In this issue:
Twelve Stories of Antitrust: A Look Back at 2008
A Tale of Two EC Cases: IBM and Microsoft
Arguably the largest abuse of dominance case in Europe before Microsoft was the IBM case of the early 1980s. Both cases were about interoperability and bundling, and both followed litigation in the United States. Unlike Microsoft, the European IBM case was settled without a decision being taken, so the public record is thin.
Recent Developments in EU Anti-Cartel Enforcement
Anti-cartel enforcement has been a major priority for some time for all competition agencies. Beyond intensifying investigative actions and prosecutions, however, the primary thrust of policy and indeed the chief yardstick for evaluation of enforcement is the degree to which ongoing cartel activities in the jurisdiction are severely deterred. Fines or other sanctions through which this deterrence may be expected to dissuade cartel conduct thus assume a central role in any policy considerations.
Olympic Competition: How China’s New Antimonopoly Regime Is Shaping Up
In this article, we review the key focal points of the AML and Merger Filing Rules, offer a few criticisms and identify instances where China has deviated from antimonopoly laws in other jurisdictions, and examine challenges facing the AML’s enforcement.
The Justice Department’s Section 2 Report: In Search of A General Theory of Exclusionary Conduct
To some legal and economic commentators, the articulation of an all embracing rule that defines exclusionary conduct has become the Holy Grail of antitrust law, or at least of Section 2. Thoughtful articles have advocated myriad competing tests, but no test has emerged as a consensus choice. Moreover, equally thoughtful commentators have suggested that different species of conduct should not all be governed by the same test for distinguishing the exclusionary from the benign. Given this background, the position that the Department of Justice (“DOJâ€) would take on this issue was eagerly awaited—especially because many of the strongest advocates of the competing tests participated in the hearings that culminated in the DOJ’s recent report.
Bertelsmann and Sony Judgment: Welcome Clarity for EC Merger Review from the EU’s Highest Court
On July 10, 2008, the European Court of Justice gave judgment setting aside a ruling of the European Court of First Instance in an appeal brought by Impala, a third-party complainant, against the clearance of the SonyBMG joint venture by the European Commission in August 2004. The CFI’s judgment was the first (and so far, the only) time the CFI had overturned an unconditional merger clearance decision under the EC Merger Regulation. This article reviews the issues considered by the ECJ’s judgment and the importance of the ECJ’s ruling.
A Brief Note on U.S. and EC Competition Policies and Their Impact on Innovation
Although U.S. and EC antitrust law have converged considerably in the last few years, significant differences remain in the treatment of dominance under Article 82 of the EC Treaty.
Anticompetitive Rebates in EC Competition Law: A Way Forward?
One area of EC competition law that has been particularly controversial in recent years is the application of Article 82 of the EC Treaty to allegedly anticompetitive rebates.
The Past, Present, & Future of Stand-Alone Section 5 Competition Enforcement at the FTC: Is N-Data a New Direction or a Mere Diversion?
Section 5 of the Federal Trade Commission Act empowers the Federal Trade Commission (“FTC” or “Commission” to prohibit “unfair methods of competition.” Congress left these terms largely undefined in order to provide the new agency with broad and flexible authority to address threats to competition. Not surprisingly, the Commission has grappled with how to apply its mandate throughout its history.
Ex Post Assessment of Regulation 1/2003
More than 25 years ago, Christopher Norall and I wrote an article challenging the Commission’s approach to the application of Articles 81(1) and (3) EC, calling for the priests of competition law in Brussels to trust the laity more, to share enforcement duties with others, and to be less formalistic in interpreting the rules. It was one of a string of articles which suggested that the Commission could not maintain its monopoly over the grant of exemptions. Its theory that the prohibition of Article 81(1) EC caught everything which might have a remotely discernible effect on competition was understandable for the early days of an untested institution, dubious about the scope of its competence and the reception its theories would receive from courts and businesses. The theory needed to adapt to the realities of an enlarged Europe. After years of hesitation, the Commission wisely chose to share enforcement with national courts and national competition authorities. This was a massive change in course, widely and justly commended.
Why Economics Now Matters for Antitrust Class Actions at the Class Certification Stage
Whether or not a court will certify an antitrust class action may well depend on the federal circuit in which the lawsuit is filed. In recent years, a trend toward increased scrutiny of plaintiffs class action allegations has emerged although a conflict among the circuits has developed over the degree of scrutiny courts should apply.
Margin Squeeze after Deutsche Telekom
The purpose of this paper is to examine the lessons from Deutsche Telekom and the precise circumstances in which margin squeeze
