Comparative Competition Law and Economics, Roger VAN DEN BERGH (dir.)

Roger van den Bergh

Cette rubrique recense et commente les ouvrages et autres publications en droit de la concurrence, droit & économie de la concurrence et en droit de la régulation. Une telle recension ne peut par nature être exhaustive et se limite donc à présenter quelques publications récentes dans ces matières. Auteurs et éditeurs peuvent envoyer les ouvrages à l’intention du responsable de cette rubrique :

After a first chapter in which Mr. Van den Bergh explains the purpose of this book, its structure and the methodology adopted, chapter 2 opens with an introduction to the different economic approaches that form the basis of competition law in Europe and the United States. The author then assumes a chronological approach to the different schools of thought and explains why. Through these pages it is very interesting to remember how much our European system of competition law could have been influenced both by a rather unique school of thought and by the fierce desire for faultless market integration. It is easy to see how well this latter has long ago been able to overshadow (possibly by design) some of the evidence that pure economic theory dictated. These pages also enable us to understand more clearly the current stakes as well as the positions that certain economic and regulatory actors in the United States reproach us for (e.g., on per se illegalities). In chapter 2, we travel through many economic concepts and we (re)discover, among others, the schools of Harvard and Chicago ; Ordoliberalism and its variations in the Austrian School.

Special thanks are given to the author for devoting a passage on behavioural economics and its probable implications on competition law after his panorama of the classical schools. A foretaste of these future implications was already given in Benjamin J. R. Nuñez’s article (Journal of Antitrust Enforcement, 2016,0,1–32) ; the fact that Mr. Van den Bergh includes such a passage in his book shows (if necessary) that an evolution is underway.

This important chapter has to be read because it covers a range of practical options for vertical restraints, predatory pricing or merger law ; even if it is known that any evolution in such areas will be relatively slow. Mr. Van den Bergh took care, however, to initiate this interesting journey with an introductory reminder of the fundamental economic concepts we share with the United States : the concepts of price, social welfare or monopolies. He ends this chapter 2 with a reminder of recent developments we can meet with concepts of transaction costs or game theory.

In chapter 3 he gives us, very opportunely, a comparative study of the stated objectives of competition law ; seen from both an economic and a legal point of view. He notes (and seems to regret this fact) the fundamental divergence that may exist between the European and American conception of these objectives. For the former, competition law is just a way (integration of the European single market) when the latter clearly sees it as a goal (total welfare).

In chapter 4, he (with his co-authors, Peter Camesasca and Andrea Giannaccari) begins to approach the various fundamental concepts of competition law in a very pragmatic way. The authors will then not only compare each of these concepts from an economic and legal point of view, for our great pleasure and over the course of the following pages, but will also highlight the American and European approaches to each of these subjects. And it is from this crucial moment onwards that we feel what will become the major asset of the book : putting into perspective and emphasise the alternative approaches that exist on all the fundamental themes of competition law. From then on, there will be a real dialectical game for each theme that will allow any jurist, lawyer, legal expert, professor of law, trainer or national competition authority to change its point of view on these subjects and perhaps even, above all, to imagine new arguments as well as numerous counter-arguments. Whether on specific subjects such as market power, the definition of relevant markets or barriers to entry, being able to embrace so many different points of view in such a concise way is a tour de force of the book. The limitations of the definition of the relevant market or the errors that may have been made in the use of the SSNIP test are, of course, addressed.

In chapters 5 and 6, the authors (including also Phil Warren) apply their comparative perspective project to two major competition law themes : horizontal restrictions and vertical restraints. The strongest passages concern, for the first of these themes, the comparative European and American approach to per se illegalities and, for the second, resale price maintenance. We know the difference of viewpoint that there may be on these subjects in the United States, but the authors’ way of presenting the current schools of thought on which they are based makes this cleavage even more salient and finally convinces us to put an end to it. At this stage of the book, we may regret the absence of a study on “Minimum Advertising Prices” (MAP).

In chapter 7, the co-authors attempt to compare and put into perspective the different unilateral practices of companies in a dominant position. They describe one by one the different practices : refusal to sell, tying, bundling, price discrimination or predatory pricing, discounts and rebates. It is very useful to have a strictly identical structural framework of comparison for all these themes. Indeed, for each of the above-mentioned practices, the authors begin with an economic analysis, continue with an inventory of the state of American jurisprudence and finally conclude with European decisions and case law. The developments on discounts and rebates (and especially the presentation of alternative thoughts on these subjects) have gained so much weight in recent months that it would be inappropriate for any practitioner to turn away from them. However, we will regret a unilateral practice which would have deserved more developments : the so-called “excessive” prices of a dominant undertaking.

We leave the reading of this chapter 7 with the firm intention to continue the ascent on the same rhythm and it is at this moment that the author chose to present us a chapter on enforcement (chapter 8). We have to admit that there is suddenly a stall that we could not anticipate and that we were unable to explain. Of course it concludes that there is a remarkable difference between the American and European conception on subjects such as sanctions or private enforcement, but even if these differences can be explained by many divergences (mainly due to the economic ideologies of each side) this part is nonetheless less convincing than the previous ones. This part breaks the rhythm that he had been able to distil so far and throughout the pages of this book.

It is only in chapter 9 that we retrieve a rhythm that seems to have abated. Mergers and their controls are discussed. After recalling the different forms of mergers that exist, the authors attempt to present American and then European positions. In the end, they will conclude that it is in this area that the economic, legal, European and American points of view are the most in phase and the most stable. This contrasts with the conclusions reached when reading chapters 5 and 6 on horizontal and vertical restraints and unilateral practices of undertakings in a dominant position (chapter 7).

The general impression that emerges from this book is that its structure is clear, practical and pragmatic. Each subject goes to the essential without detours or circumvolutions. The tour de force was to put in perspective each subject of competition law with such sharpness that the practitioner can only be inspired in his work and in his daily argumentation.

If a book’s purpose is also sometimes to break the ice, often to inspire, put in perspective and always make its reader create legal solutions that are both respectful of established legal traditions and innovative, one can easily conclude that this book has risen to the challenge.

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Arnaud Fournier, Comparative Competition Law and Economics, Roger VAN DEN BERGH (dir.), février 2018, Concurrences N° 1-2018, Art. N° 86111, pp. 244-245

Éditeur Edward Elgar Publishing

Date 29 septembre 2017

Nombre de pages 576

Visites 527

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