Since 2005 the law of unfair commercial practices has undergone a revolution. This book presents the first comprehensive and critical examination of Directives 2005/29/EC concerning unfair business-to-consumer commercial practices and 2006/114/EC concerning misleading and comparative advertising. The book offers the first detailed analysis of the various ways in which the two Directives have been transposed in the United Kingdom, Germany, the Netherlands, Belgium and France, with a particular focus on incorrect transposition. The analysis includes an overview of the enforcement possibilities before national courts and authorities, and as such will be a valuable source for all practitioners, policy makers and academics working in the field of unfair trade law. Ultimately the aim of the book is to expound a sound interpretation of the relationship between unfair trade law and competition law in Europe, and it therefore engages in an original examination of these two cornerstones of European economic law. The author argues that unfair trade law and competition law should be understood as 'living apart together' - complementary but autonomous and sometimes even conflicting.

Despite several decades' worth of explicit directives, green papers, white papers, proposals, and communications from the European Commission, the actual enforcement of competition law across the Member States today is rife with shifting patterns that escape a clearly bounded framework. The underlying cause of this disarray, the authors of this deeply engaged work contend, lies in a host of legal uncertainties scattered around the intersection where private enforcement encounters the mechanisms of decentralized public enforcement - an area where a number of general as well as special questions of EU competition law, even its very goals and principles, rise into prominence.

This book provides a comprehensive overview of the economic and competition policy issues that buyer power creates. Drawing on economic analysis and cases from around the world, it explains why conventional seller side standards and analyses do not provide an adequate framework for responding to the problems that buyer power can create. Based on evidence that abuse of buyer power is a serious problem for the competitive process, the book evaluates the potential for competition law to deal directly with the problems of abuse either through conventional competition law or special rules aimed at abusive conduct. Peter C. Carstensen's expert analysis uses the policy goal of preserving and protecting the competitive process as a guide, and evaluates competition law and policy found around the world for diverse perspectives. He identifies and evaluates controls beyond conventional competition rules and makes recommendations for competition policy, including focus on limiting the emergence of undue buyer power, strict controls limiting the size of legitimate buyer groups, prohibition in most instances of buyer cartels, and strict standards to bar mergers creating buyer power to provide a set of policies that can constrain the risks of undue buyer power. Competition law scholars, competition law practitioners, staff of competition enforcement agencies, economists interested in competition policy, and agricultural economists interested in market systems will all find this book a strong resource.

For decades it seemed clear that EC competition law was enforceable effectively at the national level, and ECJ case law has continued to bear this out. In recent years, however, the Commission has been proposing harmonization of national rules of procedure in competition cases, implying that procedural autonomy is insufficient on its own to produce an effective enforcement system in this area. As the authors of this book clearly demonstrate, this suggests a binary system governing the enforcement of EC Articles 81 and 82: namely, that led by the Commission through directives and eventual regulations, and that built on ECJ principles in areas not dealt with by such Community instruments. This book describes and analyzes not only the specific Commission recommendations, but also the manner and extent to which these recommendations are or may be implemented in civil procedure. In particular, the authors consider changes which may be required if these recommendations are incorporated into Dutch and English rules of civil procedure. Also addressed are elements of procedure not mentioned by the Commission but which might usefully be considered in the context of ECJ principles of effectiveness, equivalence and effective judicial protection of rights. At the heart of the study is a detailed analysis of the Commission White Paper on Damages Actions and the Commission Staff Working Paper, both issued early in 2009. The in-depth analysis ranges over procedural aspects of such elements as the following: - standing; - disclosure and access to evidence; - burden of proof; - fault/no fault; - costs of damages actions; - injunctions; - civil versus administrative enforcement; - limitations; - leniency programmes; - collective actions; - confidentiality; and - forms of compensation. Anticipating as it does a looming impasse in European competition law, this remarkable book sheds defining light on the real implications of EC competition law for parties to damages actions, not only in the national systems studied but for all Member States. For practitioners and jurists it offers a particularly useful approach to the handling of cases involving European competition law, and also serves as a guide to current trends and as a clarification of doctrine.

This book explores the interface between competition law and market integration in the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU), focusing on the notion of 'market separation'-namely conduct that may hinder cross-border trade. The discussion reviews, among other things, the treatment of geographic price discrimination and exclusionary abuse, by which out-of-state competitors are affected. 'Market separation' cases are treated in the book as a case study for appraising the interface between competition and the Internal Market. On this basis, the book provides a comparative analysis of the Treaty requirements under Article 102 TFEU when applied in 'market separation' cases and the Treaty requirements under the free movement provisions. In addition, it utilises 'market separation' cases as a springboard for advancing an informed reformulation of the application of Article 102 TFEU when state action comes into play. All in all, the analysis presented in the book deconstructs the elements for establishing 'market separation' as an abuse of the dominant position. It shows that there is nothing that would justify a distinctive treatment of 'market separation' under Article 102 TFEU, other than a principled understanding of Internal Market law as a whole: whatever understanding one reaches about the proper shape of the Internal Market, interrogation of the proper application of competition law comes after that and thus should be informed by this understanding.

This volume in the Swedish Studies in European Law series, produced by the Swedish Network for European Legal Studies, heralds the new harmonised regime of private enforcement of EU competition law. In 2013, the Commission issued a Communication and Practical Guide to the quantification of harm in antitrust litigation and a Recommendation on collective redress. In 2014, the long-awaited Directive on actions for damages for infringements of EU competition law was finally adopted. In 2016, the Commission is expected to issue guidelines on the passing-on of overcharges. This book examines these recent developments and offers the perspectives of judges, officials, practitioners and academics. With a preface by Judge Carl Wetter of the General Court, the book explores five different themes. In section one, the main policy issues and challenges are presented. In section two, the new regime is placed in the bigger picture of recent EU law developments. In section three, the nexus between private enforcement and transparency is investigated. A comparative perspective is offered in section four by looking into private enforcement in five Member State jurisdictions. Finally, issues relating to causation, harm and indirect purchasers are explored in section five.

This concise and practical guide to the most important economic techniques and evidence employed in modern merger control draws on the authors' extensive experience in advising on European merger cases. It offers an introduction to the relevant economic concepts and analytical tools, and stand-alone chapters provide an in-depth overview of the theoretical and practical issues related to market definition, unilateral effects, coordinated effects and non-horizontal mergers. Each form of economic evidence and analysis is illustrated with practical examples and an overview of key merger decisions.

EU policy in the area of corporate governance and capital markets is being reoriented. Harmonization is less frequently seen as a concept in company law; regulatory competition is on the rise; and experiments in soft law are being carried out. Several Member States have recently reformed their corporate laws, wither as a reaction to financial scandals or in an effort to enhance investment. Convergence has increased as a result, particularly towards Anglo-American standards. Yet differences still exist, profoundly rooted in national systems of corporate governance. By contrast, capital markets law would seem to be an exception, having undergone intense harmonization in the last few years through the Lamfalussy regulatory architecture. Nonetheless, a European system of securities regulation is not yet in place. Regulation is predominantly domestic, while private laws affecting capital markets are still divergent. This volume examines the ongoing debate from an interdisciplinary perspective. Part 1 explores the political determinants of corporate governance and evaluates likely convergence and the role of regulatory competition. Part 2 considers the Markets in Financial Instruments Directive (MIFID) and its central role in harmonizing EU securities trading. Part 3 analyzes the MiFID more deeply and explores other measures including the Prospectus and Transparency Directives. Part 4 offers future perspectives on the post-FSAP era.

This book offers an unparalleled analysis of the emerging law and economics of competition policy in Latin America. Nearly all Latin American countries now have competition laws and agencies to enforce them. Yet, these laws and agencies are relatively young. The relative youth of Latin American competition agencies and the institutional and political environment in which they operate limit the ability of agencies to effectively address anti-competitive conduct. Competition policy is a tool to overcome anti-market traditions in Latin America. Effective competition policy is critical to assisting in the growth of Latin American economies, their global competitiveness, and improving the welfare of domestic consumers. This book provides new region specific insights on how to better achieve these aims. This authoritative volume will be of particular interest to competition agencies, academics in law, economics and Latin American Studies, practitioners around the world in the areas of antitrust and competition policy, policymakers, and journalists.

This book gathers national and international reports from around the globe on key issues in the field of antitrust and intellectual property. Its first part discusses to what extent competition law should be concerned with differences in prices, terms and conditions, or quality that suppliers offer different purchasers. A detailed international report explores the major trends and challenges in this field and provides an excellent comparative study on this complex and challenging subject. In turn, the second part examines whether there should be legal restrictions on the ability of persons who claim, without sufficient justification, to hold IP rights that have been infringed on, to bring, or to threaten to bring, legal proceedings based on such claims against their competitors or others. In this regard, the book brings together the current legal responses across a number of European countries and elsewhere in the world, all summarised and elaborated on in an international report. The book also includes the resolutions passed by the General Assembly of the International League of Competition Law (LIDC) following debates on each of these topics, which include proposed solutions and recommendations. The LIDC is a long-standing international association that focuses on the interface between competition law and intellectual property law, including unfair competition issues.

Here is a deeply researched and very detailed book that explores, as thoroughly as has ever been done whether competition law can combat oligopolistic markets. Drawing on the two bodies of law -- U.S. and EC -- that offer the widest range of experience, US and EC Oligopoly Control assesses whether, by the rule of law, the destructive economic trend that is becoming more and more characteristic of today's global economy can be countered by means of applying the core competition provisions. Among the crucial legal concepts examined in the book in depth are the following:
- abuse of a collective dominant position;
- facilitating practices;
- substantial lessening of competition; and
- non-coordinated unilateral effects.

Antitrust is 'a blunt instrument aimed at the wrong problem'. So say the authors of this provocative and contentious book, both of them well-known for providing antitrust support and training in many developing economies and for serving as antitrust experts on behalf of private parties targeted by antitrust authorities. Drawing on their wide experience, they describe how antitrust/ competition rules in developing economies curtails innovation and entrepreneurship under what the U.S. Supreme Court has blasted as the 'chilling effects of false positives'. Moreover, they point out, entrenched interest groups in developing countries quickly discover that soliciting preferential treatment from the state, which leads to state-sponsored non-tariff barriers, is more attractive than private cartelization, not least because it is perfectly legal and thus beyond the reach of antitrust law enforcement efforts. What the authors offer is a thoroughgoing analysis clearly demonstrating that, whatever economic path developing countries pursue, imposing Western-style antitrust regimes will engender uncertainty, chill economic behaviour, and foster an unhealthy climate for business. They employ the influential error-cost methodology to appraise the performance of competition policy and to show how such a policy creates irresolvable tensions in fragile economies with weak institutions - economies characterized by informal rules of business practice, long-standing symbiotic business state relationships, and unpredictable state action. They mount a powerful critique of the arguments of neo-institutionalists (who fail to recognize the vulnerable nature of emerging market economies) and competition 'advocates' (who presume to stand ready and vigilant to enforce competition policy on state entities). But competition policy in developing economies is not an irremediable mistake. Such regimes need not adhere to an inappropriate Western model, the authors maintain, to find cheaper and more effective ways to foster competition. As a detailed and insightful description and framework defining the limits to antitrust in developing (and especially least-developed) countries, this study promises to extend the debate that should precede any consideration of globally extending competition policy in its current version. Crafters of policies and rules in competition law and administration cannot fail to gain in depth of understanding from this new approach to the subject.

The fundamental goal of competition law is to support productivity and innovativeness; in fact, the short-term effect of enforcement actions is often a reduction in product prices. This comprehensive book reports the findings of consumer market studies into a range of goods and services in developing countries in Africa, Asia and Latin America. These country case studies demonstrate the important role that competition authorities can have in assessing the nature of markets and making recommendations to policymakers to improve them. When competition is weak or compromised, extra costs are imposed on consumers. The authors investigate this issue for a wide range of key markets serving consumers individually or collectively, looking also at the hinterland of the distribution chain behind retail sales. They find a pervasive lack of competition in those markets, which not only softens the incentives on firms to improve the efficiency of their operations and the quality of their products, but also reduces the standard of living of consumers, including poor and vulnerable groups. This book concludes by noting the follow-up actions taken in each country in response to the research recommendations. Graduate students of economics, political science and law will find this book invaluable for its practical case studies, and analysts will find much interest in the nuanced analysis of markets, policy interventions and reform options. Emminently practical, Competition Policies and Consumer Welfare is an ideal resource for competition practitioners and policymakers seeking to improve current competition regimes.

How the Chicago School Overshot the Mark is about the rise and recent fall of American antitrust. It is a collection of 15 essays, almost all expressing a deep concern that conservative economic analysis is leading judges and enforcement officials toward an approach that will ultimately harm consumer welfare.
For the past 40 years or so, U.S. antitrust has been dominated intellectually by an unusually conservative style of economic analysis. Its advocates, often referred to as "The Chicago School," argue that the free market (better than any unelected band of regulators) can do a better job of achieving efficiency and encouraging innovation than intrusive regulation. The cutting edge of Chicago School doctrine originated in academia and was popularized in books by brilliant and innovative law professors like Robert Bork and Richard Posner. Oddly, a response to that kind of conservative doctrine may be put together through collections of scores of articles but until now cannot be found in any one book. This collection of essays is designed in part to remedy that situation.
The chapters in this book were written by academics, former law enforcers, private sector defense lawyers, Republicans and Democrats, representatives of the left, right and center. Virtually all agree that antitrust enforcement today is better as a result of conservative analysis, but virtually all also agree that there have been examples of extreme interpretations and misinterpretations of conservative economic theory that have led American antitrust in the wrong direction. The problem is not with conservative economic analysis but with those portions of that analysis that have "overshot the mark" producingan enforcement approach that is exceptionally generous to the private sector. If the scores of practices that traditionally have been regarded as anticompetitive are ignored, or not subjected to vigorous enforcement, prices will be higher, quality of products lower, and innovation diminished. In the end consumers will pay.

Every year, top-level market regulators, academics and legal practitioners attend the Annual Competition Workshop organised at the European University Institute in Florence. The speakers are invited to discuss a particular set of critical issues in the field of competition law and policy. The entire content of the proceedings - both the oral discussions and the written contributions - are published in the European Competition Law Annual series. This is the fourteenth in the series, reproducing the debate which in 2009 examined the evaluation of evidence and its judicial review in competition cases. The issues discussed included, among others, the burden of proof, the standard of proof and the standard of review with respect to antitrust infringement decisions and merger decisions, both at the level of the EU and at the national level in a number of Member States. In 2009, the Workshop participants were: Rafael Allendesalazar Kelyn Bacon Judge Gerald Barling Simon Bishop Judge Joachim Bornkamm Judge Michael Boudin Jochen Burrichter Dennis Carlton Fernando Castillo de la Torre Justin Coombs Lorenzo Coppi Claus-Dieter Ehlermann John Fingleton Ian Forrester Judge Nicholas Forwood Eric Gippini-Fournier Barry Hawk Alberto Heimler Per Hellstroem Pieter Kalbfleisch Robert Kwinter Bruno Lasserre Philip Lowe Mel Marquis Damien Neven Judge Aindrias O Caoimh Luis Ortiz Blanco John Ratliff J. Thomas Rosch Heike Schweitzer Mario Siragusa Jacques Steenbergen James Venit Judge Nils Wahl Judge Vaughn Walker

During the last decade the European Commission has progressively adopted what is called a A more economic approach A| toward competition policy. This approach, which draws on U.S. antitrust policy, puts greater emphasis on possible welfare effects of business practices and is less concerned with competitive market structures. Under this school of thought concentration cannot be said to impede effective competition to the extent that efficiency gains outweigh market distortions. In order to stimulate the debate on this basic reorientation, in January 2009 the Max Planck Institute for Comparative and International Private Law at Hamburg convened economists, legal scholars, and practitioners for an exchange of views on these A new A| methodological foundations of EU competition policy and competition law. Two especially controversial elements were chosen for in-depth discussion: the prohibition of abuses of dominant positions and the review of State aid. This book reproduces fourteen papers from this conference, representing the considered views of prominent European lawyers, economists, academics, policymakers, and enforcement officials in the competition field on matters such as: A { the objectives of EU competition law; A { the current enforcement guidelines of the EU Commission regarding Article 102 TFEU A { measuring market power A { abusive low pricing strategies A { the economics of competition law enforcement A { recent developments in EU State aid law A { economic justifications for State aid A critical assessment of the Commission A|s State aid action plan by the German Monopolies Commission is appended in English. Applying law and economics theory to competition law, this book shows that the A more economic A| approach is exerting a considerable impact on various sectors of competition law. The authors clearly demonstrate the progress that can be made when lawyers and economists take notice of and respect the characteristics of each other A|s discipline. Moreover, the authors show how new insights of economic theory may be integrated into the relevant legal analysis. The book will therefore be appreciated by academics, practitioners, and officials representing both fields.

This book demonstrates how economics is used in cases of competition in Japan. Competition between firms is usually the most effective way of allocating economic resources and achieving consumer and producer welfare. At the same time, a balance must be struck; firms must not be over-regulated, but neither must they be completely free to create a monopoly or oligopoly. Therefore, the role of competition policy is to maintain a balance by using the collaborative economics of industrial organization. The book uses economic analysis to evaluate case studies on Japanese anti-monopoly law, the Act Concerning Prohibition of Private Monopolization and Maintenance of Fair Trade (AMA), and enforcement in e.g. cartel cases, private monopolization cases, and merger cases. The Japan Fair Trade Commission implements a competition policy, primarily through the enforcement of the AMA, which promotes ingenuity and innovation in business by guaranteeing and enhancing fair and free competition, thereby ensuring economic vitality and consumer benefit. This book is the first authoritative and compact work on competition policy in Japan, which has a more-than-70-year history and is based on solid legal principles. In addition, the book seeks to promote law enforcement based on economic analysis, and includes studies describing the enforcement mechanisms used. It provides comprehensive yet concise information on the structure of the AMA, recent cases, and economic analysis. It also explains the circumstances regarding recent cases and analyzes how the economic policy has been applied to actual cases.

Recognizing that inclusion of 'groups' or 'concerns' in the assessment of antitrust enforcement is essential to prevent undertakings from circumventing the Treaty's antitrust provisions, the author of this in-depth analysis critically evaluates relevant ECJ cases and Commission pronouncements in order to determine whether current practice under the single economic entity doctrine amounts to an appropriate and effective enforcement of this increasingly significant aspect of European competition law. Among the issues and topics analysed are the following: the group or concern privilege under Article 101 (1) TFEU; the application of the single economic entity concept for the attribution of liability; the burden of proving 'decisive influence'; the parent company's rights of defence; corporate reorganizations; 'piercing the corporate veil'; control versus dominance; the requisite degree of control; potential versus actual control; the standards of legal separation and organizational autonomy; the existence of a common commercial strategy or financial dependence; and the extension of jurisdiction in antitrust matters. In a framework of analysis drawn up in the final chapter, policy considerations are presented that not only reflect accurately the underlying purpose of the single economic entity doctrine, but also show ways to incorporate the global component in effective enforcement of European competition law. Bringing at last a great measure of legal certainty to the 'parent-subsidiary-liability debate' in European competition law, this book will be welcomed by practitioners, policymakers, and academics concerned with theory and practice in the field.

This book addresses the question of how competition authorities assess mergers in the Information Communication Technology (ICT) sector so as to promote competition in innovation. A closer look at the question reveals that it is far more complex and difficult to answer for the ICT, telecommunications and multi-sided platform (MSP) economy than for more traditional sectors of the economy. This has led many scholars to re-think and question whether the current merger control framework is suitable for the ICT sector, which is often also referred to as the new economy. The book pursues an interdisciplinary approach combining insights from law, economics and corporate strategy. Further, it has a comparative dimension, as it discusses the practices of the US, the EU and, wherever relevant, of other competition authorities from around the globe. Considering that the research was conducted in the EU, the practices of the European Commission remain a key aspect of the content.Considering its normative dimension, the book concentrates on the substantive aspects of merger control. To facilitate a better understanding of the most important points, the book also offers a brief overview of the procedural aspects of merger control in the EU, the US and the UK, and discusses recent amendments to Austrian and German law regarding the notification threshold. Given its scope, the book offers an invaluable guide for competition law scholars, practitioners in the field, and competition authorities worldwide.

In developing a clear analysis of the practical relations between economics and law, no jurisdictions have been more exemplary than Australia and New Zealand. In this 30-year retrospective of the most important essays of economist Maureen Brunt, lawyers and others occupied with competition issues should find a harvest of insights into the interdependence between law and economics, and the manner in which they should be blended in the courts. The contributions include the following: the development of conceptual schemes that are both economically meaningful and legally operational; in-depth investigation of the core problems of market definition and market appraisal; development of a concept of competition as the inverse of market power; and techniques for making the best use of economists' expert evidence. The essays appear in the order in which they were first published, and thus represent a kind of historical progression, reflecting both developments in Australian and New Zealand law and the depth and scope of the author's own thinking.

In this timely book, Beata Maihaniemi analyses and evaluates how the characteristics of information as a good, as well as the characteristics of digital platforms, affect the application of competition law in both theory and practice. Chapters offer a full evaluation and in-depth analysis of several key case studies in which information such as big data has been obtained, made use of, sold, or biased in an uncompetitive way. Such critical case studies include the European Commission's 2017 judgement against Google for granting illegal advantage to their own comparison shopping service, as well as the Bundeskartellamt's decision regarding Facebook's unfair trading terms under which it was gathering users' data without their voluntary consent. Reacting to these cases, the book offers guidance on how competition law can evolve to accommodate digital markets, such as classifying information as 'commons' or 'commodity', in order to realise social goals such as fairness. Compelling and insightful, this book will prove an important companion for students and scholars studying digital markets, as well as competition law more widely. It will also appeal to practitioners working on cases involving the regulation and usage of big data.