The Antitrust Hotch Potch

SSRN Papers and a personal - language-related - thought

I have posted several of my old papers on the ssrn website. See here for a paper on Commission's liability for erroneous merger decisions and here for a paper on the proliferation of regulatory agencies and the risks of jurisdictional conflicts.

Now, a personal note: most of my recent publications are in French and I cannot share them with many people. There is no such thing as a french ssrn, and I still do not understand why.  The overall consequences of the absence of such network are clearly negative: French legal science remains insulated from cross-fertilization dynamics (little input/comments from other scholars) and keeps moving slow (for someone's idea to become a real legal source, one needs to wait for journal publication).

Don't get me wrong: I am not a language maniac as others have been lately in Belgium (with Dutch) and in my country of origin (with French). But I see only benefits to a French speaking system of networked scholarship. To ensure interoperability, abstracts translations in English would be made available to readers.

Nicolas

Prof D. Sokol's Survey on Antitrust Compliance

Professor - and fellow AT blogger - D. Sokol is currently conducing a survey on the compliance effects of the antitrust laws. Private practitioners and in-house counsels are invited to answer a set of questions which, undeniably, have "important policy implications".

On a personal note, I am very much in favour of the introduction of empirical techniques in antitrust law and economics (i.e. through surveys, for instance). The numerous consultations processes launched under the impetus of the Commission are nothing but empirical methods. Yet, the Commission's questions are often so vague and open-ended, that many addressees will be discouraged from inputting (the recent consultation process on the ex post assessment of Regulation 1/2003 is a case in point). Transaction costs matters to potential respondents. Failing to understand that inevitably leads to low participation and, in turn, poor feedback. In simply requiring 8-12 minutes to fill, Prof Sokol's survey avoids this shortcoming.

Nicolas

Conference Announcement - 5-6 September

On 5 and 6 september, the Institute of Competition Law and Policy Studies (IMEDIPA , Athens) the University College London and Ístanbul Bilgi University Faculty of Law will hold a conference entitled "Which competition policy for regulated industries? Governance and sector-specific perspectives". The programme is really impressive (for download hereafter).

Download conference_istanbul_programme.pdf

Nicolas

New Paper on SSRN

Damien, David Henry and Marc Reysen have put together a new paper on extraterritoriality, comity and cooperation in EC competition enforcement. The paper can be downloaded on ssrn.

Abstract

The EC competition law regime, with the European Commission ("the Commission") at the apex of its enforcement structure, has steadily evolved to become one of the most mature regimes in the world. Its core provisions, namely Articles 81 and 82 EC, do not, however, explicitly indicate whether they find extraterritorial application or not. Based on the principles of nationality and territoriality, the extraterritorial application of Articles 81 and 82 EC is therefore ensured through the use of three legal constructs, namely the "economic entity" doctrine, the "implementation" doctrine and the "effects doctrine".

The new General Block Exemption Regulation for State aid: State aid for the people?

On 7 July 2008, Commissioner Kroes announced  the adoption by the Commission of the new General Block Exemption Regulation for State Aid (“GEBR”). Following the debate initiated by the 2005 State Aid Action Plan, the GEBR repeals the five previous exemption regulations dealing with aid to SMEs, Research and Development (“R&D”), employment, training and regional aid.

The text will likely induce a reduction in the State aid enforcement workload of the Commission. A whole bunch of aids that were previously subject to the notification procedure are now expressly exempted (i.e. those aids that were deemed compatible under the various Guidelines). Meanwhile, and less blatantly, the GEBR marks a subtle intrusion of the Commission in Member States’ economic policy. In much the same vein as the old-generation Article 81(3) block exemption regulations, the GEBR provides a raft of “straightjacket” safe harbors which hold the potential to standardize national intervention in a myriad of policy fields (e.g. environment, R&D, risk capital, disabled workers, or women entrepreneurs, etc.).

In addition, the “visual” effect of the GEBR is of utmost relevance. At first glance, the reader is faced with an impressive inventory of aid-related issues, all of which are cleared from Commission’s scrutiny (subject to the observance of the various substantive conditions subsequently set out by the regulation). Temptation will then be great for national policy-makers to simply pick and choose within this list and then carefully follow the “user’s manual”.

The benefits are therefore two-fold for the Commission. First, it gets rid of a considerable amount of dull administrative work. Second, it makes sure that an increasing number of national measures will follow the guidelines that it itself designed. Greater compliance coupled with less paperwork, or the epitome of enforcement efficiency.

Yet, the primary achievement of the GEBR lies elsewhere. By exempting national subsidies for the environment, SMEs, women entrepreneurs or disabled workers, the European watchdog demonstrates that it is not locked in an ivory tower, and that the daily life of European citizens is the driving force behind its policy initiatives. “State aid for the people”, in a way…

Alexis/Nicolas

PS: For the next months, Alexis will be our co-blogger. Alexis is a French Lawyer who graduated a year ago from the College of Europe. He is a specialist of state related aspects of EC competition law. A most welcome addition to our blogging capacities!

PS2: any clue as to the gentleman on the above picture (source: wikipedia)?

Lost

A reflection that springs to mind, while working on a sunny Sunday afternoon:

Was the Article 82 Review on Oceanic Flight 815???

Nicolas

CRESSE Material

The CRESSE 2008 CONFERENCE MATERIAL (to which Damien participated) has been posted here.

US(-er friendly) Antitrust Law

Have 15 minutes to spare?

Want to get a quick background in US antitrust law?

The US Federal Trade Commission just released a useful Internet "Guide to US antitrust law" which is well-worth reading.

Nicolas

Is Fender RPMing?

I have devoted my Saturday afternoon to the purchase of a brand new bass guitar. After a few ramblings in downtown Brussels, I eventually spot a Fender Jazz Bass (Mexican version) which both sounds and looks perfect.

Problem though, its official retail price is €600, far beyond my reserve price, approximately €500. Since discounts are customary in the market for music instruments, I try my luck and asks for it. The guy in the shop tells me he must "check" and starts typing on his computer. I ask him what he is doing and he explains that he is typing the serial number, because for each Fender instrument, the discount is apparently set in the system (I infer from what he tells me that the system is designed by Fender itself, but that would deserve a check). Unfortunately, the mininum price for my Jazz Bass is €600, and the guy tells me he "cannot" go lower.

I ended up buying an Ibanez bass guitar from another shop... and thinking of potential unlawful RPM practices on a Saturday afternoon (a Commission decision from 2003 found Yamaha guilty of RPM practices on the market for music instruments).

Nicolas

Picture source: http://www.musiciansfriend.com/

LL.M. in Competition and IP Law - New Programme/Brochure

As some of you may already know, I am the director of the LL.M in competition and IP law at the University of Liege (Belgium). We have just received the new brochure (see link at the end of this post) and I take the opportunity to make a little advertisement for the programme.

Our LL.M. is certainly unique here on the continent. Not that it is priced at a level that is almost predatory. Rather, it exhibits a number of other features which make it - in my opinion - a 5* education programme:

• Focus and exhaustiveness of the courses:  ranging from general IP and competition law to economics of competition law, market regulation in the pharmaceutical/food sector, competition and IP, patent law, etc.;
• Teaching team boasting academics and high-profile practitioners - J.Y Art, J.F. Bellis, J. Derenne, JJ. Evrard, D. Hull, A. Strowel, G. Van Overwalle, P. Wautelet, etc.;
• Numerous extracurricular activities - the many conferences and seminars we had this year were made possible thanks to the support of the students. Our students also write case summaries in the E-competitions online bulletin;
• Proximity from Brussels;
• The vast majority of our students finds a job prior to the end of the LL.M.

Please do not hesitate to contact me, should you have any queries on the programme. Our admission requirements have so far proven quite flexible and we aim at attracting students from everywhere inside and outside Europe.

Download brochure_llm_final_version.pdf

Nicolas