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Competition Law Enforcement in Sweden and the EU - Present Trends - Chapter 18 - International Antitrust Law & Policy: Fordham Corporate Law 2005

 
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Author: Christer A. Holm
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 International Antitrust Law & Policy: Fordham Corporate Law 2005 - Hardcover

 International Antitrust Law & Policy: Fordham Corporate Law 2005 - PDF

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Chapter 18
COMPETITION LAW ENFORCEMENT
IN SWEDEN AND IN THE EU—
PRESENT TRENDS
Christer A. Holm†
In regards to the recently submitted Government report “Competition
crime – a Legislative Model” (SOU 2004:131), the question of making it a
criminal offence to infringe the prohibitions on anticompetitive behaviour
has, once again, become updated in the legal debate in Sweden. There are
also other signs of a more extensive approach in applying competition law,
both in Sweden and in the EU, as can be seen in, for example, arbitration
disputes. Another example of the expanding scope of competition law is the
controversial EU Commission decision in the AstraZeneca case.1 This article
will focus on the present trends of the scope of competition law and the
stricter enforcement of it in Sweden and the EU.
I. CRIMINALIZATION OF COMPETITION LAW
A. History of Criminalization Rules in Sweden
The Competition Limitation Act of 1953,2 as well as the Competition
Act from 1982,3 contained the possibility to sentence a party participating
in activities infringing competition to prison as well as administrative
fines. According to the Competition Limitation Act, participation in bid
rigging cartels and price fixing were illegal. Price cartels, on the other
hand, were not criminalized. The penalties for breach of these rules were
administrative fines or prison up to one year. The Competition Act of 1982
also criminalized bid rigging cartels and price fixing. The penalties were
slightly more severe than those in the Competition Limitation Act. The
penalty for serious offences (for example organized cartels and repeated
anticompetitive conduct) was two years’ imprisonment. Furthermore, not
only intentional but also negligent infringements on the prohibition of bid
rigging cartels were criminalized.

Table of Contents

 Foreword


Summary Table of Contents

Table of Contents

Welcome and Opening Remarks

 

Chapter 1

BRAZILIAN COMPETITION POLICY SYSTEM

by Elizabeth Farina


 

I. Introduction

II. Benefits of Antitrust Enforcement, Measurement and Justification of Antitrust Structure in a Developing Country

III. Judicial Review

IV. Independency and Relationship Between the Competition Authority and Government

 

Chapter 2

THE POLICY OF COMMITMENTS IN ANTITRUST LAW: FIRST STEPS AND FIRST
UPDATE ON THE FRENCH CASE


by Bruno Lasserre

 

I. Introduction

II. The Appearance of a New Market Regulation Instrument: The Commitments Procedure

    A. Commitments: Continued Moves to ModernizeCompetition Law

    B. Commitments: The Need to Adapt the National Procedural Framework

III. Adoption of the New Instrument: A Successful Start

    A. A Clearly Attractive Procedure

    B. A Promising Procedure

     

Chapter 3

ENFORCEMENT AUTHORITIES

by Philip Lowe

 

I. Cartels

II. Sector Inquiries

III. Article 82 – Abuse of Dominance

IV. Bringing Down State Barriers

    A. Competition Screening

    B. Professions

V. Enforcement Action Against State Measures

    A. Article 10, in Conjunction with Article 81 or 82 of the EC Treaty

    B. Article 86 of the EC Treaty

VI. Private Enforcement

VII. Conclusion

 

Chapter 4

ENFORCEMENT AUTHORITIES ROUNDTABLE

Paul Victor, Presider

Hon. Thomas O. Barnett

Ulf Böge

Elizabeth Maria Mercier Querido Farina

Mario Monti

Bruno Lasserre

Philip Lowe

Hon. Deborah Platt Majoras

 

Panel Discussion

 

Chapter 5

STANDARDS OF PROOF AND STANDARDS OF JUDICIAL REVIEW

IN EU COMPETITION LAW

by Hubert Legal

 

Chapter 6

STANDARDS OF PROOF AND STANDARDS OF
JUDICIAL REVIEW IN EC MERGER LAW


by Tony Reeves and Ninette Dodoo

 

I. Introduction

II. The Distinction Between Standard of Proof and Standard of Review

III. Standard of Proof

    A. General Principles

    B. Standard of Proof in Merger Cases

IV. Standard of Review

    A. Appeal/Judicial Review

    B. Errors of Law

    C. Errors of Fact

    D. Error of Appreciation

    E. The Impact of Tetra Laval

V. Conclusion

 

Chapter 7

STANDARDS OF PROOF AND JUDICIAL REVIEW:

A U.S. PERSPECTIVE


by Richard M. Steuer

 

I. Introduction

II. Standard of Proof

    A. Criminal or Civil

    B. Court or Agency

    C. Stage of Proceeding

    D. Nature of Offense

III. Standard of Review

    A. Criminal or Civil

    B. Court or Agency

    C. Stage of Proceeding

    D. Nature of Offense

IV. Conclusion

 

Chapter 8

STANDARDS OF PROOF AND STANDARDS OF JUDICIAL REVIEW IN EC COMPETITION
LAW ROUNDTABLE


Tony Reeves, Presider

Hubert Legal

Theofanis Christoforou

Richard M. Steuer

 

Panel Discussion

 

Chapter 9

OBSERVATIONS ON NEGOTIATING GOVERNMENT ANTITRUST SETTLEMENTS IN THE UNITED STATES

by James R. Atwood



 

I. The Interplay of U.S. Government Settlements and Private Treble Damage Litigation

    A. Criminal Investigations

    B. Civil Investigations

II. Some Issues Unique to Investigations of International or Foreign Conduct

 

Chapter 10

PRIVATE ENFORCEMENT OF COMMISSION COMMITMENT DECISIONS:
A STEEP CLIMB NOT A GENTLE STROLL


by John Davies and Manish Das

 

I. Introduction

II. The Relevance of Direct Effect

III. Should Commitment Decisions be Capable of Direct Effect?

    A. The Binding Nature of Commitment Decisions

    B. The Principle of Effectiveness ("Effet Utile")

    C. Does a Commitment Decision Create Rights in Favour of Third Parties?

    D. Are Commitments Unconditional and Sufficiently Precise?

    E. Conclusion and Direct Effect

    F. Can Article 10 EC Treaty Help

    G. Procedural Problems

IV. Conclusion

 

Chapter 11

SETTLEMENT OF COMPETITION CONDUCT VIOLATIONS AT THE UNITED STATES
ANTITRUST AGENCIES AND AT THE EUROPEAN COMMISSION - SOME OBSERVATIONS


by Daniel P. Ducore

 

I. Settling Cases at the United States Federal Trade Commission

II. Conduct Remedies for Competition Violations

III. Procedures for Settling Competition Violations

IV. Remedies for Violations of FTC Orders

V. U.S. Settlements and European Commission Commitments

VI. Two Recent EC Settlements

VII. Fines, Criminal Penalties, and Other Monetary Relief

VIII. Some Implications of Settling With the Enforcement Agencies

 

Chapter 12

SOME ELEMENTS TO ENHANCE DAMAGES - ACTIONS FOR BREACH OF THE COMPETITION
RULES IN ARTICLES 81 AND 82 EC


by Dr. Sven Norberg

 

I. Introduction

II. Issues Addressed in this Paper

    A. General

    B. Fault Requirement

    C. The Passing-on Defence and the Indirect Purchaser

    D. Recent Amendments to the Swedish Competition Act

    E. Protection of Consumer Interests

III. Some Conclusions

 

Chapter 13

COMMITMENT DECISIONS AND SETTLEMENTS WITH ANTITRUST AUTHORITIES AND PRIVATE
PARTIES UNDER EUROPEAN ANTITRUST LAW


by John Temple Lang

 

I. Introduction

    Part I

    A. Undertakings in Pre-Regulation 1/2003 Cases

    B. Conditions in Decisions Under Article 81(3)

     

    Part II

    A. Regulation 1/2003 on Commitment Decisions

    B. The Commission’s Practice on Commitment Decisions So Far

    C. The Commission’s Principal Commitment Cases Publicly Known So Far

     

    Part III

    A. Companies’ Reasons for Offering Commitments

    B. The Commission’s Reasons for Considering Commitments

     

    Part IV

    A. Procedure: The Statement of "Concerns"

    B. The Parties’ Access to the Commission’s File When Commitments Are Envisaged

    C. Publication of Proposed Commitments

    D. The Rights of Third Parties

    E. Safeguards within the Commission

    F. Decision for Limited Periods

    G. Commitments in Multiparty Cases

    H. Commitments and Leniency Applications

    I. Can an Offer of a Commitment Be Withdrawn?

     

    Part V

    A. Terms of Commitments

    B. Legal Consequences of Commitment Decisions: Conduct within the Scope of the Commitment

    C. Legal Consequences of Commitment Decisions: Does the Commission Have to conclude
    that the Company Will Be Doing Nothing Illegal If It Fulfills Its Commitments?

    D. Enforcement of Commitment Decisions

    E. Commitments in Specific Situations: Article 81 Cases

    F. Commitments in Article 82 Cases – Pricing

    G. Commitments – Price Squeezes

    H. Commitments – High Technology Industries

    I. Commitments in Regulated Industries

    J. Commitments Instead of Interim Measures

    K. Structural and Behavioural Commitments

    L. Informal Commitments After Reg. 1/2003

     

    Part VI

    A. Judicial Review of Commitment Decisions

    B. Interim Measures When a Commitment DecisionIs Challenged

    C. After the Commitment Decision: Changed Circumstances, and Amending and
    Terminating Commitments

    D. What Assurance has the Company that the Commission Will Not Change Its Mind?

    E. Judicial Review of a Commission Refusal to Accept a Commitment

     

    Part VII

    A. Article 10 EC and the duties of National Antitrust Authorities and Courts under Commitment

    Decisions: Conduct after the Decision
    B. Arbitration

    C. Commitment Decisions by National Antitrust Authorities

    D. The European Economic Arena

    E. The Territorial Scope of National Commitment Decisions

    F. Commitment Decisions Based Only on National Law

    G. Some National Legislation on Commitment Decisions

    H. Some National Commitment Cases

    I. Commission Commitment Cases and U.S. Civil Consent Decrees Involving the Same Parties

     

    Part VIII

    A. Settlement of Private Actions

    B. Tactics and Aims of Plaintiffs in Settlements

    C. Tactics for Defendants in Settlements

    D. Consequences of Commitments for Existing Contracts

     

    Part IX

    A. Some Concerns about Commitment Decisions Procedures

    B. Possible Safeguards

    C. Suggestions for Companies and for the Commission

    D. Conclusion: A Popular Invention

     

Chapter 14

THE FRENCH APPROACH TO SETTLEMENTS IN

ANTITRUST PROCEDURES


by Didier Théophile

 

I. Introduction

II. The Negotiated Settlement (Article L.464-2 III)

    A. Two Conditions for a Negotiated Settlement

    B. Procedural Aspects

    C. Calculation of the Fine

III. The commitment Procedure (Article L.464-2 I)

    A. A Flexible Approach

    B. Procedural Aspects

IV. First lesson to be Drawn From the French Practice

    A. Comparison of Commitment Decisions and Negotiated Settlement Decisions

    B. French Settlements Proceedings in Light of Article 9 of Regulation 1/2003

V. Conclusion

 

Chapter 15

SETTLEMENTS OF GOVERNMENT CIVIL PROCEEDINGS
AND PRIVATE ACTIONS ROUNDTABLE


John Davies, Presider

James R. Atwood

Daniel P. Ducore

Sven Norberg

John Temple Lang

Didier Théophile

 

Panel Discussion

 

Chapter 16

TACKLING EXCLUSIONARY PRACTICES TO AVOID EXPLOITATION OF MARKET POWER:
SOME PRELIMINARY THOUGHTS ON THE POLICY REVIEW OF ARTICLE 82


by Neelie Kroes

 

I. Article 82

II. Dominance

III. The Concept of Abuse

IV. Price Based Abuses

V. Article 82 and Intellectual Property Rights

VI. Efficiencies

VII. Concluding Remarks

 

Chapter 17

JUDICIAL REMEDIES UNDER EC COMPETITION LAW: COMPLEX ISSUES ARISING FROM
THE "MODERNISATION" PROCESS


by Damien Geradin and Nicolas Petit

 

I. Introduction

II. Acts That Can Be Challenged within the Context of EC Competition Law Post-Modernisation

    A. Establishing Whether an Act Is Challengeable within the Meaning of Article 230 EC

    B. Acts Open to Challenge within the Field of Competition Law Post-Modernisation

III. Those Having the "Quality to Act" in Annulment

    A. Decisions Where Applicant Is Not the Addressee

    B. Acts of a General Nature

IV. The Modalities of an Annulment Action

    A. Lodging and Appeal

    B. The Content of an Appeal

V. Judicial Actions Parallel and Subsequent to Article Proceedings

    A. Increased Parallel Appeals Where the Community Courts Have Full Jurisdiction

    B. Appeals for Indemnity

VI. The Effectiveness of an Annulment Action

    A. Intensity of Judicial Review

    B. The Expedience of Judicial Review

    C. The Alternatives to the Current System of Judicial Review

VII. Conclusion

 

Chapter 18

COMPETITION LAW ENFORCEMENT IN SWEDEN

AND IN THE EU – PRESENT TRENDS


by Christer A. Holm

I. Criminalization of Competition Law

    A. History of Criminalization Rules in Sweden

    B. Criminalization – The Proposed Model

    C. Answers to the Proposal

    D. EC Legal Aspects

    E. Conclusion

II. Other Signs of the Greater Impact of EC Competition Law in Sweden

    A. Right to Claim Damages

    B. Class Action

    C. Inspections in Private Homes and Other Premises

    D. Arbitration

    E. AstraZeneca and Article 82

     

Chapter 19

TOWARDS A "SMART" ARTICLE 82

by Trevor Soames

 

I. Introduction

II. The Great Reform Project

III. Implications for Article 82

IV. Review of Article 82

V. Guidelines

VI. Conclusion

 

Chapter 20

EC COMPETITION ENFORCEMENT LAW AND POLICY ROUNDTABLE

Trevor Soames, Presider

Neelie Kroes

Damien Géradin

Christer A. Holm

Panel Discussion

 

Chapter 21

PUBLIC OR PRIVATE PROVISION OF INFRASTRUCTURE SERVICES? IF PRIVATE,
FIXED TERM CONCESSIONS OR FULL PRIVATIZATION?


by Alberto Heimler

 

I. Introduction

II. Concessions or Public Provision?

    A. Public Versus Private Provision of Public Services

III. Fixed Term Auctions, Privatization and Efficiency

IV. Concessions, Auctions and Renegotiations: Some Practical Experience

    A. Aggressive Bidding

    B. Faulty Contract Design

    C. Government Failure to Honor Contract Clause

    D. Defective Regulation

V. Auctions or Beauty Contests?

VI. Public Services and Competition

VII. Conclusions

 

Chapter 22

PRIVATIZATION OF INFRASTRUCTURE

by Hal Moore and Sarah Ward

 

I. Concessions

II. Water War: Cochabamba, Bolivia

    A. Background

    B. Terms of the Contract

    C. Life Under the Concession

    D. Regulatory Response

    E. Epilogue

III. Manila

    A. Background

    B. Terms of the Contract

    C. Life Under the Concession

    D. Regulatory Response

    E. Epilogue

IV. Buenos Aires

    A. Background

    B. Terms of the Contract

    C. Life Under the Concession

    D. Regulatory Response

    E. Epilogue

V. Conclusion

 

Chapter 23

PRIVATIZATIONS/CONCESSIONS AND COMPETITION POLICY ROUNDTABLE

Merit E. Janow, Presider

Alberto Heimler

Frédéric Jenny

Harold F. Moore

 

Panel Discussion

 

Chapter 24

COMPETITION POLICY, ECONOMICS, AND ECONOMISTS:

ARE WE EXPECTING TOO MUCH?


by Andrew I. Gavil

 

I. Introduction

II. What Are the Sources of Economic Wisdom for Antitrust
Law and Policy, and How Do They Gain Access to Antitrust Law?

    A. The Institutions of Antitrust Law and Policy

    B. Access Points for Economic Ideas Common to Agencies and Courts

    C. Access Points for Economic Ideas Unique to Agencies and Courts 

III. What Filters or Institutional Checks and Balances Are in Place to Ensure that Parties, Courts and

Agencies Get the Economics "Right"?

    A. Checks and Balances on Economic Ideas Before Courts and Antitrust Agencies

    B. The Daubert Decision and Its Implications for Antitrust

IV. What Lessons Does the U.S. Experience Offer for Those Who Would Similarly Seek to Translate
Economic Ideas into Competition Policy?

    A. The Daubert Paradox: Can Courts Demand Too Much of Economics and Economists?

    B. Can the Economic Analysis of Commentators and Courts Exceed Their Own Expertise?

V. Conclusion

 

Chapter 25

MAKING ECONOMICS MORE USEFUL IN COMPETITION CASES: PROCEDURAL RULES GOVERNING
EXPERT OPINIONS


by Gregory J. Werden

 

I. Introduction

II. Reports by Economic Experts

III. Qualifications

IV. Reliability

V. "Fit"

VI. Other Procedures for Making Economics More Useful

VII. Lessons for Competition Authorities

 

Chapter 26

ECONOMIC EXPERTS BEFORE AUTHORITIES AND COURTS ROUNDTABLE

Frédéric Jenny, Presider

Andrew I. Gavil

Derek Ridyard

Lars-Hendrick Roeller

Gregory Werden

 

Panel Discussion

Author Detail

 About the Editor: 

Barry Hawk is Director of the Fordham Corporate Law Institute and Partner with Skadden Arps (New York and Brussels). He is former Vice Chair of the ABA Antitrust Section and former Chair of the New York State Bar Association Antitrust Section, as well as Professor at Fordham Law School and Visiting Professor at Michigan Law School, Monash University Law School, New York University Law School and the University of Paris.

Reviews

  Praise for the Fordham Corporate Law Series:

"... the predominant forum for discussion of leading edge international antitrust issues. Both the conference and the published volume of proceedings are eagerly awaited events on the annual antitrust calendar."
- A. Neil Campbell, Vice Chairman of Committee C, (Antitrust and Trade Law) International Bar Association, and;
J. William Rowley Former Chairman of Committee C, (Antitrust and Trade Law) International Bar Association.

"This is the largest single source of information and analysis on Community (now European Union) antitrust law anywhere. ... Also, some of the older papers are still the best statement of the legal principles in certain areas, even if there is recent case law." 
- Common Market Law Review

"The Panel discussions which come at the end of the articles on a given topic are not only a valuable source of information, but provide an insight into existing and potential future problems together with possible solutions."
World Competition

 

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