International Antitrust Law & Policy: Fordham Competition Law 2007
Barry Hawk, Editor
Price: $195.00 826 pages. 1 Hardcover Volume. Published March 2008.
ISBN-13: 978-1-57823-235-2
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Summary Table of Contents
Table of Contents
Foreword
Chapter 1 CONVERGENCE, CONFLICT, AND COMITY: THE SEARCH FOR COHERENCE IN INTERNATIONAL COMPETITION POLICY
by Deborah Platt Majoras
I. Global Progress in Developing Competition Policy
II. Significant Areas of Divergence: National Champions
III. Significant Areas of Divergence: Unilateral Effects
IV. Consideration of Comity
Chapter 2 CONVERGENCE, CONFLICT, AND COMITY: THE SEARCH FOR COHERENCE IN INTERNATIONAL
COMPETITION POLICY
A. Paul Victor
John Fingleton
Deborah Platt Majoras
Joe Sims
Panel Discussion
Chapter 3 NON-HORIZONTAL MERGERS – A EUROPEAN PERSPECTIVE
by Carles Esteva Mosso
I. Introduction
II. The Tetra/Sidel and GE/Honeywell Jurisprudence on Non-Horizontal Mergers
A. The Interpretation of the Merger Test and the Standard of Proof for Non-Horizontal Mergers
B. The Assessment of Foreclosure Theories
III. The Assessment of Effects Under the New Merger Regulation
IV. The Draft Non-Horizontal Merger Guidelines
A. General Overview of the Commission’s Analysis of Non-Horizontal Mergers
B. Definition of “Safe Harbours”
C. Assessment of Vertical Mergers
D. Assessment of Conglomerate Mergers
E. Comments Submitted in Reply to the Public Consultation
V. The Commission’s Recent Enforcement Practice
A. Recent Vertical Mergers Analysed by DG Competition
B. Recent Conglomerate Cases Assessed by the Commission.
VI. Conclusions
Annex I.
Annex II
Chapter 4 POTENTIAL STORMY WEATHER AHEAD? DIVERGING ANTITRUST NON-HORIZONTAL MERGER ENFORCEMENT POLICIES COULD RESULT IN ANOTHER TRANSATLANTIC SHIPWRECK
by Ilene Knable Gotts, Brian A. Facey and Didier Théophile
I. Historical Treatment of Vertical Mergers
A. United States
B. Canada
C. European Union
II. Recent Vertical Merger Enforcement Activity Shows Substantial Convergence Among Jurisdictions
A. Foreclosure
B. Raising Rivals’ Costs
C. Facilitate Collusion
III. Conglomerate Mergers: The Greatest Gap Remaining Among the Authorities
IV. Conclusion
Chapter 5 SOME THOUGHTS ON NON-HORIZONTAL MERGER ENFORCEMENT
by David L. Meyer
I. Three Important Points of Consensus
II. Why Does There Remain a Divergence in Approach?
III. Is There Greater Divergence on Conglomerate Mergers?
Annex I
Chapter 6 THE CHALLENGE OF NON-HORIZONTAL MERGER ENFORCEMENT
by J. Thomas Rosch
Chapter 7 THE EUROPEAN COMMISSION’S APPROACH TO VERTICAL MERGERS — THE NEW NON-HORIZONTAL MERGER GUIDELINES
by Gerwin Van Gerven and Alessandro Tajana
I. Introduction
II. The European Commission’s NHM Guidelines
A. Foreclosure
B. Other Non-coordinated Effects
C. Coordinated Effects
D. Efficiencies
III. Examples of Recent Foreclosure Cases
A. EDP/ENI/GDP
B. Siemens/VA Tech
C. E.ON/MOL
D. Philips/Intermagnetics
E. Johnson & Johnson/Pfizer Consumer Healthcare
F. Evraz/Highveld
G. Thales/Finmeccanica/Alcatel AleniaSpace & Telespazio
IV. Conclusion.
Chapter 8 CONGLOMERATE MERGERS AND VERTICAL MERGERS — A U.S. PERSPECTIVE
Ilene Knable Gotts
Carles Esteva Mosso
David L. Meyer
Hon. J. Thomas Rosch
Gerwin Van Gerven
Panel Discussion
Chapter 9 IMPROVING COMPETITION IN EUROPEAN ENERGY MARKETS THROUGH EFFECTIVE UNBUNDLING
by Neelie Kroes
I. Introduction
II. Liberalisation of European Energy Markets
A. Development of Legislative Framework in the EU
B. Unbundling Regime in the EU
C. Experience with Unbundling in the U.S
III. Malfunctioning of European Energy Markets
A. Competition Sector Inquiry Findings
B. Intrinsic Deficiencies of the Current Unbundling Regime
IV. Improving Competition in Energy Markets
A. Competition Law Enforcement
B. New Legislative Measures
V. An Analysis of Ownership Unbundling
A. Defining Ownership Unbundling
B. Arguments in Favour of Ownership Unbundling
C. Considerations Against Ownership Unbundling
VI. Modelling an Independent System Operator to Ensure Effective Unbundling
VII. Conclusions
Annex I
Annex II
Annex III
Chapter 10 EUROPE’S POWER FAILURE
by Stephen Kinsella OBE and Hanne Melin
I. Introduction
II. Background – Legal Separation
A. Early Regulatory Efforts
B. Recent and Renewed Efforts
III. The Way Forward – A Structural Solution?
A. Appropriateness of a Structural Solution – a Question of Principle
B. Community Law Principles
C. Looking to Regulation 1/2003
D. Looking to the Merger Regulation
E. Proposed Approach for Determining Appropriateness
F. Proposed Framework: Competition Law Principles to Guide Legal Unbundling
IV. Final Word
Chapter 11 THE COSTS OF MOVING TO A PERFECT WORLD: FORCED OWNERSHIP UNBUNDLING IN THE
NATURAL GAS AND ELECTRICITY SECTORS
by Carlos Lapuerta
I. Introduction
II. Full Ownership Unbundling: A Perfect World
A. The National Champion Argument
B. Fears over Credit Downgrades
III. The Costs of Moving to a Perfect World
A. Political Capital
B. Investor Uncertainty
C. The Inefficiency of ISOs
IV. Possible Alternatives
A. Distinguishing Between Natural Gas and Electricity
B. Partial Ownership Separation
Chapter 12 HOW TO INTEGRATE THE EUROPEAN ENERGY MARKETS: A NEW VISION
by Abel M. Mateus
I. Introduction
II. Issues in Integration of the European Union Energy Markets
III. Vertical Unbundling: Solution or False Start?
A. What Is Unbundling?
B. The Present EU Situation
C. Benefits and Costs of Unbundling: Theoretical and Empirical Evidence
D. The European Debate
E. Choice Between TSO and ISO
F. Public Versus Private Ownership of the Energy Assets
G. Legal Problems of Implementation of the Unbundling
IV. Cross-Border Trade and Interconnection: Building Regional Markets
V. Merger Policies at National and Community Levels: Questioning the 2/3 Rule
A. E.ON/Ruhrgas Case
B. EDP/ENI/GDP Case
C. Endesa/Gas Natural Case
D. Gaz de France/Suez Case
E. Problems with Promoting European Champions
F. The 2/3 Merger Rule for Case Allocation
G. Methodologies Used for Merger Analysis and Its Impact
VI. Competition Policy in an Environment of Global Concentration in Natural Resources
VII. Conclusions
A. Is Ownership Unbundling Really Necessary, and Do the Costs Outweigh the Benefits?
B. Is There a Need to Increase Interconnector Capacity and to Regulate Their Operation?
C. Is There a Need to Increase Structural Competition of Electricity Generators in National Markets?
D. Liberalization of Electricity and Gas Markets Have to Go Hand in Hand
E. EU Regulators Should Dedicate More Attention to Design the Appropriate Wholesale Market at National and EU-Wide Levels
F. Do We Need New Merger Policies and a New Merger Regulation?
G. Should We Create European Energy Champions in Order to Counteract the Rise of Energy Giants in Supplier Countries?
H. Should There Be a EU Regulator?
I. What Is the Role of the Commission?
J. Competition Can Be Increased by Introducing Suppliers and Traders and Enabling Consumers to Choose Freely Among Suppliers
K. Consumers Should Be Charged the Market Price, Hopefully in a Competitive Market, but in Real-Time
L. We Need a Comprehensive and Sequential Approach to Energy Reform.
Annex I
Annex II
Chapter 13 AS MUCH MARKET AS POSSIBLE AND AS MUCH REGULATION AS NECESSARY – NEW ZEALAND’S EXPERIENCE WITH UNBUNDLING IN THE ELECTRICITY INDUSTRY
by Peter Taylor
I. New Zealand’s Electricity Industry
A. Generation
B. Transmission
C. Distribution
D. Retail
II. Operation of the Industry
III. Development of the Current Framework
IV. Specific Regulation
A. Southpower
B. Electricity Industry Reform Act 1998
C. Electricity Thresholds Regime
D. The Thresholds
V. Generic Legislation
A. Commerce Act 1986
B. Fair Trading Act 1986
C. Consumer Guarantees Act 1993
D. Resource Management Act 1991
E. Energy Efficiency and Conservation Act 2000
F. Electricity Act 1992
VI. Assessing the Current Approach
VII. Future
A. State Response
B. New ‘Green’ Strategy
C. State of Competition
VIII. Conclusion
Annex I
Chapter 14 UNBUNDLING IN THE EUROPEAN ENERGY SECTOR – FROM A NATIONAL COMPETITION AUTHORITY’S PERSPECTIVE
by Dr. Markus Wagemann
I. Development of Electricity and Gas Markets in Germany Since 1998
II. Sector Specific Regulation Since 2005
III. Existing Unbundling Provisions (Art. 6 – 10 EIA)
IV. Other Current Projects of German Legislation with Regard to Energy Markets
V. The Approach of the Bundeskartellamt in Energy Cases
VI. Ownership Unbundling – Pros and Cons
A. Structural Approach
B. Ownership Unbundling as Ultima Ratio
C. Regulatory Impact of the Unbundling Options
D. Regulation of Unbundled Network Operators
E. Market Power in Generation and Supply
VII. Conclusion
Chapter 15 VERTICAL INTEGRATION: UNBUNDLING THE ENERGY SECTOR
Stephen Kinsella
Neelie Kroes
Carlos Lapuerta
Abel M. Mateus
Christian Stoffaës
Peter Taylor
Markus Wagemann
Panel Discussion
Chapter 16 REMEDIES AND SANCTIONS FOR UNLAWFUL UNILATERAL PRACTICES, WITH PARTICULAR REFERENCE TO
EXCLUSIONARY ABUSES
by Rafael Allendesalazar
I. Introduction – Public and Private Enforcement of Antitrust Law
II. Objectives of Public and Private Enforcement of Antitrust Law
A. Stopping Illegal Conduct and Preventing Its Recurrence
B. Restoring Competition Which Would Have Existed but for the Infringement
C. Deterrence
III. Remedies
A. Behavioural Remedies
B. Structural Remedies
IV. Sanctions
Chapter 17 TOWARDS NEUTRAL PRINCIPLES OF ANTITRUST ENFORCEMENT
by Stephen M. Axinn and Doron M. Kalir
I. Introduction
II. Antitrust Enforcement: A History of Apparent Ideological Shifts
A. Origins of Merger Law
B. The 1950 Cellar-Kefauver Amendment
C. The 1982 Guidelines and Their Progeny
D. Enforcement Today
III. Towards Neutral Principles
IV. Conclusion
Chapter 18 SECTION 2 REMEDIES: A NECESSARY CHALLENGE
by Thomas O. Barnett
I. Goals of Antitrust Remedies
II. Guidelines for Implementation
A. Follow the Advice of Hippocrates
B. Remedy the Proven Violation
C. Re-establish Market Competition
D. Consider the Challenge of Behavioral Relief
E. Consider That Markets Change in Ways We Cannot Predict
F. Adopt Clear, Objective Requirements
G. Consider the Risk of Error
H. Respect Institutional Limitations of Courts and Agencies
I. Consider the Remedy’s Impact on Incentives
J. Civil Penalties
III. Application of These Principles
A. U.S. v. Microsoft
B. International Unilateral Conduct Issues
Chapter 18A REMEDIES AND SANCTIONS FOR UNILATERAL CONDUCT IN COMPETITION CASES
by Ian S. Forrester, QC
I. Introduction
II. Fines Without Precedent
III. The Behavioural Remedies in the Microsoft Case
A. Controversies about Confidentiality
B. Controversies about Scope and Adequacy
C. Price Controversies
IV. Remedies in Theory
A. Regulation or Antitrust?
B. Imposed or Negotiated Remedies?
C. Exhaustively Prescriptive or Generally Descriptive Remedies?
D. Public or Private Enforcement?
Chapter 19 REMEDIES AND SANCTIONS FOR UNLAWFUL UNILATERAL CONDUCT: THE FRENCH EXPERIENCE
by Bruno Lasserre
I. Introduction
A. Legal Background: Prohibition and Justification of Abuses of a Dominant Position
B. Enforcement: an Intense Activity
C. A Modern, Effects-Based Approach
II. Fining Abuses of a Dominant Position
A. Are Fines Suited to Unilateral Conduct Cases?
B. When and Why Are Fines Appropriate in Unilateral Conduct Cases?
C. How Are Fines Devised in Unilateral Conduct Cases?
III. Interim Measures and Injunctions
A. Time-efficiency
B. The Conditions for Interim Measures
C. The Nature of Interim Measures and Injunctions
D. The Case of Liberalizing Markets
E. Failure to Comply: Fines If Needed
IV. Committing in Unilateral Conduct Cases
A. Why Favor Commitments in Unilateral Conduct Cases?
B. When to Favor Commitments in Unilateral Cases?
C. How to Craft Commitments in Unilateral Cases?
V. Conclusion
Chapter 20 QUO VADIS ANTITRUST REMEDIES
by Philip Lowe and Frank Maier-Rigaud
I. Introduction
II. Legal Framework
A. Remedies under Article 7
B. Interim Measures under Article 8
C. Commitment Decisions under Article 9
III. Quo Vadis: Three Suggestions
A. Structural Remedies
B. Procedural Choices
C. Stopping Irreversible Effects
IV. Conclusion.
Chapter 21 REMEDIES AND SANCTIONS FOR UNLAWFUL UNILATERAL CONDUCT
Andreas Reindl
Rafael Allendesalazar
Stephen M. Axinn
Thomas O. Barnett
Hon. Denise L. Cote
Ian Forrester
Bruno Lasserre
Philip Lowe
Prof. Howard A. Shelanski
Panel Discussion
Chapter 22 MARKET INVESTIGATIONS AND OLIGOPOLISTIC MARKETS
by Peter Freeman
I. Introduction
II. Oligopoly
III. The Regime
A. Legal Framework
B. Scope of Application
IV. The Cases
A. Overview
B. Completed Cases
C. General Observations About the Cases
V. Remedial Action
VI. The Alternative View and the Response
A. Market Investigations and Prohibition Systems
B. Burdens on Business and Multiple Investigations
C. The Rule of Law
VII. Conclusions
Chapter 23 OLIGOPOLIES AND ‘PURE’ INFORMATION EXCHANGES IN THE EU: NEW CROPS ARE GROWING ON THE SOILS PLOWED BY ‘UK TRACTORS’
by Stefano Grassani
I. Introduction
II. The Origins of EU Enforcement on ‘Pure’ Exchanges of Information
A. The 1968 Notice
B. The 1968-1977 Case Law
C. The Seventh Report on Competition
D. The Post-Statement Case Law
III. UK Tractors
A. The Agreement to Exchange Information
B. The 1992 EC Commission Decision
C. The Appeals Before the CFI and the ECJ
IV. Post-UK Tractors Developments at EU Level
V. Current ‘Good’ Law and Specific Open Issues
A. Article 81(3) and Efficiencies
B. Exchange of Public Information
VI. Enforcement in Member States
A. France
B. Italy
C. Spain
D. United Kingdom
VII. Conclusions
Chapter 24 OLIGOPOLY: FACILITATING PRACTICES AND PLUS FACTORS
by Thomas E. Kauper
I. Facilitating Practices
II. Oligopoly Pricing and “Plus Factors”
III. Conclusion
Chapter 25 OLIGOPOLIES AND COMPETITION LAW
Hon. Frédéric Jenny
Peter Freeman
Stefano Grassani
Prof. Thomas K. Kauper
Damien Neven
David Scheffman
Panel Discussion