'Managing the Intersection of Utilities Regulation and EC Competition Law'
(2008) 4(2) Competition Law Review 123-145
Utilities regulation in the Member States is always
subject to the application of EC competition law. However, this
undermines the effectiveness of utilities regulation and the European
Courts should deploy a more flexible standard than that which has been
confirmed by the Court of First Instance in Deutsche Telekom. The
grounds for affording greater latitude to regulators are threefold:
first the regulator should be free to make decisions on economic grounds
that support dynamic over allocative efficiency; second it should also
be free to make decisions on non-economic grounds to prioritise other
objectives at the expense of competition; and third the present scope of
EC competition law is so wide that in several instances the Commission
acts in a regulatory manner, stepping over tasks best left to the
regulator. No general principle is recommended to demarcate the
borderline between competition law and sector regulation but a
case-by-case assessment should be carried out to determine whether the
application of competition law would cut across the policy choices
reached by the utilities regulator, and competition law should not apply
when it would harm the regulatory goals.
click here for full text
'The New Substantive Test in the EC Merger Regulation – Bridging the Gap Between
Economics and Law?' (2007-2008) 10 Cambridge Yearbook of European Law 265
(C. Barnard ed)
The 2004 EC Merger Regulation (ECMR) adopted the
substantial impediment of effective competition test, and abandoned the
earlier standard that required proof of dominance as a necessary element
to intervene in a merger. It is said that this reform was necessary
because the dominance test failed to catch unilateral effects absent
dominance, so there was a 'gap' in the ECMR. This paper argues that the
decision to amend the ECMR was unnecessary. From an economic perspective
because the dominance standard was sufficiently flexible to address all
anticompetitive mergers. Economists' concerns about merger control (in
both the US and EC) was that authorities focused on a structural
assessment premised upon market definition and market concentration and
failed to give sufficient attention to other means to test for
anticompetitive effects in a more direct manner. Economists' support for
the new test is that it would place a focus on these other methods for
identifying anticompetitive effects. From a legal perspective, it seems
that the major motivation for reform was to divorce merger control from
the abuse of dominance doctrine in Article 82, so that the two legal
provisions would develop independently, the latter only applicable to
manifestations of significant market power. Accordingly the view that
there was a 'gap' in the dominance test is inaccurate, and lawyers and
economists supported the reform for different reasons. This
misunderstanding might explain why the Horizontal Merger Guidelines
designed to indicate how the new standard applies are insufficiently
precise. In an endeavour to offer some precision, the paper reviews a
number of decisions and suggests that the Commission applies four
distinct theories of harm, but the first major decision applying the new
standard is worrying because the Commission appears to regulate the
market rather than remove an impediment of competition caused by the
merger, with the risk that the new standard is so loose that it allows
the Commission to address questions of industrial policy through the
ECMR.
'The Revision of the Consumer Acquis
from a Competition Law Perspective' (2007) European Review of
Contract Law 295
The article considers the
relationship between competition and consumer law.
First, it notes that consumer law may help render
markets more competitive but that it may also restrict
competition, requiring the legislator to decide how to
trade off consumer protection and competition. Second,
it suggests that certain consumer law issues can be
addressed using antitrust tools, which sheds some light
on how the consumer acquis may be revised. Third, it
explores the extent to which competition law is part of
consumer law, challenging the approach whereby legality
for competition law purposes is conditional on
undertakings promising to implement measures to protect
consumers, and suggesting a better role for competition
law is the supervision of self-regulatory agreements
designed to protect consumers.
'Merger Defences' in G. Amato and C-D
Ehlermann (eds) A Manual on EC Competition Law (Hart
2007)
This chapter argues that
the Commission’s approach to merger defences is
unsatisfactory and suggests techniques for enhancing
their role. The debate over the efficiency defence has
been distorted by devoting too much attention to its
application in horizontal, merger-to-monopoly scenarios,
where the efficiency defence should not be allowed to
apply; instead greater focus should be placed on the
role of efficiencies in mergers in oligopoly markets, as
well as conglomerate and vertical mergers. The
Commission’s approach to the failing firm defence is too
restrictive and greater role should be given to the
social and economic benefits of mergers with a failing
firm, either by considering the efficiencies of mergers
with a failing firm or by taking into consideration
wider benefits that result from a merger. A number of
other policy considerations affect merger cases but
there is no clear framework by which these are taken
into account, suggesting tensions about the relationship
between merger law and industrial policy. The basis of
future evolution of merger defences should not be a
harmonisation with the US standards (seemingly the
Commission’s priority) but the development of a set of
merger defences that are consistent with the aims of
merger control in the EU.
'The Concept of Dominance in Article 82' 2006 European
Competition Journal
The concept of dominance
in EC competition law is a mixture of criteria relevant
to determining the presence of market power and criteria
relevant to finding commercial power. The current
concept of dominance is consistent with an ordoliberal
interpretation of Article 82 whereby dominant firms have
special responsibilities because their presence in the
market damages competition as an institution. The
Commission appears intent upon narrowing the concept of
dominance to instances where an undertaking has
substantial market power. The effect of this is that the
scope of application of Article 82 is narrowed down
considerably. However the Commission’s position is
enigmatic because the Discussion Paper is an ambiguous
mixture of passages that restate the current law and
passages that seem to develop new approaches, with no
explanation of where the policy changes occur or an
explanation of why they take place. In fact, on another
reading, the Discussion Paper seems to widen the concept
of dominance. The failure to communicate the nature and
scope of the reform process in a clear manner is to be
regretted because the central theme (that dominance
means substantial market power) is a promising premise
to accompany the reform of the abuse doctrine.
click here for full text
'Article 82 EC and New Economy
Markets' in C. Graham and F. Smith (eds) Competition, Regulation
and the New Economy (Hart, 2004) pp.17-54
In
addition to being the principal medium for
communication, education and entertainment the new
economy is now a leading provider of goods and services
through electronic channels. The new economy rides on
the crest of new technological developments in
computers, telecommunications and satellites creating
new interactive mediums and from the deregulation and
privatization of state owned enterprises in the
telecommunications and broadcasting sectors. Whilst the
economic viability of the dotcoms is questioned, the
existence of a new economy with novel methods of
production, distribution and exchange is here to stay.
Evidence of this is the fact that there are 300 million
active computers in the world, with 350 million people
who use the world wide web (expected to grow to one
billion in four years), and the speed of microprocessors
continuously increases, facilitating the use of IT. The
question which is pursued in the series of essays in
this book is whether the conceptual underpinnings of
competition law and international regulatory mechanisms
are adequate or appropriate to deal with the
developments raised by the new economy.
click here
for publisher's site
'New Directions in EC Competition Law'
in T. tridimas and P. Nebbia (eds.) European Union Law for the
Twenty-first Century (Volume 2) (Hart 2004) pp.177-194
This chapter notes two
significant recent developments in the application of EC
competition law: (1) the apparent move to a more
economics oriented approach and (2) the use of
competition law to regulate markets so that they become
more competitive. The first development however is more
a matter of rhetoric than substance and has not been
implemented well enough. The second is of questionable
legality but has been achieved because the Commission is
able to negotiate with the subjects of EC competition
law and imposes remedies by consensus.
click here
for publisher's site
'Anticompetitive Agreements: The
Innocent Party's Right to Damages' [2002] 27 European Law Review
pp.282-302
According to the European
Court of Justice, a party privy to an anticompetitive
agreement that infringes Art 81 EC may, if he is not
significantly responsible for the breach of EC Law,
claim damages from the other party. This article
critically reviews the reasons for recognising the right
to damages as a matter of law and policy and then
attempts to identify situations where a plaintiff may
assert a right to damages. Moreover, the right to
damages creates a set of as yet unspecified obligations
on potential defendants. While dominant undertakings
have special obligations towards those they contract
with, the existence of and justification for imposing
similar duties on undertakings on the basis of Art 81 is
less easy to explain. This article raises a number of
doctrinal and policy reasons to suggest that parties to
a contract in breach of Art 81 should not have a right
to damages.
click
here for access via Westlaw [ON CAMPUS]
click
here for access via Westlaw [OFF CAMPUS]
'Article 81 EC and Public Policy'
[2002] 39(5) Common Market Law Review 1057-1099
'The Scope of Collective Dominance
Under Article 82 EC' [2001] 38(1) Common Market Law Review
pp.131-157
Giorgio
Monti
Competition Law Board
