Competition journals : July - Sept. 2013

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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1. General - Scope of application

Antitrust Enforcement and Sectoral Regulation: The Competition Policy Benefits of Concurrent Enforcement In the Communications Sector > J. BAKER (Competition Policy International Journal, 9(1))

Anti-competitive practices and consumer products > D. ROSKIS and C.-M. DOREMUS (Company law. July 2013, No. 4, file 30).

Competition Component of the Consumer Bill > P. ARHEL (Petites affiches, 8 Jul. 2013, n°s135, p. 4)

Competition is not in crisis > O. DUFOUR (Small Posters, July 16, 2013, No. 141, p. 4)

See also, La régulation concurrentielle, B. Lasserre (Les annonces de la Seine., 25 July 2013, No. 46, p. 2).

Activity of the courts of the European Union in competition law (March 2013) (April-May 2013) > P. ARHEL (Petites affiches, 3 Jul. 2013, No. 132, p. 3; Petites affiches, 29 Jul. 2013, No. 150, p. 3)

Competition Chronicle > L. IDOT (Europe, June 2013, comm. 269, p. 29; Jul. 2013, comm. 312-317, p. 38; Aug. 2013, comm. 360-368)

Competition Chronicle > D. BOSCO and G. DECOCQ (Contracts, conc., consum. July 2013, No. 7, comm. 161 to 166; August 2013, No. 8-9, comm. 190 to 194)

Economic Law Chronicle > C. MATHONNIERE (RLDA June. 2013, 83, n° 4633 to 4638, p. 40)

Bi-Annual Competition Law Chronicle > A. LECOURT (RLDA June. 2013, 83, n° 4645, p. 59)

Chronicle Competition Law > M. BEHAR-TOUCHAIS, L. IDOT and C. PRIETO (RDC 2013/2, Apr. 2013, p. 593)

Competition Chronicle > (RJDA, No. 7, July 2013, p. 618).

2012 Annual Chronicle of the case law of the Court of Justice of the European Union > H. CASSAGNABERE (RJEP, n°709, June 2013, chron. 3)

2012 Annual Review of Domestic Competition Law > M. CLAUDEL-PICARD (RJEP, No. 711, August-September 2013, p. 11)

The Application of Competition Law In The Communications and Media Sectors > A. BAVASSO AND D. LONG (Journal of Competition Law and Practice, 2013, Vol. 4, No. 3, p. 264)

Competition Law Issues in the Human Resources Field > G. GÜRKAYNAK, A. GÜNER AND C. ÖZKANLI (Journal of Competition Law and Practice, 2013, Vol. 4, No. 3, p. 201).

Privacy, Antitrust, and Power > F. PASQUALE (Geo. Mason L. Review, 2013, Vol. 20: 4, p. 1009)

The impact of EU competition law on national healthcare systems > W. JUDGE (E.L. Rev. 2013, 38(4) at 457)

Not Enough Girls in the Club:The European Antitrust Approach Towards Multisided Markets > C. AHLBORN AND C. BARTH (CPI Antitrust Chronicle, June 2013(1))

The Application of European Competition Law in the Financial Services Sector > T. FRANCHOO, N. BAETEN AND S. CRANLEY (Journal of Competition Law and Practice, 2013, vol. 4, no. 4, p. 345)

The increased Competition Law Scrutiny of the Food Sector in Europe: the Seminal Example of Germany > J. RIVAS AND J. WITTING (Journal of Competition Law and Practice, 2013, vol. 4, No. 3, p. 242).

Ten Years of Regulation 1/2003 - A Retrospective > WOUTER P.J. WILS (Journal of European Competition Law and Practice, 2013, Vol.4, No.4, p. 293)

2. Agreements

2.1. General

Economics Of Vertical Restraints For Multi-Sided Platforms > D.S. EVANS (Competition Policy International Journal, 9(1))

Vertical restraints can have both pro and anti-competitive effects well identified in the economic literature. However, two-sided markets introduce an additional complexity that this article explores with clarity and precision.

Collusion with Asymmetric Retailers: Evidence from a Gasoline Price-Fixing Case > R. CLARK AND J.-F. HOUDE (American Economic Journal: Microeconomics, 5(3), pp. 97-123)

This article delves into the details of how a gas station cartel works. It shows how, in this type of sector, a cartel can take atypical forms with, in this particular case, asymmetrical price movements between service stations aimed at ensuring the stability of the cartel by favouring its members most likely to deviate from the cartel prices.

Vertical Control and Price Cycles in Gasoline Retailing > Ø. FOROS AND F. STEEN (The Scandinavian Journal of Economics, 115(3), pp. 640-661)

Bid Rigging In Public Procurement Of Generic Drugs In Mexico City > E. ESTRADA ET AL. VAZQUEZ (Competition Policy International Journal, 9(1))

Making Friends with Your Neighbors? Agglomeration and Tacit Collusion in The Lodging Industry > L. GAN AND M.A. HERNANDEZ (Review of Economics and Statistics, 95(3), pp. 1002-1017)

Application of European Union competition law by a national authority: restriction of competition by object and sensitivity threshold (note ss. CJEU, 2nd c., Dec. 13, 2012, Expedia Inc. v. Competition Authority) > C. MARECHAL (JCP ed. E, No. 2, 10 Jan. 2013, 1020, p. 36)

See also, Chronique Droit de la concurrence, G. DECOCQ (Rev. jurispr. com. Jan/Feb 2013, No. 1, p. 52).

Commitments in the digital book sector > V. PIRONON (Comm, electr. com., July 2013, No. 7, comm. 79)

Notice of large fees on (anti-competitive) agreements between originator and generic companies > E. DIENY (Contracts, conc., consom. August 2013, n° 8-9, alert 48)

EU Court Narrows Scope of the De Minimis Principle > C. LITTLE (CPI Antitrust Chronicle, July 2013(1))

Restrictions by object and the appreciability test: the Expedia case, a surprising judgment or a simple clarification? > A. ORTEGA GORNZÀLEZ (E.C.L.R., 2013/34, Issue 9, p. 458)

The Allianz Hungària case - The ECJ’s judgment could have ugly consequences > D. HARRISON (Competition Law Insight, 11 June 2013, p. 10)

Information exchanges and the double agent: competing undertakings in vertical trading relationship > R. BAR-ISAAC AND M. SHERMAN (E.C.L.R, 2013/34, Issue 10, p. 503)

2.2. Distribution

Distribution law in France and Europe: competition issues (Proceedings of the colloquium of 21 November 2012) > M. CHAGNY, E. CLAUDEL, I. LUC, J.-L. FOURGOUX, T. CLAY, D. DE GRAMONT, R. SAINT-ESTEBEN, Y. UTZSCHNEIDER, G. CANIVET, B. DEFFAINS, S. CLAVEL, A.-S. CHONE, J.-D. BRETZNER, J.-B. DRUMMEN, B. GABORIAU, J.-P. DE LAURENCIE and V. BEAUMEUNIER (RLDA June. 2013, supplement to No. 83, pp. 3-74)

Prices charged in the context of selective distribution networks > S. TREARD (BRDA, No. 12, 30 June 2013, p. 16; No. 24)

It is still and always forbidden to prohibit online sales to authorized distributors! > M. CHAGNY (Comm, electr. com., no. 7, Jul. 2013, comm. 78)

Chronicle Distribution and competitor protection > M. MALAURIE-VIGNAL and N. MATHEY (Contracts, conc., consum. July 2013, No. 7, comm. 155 to 160; August 2013, No. 8-9, comm. 180 to 189)

Efficiency versus Regulation: The Application of EU Competition Law to Distribution Agreements > L. VOGEL (Journal of Competition Law and Practice, 2013, Vol. 4, No. 3, p. 277).

3. Abuse of dominance

The Application of Article 102 TFEU by the European Commission and the European Courts > R. SUBIOTTO QC AND D.R. LITTLE (Journal of Competition Law and Practice, 2013, Vol. 4, No. 3 p. 255)

Are Anti competitive Effects Necessary for an Analysis under Article 102 TFEU? > L. LOVDAHL GORMSEN (World Competition 36 n° 2 (2013), p. 223)

Post Danmark, now concluded by the Danish Supreme Court: Clarification of the Selective Low Pricing Abuse and Perhaps the Embryo of a New Test under article 102 TFEU? > B. LUNDQVIST AND G. SKOGAARD OLYKKE (E.C.L.R, 2013/34, issue 9, p. 485)

Turducken on the Menu: Initial Reflections on the Implications of the European Commission’s Lundbeck Decision > F. PUG AND B. BATCHELOR (E.C.L.R., 2013/34, Issue 9, p. 454)

Case C-52 / 09 Konkurrentsverket v TeliaSonera Sverige AB, (2011) E.C.R. I-527 - Confirming an inappropriate assessment framework for marging squeeze > M. RAUBER (E.C.L.R, 2013/34, issue 9, p.491)

4. Restrictive practices

The European hurricane eye is selling at a loss > A. LECOURT (RLDA June. 2013, 83, n° 4632, p. 32)

See also, L’interdiction de la revente à perte sur la sellette, J.-L. FOURGOUX (RJDA, No. 7, July 2013, p. 539).

Commercial relations and civil activity > N. MATHEY (JCP ed. E, No. 26, 27 June 2013, 1382, p. 35)

Advance notice and abrupt termination of business relations > N. MATHEY (JCP ed. E, No. 35, August 29, 2013, 1465, p. 31)

Competition and the Most Favored Nation Clause > J.J. WU AND J.P BIGELOW (CPI Antitrust Chronicle, July 2013(2))

5. Concentrations

Ownership Consolidation and Product Characteristics: A Study of the US Daily Newspaper Market > Y. FAN (American Economic Review, 103(5), pp. 1598-1628)

The assessment of the effects of a merger often focuses primarily on the price level. This article extends this traditional field of analysis and empirically studies not only the impact of a concentration on prices but also on the characteristics of goods. It is of a high academic standard, but economists interested in the literature on concentration simulations will appreciate it.

A Structural Approach to Market Definition With an Application to the Hospital Industry > M.S. GAYNOR, S.A. KLEINER AND W.B. VOIGT (Journal of Industrial Economics, 61(2), pp. 243-289)

This paper contrasts traditional methods of defining geographic markets with a rigorous economic approach and uses data from hospitals in the United States to illustrate their differences. Most hospital mergers in the United States have been cleared on the basis, inter alia, of geographic markets that are large enough to result in small increments of market share. However, the use of an economically rigorous approach demonstrates that conventional methods greatly overestimate the size of geographic markets.

Merger law chronicle > D. BOSCO (Contracts, conc., consom. August 2013, No. 8-9, Chron. 3)

The Castel Frères merger: the first use of an upward pressure test on prices in France > M. DESCHAMPS and O. SAUTEL (RLC 2013/36, No. 2324, p. 13)

Electrabel : General Court Upholds € 20 Million Fine for Implementing Concertation without Commission Approval > P. WALTER (Journal of Competition Law and Practice, 2013, Vol. 4, No. 3 p. 226)

Mergers with a financially distressed company in the US and EU: alike, but not the same > M. OINONEN (E.C.L.R, 2013/34, issue, 10, p. 538)

Dealing with Protectionist Threats in EU Mergers and Acquisitions: Member State Reaction to the Exclusive Powers of the European Commission Under the ECMR > P. CALLOL (CPI Antitrust Chronicle, June 2013(2))

Cooperation, Convergence, and... Conflicts? The Case of EU and National Merger Control > A. BARDONG (CPI Antitrust Chronicle, June, 2013(2))

Bitter Sweet - The OFT’s Recent Approach to Food Mergers > R. BLEWETT (CPI Antitrust Chronicle, Jul. 2013(1))

6. State aid

State aid modernisation, one year on? > L. IDOT (Europe, June 2013, No. 6, Focus 30, p. 3

A look back at the La Poste ruling: a mistrust of public institutions or a challenge for the State as an economic player? > S. SCHRAMECK (RLC 2013/36, n° 2345, p. 56)

Scope ratione temporis of the European Commission’s "Almunia Package" in the field of State aid granted to undertakings entrusted with the operation of SGEIs > A. BORCHTCH (Contracts and public procurement, No. 6, June 2013, p.8)

Services of general interest (SGI); what prospects for public services in Europe? - Introduction > P.Y. MONJAL AND S. KOUAKOU KOUASSI (Journal of the European Union, No. 570, July-August 2013, p. 391)

This article introduces four other articles devoted to the study of services of general interest and their role in the construction of the European project and more particularly the European social project. Of particular interest is the article by S. KOUAKOU Kouassi ("Legal classification is to SGEIs what water is to fish"), which deals with the issues involved in the legal classification of services of general economic interest within the meaning of Article 106.2 of the Treaty on the Functioning of the European Union: the first, well known, is the derogation from the application of European competition rules, but also - and above all? - a second, the protection of final consumers, which the author calls for greater emphasis to be placed on.

The role of competition analysis under article 107 TFEU: the emergence of a "market analysis" assessment within the selectivity criterion? > G. LO SCHIAVO (E.C.L.R, 2013/34, issue 8, p. 400)

The New EU State Aid Broadband Guidelines: What changes for electronic communication network operators > L. MC CALLUM AND O. STEHMANN (Journal of European Competition Law and Practice, 2013, Vol.4, No.4, p. 316)

7. Public sector and competition

Competition, Regulation and the Public Sector Column > S. NAUGES, L. VIDAL and L. AYACHE (Contracts, conc., consom. juill. 2013, n° 7, Chron. 2 )

European procurement and public contract law: 1 January 2012 - 31 December 2012 > A. L. DURVIAUX (RDTeur, Apr. - June 2013, p. 339)

This column covers a number of significant judgements of the European Court of Justice from 2012 and discusses in particular various legal issues relating to the scope of the European "public procurement" directive, such as the benefit of "in house" exceptions and horizontal cooperation between public entities. See also, Chronique des marchés publics - Jurisprudence of the Court of Justice of the European Union (July 2011 - 31 December 2012) S. RODRIGUES, C. BERNARD-GLANZ AND L. LEVI (Revue de l’Union européenne, No. 569, June 2013, p. 350).

8. Procedures

8.1. General

Principle of impartiality and right of self-referral by the judge > M.-A. FRISON-ROCHE (D., 10 Jan. 2013, No. 1, P. 28)

A turning point for computerized seizures of attorney-client correspondence? > M. LAVEDAN (RLC 2013/36, n° 2360, p. 91)

V. also, E-mail capture has its limits! >O. DUFOUR (Small Posters, July 1, 2013, No. 130, p. 4)

What place is there for provisional measures in litigation relating to the implementation of undertakings? > D. CREVEL-SANDER and A. CREUS (RLC 2013/36, n°2323, p. 8)

While precautionary measures are a well-known procedure practiced in France before the Competition Authority, before the European Commission, this procedure is almost never initiated and the measures are almost always rejected. Thus, since decisions in this area are rare, there is little case law. The recent EDF/SPE case (CJEU, order of 7 March 2013, aff. C-551/12) gives D. Crevel-Sander and A. Creus the opportunity to explain the state of the case law and to scare themselves of its possible consequences. They note and explain first of all that the conditions for demonstrating serious and irreparable harm in order to grant protective measures are extremely strict and that, in practice, large undertakings cannot, as a matter of urgency, request an amendment to commitments entered into in the context of a concentration procedure. In the present case, EDF had challenged as a precautionary measure the European Commission’s refusal to grant a time-limit for implementing the commitments. It should therefore be borne in mind, as a precautionary measure, that, after the subscription of commitments whose implementation period is relatively long, it will be virtually impossible to use the procedure for precautionary measures, in an emergency, to have commitments modified.

The growing empire of the Charter of Fundamental Rights > É. BARBIER DE LA SERRE (RLC 2013/36, n°2359, p. 87)

Obstruction of Investigations in EU Competition Law: Issues and Developments in the European Commission’s approcach > M. TER HAAR (World Competition 36, No. 2 (2013), p. 247)

Fair trial and the rights of the defence in antitrust proceedings before the Commission: a need for reform? > B. NASCIMBENE (E..L. Rev., 2013, 38(4), p. 573)

Cartel Appeals to the Court of Justice: The Song of the Sirens? > P.D. CAMESASCA, J. YSEWYN, T. WECK AND B. BOWMAN (Journal of European Competition Law and Practice, 2013, Vol. 4, No. 3, p. 215)

8.2. Sanction Policy - Clemency - Settlement - Undertakings

Revision of the ECN Model Leniency Programme > R. CHRISTOL (JCP ed. E, No. 2, 10 Jan. 2013, 17, p. 5)

Methods for calculating the quantum of sanctions imposed by the competition authorities: comparative analysis of French law and European Union law > S. FERRARI (RJEP, No. 710, Jul. 2013, p. 10)

The Law on Fines Imposed in EU Competition Proceedings: Faster, Higher, Harsher > E. BARBER OF THE GREENHOUSE AND E. LAGATHU (Journal of Competition Law and Practice, 2013, Vol. 4, No. 4, p. 325)

Simplified Procedures for Multiple Leniency Applications Across Europe > F. MURPHY AND F. LIBERATORE (E.C.L.R, 2013/34, Issue 8, p. 407)

An inaugural fine: Microsoft’s failure to comply with commitments (case COMP / 39530) > M. ALEIXO (E.C.L.R., 20013/34, issue 9, p. 467)

The effects of disclosure rules on leniency incentive: Pfleiderer balancing versus the bis "but for" test > M. CHOWDHURY (Competition Law Journal, 2013)

Transmission of Competition Authority files in compensation proceedings > C. CLARENC and R. CHRISTOL (JCP ed. E, No. 2, 10 Jan. 2013, 18, p. 9)

Interactions between Leniency Programmes and Damages Actions in Antitrust Law: Perspectives for Collective Redress > B. NASCIMBENE (World Competition 36, No. 2 (2013), p. 269)

8.3. Actions before ordinary judges

The effectiveness of autonomous contractual litigation of anti-competitive practices. About the Segurel and Diapar judgments of the Paris Court of Appeal > R. AMARO (RLC 2013/36, No. 2370, p. 105).

Competition and fair trial: the Commission can also seek compensation for harm caused by a cartel it has found > L. COUTRON (RTD eur.2/2013, p. 316)

The introduction of a class action in competition law > S. PIETRINI (Gaz. Pal., 1-3 Sept. 2013, No. 244-246, p. 21)

V. also, Finally group action? L. IDOT (Europe, July 2013, No. 7, Focus 38, p. 2); The introduction of the French-style group action - "Justice closer to the citizens"? D. ROSKIS and S. ROSKIS. JAFFAR (Cah. droit de l’entreprise. Jul. 2013, n° 4, dossier 25)

Reform of the private enforcement regime > J. SHERER (Competition Law Journal, 2013)

Following in "Uncle Sam’s" Footsteps? The Evolution of Private Antitrust Enforcement in the European Union > D. KILLEEN (E.C.L.R, 2013/34, Issue 9, p. 481)

Two concerns regarding the European Draft Directive On Antitrust Damage Actions > J. KORTMANN AND R. WESSELING (CPI Antitrust Chronicle, August 2013 (1))

Opportunities and piftalls of litigation cartel damages claims in different fora in the UK: the cases of Emerson IV, Toshiba and Bord Na Mona > J. TURNER QC, D. SPITZ AND R. MURRAY (Competition Law Journal, 2013)

9. Regulations

Gas-exporting countries want to follow the market in real time: the Gas Exporting Countries Forum (GECF) has developed a model for monitoring the international market > P. TERZIAN (Europ Energies, n°135, August 2013)

The FPEG is intended to become a platform for the exchange of information to define and advance the position of member countries on the challenges and issues of the international gas markets. It should thus enable greater coordination not only between its members but also with the regulatory authorities of gas consuming countries. But will the FPEG be one of the elements in response to the growing tensions on the international gas market, particularly between the European Union and Russia?

Regulation in the field of energy as seen through CoRDIS case law > P-F. RACINE (RJEP, No. 711, August-September 2013, p. 3)

After presenting the missions - particularly in terms of dispute settlement - of CoRDIS, created in 2007 within the Energy Regulatory Commission, the author looks back on the strong points of these first six years of case law. In particular, he highlights the clarifications made by the CoRDIS to the concept of access to networks, as well as the obligations on network operators. However, the author concludes that many questions have not yet been submitted to the CoRDIS and raises an interesting question in this respect: "what is the scope of the right of connection when an installation is to be connected to the distribution network and that this connection implies a reinforcement of the public transmission network, can the operator of this network be required to initiate and finance the necessary work, independently of any economic considerations and the multiannual programming of investments? ».

The Future of Regulated Natural Gas and Electricity Sales Rates > P. IDOUX (RLC 2013/36, No. 2375, p. 117)

The author discusses the difficulties related to the implementation of regulated energy sales tariffs, which generates a significant amount of litigation, whereas the Competition Authority recently recommended, in an opinion published in March 2013, the phasing out of these regulated tariffs. While the author agrees with the conclusions of the Competition Authority and is clearly in favour of such an abandonment, she nevertheless concludes that social tariffs should be maintained. In addition, instead of regulated tariffs, it recommends the introduction of a new incentive tariff system to encourage consumers to consume energy more efficiently and to overcome the criticisms formulated in April 2013 by the Constitutional Council against the "bonus-malus" system then proposed by the Government. Thus, this article calls for the consideration of innovative tariff regulation tools, other than regulated tariffs alone.

Entering uncharted territory: the Commission’s thinking on supply contraints > J.P. VAN DER VEER (E.C.L.R. 2013/34, Issue 9, p. 451)

Regulation of the electronic communications market > M. BAZEX (Administrative Law, No. 7, Jul. 2013, No. 58, p. 60)

Rail transport the new problem of access to the network > M. BAZEX (Administrative Law, No. 8-9, August-September 2013, No. 68, p. 49)

10. International policy

Competition Policy Chronicle > N. JALABERT-DOURY, J. FOURQUET, A. TERCINET AND J.-M. BLUTEL (RDAI/IBLJ, 1/2013, p. 59) (RDAI/IBLJ, 2/2013, p. 137) (RDAI/IBLJ, 4/2013, p. 367)

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.

The Fight Against Corruption in English, American and French Law: A Comparative Approach > E. SEASSAUD (RJEP, No. 710, Jul. 2013, p. 3)

A practitioner’s look at antitrust private actions in China > S. NING AND K. PENG (G.C.L.R., 2013, 6(2), p. 98)

For a Rigorous "Effects-Based" Analysis Of Vertical Restraints Adopted By Dominant Firms: A Comparison Of EU And Brazilian Competition Law > D. GERADIN AND C.M. DA SILVA PEREIRA NETO (CPI Antitrust Chronicle, summer 2013, No. 1, vol. 9)

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Alain Ronzano, Bastien Thomas, Emmanuel Frot, Mathilde Brabant, Christelle Adjémian, Competition journals : July - Sept. 2013, December 2013, Concurrences N° 4-2013, Art. N° 57411, p. 225

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