Ioannis Lianos
University College London, Faculty of Laws, Faculty Member
- National School of Administration, CERA, Faculty MemberNational Research University Higher School of Economics, Law, Faculty Memberadd
- Law of evidence, Expert evidence, Social Network Analysis (SNA), Social Anthropology, Economic History, Heterodox Economics, and 26 moreSocial Theory, Sociology of Science, Sociology, Economic integration, Economical Analysis of Law, Economic Methodology, Economics of Innovation, The industrialization of agriculture: vertical coordination in the US food system., Regulatory Economics, Theory of competition, Antitrust (Law), Competition Law, Economic Law, EU Law, Intellectual Property Law, Remedies (Law), Economic Sociology, Institutions and Economics, Neoliberalism, Antitrust Law, Law and Economics, Competition Policy, Antitrust, EU Competition Law, Benefit Cost Analysis, and Public Policyedit
- Ioannis joined UCL in September 2005. Since September 2004, he has been a visiting Professor in competition and intel... moreIoannis joined UCL in September 2005. Since September 2004, he has been a visiting Professor in competition and intellectual property law at the Centre for International Industrial Property Studies (CEIPI) of the University of Strasbourg. In 2008-2009 he was an Emile Noel Global Law Fellow at the Jean Monnet Centre at New York University School of Law where he worked on a funded project exploring issues of economic evidence and expertise in antitrust litigation in Europe and in the United States. He was a visiting scholar at the University of California, Berkeley in 2006. Ioannis is a visiting professor at the University of Chile in Santiago, a fellow of the Centre for Law & Economics at the Australian National University and a Laureat of the French Academy of Social Sciences. His primary research interest lies in comparative (EU, UK, French, US) competition law, international competition law, European Union law (internal market, external relations), comparative administrative and regulatory law (public-private partnerships, public utilities law), law and economics, economic sociology.
Ioannis has been a Non Governmental Advisor (NGA) at the International Competition Network (ICN) since 2009 , a research partner to UNCTAD in competition law and policy since 2010, an elected member of the international advisory board of the American Antitrust Institute since 2010.
His current work focuses on the contribution of New Institutional economics to competition law, innovation policy and the law (competition law, IP rights), the law and economics of litigation in competition law, the law and economics of regulation (cost-benefit analysis/impact assessment, public private partnerships), issues of economic evidence and expertise in the courts and the role of trust theory in economic integration. He is currently completing a PhD degree in sociology at the University of Cambridge (sociology of economics, sociology of professions).
Ioannis has been appointed in December 2011 Gutenberg Research chair at the Ecole Nationale d'Administration in France where he leads a multinational team on a comparative study of impact assessments in Europe. More information on this project at http://www.ucl.ac.uk/cles/research_initiatives/impact_assessments_in_europe
In 2012, he was awarded the prestigious Philip Leverhulme prize for his work on economic evidence and the legal system.edit
Brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Contrary to the law's conception of trademarks, brands are used to indicate far more than source and/or... more
Brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Contrary to the law's conception of trademarks, brands are used to indicate far more than source and/or quality. This volume begins the process of broadening the legal understanding of brands by explaining what brands are and how they function, how trademark and antitrust/competition law have misunderstood brands, and the implications of continuing to ignore the role brands play in business competition. This is the first book to engage with the topic from an interdisciplinary perspective, hence it will be a must-have for all those interested in the phenomenon of brands and how their function is recognized by the legal system. The book integrates both a competition and an intellectual property law dimension and explores the regulatory environment and case law in both Europe and the United States.
Research Interests:
Co-authored by Ioannis Lianos, Peter Davis and Paolisa Nebbia, the book provides a critical discussion of the emerging field of competition law damages and explores the important questions it raises about the use of the traditional tort... more
Co-authored by Ioannis Lianos, Peter Davis and Paolisa Nebbia, the book provides a critical discussion of the emerging field of competition law damages and explores the important questions it raises about the use of the traditional tort law categories in an area of law that is heavily infused with economic analysis. The book combines a corrective justice perspective with an empirical and theoretical analysis of the practice of competition law damages in various jurisdictions in Europe. Rather than adopting the traditional economic analysis of law approach, the authors respect the autonomy of the fields of law and economics, while attempting to identify the areas of conflict that may emerge when economic concepts and categories are integrated in the legal system.
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Competition and the State analyzes the role of the state across a number of dimensions as it relates to competition law and policy across a number of dimensions. This book re-conceptualizes the interaction between competition law and... more
Competition and the State analyzes the role of the state across a number of dimensions as it relates to competition law and policy across a number of dimensions. This book re-conceptualizes the interaction between competition law and government activities in light of the profound transformation of the conception of state action in recent years by looking to the challenges of privatization, new public management, and public-private partnerships. It then asks whether there is a substantive legal framework that might be put in place to address competition issues as they relate to the role of the state. Various chapters also provide case studies of national experiences. The volume also examines one of the most highly controversial policy issues within the competition and regulatory sphere—the role of competition law and policy in the financial sector.
Research Interests:
The Handbook on European Competition Law: Substantive Aspects sets the context for examination of substantive law by reviewing and analyzing the goals of competition law. It then covers the substantive building blocks of EU competition... more
The Handbook on European Competition Law: Substantive Aspects sets the context for examination of substantive law by reviewing and analyzing the goals of competition law. It then covers the substantive building blocks of EU competition law, including horizontal and vertical agreements, cartels, mergers, and also provides valuable coverage of the interaction between competition and regulation, hub and spoke collusion, and information exchange agreements. The importance of the abuse of dominance doctrine is reflected in three discrete chapters considering exploitative abuses, exclusionary pricing abuses, and exclusionary non-pricing abuses.
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The Handbook on European Competition Law: Enforcement and Procedure sets out in detail the procedural aspects of EU competition law, ranging from fines, remedies and judicial review. It also gives unique insight into both private and... more
The Handbook on European Competition Law: Enforcement and Procedure sets out in detail the procedural aspects of EU competition law, ranging from fines, remedies and judicial review. It also gives unique insight into both private and public enforcement of completion law, and offers commentary on the relationship between EU competition law and national competition law, and on the relationship between competition law and private international law.
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The vast majority of the countries in the world are developing countries—there are only thirty-four OECD (Organisation for Economic Co-operation and Development) countries—and yet there is a serious dearth of attention to developing... more
The vast majority of the countries in the world are developing countries—there are only thirty-four OECD (Organisation for Economic Co-operation and Development) countries—and yet there is a serious dearth of attention to developing countries in the international and comparative law scholarship, which has been preoccupied with the United States and the European Union. Competition Law and Development investigates whether or not the competition law and policy transplanted from Europe and the United States can be successfully implemented in the developing world or whether the developing-world experience suggests a need for a different analytical framework. The political and economic environment of developing countries often differs significantly from that of developed countries in ways that may have serious implications for competition law enforcement.
The need to devote greater attention to developing countries is also justified by the changing global economic reality in which developing countries—especially China, India, and Brazil—have emerged as economic powerhouses. Together with Russia, the so-called BRIC countries have accounted for thirty percent of global economic growth since the term was coined in 2001. In this sense, developing countries deserve more attention not because of any justifiable differences from developed countries in competition law enforcement, either in theoretical or practical terms, but because of their sheer economic heft. This book, the second in the Global Competition Law and Economics series, provides a number of viewpoints of what competition law and policy mean both in theory and practice in a development context.
The need to devote greater attention to developing countries is also justified by the changing global economic reality in which developing countries—especially China, India, and Brazil—have emerged as economic powerhouses. Together with Russia, the so-called BRIC countries have accounted for thirty percent of global economic growth since the term was coined in 2001. In this sense, developing countries deserve more attention not because of any justifiable differences from developed countries in competition law enforcement, either in theoretical or practical terms, but because of their sheer economic heft. This book, the second in the Global Competition Law and Economics series, provides a number of viewpoints of what competition law and policy mean both in theory and practice in a development context.
Research Interests:
Over the last three decades, the field of antitrust law has grown increasingly prominent, and more than one hundred countries have enacted competition law statutes. As competition law expands to jurisdictions with very different economic,... more
Over the last three decades, the field of antitrust law has grown increasingly prominent, and more than one hundred countries have enacted competition law statutes. As competition law expands to jurisdictions with very different economic, social, cultural, and institutional backgrounds, the debates over its usefulness have similarly evolved.
This book, the first in a new series on global competition law, critically assesses the importance of competition law, its development and modern practice, and the global limits that have emerged. This volume will be a key resource to both scholars and practitioners interested in antitrust, competition law, economics, business strategy, and administrative sciences.
Advance praise
"Given the increasingly global dynamics of competition law and economics, Lianos and Sokol will make an important contribution to the field of antitrust with this new series."—Einer Elhauge, Harvard Law School
"This series promises to offer a vital set of books that will fill a real need. The interaction of competition law, economics, and institutions in view of globalized markets is a critical problem of our times."—Eleanor Fox, NYU School of Law
"With over 100 jurisdictions enforcing competition policy, officials need to know how to cooperate with other authorities, and undertakings devising a global strategy need to know how to comply with the requirements of many different authorities operating under different legislation. Both groups need to understand competition advocacy. Skills in both economics and law are required. Laws that suit large well-developed countries may not suit smaller or less-developed countries. The two series editors are well-known internationally in the area of competition law, and I am sure that they will attract excellent authors for the different volumes of the series. This new series of books will fill a gap and is warmly welcome."—Valentine Korah, University College London
"With the growth in the number of competition agencies worldwide, there is an increasing opportunity to apply sophisticated economic reasoning to shape competition policy and make it work for the long-run interests of society. A series in global competition policy is a welcome development that should accelerate the dissemination of knowledge in this important area of policy."—Dennis Carlton, University of Chicago Booth School of Business
This book, the first in a new series on global competition law, critically assesses the importance of competition law, its development and modern practice, and the global limits that have emerged. This volume will be a key resource to both scholars and practitioners interested in antitrust, competition law, economics, business strategy, and administrative sciences.
Advance praise
"Given the increasingly global dynamics of competition law and economics, Lianos and Sokol will make an important contribution to the field of antitrust with this new series."—Einer Elhauge, Harvard Law School
"This series promises to offer a vital set of books that will fill a real need. The interaction of competition law, economics, and institutions in view of globalized markets is a critical problem of our times."—Eleanor Fox, NYU School of Law
"With over 100 jurisdictions enforcing competition policy, officials need to know how to cooperate with other authorities, and undertakings devising a global strategy need to know how to comply with the requirements of many different authorities operating under different legislation. Both groups need to understand competition advocacy. Skills in both economics and law are required. Laws that suit large well-developed countries may not suit smaller or less-developed countries. The two series editors are well-known internationally in the area of competition law, and I am sure that they will attract excellent authors for the different volumes of the series. This new series of books will fill a gap and is warmly welcome."—Valentine Korah, University College London
"With the growth in the number of competition agencies worldwide, there is an increasing opportunity to apply sophisticated economic reasoning to shape competition policy and make it work for the long-run interests of society. A series in global competition policy is a welcome development that should accelerate the dissemination of knowledge in this important area of policy."—Dennis Carlton, University of Chicago Booth School of Business
Research Interests:
This volume of essays casts light on the shape and future direction of the EU in the wake of the Lisbon Treaty and highlights the incomplete nature of the reforms. Contributors analyse some of the most innovative and most controversial... more
This volume of essays casts light on the shape and future direction of the EU in the wake of the Lisbon Treaty and highlights the incomplete nature of the reforms. Contributors analyse some of the most innovative and most controversial aspects of the Treaty, such as the role and nature of the EU Charter of Fundamental Rights and the relationship between the EU and the European Court of Human Rights. In addition, they reflect on the ongoing economic and financial crisis in the Euro area, which has forced the EU Member States to re-open negotiations and update a number of aspects of the Lisbon 'settlement'. Together, the essays provide a variety of insights into some of the most crucial innovations introduced by the Lisbon Treaty and in the context of the adoption of the new European Financial Stability Mechanism.
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This volume assesses the viability of various theories of economic integration that take into account the legal, economic, political and social challenges of incorporating free trade with retaining the plurality of social welfare... more
This volume assesses the viability of various theories of economic integration that take into account the legal, economic, political and social challenges of incorporating free trade with retaining the plurality of social welfare standards and consumer protection. Chapters cover the governance of trade in services at the European and global level; studies on the recent Services Directive and how this interacts with the principle of managed mutual recognition and harmonization in different sectors of trade in services (social services, financial services); the recent case law of the European Courts on the enforcement of the principle of free movement of services and how this accommodates various national public interest concerns; and the interaction of the freedom to provide services with fundamental rights, including social rights. The operation of the principle of managed mutual recognition in other economic integration regimes, in particular in the context of the WTO, is also discussed.
Contents
Introduction Ioannis Lianos and Okeoghene Odudu; Part I. The 'Trust' Theory of Integration: 1. Trust, distrust and economic integration: setting the stage Ioannis Lianos and Johanness Leblanc; Part II. Unpacking the Premises: Mutual Recognition, Harmonization: 2. Forms of mutual recognition in the field of services Vassilis Hatzopoulos; 3. Trust and mutual recognition in the services directive Gareth Davies; 4. Mutual recognition in the global trade regime: lessons from the EU experience Wolfgang Kerber and Roger Van Den Bergh; 5. Public procurement and public services in the EU Chris Bovis; Part III. The Interaction between Pluralism, Trust and Economic Integration: 6. Shifting narratives in European economic integration: trade in services, pluralism and trust Ioannis Lianos and Damien Gerard; 7. Trusting the poles, Mark 2: towards a regulatory peace theory Kalypso Nicolaidis; Part IV. Private Parties and the Economic Integration Process: 8. Who's afraid of the total market? On the horizontal application of the free movement provisions in EU law Harm Schepel; 9. The EU Services Directive and the mandate for the creation of professional codes of conduct Panagiotis Delimatsis; Part V. Seeds of Distrust: Regulatory Competition and Diversity in the Social Sphere: 10. Transborder provision of services and social dumping: rights-based mutual trust in the establishment of the internal market Olivier De Schutter; 11. Reconceptualizing the constitution of Europe's post-national constellation – by dint of conflict of laws Christian Joerges and Florian Rödl; 12. Fundamental rights as sources of trust and voices of distrust in the European internal market Antoine Bailleux; Part VI. Extensions: the Relevance of the 'Trust Theory' of Integration in the Context of the WTO: 13. I now recognize you (and only you) as equal: an anatomy of (mutual) recognition agreements in the GATS Juan A. Marchetti and Petros C. Mavroidis; 14. Importing regulatory standards and principles into WTO dispute settlement: the challenge of interpreting the GATS Arrangements on Telecommunications Robert Howse.
Contents
Introduction Ioannis Lianos and Okeoghene Odudu; Part I. The 'Trust' Theory of Integration: 1. Trust, distrust and economic integration: setting the stage Ioannis Lianos and Johanness Leblanc; Part II. Unpacking the Premises: Mutual Recognition, Harmonization: 2. Forms of mutual recognition in the field of services Vassilis Hatzopoulos; 3. Trust and mutual recognition in the services directive Gareth Davies; 4. Mutual recognition in the global trade regime: lessons from the EU experience Wolfgang Kerber and Roger Van Den Bergh; 5. Public procurement and public services in the EU Chris Bovis; Part III. The Interaction between Pluralism, Trust and Economic Integration: 6. Shifting narratives in European economic integration: trade in services, pluralism and trust Ioannis Lianos and Damien Gerard; 7. Trusting the poles, Mark 2: towards a regulatory peace theory Kalypso Nicolaidis; Part IV. Private Parties and the Economic Integration Process: 8. Who's afraid of the total market? On the horizontal application of the free movement provisions in EU law Harm Schepel; 9. The EU Services Directive and the mandate for the creation of professional codes of conduct Panagiotis Delimatsis; Part V. Seeds of Distrust: Regulatory Competition and Diversity in the Social Sphere: 10. Transborder provision of services and social dumping: rights-based mutual trust in the establishment of the internal market Olivier De Schutter; 11. Reconceptualizing the constitution of Europe's post-national constellation – by dint of conflict of laws Christian Joerges and Florian Rödl; 12. Fundamental rights as sources of trust and voices of distrust in the European internal market Antoine Bailleux; Part VI. Extensions: the Relevance of the 'Trust Theory' of Integration in the Context of the WTO: 13. I now recognize you (and only you) as equal: an anatomy of (mutual) recognition agreements in the GATS Juan A. Marchetti and Petros C. Mavroidis; 14. Importing regulatory standards and principles into WTO dispute settlement: the challenge of interpreting the GATS Arrangements on Telecommunications Robert Howse.
Research Interests:
Responding to external and internal pressure for change the slow reform of EC competition law since the 1989 Merger Regulation can now be seen as a major thread rather than a series of peripheral developments. Now, a body of ‘new’ law may... more
Responding to external and internal pressure for change the slow reform of EC competition law since the 1989 Merger Regulation can now be seen as a major thread rather than a series of peripheral developments. Now, a body of ‘new’ law may be discerned that encompasses several far-reaching regulations as well as their clarification and extension by official guidelines, discussion papers, ECJ decisions, and legal scholarship.
Twenty-nine prominent competition law authorities – representing all three ‘estates’(practice, administrative regulation, and academe) – bring their deeply informed knowledge and perspectives on this crucially important body of law to the table. The many issues they address include the following:
the decentralization of competition law enforcement;
the development of private actions for damages;
private versus public enforcement;
the role of national competition authorities;
the role of arbitration;
the impact of human rights law;
recourse to economic evidence;
special cases (e.g., pharmaceuticals, high technology industries);
mergers;
cartel enforcement; and
state aid measures.
This book represents a fresh approach to EC competition law – one that is of singular value in grappling with the huge economic challenges we face today. As a critical analysis of the law and options available to European competition authorities and legal practitioners in the field, it stands without peer. It will be greatly welcomed by academics, lawyers, policymakers and other interested professionals in Europe and throughout the world.
Twenty-nine prominent competition law authorities – representing all three ‘estates’(practice, administrative regulation, and academe) – bring their deeply informed knowledge and perspectives on this crucially important body of law to the table. The many issues they address include the following:
the decentralization of competition law enforcement;
the development of private actions for damages;
private versus public enforcement;
the role of national competition authorities;
the role of arbitration;
the impact of human rights law;
recourse to economic evidence;
special cases (e.g., pharmaceuticals, high technology industries);
mergers;
cartel enforcement; and
state aid measures.
This book represents a fresh approach to EC competition law – one that is of singular value in grappling with the huge economic challenges we face today. As a critical analysis of the law and options available to European competition authorities and legal practitioners in the field, it stands without peer. It will be greatly welcomed by academics, lawyers, policymakers and other interested professionals in Europe and throughout the world.
Research Interests:
« La thèse de Ioannis Lianos s’ouvre sur une investigation enrichissante des relations du droit et de l’économie ¨(…) Le souci d’une analyse économique réaliste l’amène à considérer toutes les formes que peuvent prendre les restrictions... more
« La thèse de Ioannis Lianos s’ouvre sur une investigation enrichissante des relations du droit et de l’économie ¨(…) Le souci d’une analyse économique réaliste l’amène à considérer toutes les formes que peuvent prendre les restrictions verticales qu’elles soient liées à des concentrations ou à des abus de domination. Cette approche globale lui permet de mettre en évidence la cohérence économique des restrictions verticales et de préconiser de leur appliquer un traitement d’ensemble. (…) La masse de la documentation traitée avec rigueur et clarté est un des apports de cette étude dont la qualité doit être soulignée. Le chercheur comme le praticien trouvera à sa disposition une quantité d’informations exceptionnelles. Mais, le lecteur sera également stimulé par une réflexion critique qui ne pourra lui être indifférente. L’auteur ne se contente pas d’accumuler, de décrire, d’ordonner, il n’hésite pas à discuter, à juger avec mesure mais aussi avec pugnacité, comme le doit un universitaire, les doctrines, les décisions, les prises de position des autorités de concurrence et de ceux qui, avant lui, se sont intéressés à ce sujet. (…) Toutes ces qualités autorisent à penser que la thèse de Ioannis Lianos est et restera longtemps, dans un domaine pourtant souvent mouvant, un ouvrage de référence et que d’autres travaux viendront confirmer ce sentiment. (…) L’ouvrage de Ioannis Lianos s’adresse aussi bien à ceux qui s’intéressent au droit de la concurrence qu’à la théorie du droit. Sa lecture leur procurera, j’en suis certain, de grandes satisfactions ».
Research Interests:
The paper explores the competition dynamics of the global seed market. It documents the growth strategies of the major seed companies, in particular their M&A activity and their reliance on complex intellectual property strategies in... more
The paper explores the competition dynamics of the global seed market. It documents the growth strategies of the major seed companies, in particular their M&A activity and their reliance on complex intellectual property strategies in order to offer a one stop shop solution to farmers. Recent merger activity in this sector (the Monsanto bid to buy Syngenta, the DuPont and Dow merger deal, ChemChina’s bid to buy Syngenta) illustrates its rapid transformation from an already concentrated industry to a tight oligopoly on a global scale. The increasing global consolidation of this industry raises new challenges for competition law enforcement authorities dealing with the emergence of new powerful actors at the factor of production (input) level, in view of the broader concerns animating public policy in the food sector and the existence of a nexus of international commitments for biodiversity, sustainability, the right to food etc. By exploring this under studied but fascinating area of competition law enforcement we open the debate over the inclusion of broader public interest concerns in competition policy and the consideration of its distributive impact from a global perspective.
Research Interests: Intellectual Property, Mergers & Acquisitions, Competition Law, Antitrust (Law), Competition Policy, and 9 morePlant breeding and genetics, Intellectual Property Rights, Antitrust Law, Agri-Food Value Chains, Agribusiness Marketing, International Trade and WTO, EU Competition Law, Global Value Chains, Economic Concentration, Plant Variety Protection, and Antitrust
In this paper we analyse the role of superior bargaining power in competition law and policy in the agri-food value chain. Conventional approaches to competition law based on a neoclassical price theory perspective tend to neglect or to... more
In this paper we analyse the role of superior bargaining power in competition law and policy in the agri-food value chain. Conventional approaches to competition law based on a neoclassical price theory perspective tend to neglect or to stay opaque on the role of bargaining power in competition law. However, national competition authorities and national legislators seem to be less biased by specific theoretical approaches and have increasingly engaged with the application of the concept of bargaining power in competition law. In this paper we discuss both positions and set a general theoretical framework, the global value chain approach, to better understand the interactions between suppliers and retailers in the food sector. Finally, we observe the framing of new tools of competition law intervention at national level, in order to deal with situations of superior bargaining power in specific settings related to the food value chain.
Research Interests:
This consultancy report for the Eurasian Economic Commission explores the compatibility of various forms of differentiated international exhaustion with WTO law (TRIPS and GATS).
Research Interests:
In a tort law regime established on the basis of corrective justice considerations, causation requirements will tend to play a predominant role in regulating the damages claims brought forward. The requirement of the causal link between... more
In a tort law regime established on the basis of corrective justice considerations, causation requirements will tend to play a predominant role in regulating the damages claims brought forward. The requirement of the causal link between the harm suffered and the anticompetitive conduct in damages claims for the infringement of EU competition law has nevertheless received remarkably little attention in the recently adopted EU Damages Directive and in academic literature. The Damages Directive and some recent case law of the Court of Justice of the EU proceed to some limited harmonization of evidential presumptions and procedural requirements, as well as the exclusion of national rules that may deny the right of the parties harmed by the competition law infringement to receive compensation. Yet, the contours of the requirement of causal link are left to the interpretative work of national courts, in view of their respective tort law doctrines on causation and the lack of a proper EU tort law. The study first explores the role of the concept of causation in claims for damages for infringement of EU competition law and the different approaches taken by the legal systems of EU Member States in conceptualizing the inquiry of a causal link. It then focuses on the methods used by the tort law systems of the EU Member States, the recent Damages Directive and the case law of the EU Court to engage with situations of causal uncertainty, which may frequently arise in the context of competition law actions for damages, in view of the complexity of the commercial environment and the multiple factors influencing markets.
Research Interests:
We proceed to a comparative analysis of the judicial scrutiny of financial penalties for competition law infringements in the following jurisdictions: European Union, United States, Germany, United Kingdom, France and Chile.
Research Interests:
The report examines optimal financial penalties from an economic and a comparative perspective. While emphasis is put on deterrence, we also examine some limits to the optimal enforcement theory employed by economists to design effective... more
The report examines optimal financial penalties from an economic and a comparative perspective. While emphasis is put on deterrence, we also examine some limits to the optimal enforcement theory employed by economists to design effective sanctions, in particular the principle of proportionality and the need for the penalty to be related to the harm caused and the wrong committed, the legal system integrating corrective justice concerns. The report delves into the tension between over-enforcement and under-enforcement and that between a more effects-based approach for setting financial penalties (sanctions) that would rely on economic methodologies and a case-by-case analysis to provide an accurate estimate of the harm caused by the anticompetitive conduct and a more "forms-based" approach that would rely on the use of proxies of percentages of the volume of commerce or the affected sales. The latter reduce the administrative costs of the authorities in designing appropriate sanctions but are less accurate than effects-based approaches. The report examines intermediary approaches put forward by the literature and their possible application to various competition law infringements (e.g. cartels, abuse of a dominant position). The final part of the report proceeds to a detailed comparative analysis of the financial penalties (sanctions) regimes for infringements of competition Law in the European Union, United States, Germany, United Kingdom, France and Chile, taking an empirical and a doctrinal perspective. Specific recommendations for the reform of the financial penalties system for competition law infringements in Chile are also provided.
Research Interests:
An epiphenomenon of the culture of evaluation of public policies and normative production, among various alternatives (e.g. indicators), the tool of impact assessment (IAs) has emerged as a major policy innovation, which was diffused to... more
An epiphenomenon of the culture of evaluation of public policies and normative production, among various alternatives (e.g. indicators), the tool of impact assessment (IAs) has emerged as a major policy innovation, which was diffused to almost all Member States of the EU during the last decade. Although the existence of various practices and understandings of the concept makes an effort of a precise definition particularly challenging, this contribution attempts to provide a typology of Impact Assessments in Europe, based on an empirical analysis of IA practices by the EU in 25 EU Member States as well as a theoretical reflection on the interaction of expertise with politics
Research Interests:
The diffusion of the use of various forms of impact assessments (IAs) in different political settings and legal traditions illustrates the great malleability of the tool. This diversity is not only reflected in the adoption of different... more
The diffusion of the use of various forms of impact assessments (IAs) in different political settings and legal traditions illustrates the great malleability of the tool. This diversity is not only reflected in the adoption of different models of IA across the various jurisdictions examined, but also in the way this practice is effectively implemented. Factors explaining the various types of IA implemented in various European jurisdictions include the patterns of diffusion from one country to another, the interaction of politics with expert knowledge and the prevailing “evidence eco-system” in each jurisdiction. In this study we explore diffusion patterns, not only in terms of the adoption of the tool of IA, but also in terms of the specific types of IA implemented. We do so by introducing a taxonomy developed with the purpose to describe the interaction of politics and expertise in each jurisdiction. The last part of the chapter empirically connects the diffusion process with the type of IA prevalent in a jurisdiction.
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The Keck and Mithouard case law of the CJEU constituted an important milestone in the effort to develop workable principles for the interpretation of Article 34 TFEU in a way that would not jeopardize the ability of Member States to... more
The Keck and Mithouard case law of the CJEU constituted an important milestone in the effort to develop workable principles for the interpretation of Article 34 TFEU in a way that would not jeopardize the ability of Member States to regulate their economy and pursue other public policy objectives than promoting trade.. Yet it seems that the Keck era has come to an end. In its most recent case law on free movement of goods the Court returned to an overbroad definition of MEQR, using the notion of “market access”, and restricted the legal categorization approach previously used in favour of one that would rely on the balancing of conflicting interests and values. The paper first explores the rise and progressive demise of the legal categorization approach before focusing, in a second part, on the return to a broad definition of what may constitute an obstacle to trade, under Article 34 TFEU, with a re-interpretation of the market access rule. The broader implications of this approach are then examined, in particular the reformation of the free movement of goods EU law in the era of the EU/Canada Comprehensive Trade and Economic Agreement (CETA) and the ongoing negotiations on the Transatlantic Trade and Investment Partnership (TTIP).
Research Interests: European Studies, European integration, European Law, European Union, European Economic Integration, and 8 moreEuropean Union Law, Economic integration, International trade law, EU Law, EU internal market, TTIP, European Internal Market and Trade Law, and Transatlantic Trade and Investment Partnership
The paper explores how EU competition law has integrated so far the concept of brands in different areas of enforcement. Although EU competition law has engaged in multiple instances with branding and product differentiation, brands do... more
The paper explores how EU competition law has integrated so far the concept of brands in different areas of enforcement. Although EU competition law has engaged in multiple instances with branding and product differentiation, brands do not yet constitute an operational concept in EU competition law. This is due to an important uncertainty as to the normative choices that need to be made with regard to the relation between brands and the formation of consumer preferences. The concerns raised by retailer power and the development of private labels also indicate that the existing economic theory on product differentiation may not also provide a complete picture on the effects of brands on the competitive process and ultimately on consumers. Competition law will also need to tackle the issues raised by the development of ‘social branding’ and the dialogic interaction between brand owners and consumers in the constitution of their brand identity.
Research Interests:
The principle of effectiveness is closely related to the development of the emerging EU law on remedies. Its instrumental use has enabled the EU courts to restrict the principle of national procedural autonomy, when this was convenient in... more
The principle of effectiveness is closely related to the development of the emerging EU law on remedies. Its instrumental use has enabled the EU courts to restrict the principle of national procedural autonomy, when this was convenient in order to ensure the accomplishment of the aims set by EU competition law enforcement, and to establish EU-granted remedies, the most notable one being the right to claim competition law damages. The principle of effectiveness may also influence the design of injunctive relief by the European Commission, which should be adequate to ensure not only that the results of the violation of competition law are reversed, but also that there is no risk that the aims of competition law will be jeopardized in the future (general deterrence, specific deterrence and prophylactic/preventive aims). Left unbound, the principle of effectiveness may offer the opportunity to competition authorities to expand their remedial discretion and to re-design market processes and outcomes in accordance with the dominant interpretation of their statutory objectives. The point made in this paper is that, whatever one thinks of the appropriateness of an expansive view of remedial discretion, which is not, in our view, supported by the restrictive interpretation of the principle of effectiveness in EU law, remedial discretion is naturally limited by the specific function exercised by the remedial process chosen or, more contentiously, imposed by the nature of the dispute. Drawing on Fuller’s account of the existence of various forms of social ordering, each of them emerging in specific circumstances/context and having its own principles and limitations, the paper offers some reflections on the possible limits that the essence of each ideal type of social ordering sets to the expansive interpretative potential of the principle of remedial effectiveness. The polycentric nature of competition law disputes calls for flexibility in the choice of the adequate form of social ordering aiming to achieve the objectives set by the legislator. This breaks with the classic view of the adjudication model and hints to the prevalence, in a significant number of cases with a pronounced polycentric element, of what has been called the “structural adjudication” model, still distinct from the model of regulatory governance. The paper explores the nature of commitment decisions as an illustration of the difficulties of classification, without a proper consideration of the functions and respective limits of each form of social ordering. It does this by examining some recent cases, such as the ongoing Google saga at the European Commission or the Skyscanner judgment of the UK Competition Appeal Tribunal (CAT).
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This report presents a critical discussion of the hot topics in the intersection of intellectual property law with innovation and competition law and policy. The report examines first the interaction between horizontal IP rules and sector... more
This report presents a critical discussion of the hot topics in the intersection of intellectual property law with innovation and competition law and policy. The report examines first the interaction between horizontal IP rules and sector specific IP regimes. It then delves into the analysis of the interface between competition law enforcement and IP rights in Europe and in the United States, before examining the doctrine of exhaustion in these jurisdictions, which is particularly interesting in view of some recent case law of the US Supreme Court. The final part of the study focuses on issues of governance of IP law and competition law and more generally the need for establishing cross-disciplinary links between these two areas of law and between the institutions in charge of their enforcement.
Research Interests: Intellectual Property, European Law, Innovation statistics, Competition Law, Biotechnology, and 13 morePatents, Trademarks, Competition Policy, Copyright (Law), European Union, Intellectual Property Law, Public Health, European Union Law, Competition Law, International Trade Law, Copyright Law, Antitrust, Competition Law, Derecho de la Competencia, Patent Law, Antitrust Law, Competition Law, IP Law, and Pharmaceutical Law
The study first takes a normative perspective and examines the various goals that have been advanced by competition law literature on the objectives of EU competition law. A critical analysis of this literature shows the weaknesses of an... more
The study first takes a normative perspective and examines the various goals that have been advanced by competition law literature on the objectives of EU competition law. A critical analysis of this literature shows the weaknesses of an economic welfare approach and the difficulties, as well as some normative objections, to incorporating non-welfare goals in the implementation of EU competition law. The normative perspective is then followed by an analysis of positive EU competition law arriving to the conclusion that the case law of the EU Courts is ambiguous as to the existence of a hierarchy of objectives in EU competition law and that the drafting of the Lisbon Treaty opens the door to a more holistic competition law, in congruent co-existence with the other Treaty provisions and policies instituted by the EU Treaties. The final part criticizes the literature on the goals of EU competition law for its monotonous emphasis on goals. I argue that the choice of a general objective as an enforcement criterion tells us little about whether any particular institution, for example the adjudicative process, should be charged with implementing that criterion. Comparative institutional analysis emphasizes the connections between issues of institutional choice and goals. The question of goals should follow and not precede that of institutional choice. Institutional choice should, however, be comparative and not proceed to choosing an institution without a proper analysis of the weaknesses of the alternative institutions on offer. The conceptualization of the role of courts, and other institutions in a holistic competition law, using comparative institutional analysis, is one of the major challenges faced by EU competition law, and new competition law regimes, in the future.
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The fragmentation of EU competition law enforcement in various institutions and legal provisions (Articles 101, 102 TFEU, merger control) have led to the development of ad hoc remedial action without this being backed up by a solid theory... more
The fragmentation of EU competition law enforcement in various institutions and legal provisions (Articles 101, 102 TFEU, merger control) have led to the development of ad hoc remedial action without this being backed up by a solid theory of competition law remedies. This study aims precisely to fill this gap by providing the first systematic theoretical analysis of competition law remedies in Europe, including conduct and structural remedies, voluntary and coercive remedies, in the areas of merger control and antitrust. The study challenges the optimal enforcement theory that seems to have provided so far the intellectual backbone of the remedial action of EU competition authorities, although this influence has not been exercised in a systematic and uniform way in all cases. Such theory does not provide an adequate understanding of the remedial discretion of competition authorities and consequently the necessary boundaries of such discretion. The study provides a novel analytical framework integrating both economic and legal principles, taking the view that although deterrence (and economic efficiency) constitutes an important objective of EU Competition law enforcement, this should be achieved in the context of established legal understandings of the concept of remedy. More specifically, the paper examines the impact of the economic approach on the linkage between the competition law wrong and remedies as the foundation for an economically inspired but still respectful to legal tradition concept of remedial discretion in EU Competition Law.
Research Interests: European Law, Competition Law, Antitrust (Law), Competition Policy, European Union, and 5 moreEU Law, Antitrust, Competition Law, Derecho de la Competencia, Antitrust Law, Competition Law, IP Law, EU Competition Law, and EU Law (EU legal order: EU legal sources, institutions, remedies, relations with national laws); General Principles of EU Law; EU Migration and Asylum Law, EU Antidiscrimination Law, EU Fundamental Rights and links with the ECHR
Competition authorities and litigants worldwide have increased the use of economic quantitative methods and economic expert witnesses as a means to produce and support evidence in merger and antitrust cases. The application of... more
Competition authorities and litigants worldwide have increased the use of economic quantitative methods and economic expert witnesses as a means to produce and support evidence in merger and antitrust cases. The application of quantitative techniques to antitrust has arisen naturally from the need to answer the central questions of antitrust analysis, such as, market definition and market structure issues, analysis of pricing and non-pricing behaviour by firms, quantification of damages and efficiencies and dynamic issues of entry and product reallocation. The paper aims, on the one hand, to briefly describe the main aspects of the most commonly used quantitative techniques in antitrust analysis, and on the other hand, to quantify their use in EU merger and antitrust decisions from 2004 until 2011. Moreover, we also codify the Commission‘s opinion on the techniques utilized. The paper then explores the substantive law framework for the assessment and evaluation of this quantitative evidence in EU competition law by the European Commission and the Courts, in particular topics relating to the standard of proof and evidential cogency and the interaction between the different concepts of causation in law and econometrics, whereas Section 5 provides a unique empirical analysis of the probative value of different kinds of econometric evidence, by performing for the first time a quantitative analysis of the opinion of the European Commission for the particular techniques used and their average evidential weight.
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The emergence of the role of forensic economics in competition law and policy the last four decades has been a major episode in the professionalization of economics and its increasing interaction with the legal sphere. Yet, there have... more
The emergence of the role of forensic economics in competition law and policy the last four decades has been a major episode in the professionalization of economics and its increasing interaction with the legal sphere. Yet, there have only been very few studies examining from a sociological perspective the impact of forensic economics on the development of the research agenda of industrial economics and more generally the production of economic knowledge. This study attempts to set the first foundations of a sociological analysis of the impact of forensic economics on the development of academic economics in the area of industrial organization but also beyond.
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We analyze a search engine market from a law and economics perspective and incorporate the choice of quality improving innovations by a search engine platform in a two-sided model of internet search engine. In the proposed framework we,... more
We analyze a search engine market from a law and economics perspective and incorporate the choice of quality improving innovations by a search engine platform in a two-sided model of internet search engine. In the proposed framework we, first, discuss the legal issues the search engine market raises for antitrust policy through analysis of several types of abusive behavior by the dominant search engine. We also explore the possible consequences of monopolization of the search engine market for advertisers and users in the form of excessive pricing and deterioration of the quality of the search results. Second, in the technical analysis part we incorporate these considerations in the two-sided market model and analyze the rate of innovation, pricing, and quality choices by the dominant search engine. Our fi
ndings show that a dominant monopoly platform results in higher prices and underinvestment in quality improving innovations by a search engine relative to the social optimum. More generally, we show that monopoly is sub-optimal both in terms of harm to advertisers in the form of excessive prices, harm to users in the form of reduction in quality of search results, as well as harm to the society in the form of lower innovation rates in the industry.
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The paper (written in French) examines the recent reforms of the healthcare system in the UK, following the adoption of the Health and Social Care Bill 2012 (now voted by the Parliament).
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Current accounts of the interaction between competition law and state activities are based on a clear-cut old liberalism style distinction between “state”/“government” and “market”, which do not take into account the emergence of the... more
Current accounts of the interaction between competition law and state activities are based on a clear-cut old liberalism style distinction between “state”/“government” and “market”, which do not take into account the emergence of the neo-liberal state. By doing so, they also ignore the multi-faceted nature of the concept of “state”, and the important inputs of political science and sociological literature on the different forms of state and the role of public bureaucracies. By advancing a “bureaucracy theory” of the competition law and state interaction, this chapter aims to offer an alternative inter-disciplinary theoretical framework that can be successfully transposed into different institutional and cultural settings.
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By integrating more fully the retailer power story, the new vertical restraints guidelines and block exemption regulation provide for a more equilibrated regime for vertical restraints in Europe. The objective of the Commission was not... more
By integrating more fully the retailer power story, the new vertical restraints guidelines and block exemption regulation provide for a more equilibrated regime for vertical restraints in Europe. The objective of the Commission was not only to address the important concern of retailer power and its possible anticompetitive effects in a retail sector that is characterized by increasing concentration, although not necessarily increasing profitability, but also to respond to the concerns (and political pressure) over big distribution and the power of multi-brand retailers that have been expressed at the national level, with the adoption of a hard or a soft law type of approach in order to regulate the relation between suppliers and retailers. By bringing these concerns within the realm of EU competition law, the Commission offers an alternative relief valve that takes more into account the effect of these practices on consumers than the regulations adopted at the national level.
Research Interests:
Process, Procedure and Design of Competition Law Institutions in Europe: due process in EU competition law
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Analysis and reflections on the evolution of EU competition law after the Treaty of Lisbon
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The study examines the topic of competition law remedies from a theoretical perspective. I consider that there is a risk in providing full discretion to competition authorities to adopt remedies that have a remote link to the scope of the... more
The study examines the topic of competition law remedies from a theoretical perspective. I consider that there is a risk in providing full discretion to competition authorities to adopt remedies that have a remote link to the scope of the antitrust liability identified. One should not separate questions of remedy from questions of liability as proponents of “discretionary remedialism” often do. The study attempts to integrate the issue of discretionary remedialism and the distinction between the liability and the remedial phases to the broader question of the relation between efficiency, distributive justice, on the one hand, and corrective justice on the other. I then explore the objectives pursued by competition law remedies, in order to show that a coherent theory of competition law remedies is incompatible with a sharp dichotomy between liability and remedy questions. I argue that the emergence of a remedial proportionality test in EU competition law demonstrates the necessary logical connection between the remedy and the liability phase. I conclude by exploring if, and how, the remedial proportionality test will operate in the context of an “effects-based approach” , in the context of Article 102 TFEU.
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The shortcomings of the current state of (economic) integration theory, including the dependent variable selected, will be examined in the first part of this study. Our focus will be on the limits of the functionalist logic and on the... more
The shortcomings of the current state of (economic) integration theory, including the dependent variable selected, will be examined in the first part of this study. Our focus will be on the limits of the functionalist logic and on the alternatives suggested by competing theories of international relations. We will conclude that the main premises of functionalism have been seriously challenged. However, none of the competing theories has proposed a new conceptualization of “economic integration” nor have they suggested a more precise definition of this dependent variable. This situation is unsatisfactory, as without a clear definition of what is entailed by the concept of integration, the boundary between regional integration and international economic cooperation or other forms of international economic interaction is blurred. Once the need for a new approach on the concept of integration is recognized, the second part proceeds in exploring two alternatives. The first one – economic integration as efficient organizational creation – perfects the dependent variable suggested by functionalism, extending it this time to authority-legitimacy transfers and elaborates a sophisticated typology of different degrees of integration. The second one – the trust theory of integration – chooses instead to abandon the definition of the dependent variable suggested by functionalism and to focus on a different dimension that would represent the turn towards a holistic, as opposed to a functionalist, approach of integration, where the social, economic and political dimensions are embedded to each other. In our view, the trust theory of integration provides a promising platform of reflection, not only for the European project of integration but for all other projects of regional integration. It can also clearly illustrate the important differences, as to the degree of integration, between the European integration project, for example, and the World Trade Agreement framework, without, however, establishing a clear demarcation line between them.
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This study aims to contribute to the cross-fertilization of the fields of competition economics and development economics. For that to happen, however, it is important to focus on the complex intellectual history that placed these... more
This study aims to contribute to the cross-fertilization of the fields of competition economics and development economics. For that to happen, however, it is important to focus on the complex intellectual history that placed these different groups of scholars, and the conceptual traditions they represent, in different intellectual itineraries in order to provide an explanation to the relative isolation of each field from the inputs of the other. Our narrative will be the opposition between the dominant intellectual tradition in development economics until recently, which highlighted the role of state intervention through the establishment of protectionist barriers and monopolies to the expense of markets and free competition, and the competition economics’ belief on the superior efficiency of free competition. Our aim is not to be exhaustive, but to sketch the intellectual history of this opposition and to explain why the recent evolution of both fields to the analysis of the micro-foundations of growth, their focus on institutions and their emphasis on empirical methods, might lead to a new synthesis, favoring a useful cross-fertilization between competition economics and development economics.
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At the core of this tentative essay – a feeler, indeed – lays an attempt to uncover a relative shift in the narrative underlying the matrix of European integration – from one of unity and federalism to one of pluralism, harmony and... more
At the core of this tentative essay – a feeler, indeed – lays an attempt to uncover a relative shift in the narrative underlying the matrix of European integration – from one of unity and federalism to one of pluralism, harmony and multiple interactions, to trace and report on manifestations of that shift in the core praxis of the EU system – market integration, and to suggest an alternative conceptualization of its hidden èthos by means of the notions of mutual trust and distrust. The area of services forms the empirical background illustrating that three-fold proposition for it has presented in recent years an important source of tensions between market integration, regulatory diversity and social values, e.g., in the framework of the adoption of the Services Directive or of prominent cases decided by the Court of Justice. Those constraints have triggered a broad variety of policy interventions, including of a sectoral nature, and form a particularly fertile ground for exploring complex market integration strategies and, generally, for observing a possible evolution in the management of regulatory diversity at EU level. This is the objective of Section I below, which reviews successively legislative instruments and the case law of the Court of Justice in the area of services and beyond. Eventually, then, the revelation of such an evolution will allow for the reformulation of the inner èthos of the European market integration process, moving away from the narrow imagery of the removal of national barriers to trade or regulatory sameness and toward a multi-dimensional paradigm based on the notion of “system trust”. In turn, that envisaged reformulationreveals a shift in the equilibrium between the one and the many in the EU system. Those preliminary propositions are developed in Section II below, which is followed by concluding remarks.
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The study attempts to sketch a different theoretical framework for the concept of integration that would be compatible with the broader efficiency approach. The integration of efficiency considerations in the analysis of restrictions of... more
The study attempts to sketch a different theoretical framework for the concept of integration that would be compatible with the broader efficiency approach. The integration of efficiency considerations in the analysis of restrictions of interstate trade challenges the current understanding of the “integration” concept. the study explores the meaning of economic integration, by opposing a process versus an outcome view of this concept. I then argue that the outcome view of integration that initially prevailed in the EU law of the Internal Market was particularly narrow, as this is illustrated by the application of the negative integration rules of the Treaty on the free movement of goods (Art. 34 TFEU), with the result that efficient restrictions of trade were subject to strict scrutiny. The evolution of the jurisprudence of the Court in the interpretation of Article 34 TFEU as well as the more inclusive to other non-trade values perspective recently embraced by the Commission in the positive integration program indicate, however, a turn towards a more holistic approach that accommodates efficient restrictions of trade. I will conclude that this evolution raises important challenges to the traditional concept of “economic integration” and suggests the need for a different conceptual framework.
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I examine in this study the intersection of intellectual property law (IP) with competition law. The property rights rhetoric has been instrumental in providing some degree of deference to IP rights. For some time, the values of IP and... more
I examine in this study the intersection of intellectual property law (IP) with competition law. The property rights rhetoric has been instrumental in providing some degree of deference to IP rights. For some time, the values of IP and competition law were perceived to be in conflict: Whereas IP law focuses on the reqard of inventive effort and the inventor's incentives to innovate, by conferring an exclusive right on the use of the invention, competition law emphasises teh dissemination of innovation by ensuring diffusion and access. Circumstances have nevertheless evolved. Innovation became an objective of competition law and the relationship between the two disciplines is no longer antagonistic, but complementary. IP protection has also expanded considerably and is often granted to trivial inventions. This evolution challenges the usefulness of teh property rights approach, which aimed at defending IP rights against a disproportionate application of competition law. The property rights rhetoric does not contribute to the understanding of the need to balance incentives to innovation with that of enhancing cumulative innovation to teh benefit of teh consumers. It is static as it visualises IP and competition law in separate spheres, rendering more difficult the establishment of a dialectical relationship between the two. I argue that the conceptualization of IP as a form of regulation provides instead a more adequate theoretical framework as it enables a harmonious interaction between competition law and IP, while also taking into account, in assessing the appropriate levels of IP protection, the specific circumstances of each economic sector.
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The study critically examines the current practice of the classification of abuses under Article 82. It then explores the shortcomings of the current approach and stresses the need for a reconceptualisation of the current categorisation... more
The study critically examines the current practice of the classification of abuses under Article 82. It then explores the shortcomings of the current approach and stresses the need for a reconceptualisation of the current categorisation of abuses in Article 82. It finally analyses the Commission
Guidance on its enforcement priorities in applying Article 82, and considers whether it constitutes a real effects-based approach and its possible implications for competition law enforcement
Guidance on its enforcement priorities in applying Article 82, and considers whether it constitutes a real effects-based approach and its possible implications for competition law enforcement
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Commercial agency agreements benefit from a specific competition law regime with regards to the application of Article 81 of the Treaty of the European Communities (hereinafter Article 81). Although they may contain clauses that can... more
Commercial agency agreements benefit from a specific competition law regime with regards to the application of Article 81 of the Treaty of the European Communities (hereinafter Article 81). Although they may contain clauses that can produce anticompetitive effects, such as minimum price fixing, these are generally found outside the scope of Article 81 paragraph 1 [hereinafter Article 81(1)]. In comparison, if a franchise or selective distribution agreement contains resale price maintenance clauses, Article 81(1) may apply. The existence of a distinct competition law regime for commercial agency agreements constitutes a paradox, as from an allocative efficiency perspective it makes no sense to distinguish between the two situations. By adopting a new-institutional economics perspective, this study will provide a justification for this specific competition law regime. The agency agreements exception will be considered as a specific form of the single entity defense that operates in situations of hierarchy. Other vertical restraints are mainly organizational mechanisms used in situations of network forms of organization. The distinction established between these agreements could thus be theoretically defended. More generally, the comparative institutional analysis of vertical restraints will provide a useful insight to delimit the boundaries of Article 81(1).
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This study analyzes and contrasts the U.S. and EU antitrust standards on bundling (in its various forms) and tying. The analysis is applied to the U.S. and EU cases concerning Microsoft's practice of integrating (tying) new products... more
This study analyzes and contrasts the U.S. and EU antitrust standards on bundling (in its various forms) and tying. The analysis is applied to the U.S. and EU cases concerning Microsoft's practice of integrating (tying) new products (Internet Explorer in the U.S. and Windows Media Player in the EU) with Windows as well as to cases brought in Europe and in the United States on bundled discounts. We conclude that there are important differences between the EC and U.S. antitrust law on the choice of the relevant analogy for bundling and tying (for example, a predatory price test versus an anticompetitive foreclosure test). The two jurisdictions also differ in their interpretations of the requirement for anticompetitive effects, and, in particular, the analysis of foreclosure and consumer harm. It seems that, in Europe, consumer detriment is found more easily under Article 82 of the Treaty of Rome than under the Sherman Act in the U.S., or at least that the standard of proof for consumer harm in the E.U. appears lower. We advocate a unified test for bundling and tying that would focus on anticompetitive foreclosure and absence of objective justifications. The function of the distinct product element of the tying test should be reconsidered and the coercion element of the test should be abandoned.
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The paper's starting point is that EC competition law does not draw any distinction between horizontal and vertical relations when it comes to the definition of the concept of agreement. This approach could make sense if vertical and... more
The paper's starting point is that EC competition law does not draw any distinction between horizontal and vertical relations when it comes to the definition of the concept of agreement. This approach could make sense if vertical and horizontal agreements were considered as equally harmful to competition. However, since the enactment of Regulation 2790/99 and the emergence of a more economic approach in interpreting Article 81, EC competition law focuses less on the protection of the freedom of action of distributors and recognizes that vertical agreements may bring important efficiency gains from which the consumers may ultimately benefit. The concept of agreement, which is of little practical significance in cartel cases, has thus been interpreted restrictively so as to limit the scope of Article 81 with regard to vertical restraints. It is submitted that, while the aim of reducing the scope of Article 81 to vertical agreements may be legitimate, the formalistic approach currently followed by the courts in defining the concept of agreement under Article 81 EC is theoretically and practically flawed. The study will advance an alternative approach for the definition of the concept of agreement, in particular for vertical relations.
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The rise of economics as one of the main (some will advance the most important) “source” of competition law discourse is well documented. This study focuses on a facet of the integration of economic analysis in competition law: "economic... more
The rise of economics as one of the main (some will advance the most important) “source” of competition law discourse is well documented. This study focuses on a facet of the integration of economic analysis in competition law: "economic transplants". The term “economic transplants” refers to specific economic concepts that were incorporated into the legal discourse by an act of “translation”. They represent the ultimate degree of interaction between the legal and the economic systems. Using a paradigmatic approach the study examines their specific characteristics and what distinguishes them from other forms of integration of economic analysis in competition law. It critically assesses their role and their impact on the legal and the economic discourses. The study concludes that the “paradigm” of translation constitutes the most appropriate explanatory framework for taking into account the dual nature of economic transplants and, more broadly, for conceptualizing the interaction of law with other social sciences. It should be distinguished from the existing methodologies of interaction between the disciplines of law and economics, such as the concept of “economic law” and the law and economics approach.
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‘Judging’ Economists: Economic Expertise in Competition Law Litigation - A European View (September 4, 2009). University College of London Centre for Law and Economics Working Paper No. 01-09. Also published at The Reform of EC Competition Law: New Challenges, , Ioannis Lianos & Ioannis Kokkoris, eds.,Kluwer, 2009, pp. 185-320 more
The study focuses on the admissibility and assessment of economic expertise in EC competition law litigation. I start by exploring the broader issues raised by the integration of economic expertise in litigation: in particular the risk of... more
The study focuses on the admissibility and assessment of economic expertise in EC competition law litigation. I start by exploring the broader issues raised by the integration of economic expertise in litigation: in particular the risk of moral hazard and adverse selection because of the epistemic asymmetry between judges and experts and the risk of expert bias. The analysis of these problems will bring me to the question of the conception of science and of the relations between science and law that underpins the concept of scientific expertise and, more specifically, economic expertise. I will then identify the extent of the problem of epistemic asymmetry and expert bias by looking to the degree and the locus of the intrusion of economic analysis in competition cases. I will examine the instruments, procedural and substantive, employed by the legal system, in order to mitigate the risks flowing from the epistemic asymmetry and the expert bias claims. First, I will highlight the different institutional and procedural frameworks that were adopted at the European Union level and in some selected member states in order to integrate economic expertise in litigation. My objective will be to understand how these institutional solutions may address each of the identified problems. Second, I will look to 'substantive' law approaches in the adjudication of expertise, such as the development of specific standards for the admissibility and the sufficiency of economic expertise in courts, as an alternative or as an additional option to deal with the challenges raised by economic expertise. The paper will conclude that the possible adverse effects of the epistemic asymmetry and expert bias between judges and experts raise important concerns that the legal systems should tackle. The current procedural/institutional and substantive legal framework governing economic expertise does not however take sufficiently into account important concerns that are specific to economics and other social sciences, such as the preservation of the scientific 'competition' in the supply of economic theory and consequently methodological or assumptions-related pluralism in economic thought. In particular, I will argue against adopting specific standards of admissibility of economic expertise in Europe. This is a US context-specific solution which does not necessarily fit with the specific characteristics of the European legal system. It is also an approach that represents an outdated and partial view of the scientific as well as of the judicial adjudication process.
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The study critically examines the competition law remedies imposed by the EU and the US to Microsoft Corp., following a series of antitrust investigations in Europe and the US.
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This Article examines the contribution of the United Nations Conference on Trade and Development (UNCTAD) to the emergence of an international framework for antitrust. It is the first systematic analysis of UNCTAD’s contribution to... more
This Article examines the contribution of the United Nations Conference on Trade and Development (UNCTAD) to the emergence of an international framework for antitrust. It is the first systematic analysis of UNCTAD’s contribution to international antitrust since the 1980s— when the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices (the Set) was adopted. The Set still constitutes the only universally applicable instrument in the area of antitrust and its validity has been constantly reaffirmed by international conferences organized by UNCTAD, the most recent one being held in 2005. However, the Set’s existence has also been shadowed: first, by its weak legal effect and, second, by the emergence of new international fora for competition policy, such as the Word Trade Organization and the International Competition Network (ICN). This Article re-examines the legal effects of the Set, taking into account the evolution of the legal and political context of global antitrust; the adoption of a significant number of international, regional, and bilateral trade agreements containing various aspects of competition law provisions; and numerous antitrust cooperation agreements. It concludes that even if it is unlikely that the Set produces, by itself, any binding effect, it may eventually contribute to the emergence of a customary international norm against restrictive business practices. Nor is the importance of UNCTAD’s Set limited to the issue of its legal effect; by providing a balanced approach to the relationship between competition law and the specific needs of developing countries, the Set may provide a model for a future international agreement on
antitrust that could address the interests of both developed and developing countries.
antitrust that could address the interests of both developed and developing countries.
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The vertical/horizontal distinction is an important feature of modern competition law.This paper will first examine the genealogy of the vertical/horizontal dichotomy in the United States (US) and in European Communities (EC) competition... more
The vertical/horizontal distinction is an important feature of modern competition law.This paper will first examine the genealogy of the vertical/horizontal dichotomy in the United States (US) and in European Communities (EC) competition law. It will then analyse the application of the dichotomy in situations of hybrid practices, dual distribution practices, and private labels, where the relation between the supplier and the distributor presents a vertical and a horizontal dimension. The vertical/horizontal dichotomy may find its limits in these situations. After highlighting the reasons and distinct principles that led to the formulation of these specific categories, the study will delve into the utility of the vertical/ horizontal dichotomy and will suggest alternative interpretations of these categories which are both analytically rigorous and consistent with the objectives of EC competition law.
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This study will argue that Intellectual property rights present distinct characteristics than physical property rights. It will then focus on the possible areas of conflict between competition law and intellectual property. These should... more
This study will argue that Intellectual property rights present distinct characteristics than physical property rights. It will then focus on the possible areas of conflict between competition law and intellectual property. These should not be considered as fixed and should follow the evolution of recent antitrust law and economics learning.The inadequacy of the “property rights” terminology for intellectual property becomes obvious if one examines the antitrust law standards that apply to unilateral refusals to license intellectual property, which are different from those that apply to tangible property rights. Competition law takes into account the specificities of intellectual property by requiring additional conditions for finding that a refusal to license an IP right constitutes a competition law infringement. However, the emergence of multiple standards concerning the analysis of refusals to license illustrates the difficulties of finding the right balance between IP and competition law. The concept of “property” is not helpful in reaching a point of equilibrium between the different objectives pursued and other concepts have been used instead. Another possibility would be to “internalize” competition law concerns within the boundaries of IP. The last part of this study will examine the regulatory theory of IP as well as the implications of this theory for the antitrust/IP interface, in particular in the biotechnology sector.
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We propose a simple and accurate test method for recognizing anticompetitive sham suits. We consider the problem of testing the null hypothesis that a lawsuit vis-´a-vis an actual or potential competitor is not sham against the... more
We propose a simple and accurate test method for recognizing anticompetitive sham suits. We consider the problem of testing the null hypothesis that a lawsuit vis-´a-vis an actual or potential competitor is not sham against the alternative that the suit is sham. We develop game theoretical model of bargaining and litigation in the context of entry deterrence, to analyze the incentive of a predator, reacting strategically to the judicial norm creating process, to pursue sham litigation and achieve anticompetitive goals. The theory implies that the question of whether an illegal sham act is baseless or not is irrelevant. When considering open suits-against-competitors to antitrust liability, assessing whether the
alleged predator’s legal expenditures can be expected to pay off is necessary, but insufficient. An appropriate test for sham litigation should be based on close examination of the market structure and thorough analysis of the economic relationship between the parties in dispute. Reputation is the hallmark of the test: the incumbent battles to maintain others’ perception of its readiness to fight entry via frivolous legal battle.
alleged predator’s legal expenditures can be expected to pay off is necessary, but insufficient. An appropriate test for sham litigation should be based on close examination of the market structure and thorough analysis of the economic relationship between the parties in dispute. Reputation is the hallmark of the test: the incumbent battles to maintain others’ perception of its readiness to fight entry via frivolous legal battle.