Chapter 1
THE UK MARKET INQUIRY REGIME
by Paul A. Geroski
I. Introduction
II. The UK Market Inquiry Regime
III. Putting This Into Some Perspective
A. Monopoly Inquiries and Market Studies
B. Two Examples (Sort Of)
IV. And So Why is the MIR Such a Good Thing?
V. Final Thoughts
Chapter 2
HARMONISATION AND ITS LIMITS
by David Lewis
I. National Enforcement, International Markets
II. Harmonisation and its Limits
III. Harmonising National Laws and Analytical Approaches
IV. Harmonising Enforcement Standards
V. Conclusions
Chapter 3
CURRENT ISSUES IN INTERNATIONAL ANTITRUST ENFORCEMENT
by R. Hewitt Pate
I. Introduction
II. Cartel Enforcement
III. The European Commission
IV. Current Issues in International Antitrust Enforcement
Chapter 4
INTERNATIONAL ANTITRUST PERSPECTIVES ROUNDTABLE
by Andrej Plahutnik
I. Introduction
II. Elements of Competition Law and Policy
III. Relationship Between Competition Authorities and Sector Regulators
IV. International (Technical) Co-operation
V. Conclusion
Chapter 5
CARTEL ENFORCEMENT: INTERNATIONAL AND CANADIAN DEVELOPMENTS
by Sheridan Scott
I. Introduction
II. International Developments
III. Canada
A. Modernizing Section
B. Enhancing and Refining Investigative Tools
C. Immunity
D. International Cooperation
E. Raising Awareness of Cartels
IV. Conclusion
Chapter 6
WHERE JAPANESE COMPETITION POLICY IS GOING-PROSEPCT AND REALITY OF JAPAN-
by Akinori Uesugi
I. Introduction
II. Necessity of Anti-Monopoly Act Reform in Japan And its Significance
A. Harmonization Culture v. Competition Culture
B. Anti-Monopoly Act Reform Project Started
C. What Can We See From Public Comments Submitted
D. Legal Issues on the Surcharge System and a Leniency Program
E. Why the Increase of the Surcharge Rate and Introduction of
Leniency Program Important for Japan
F. A Bill to Amend the Anti-monopoly Act
III. Enforcement of the Anti-monopoly Act in the Area of IPR
A. IPR Policy in General
B. JFTC Cases in the Area of IPR
IV. Increased Use of Court Proceeding by Japanese Business
V. Other Activities by the JFTC
A. Enforcement Activities of the Anti-monopoly Act
B. JFTC Initiatives in the Process of Regulatory Reform
C. Merger Enforcement
D. The Competition Policy Research Center
E. International Cooperation
VI. Conclusion
Chapter 7
ANTITRUST PERSPECTIVES ROUNDTABLE
A. Paul Victor, Presider
Prof. Paul Geroski
David Lewis
Deborah P. Majoras
Mario Monti
R. Hewitt Pate
Andrej Plahutnik
Sheridan Scott
Akinori Uesugi
Panel Discussion
Chapter 8
ESSENTIAL FACILITY DOCTRINE AND INTELLECTUAL PROPERTY LAW: WHERE DOES EUROPE STAND IN THE AFTERMATH OF THE IMS HEALTH CASE?
by Dr. Ingo Brinker
I. Introduction
II. Facts of the IMS Health Case
A. IMS Health and the 1860 Brick Structure
B. Procedural Aspects
III. Merits of the Case: Article 82 EC, Essential Facility and Refusal to License Intellectual Property Rights
A. Dominant Position
B. Abuse
a. Relevant Case Law
1. Commercial Solvents
2. Télémarketing
3. Volvo
4. Magill
5. Ladbroke
6. Bronner
b. The Court’s Finding in IMS Health
c. Refusal to License Will Exclude Any Competition on a Secondary Market
1. Need for a Secondary Market?
2. License Indispensable
d. Requirement of a New Product
IV. Preliminary Conclusions and Summary
Chapter 9
HYBRID LICENSING: GUIDELINES AND ANTICOMPETITIVE CONCERNS
by William J. Cotreau, Esq. and Thomas M. Jeon, Esq.
I. Introduction
II. The Hybrid License: Patents, Trade Secrets, and Know-How
A. Patents
B. Know-How – Trade Secrets
C. The Hybrid License
III. Legal Analysis of the Hybrid License
A. Standing and Motivation to Sue: Lear, Inc. v. Adkins
B. Respecting the Limitations of the Patent Monopoly: Brulotte v. Thys Co.
C. Introducing Trade Secrets: Kewanee Oil Co. v. Bicron Corp.
D. Combining Trade Secrets and Patents: Aronson v. Quick Point Pencil Co.
E. Legal Trends
F. Economic Justifications
IV. Guidelines for Drafting Hybrid Licenses
A. Key Components
B. Structuring the Separation Between Patent and Trade Secret
C. Risks with the Hybrid License
D. Antitrust Concerns
V. Conclusion
Chapter 10
ARTICLE 82: REMEDIES IN SEARCH OF THEORIES?
by Ian S. Forrester, QC
I. Article 82 Never Sleeps
II. Pharmaceuticals and Computer Software: How Far Can a Duty to Deal Go?
III. Pharmaceuticals
A. The Facts
B. The Extraordinary Remedy and the Law
IV. Microsoft
A. IP v. Antitrust in EC Competition Law
B. The Microsoft Decision
C. The IMS Test and Microsoft
V. Epilogue
Chapter 11
A CANADIAN PERSPECTIVE ON INTELLECTUAL PROPERTY RIGHTS AND COMPETITION POLICY: STRIVING FOR BALANCE AND RELATED COMITY CONSIDERATIONS
by Calvin S. Goldman, Q.C., Richard F.D. Corley, and Crystal L. Witterick
I. Introduction
II. Remedies Should Facilitate the Realisation of Dynamic Efficiencies
A. Dynamic Efficiencies
B. Efficiencies vs. Anticompetitive Effects
III. Remedies Should Promote Competition not Competitors
IV. Remedies Should Try to Respect Intellectual Property Rights – Canadian Case and Policy Examples
A. Cases
B. Policy
V. Particularly in Rapidly Changing Industries, Competition Law Remedies
Should Not Unncessarily Override IP Rights and Thereby Stifle Innovation
VI. Applicable Comity Principles – Moderation and Restraint
VII Conclusion
Chapter 12
UNITED STATES ANTITRUST POLICY IN AN AGE OF IP EXPANSION
by Herbert Hovenkamp
I. Appropriate Antitrust Responses
II. Conclusion
Chapter 13
SPORT, INTELLECTUAL PROPERTY RIGHTS AND COMPETITION LAW
by Guy Leigh
I. Introduction
A. The Commercialisation of Sport
B. The Tension between Competition Law and Sport
II. Should Competition Law Apply to Sport and, if so, How?
A. Applicability of Competition Law to Sport
B. Rule of Reason – Non-sport Related Cases
C. Rule of Reason – Sport-Related Cases
D. Summary of Applicability of Competition Law to Sport
III. What Approach Should the Competition Authority Take When Applying Competition Law?
IV. How Should the Tradition Tension Between Intellectual Property Rights and Competition Law be Resolved in the Sports Sector, Given that Certain Sports Rely Heavily on Their Intellectual Property Rights to Generate Essential Revenue Streams?
A. Inter-Sport Arrangements
B. Third Party Arrangements
C. UEFA
D. Premier League
E. Bundesliga
VI. Conclusion
Chapter 14
SINGING IN TUNE WITH COMPETITION AND INNOVATION:
THE NEW EU COMPETITION POLICY TOWARDS LICENSING
by Philip Lowe and Luc Peeperkorn
I. Introduction
II. Do IP and Competition Law have Conflicting Aims?
III. Are IP Laws and their Application Striking the Right Balance?
IV. Is Competition Good for Innovation?
V. Some Interim Conclusions
VI. Compulsory Licensing as a Remedy for Exclusionary Conduct
VII. The New TTBER and Guidelines
VIII. EU-U.S. Convergence
IX. Conclusion
Chapter 15
INTELLECTUAL PROPERTY AND ANTITRUST ROUNDTABLE
Ian S. Forrester, Presider
Dr. Ingo Brinker
William J. Cotreau
Calvin S. Goldman
Prof. Herbert Hovenkamp
William E. Kovacic
Guy Leigh
Philip Lowe
Panel Discussion
Chapter 16
GETTING YOUR MULTI-NATIONAL DEAL THROUGH
MULTIPLE NATIONAL COMPETITION AUTHORITIES
by Daniel P. Ducore
I. General Considerations in Multi-Agency Merger Review
II. Special Issues Regarding Intellectual Property
III. Bayer/Aventis Cropscience
IV. Sanofi-Synthélabo’s Acquisition of Aventic, S.A.
V. Conclusion
Chapter 17
MERGER CONTROL IN COMESA MEMBER STATES:
APPROACH AND PRACTICE
by George K. Lipimile
I. Introduction
II. Factors Influencing Merger Activity in COMESA
III. Dealing with Multi-Jurisdictional Mergers in COMESA
IV. Mergers and Developing Countries
V. The Need for Merger Control Regulations in COMESA
VI. Mergers, Privatisation, and Investment
VII. Rationale for Pre-Merger Notification
VIII. Merger Threshold Requirements
IX. Criteria for Approving Mergers
X. Remedies for Mergers
XI. Enforceable Undertakaing (Remedies)
Chapter 18
UNITED STATES FEDERAL ANTITRUST
MERGER "SOLUTIONS," NOT "REMEDIES"
by James R. Loftis, III and Danielle K. Moskowitz
I. Introduction
II. "Solutions" not "Remedies"
III. Types of Merger Problems and Their Solutions
IV. The Length of Term of Consent Decrees
V. Modification and Termination Provisions of Consent Decrees
VI. Solutions Unique to the U.S. Defense Industry
VII. Conclusion
Chapter 19
MERGER REMEDIES IN A NEW ERA OF EC MERGER CONTROL
by Michael J. Reynolds
I. Introduction
II. Types of Remedies – Structural or Behavioural
III. Merger Remedies in the United States
A. Conduct and Interests of the Merging Parties
B. Market Position and Interests of the Purchasers
C. Difficulties in Defining Viability
D. Complexity of Technology Transfers
E. Operation of Divestiture Assets Pre-Divestiture
IV. The Remedies Notice
A. General Principles – Procedure
1. Responsibility of the Parties to Offer Commitments
B. General Principles – Substantive
1. Conditions and Obligations
2. Phase I Commitments
3. Phase II Commitments
V. Procedure
A. The Restructuring of DGCOMP – Who is in Charge?
B. Timing and Procedure
VI. Remedies – Divestiture
A. Object of the Divestiture – Which Business?
B. Sale of a "Viable Business"
C. Clear Identification of the Assets, Business or Corporate Entity Proposed to be Divested
D. Divestment to be Completed in an Agreed Fixed Time Period
E. Viable Purchaser
F. Up-front Buyer
G. Removal of Structural Links with Competitors
H. Interim Preservation of the Business
VII. Remedies – Non Divestiture
A. Access to Infrastructure or Key Technology
B. Elimination of Exclusive Arrangements
C. Supply of Products or Services
D. Purchase of Products or Services
E. Other Non-Divestiture Remedies
F. Termination of Cooperative Agreements with Competititors
G. Termination of Distribution Agreements or Granting
Distribution of a Product to a Third Party
VII. Special Arrangements
A. Alternative/"Crown-Jewel" Divestiture Commitments
B. Packages of Commitments
IX. Remedies – Qualified Conditions
A. Conditional Remedies
B. Third Party Consents
C. Appointment of a Trustee
D. Approval of Potential Purchasers and the Purchase Agreement
X. Supervision and Implementation
A. Supervision of Commitments
B. Modification of Commitments
C. Remedies for Breach of Commitments
XI. Remedies – Specific Case Examples
A. Joint Dominance
B. Conglomerate Effects
C. Vertical Mergers
XII. Remedies – Cooperation Between U.S./EC Antitrust Authorities
A. The Problem of Multi-Jurisdiction
B. The U.S. Approach
C. The EC/U.S. Agreement
D. The French Challenge
E. The Implementation
F. The Conflicts
G. The Boeing Case
H. The Aftermath of the Boeing Case
I. The GE/Honeywell Case
J. The Aftermath of the GE/Honeywell Case
K. The Merger Control Reform in the EC
L. The Wider International Context
XIII. Conclusion
Chapter 20
MERGERS REMEDIES ROUNDTABLE
Frédéric Jenny, Presider
Götz Drauz
Daniel P. Ducore
Prof. Eleanor M. Fox
George K. Lipimile
James R. Loftis, III
Michael J. Reynolds
Panel Discussion
Chapter 21
THE RESPECT OF FUNDAMENTAL RIGHTS WITHIN THE
EUROPEAN NETWORK OF COMPETITION AUTHORITIES
by Marcos Araujo
I. Introduction
II. The Protection of Fundamental Rights in the Collection of Evidence in Competition Cases
A. The Protection of Fundamental Rights in Competition Cases Under EU Law
1. Procedural Guarantees in the Collection of Evidence in Regulation 1/2003 and the Implementing Regulations
a. Information on the purpose and Legal Basis of an Investigation
b. Limitations on the Use of the Information Collected by the Commission
c. Other Procedural Guarantees
2. Fundamental Rights and Community Law
a. The Work Undertaken by Member States
b. The Work of the European Courts
B. The Protection of Fundamental Rights Under National Laws
1. Scope of the Right Against Self-incrimination
2. Differences in the Scope of Documents Eligible for Privilege and Non-disclosure
3. Inviolability of Corporate Domicile
4. Different Rules on Access to Files in Competition Cases
III. The Protection of Fundamental Rights in the Transmission and Use of Information Exchanged Between Competition Authorities Under the Regulation
A. EU and National Rules Concerning the Transmission of Information Under Art. 12 of the Regulation
B. EU and National Rules concerning the Use of Information
IV. Final Comments
Chapter 22
COLLATERAL CONSEQUENCES OF EXPANDED EUROPEAN ANTITRUST INVESTIGATIVE AUTHORITY FOR DEFENDANTS IN U.S. PROCEEDINGS
by John J. Curtin, Jr., Daniel S. Savrin and Brandon L. Bigelow
I. Antitrust Enforcement in the United States: The Dilemma for Employees of Companies Targeted by the DOJ
A. The Thompson Memorandum and its Consequences for Targets of Investigations by the DOJ
B. Possible Consequences in Subsequent U.S. Proceeding Arising from Statements to European Competition Authorities
II. Sharing of Information Between U.S. and European Competition Authorities and Other Discovery Issues
A. Framework of U.S.-EC Bilateral Agreements
1. 1991 Bilateral Agreement Between U.S. and E.C.
2. 1998 Bilateral Agreement Between U.S. and E.C.
3. Documents and Information Disclosed by DOJ
B. Recent U.S./EC Discovery Issues
1. U.S. Discovery of documents produced in EC proceeding
2. U.S. Discovery for use in EC proceeding
3. U.S. discovery for use in U.S. proceeding
III. Document Retention and Obstruction of Justice Pitfalls for Practitioners
A. Recent Changes to Obstruction of Justice Laws Under the Sarbanes-Oxley Act
B. Ethical Considerations for Attorneys Practicing Before the Securities Exchange Commission Under the Sarbanes-Oxley Act
IV. Conclusion
Chapter 23
THE NEW ENFORCEMENT SYSTEM FOR ARTICLES
81 AND 82 AND THE RIGHTS OF DEFENCE
by Kris Dekeyser and Céline Gauer
I. Introduction
II. The Protection of Business and Private Premises
A. The Powers if the Commission – Inspections in Business Premises
B. Are These Powers Compatible with the Requirements of Article 8 of the Convention
C. The Powers of the Commission – Inspections in Non-Business Premises
D. Why Would a Centralisation of the Control in the Hands of the Community Courts be a Better Solution?
III. The Right not to Discriminate Oneself
A. The Powers of the Commission
B. Right to Silence v. Obligation to Cooperate
C. Is There any Conflict between the Community and the ECtHR Case Law?
IV. The Right to Consult a Lawyer of One’s Choice
A. Assistance of a Lawyer
B. Right to Freely Choose the Lawyer: Denial of LPP to In-House Lawyers
C. Material Scope of LPP
D. Procedure for Establishing LPP
V. The Ne Bis in Idem Principle and the Functioning of the Network
A. The System of the Council Regulations
B. The Ne Bis in Idem Principle: Guidance from the ECtHR and the Community Courts
C. Acquittal and Convictions in an Administrative Enforcement System
D. Parallel Action within the Network of Competition Authorities
E. Possible Consequences of an Overextensive Application of the Principle of Ne Bis in Idem Within the Network
VI. Conclusion
Chapter 24
LEGAL PROFESSIONAL PRIVILEGE IN COMPETITION
PROCEEDINGS BEFORE THE EUROPEAN COMMISSION:
BEYOND THE CURSORY GLANCE
by Eric Gippini-Fournier
I. Preliminary Remarks
II. Foundations and Rationalizations of the Privilege
A. Disclosure and Privilege under the Utilitarian Rationale
B. Privilege as a Fundamental Right
C. Privacy
D. Rights of Defence
III. Compulsory Disclosure of Lawyer-Client Communications in Competition Investigations Conducted by the European Commission: AM&S Revisted
A. Legal Privilege Under AM&S: The Law as it Stands
B. In-House Counsel
C. Procedural Handling of Legal Privilege: The Proof Dilemma
D. Legal Developments
1. Powers of the Commission in Competition Investigations
2. Evolution of the Body of Common Principles and Concepts
IV. Conclusion
Chapter 25
THE USE OF COMPELLED EVIDENCE IN EUROPEAN COMPETITION LAW CASES
by Gerard Hogan
I. Preliminary
II. Orkem v. Commission
III. Otto v. Postbus
IV. Subsequent Developments before the European Court of Human Rights
V. The Recent Case Law of the Luxembourg Courts on the Right to Silence
VI. Conclusions
Chapter 26
THE COMMISSION’S NEW POWER TO QUESTION AND ITS IMPLICATIONS ON HUMAN RIGHTS
by James S. Venit and Tero Louko
I. Introduction
II. The Commission’s New Power to Question Individuals
A. Background – Community Procedure and National Procedures Co-Exist
B. Commission’s Power to Question Natural Persons
III. Exchange of Information Between the Commission and National Competition Authorities – Is there a Need to Protect Natural Persons
A. Human Rights and the Exchange of Information Between the Commission and Member States
B. Company’s Use of its Employees’ Statements
IV. Use of Information by Non-EU Authorities Imposing Criminal Sanctions on Natural Persons
A. U.S. Discovery of a Statement Made to the Commission
B. U.S. Discovery
C. Civil Litigation
D. The Use of Information by the United States – Rules on Self-Incrimination in the U.S.
1. No Protection for Companies
2. Protection of Natural Persons
3. Application of the Fifth Amendment
4. Coercion
5. Consequences for Statement Made Under Regulation 1/2003
V. Right Against Self-Incrimination in EC Antitrust Investigations – State of Play
A. Application of ECHR in EU Antitrust Investigations – Background
B. Natural Persons Protected by Human Rights in EU Antitrust Investigations
C. Legal Persons Protected by Human Rights in EC Antitrust Investigations
D. Right Against Self-Incrimination – Article 6 of ECHR
E. Criminal Versus Administrative Proceedings
F. Pre-Orkem – Application of Rights of Defense During the Preliminary Investigation Procedure (Rights of Defense)
G. Post-Orkem – Protection Against Self-Incrimination Versus the "Duty to Assist" Inspectors H. Criminal Law Character of EC Antitrust Investigations
VI. Coercion as a Criterion Under ECHR
VII. Conclusion
Chapter 27
LEGAL PROFESSIONAL PRIVILEGE AND THE PRIVILEGE AGAINST SELF-INCRIMINATION IN EC LAW: RECENT DEVELOPMENTS AND CURRENT ISSUES
by Bo Vesterdor
I. The Evolution of Legal Professional Privilege and the Privilege Against Self-Incrimination
A. The Initial Situation Resulting from Regulation No. 17
B. The Development of Legal Professional Privilege in EC Law
C. The Evolution of the Privilege Against Self-Incrimination
1. The Initial Principles Set Out in Orkem
2. The Evolution and the Influence of the ECtHR Case Law
3. Recent Signs of Change in the EC Courts’ Case Law
II. The Impact of Regulation No. 1/2003 on the Application of Legal Professional Privilege and the Privilege Against Self-Incrimination Under EC Law and National Laws
A. The New Legal Scheme Governing the Collection, Exchange and Use of Evidence
1. Law Applicable to the Collection of Information
2. Law Applicable to the Use by the Commission or a NCA of Information Collected in Another Jurisdiction
B. The Direct Consequence of Regulation No. 1/2003 on Legal Professional Privilege and the Privilege Against Self-Incrimination In EC Law
1. The New Investigation Powers Enjoyed by the Commission Pursuant to Regulation No. 1/2003
III. Conclusion
Chapter 28
RIGHTS, PRIVILEGES, AND ETHICS IN COMPETITION CASES ROUNDTABLE
James S. Venit, Presider
Marcos Araujo Boyd
John J. Curtin, Jr.
Kris Dekeyser
Eric Gippini-Fournier
Dr. Gerard W. Hogan
Bo Vesterdorf
Panel Discussion
