'Convergence in competition fining practices in the EU'
(2016) 53 Common Market Law Review, Issue 2, pp. 453-492
The need for increased convergence in the decentralized
processes for public enforcement of EU competition law has received much recent
attention. Yet, this debate lacks a convincing explanation as to why the goal of
effective enforcement warrants further harmonization. Focusing on fining
practices for competition infringements, this article explores possible
justifications to explain convergence; the legal or other means by which
harmonization could be achieved; and the choice of converged practices that
might be implemented. Whilst the strict necessity for convergence is less
obvious, the evolving structure of decentralized enforcement would arguably
benefit from increased alignment. Key concerns identified are the need to
balance consistency with flexibility, and the reflection of an EU-wide consensus
on fining practice.
'Antitrust and the Making of European Tort law' Oxford
Journal of Legal Studies (2016) [available below as advance online copy]
Efforts to develop a robust competition culture within the
European Union, premised upon private enforcement of the EU competition rules,
have gathered pace in recent years. This article examines the manner in which
judicial innovation, coupled with legislative reinforcement, has rendered this
area of primary importance in terms of the emergence of a distinct European tort
law. In doing so, the article considers why this area has been singled out for
such extensive vertical harmonisation, addressing this question from a variety
of perspectives: those of a competition lawyer, a tort lawyer and a generalist
EU lawyer. It is suggested that, while no single principled justification can
explain the prioritisation of competition law in this respect, a constellation
of contributory influences can be identified, including a notable comparative
exemplar in the US experience, an increasingly central role for competition law
within the framework of EU law more generally and, perhaps most importantly,
significant institutional enthusiasm.
click here for full text via
OUP [ON
CAMPUS]
click here for full text via
OUP [OFF CAMPUS]
'Courage and Compromise: the Directive on Antitrust Damages'
40 European Law Review 581-587 (2015)
Free and undistorted competition is a core feature of the
internal market and European Union more broadly, secured, inter alia, by the
competition rules under arts 101 and 102 TFEU, which regulate the exercise of
private market power. Although, historically, enforcement of EU competition law
was tightly centralised in the Commission, more recently there have been
significant efforts towards decentralisation, both to national competition
authorities and, perhaps more radically, to "private attorneys general" through
antitrust damages actions before domestic courts. Spurred on by decisive
pronouncements from the Court of Justice, the Commission has spent the best part
of a decade consulting on and crafting proposals for EU harmonisation in the
area of private antitrust enforcement. With Directive 2014/104 , the
Commission’s vision for a legislative instrument that can, at least in theory,
inspire and facilitate the development of a "competition culture" within the EU,
whereby both the rules and underlying principles of EU competition law become
entrenched within everyday commercial life, has become reality. As this
contribution demonstrates, the new Directive, non-exhaustive in scope and
eschewing maximum harmonisation, is essentially an exercise in compromise and
tempered expectations. Nonetheless, there is much to the Directive that is
positive and noteworthy, both as an example of relatively intense harmonisation
of tort law at EU level, and as a strong reaffirmation of the central role that
private enforcement now plays within the framework of EU competition law more
generally.
click
here for access via Westlaw [ON CAMPUS]
click
here for access via Westlaw [OFF CAMPUS]
Book review of Regulatory Competition in the Internal
Market. Comparing Models for Corporate Law, Securities Law and Competition Law
(Barbara Gabor), 74 Cambridge Law Journal 175-179 (2015)
'The Role of Private Enforcement within EU Competition Law'
Vol.16 Cambridge Yearbook of European Legal Studies 2013-14 143-187
(2014)
'Commitment Decisions in EU Competition Law' 10(2) Journal
of Competition Law & Economics 399-444 (2014)
Introduced into EU competition law by Article 9 of Regulation
1/2003, commitment decisions provide a settlement mechanism for Commission
enforcement actions based upon concessions offered by defendant undertakings.
The use of negotiated settlements is closely linked with the shift toward a more
“regulatory” conception of competition law, however, and thus away from the
orthodox antitrust paradigm. This article examines Commission practices to date
under the commitment procedure, arguing that the enhanced flexibility and
remedial choices available under Article 9 reflect characteristics more usually
associated with the regulatory model. In view of the conventional criticisms of
antitrust-as-regulation, the article furthermore considers the extent to which
these regulatory attributes of the commitment procedure are problematic in
practice, given that regulatory competition law does not incorporate the typical
safeguards of ordinary regulation. The article concludes that, although the
quasi-regulatory nature of commitment decisions is indisputable, its
implications are more mixed. The increased effectiveness of Article 9, both as a
means of alleviating market problems and of case disposition, must therefore be
balanced against certain legitimacy and longer-term efficiency concerns.
click here for full text via
OUP [ON
CAMPUS]
click here for full text via
OUP [OFF CAMPUS]
'Between Competition Law and Regulation: Hybridised
Approaches to Market Control' 2 Journal of Antitrust Enforcement 225-269
(2014)
Debates abound regarding the relationship between competition law and economic
regulation as alternative and/or overlapping mechanisms by which to address
market failure. This article focuses on a series of legal powers that
demonstrate a ‘hybridised’ nature, pitched between the conventional instruments
of competition law and regulation: the market investigation procedure under the
UK’s Enterprise Act 2002, the EU’s sector inquiry procedure under Regulation
1/2003, access to infrastructure regulation under Part IIIA of Australia’s
Competition and Consumer Act 2010, and the controversial prohibition on ‘unfair
methods of competition’ under section 5 of the US’s Federal Trade Commission
Act. It is demonstrated that, whilst each of these powers aims to increase the
effectiveness of market supervision by incorporation of complementary aspects of
each mechanism, the choice to step outside the boundaries of each generates its
own risks relating to both rule of law compliance and overall efficiency.
'Recasting Competition Concurrency under the Enterprise and
Regulatory Reform Act 2013' 77(2) Modern Law Review 254-276 (2014)
The concurrent enforcement power granted to certain sector
economic regulators is one of the more remarkable features of UK competition
law. In practice, regulators have tended to under-enforce their competition
powers, preferring to resolve market difficulties through regulatory
interventions. Recent amendments to the concurrency framework, introduced by
sections 51 to 53 of the Enterprise and Regulatory Reform Act 2013, seek both to
strengthen the priority of competition enforcement and to provide plausible
sanctions – including, ultimately, the removal of competition jurisdiction from
regulators – for continued underuse. This article assesses these reforms in
light of the history and (limited) application of the concurrent competition
powers of regulators to date. It argues that the absence of an overarching
policy rationale for this curious example of UK antitrust ‘exceptionalism’
complicates the determination of whether the reforms, which ostensibly seek to
reinforce but potentially also undermine concurrency, are likely to have a
positive market impact in practice.
click here for full text via
OUP [ON
CAMPUS]
click here for full text via
OUP [OFF CAMPUS]
'It never rains but it pours? Liability for umbrella effect
in EU competition law after Kone' 51 Common Market Law Review 1813-1828
(2014)
Private damages actions comprise an increasingly prominent
component of the "two pillars" of enforcement mechanisms, public and private,
within EU competition law. In Kone AG and Others v. OBB-Infrastruktur AG, the
Court of Justice has considered the outer boundaries of the right to claim
damages for losses caused by breach of Article 101 TFEU, namely whether EU law
requires compensation for losses attributable to "umbrella effects" within
cartelized markets. Umbrella effects arise where anti-competitive co-ordination
between cartelists (or the exercise of market power by a dominant firm) distorts
normal market forces. This diverts demand to substitute products and, typically,
leads to higher prices for those substitutes in parallel. The decision in Kone
can be seen as a complement to these efforts: it explores the breadth of the
right to claim damages in theory, whereas the Directive on antitrust damages
actions is intended to strengthen realization of this right in practice.
'Umbrella Effects and Private Antitrust Enforcement' 73
Cambridge Law Journal 510-513 (2014)
UMBRELLA effects arise where anti-competitive conduct by one or
more market actors results in general price rises across the sector concerned.
The Court of Justice of the European Union has, with its preliminary ruling in
Case C-557/12, Kone and others v OBB-Infrastruktur AG, Judgment of 5 June
2014, EU:C:2014:1317, now addressed the potential legal implications of such
umbrella effects. In confirming that the right to compensation stemming from
breach of EU competition law extends to umbrella claims as a matter of
principle, the Court of Justice has offered its most expansive, and arguably
most emphatic, interpretation of the scope and importance of private antitrust
enforcement to date.
click here for full text via
CUP [ON
CAMPUS]
click here for full text via
CUP [OFF CAMPUS]
Book review of Building New Competition Law Regimes:
Selected Essays (David Lewis (ed.)), 73 Cambridge Law Journal 643-646
(2014)
'Leading by Example: Private Competition Enforcement by the
European Commission' 72 Cambridge Law Journal 273-276 (2013)
Book review of Research Handbook on International
Competition Law (Ariel Ezrachi (ed.)), 72 Cambridge Law Journal
458-461 (2013)
'Margin Squeeze: Theory, Practice Policy, Parts I & II' 33
European Competition Law Review 29-39 & 61-68 (2012)
'Margin Squeeze: From Broken Regulation to Legal Uncertainty'
70 Cambridge Law Journal 34-37 (2011)
'Knowing When to See it: State Activities, Economic
Activities, and the Concept of Undertaking' 16 Columbia Journal of European
Law 427-463 (2010)
The concept of "undertaking" acts as a gatekeeper to the application
of thye substantive competition laws of the European Union, namely
Articles 101 and 102 T.F.EU. A functional approach to the concept,
rooted in the notion of economic activity, has been adopted. Insofar
as State activities fall within the concept of economic activity, a
notion has developed in European case law that the substantive
provisions of the Treaty on the Functioning of the European Union
apply to those actions. This Article explores this functional
approach as applied to State activity, with a particular focus on
the exceptions for activities implicating social solidarity and
public powers, and on recent developments in case law informing how
the approach is interpreted. Significant uncertainties within the
existing notion of the functional approach are identified and the
Article concludes with two recommendations for improvement: adopted
of an overarching principle of deference to State action to be
applied in borderline cases and development of a framework of
presumptions to guide national courts in applying European Union
competition law under the delegated enforcement structure of
Regulation 1/2003.
click here for full text via Hein Online
[ON CAMPUS]
click here for full text via Hein Online
[OFF CAMPUS]
