisions adopted by competition authorities on private actions and the interaction between private actions and leniency. Finally, the paper examines the role of public bodies in the quantification of competitive harm and the extent to which such a quantification obligation should be imposed on them.
Effective collective redress in antitrust and consumer protection matters: a panacea or a Chimera? D. P. Tzakas (Common Market Law Review, Vol. 48 (2011), Issue 4, pp. 1125-1174).
Recent developments on collective antitrust damages actions in the EU, C. Leskinen (Global Competition Litigation review, Issue 4(3), p. 79).
Will two roads still diverge? Private enforcement of antitrust law is getting harder in the USA. But Europe may be making it easier, A. Foer and E. Schultz, (Global Competition Litigation review, Issue 4(3), p. 107).
The Pfleiderer case, J. Temple Lang (Competition Law Insight, Vol. 10 (2011), Issue 8, p. 3)
Drawing on the consequences of the Pfleiderer ruling of the Court of Justice (14 June 2011), the article argues for a regulation that would provide for the disclosure of documents seized during a dawn raid but would exclude the disclosure of documents drawn up in the framework of a leniency procedure.
Criminalisation of EU Competition Law Enforcement - A possibility After Lisbon? G. Hakopian (Competition Law Review, Vol. 7 (2011), Issue 1, p. 158)
Discovery revisited - the impact of the US discovery rules on the European Commission’s leniency programm, A. Petrasincu (European Competition Law Review, Vol. 32, Issue 7, pp. 356-368)
The article re-examines the question of compatibility between the European leniency procedure and the US discovery procedure. After recalling that the "discovery" procedure, which may lead to the disclosure, in the context of US leniency proceedings, of documents submitted to the Commission by a leniency applicant, is often presented as a threat to the very mechanism of leniency in the EU, the article considers that such a threat, which cannot be completely ruled out, is however overestimated in view of the restrictive case law of the Supreme Court. However, reviewing the various possible applications for "discovery", the article concludes that there is no absolute protection against the "discovery" of a leniency application. In this respect, the article states that the practice of oral corporate statements, which is nowadays highly developed, does not guarantee that there is no risk of "discovery" on the leniency application. It calls for this issue to be the subject of a bilateral (EU-US) agreement to limit the risk of discovery.
The civil litigation of anti-competitive practices: what’s new on compensation for damages? (about the judgment of the T. com. Paris of 30 March 2011, SAS Numéricable and a. c/ SA France Télécom Orange), M. Chagny (Comm., com. électr., Sept. 2011, No. 9, comm. 76)
The author comments on one of the few decisions in France relating to compensation for victims of anti-competitive practices. The Commercial Court of Paris had been seized by the company Numéricable against France Télécom Orange’s actions recognized as anti-competitive by the competition authorities. The difficulty of this type of litigation lies, as the author points out, in the identification of the reparable damage and the Court recalls that compensation must be assessed solely in the light of the extent of the damage suffered by the victim and not the seriousness of the fault. It also points out that the determination of fault is different depending on whether civil litigation is preceded by a decision of the European Commission or of the French Competition Authority. Indeed, while by virtue of the principle of primacy, a civil court is required to classify a practice as anti-competitive when the Commission has ruled on it, it is not bound by this classification when the decision is issued by the French authority. Lastly, without criticizing him, the author is surprised at how easy it is for the Court of First Instance to conclude that there must be harm in view of the unfair conduct.
The European law of judicial review in regulatory matters: a decline in the procedural autonomy of the Member States, X. Taton and O. Van Der Haegen (JDE, n° 180, June 2011, p. 157)
Which judge is competent to rule on the liability of the regulatory authorities? (regarding the judgment of the T. confl., 2 May 2011, Sté. Europe finance et industrie v. AMF), G. Eckert (D. Adm., No. 10, Oct. 2011, p. 52)
New organisation of the electricity market: the work of Pénélope, P. Lignières and A. Baisecourt (D. Adm., No. 8-9, August-September 2011, p. 9)
Regulated natural gas sales rates: back to basics, P. Lombart (RJEP, No. 688, Jul. 2011, p. 1)
The hesitant determination of the scope of independence of national regulatory authorities by the European Court of Justice (in relation to the ECJ judgments of 6 Oct. 2010, cases C 222/08 and C-389/08), H. Delzangles (RJEP, No 689, August 2011, p. 40).
10. International policy
Chronique politiques de concurrence, N. Jalabert-Doury, F. Amiel, J.-C. Bermond, J. Fourquet, A. Tercinet & J.-M. Blutel (RDAI/IBLJ, 4/2011, p. 463)
This column is devoted to the analysis of international competition law news. As usual, it covers the latest developments in Community competition law, but also in national laws, not forgetting international developments in the field. Of particular note in issue 1/2011 is Nathalie Jalabert-Doury’s editorial, which takes stock of the latest state of the case law on mother-daughter imputability.
LIST OF JOURNALS REVIEWED
LEGAL NEWS - ADMINISTRATIVE LAW (AJDA)
NEWS FROM THE NETWORK INDUSTRIES IN EUROPE
ADMINISTRATION AND TERRITORIAL COLLECTIVITIES
AMERICAN ECONOMIC REVIEW
AMERICAN LAW AND ECONOMIC REVIEW
(THE) ANTITRUST BULLETIN
ANTITRUST LAW JOURNAL
BERKELEY TECHNOLOGY LAW JOURNAL
NATIONAL ASSEMBLY GAZETTE
RAPID BUSINESS LAW BULLETIN (BRDA)
(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
CORNELL LAW REVIEW
(LES) ECHOS/ ISSUES LES ECHOS
EMORY LAW JOURNAL
(THE) EUROPEAN ANTITRUST REVIEW
EUROPEAN COMPETITION JOURNAL
EUROPEAN COMPETITION LAW REVIEW
EUROPEAN INTELLECTUAL PROPERY REVIEW
EUROPEAN LAW REPORTER
EUROPEAN LAW REVIEW
FORDHAM LAW REVIEW
(THE) PALACE GAZETTE
GLOBAL ANTITRUST WEEKLY
GLOBAL COMPETITION REVIEW
HARVARD LAW REVIEW
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
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
LAMY PUBLIC BUSINESS LAW
(THE) MONITOR (OF PUBLIC WORKS AND BUILDING)
NORTHWESTERN JOURNAL OF INTERNATIONAL LAW AND BUSINESS
OREGON LAW REVIEW
(THE) SMALL POSTERS
RAND JOURNAL OF ECONOMICS
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
LEGAL RESEARCH JOURNAL - PROSPECTIVE LAW
JOURNAL OF CRIMINAL SCIENCE AND COMPARATIVE LAW
EUROPEAN BUSINESS 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
LEGAL WEEK - COMPANY EDITION
LEGAL WEEK - GENERAL EDITION
TEXAS INTERNATIONAL LAW REVIEW
TULANE LAW REVIEW
(THE) NEW PLANT
YALE LAW JOURNAL
YALE JOURNAL OF INTERNAT. LAW