Increased Differentiation or Stronger Uniformity

closer cooperation; differentiation; institutions; integration theory; law; majority voting; Single Market; subsidiarity; Treaty on European Union; unanimity

The 1992 Project : Stages, Structures, Results and Prospects

The 1992 project has radically changed the European Community. It has given the common market new impetus and has lifted the Community out of the deep crisis in which it was bogged down in the first half of the 1980s. The consensus which has been re-established amongst all the Member States through the internal market exercise was enshrined in the Single European Act and the acceptance of the Delors package in February 1988. The financial underpinning of the 1992 project, through the reform of the structural funds and the Community\u27s finance system, has given the internal market exercise such credibility in the eyes of the public that it has increasingly taken on a life of its own: since the first half of 1988, 1992 has become a strategic date for business and industry both inside and outside the Community

How Flexible is Community Law? An Unusual Approach to the Concept of Two Speeds

The concept of two speeds de lege ferenda and the connected question of possible flexibility in Community law de lege lata raise a number of highly complex institutional questions that go to the very roots of the Community system. We offer the following analysis of such questions to Eric Stein, whose writing and teaching have contributed so greatly to the understanding of the Community\u27s foundations

Mario Monti’s Legacy for Competition Policy in Article 82

Commissioner Mario Monti’s impact on Article 82 of the EC Treaty during his period as EC Competition Commissioner has not been as revolutionary as his impact on other areas of EC competition law. Nonetheless, the European Commission has done serious work on Article 82 cases, notably taking several important decisions: Microsoft in the area of refusal to supply and tying and Michelin II on rebates. The European Court of Justice (ECJ) and the Court of First Instance (CFI) have also made important contributions to the law on Article 82 with their judgments in IMS Health and in appeals from these rebates cases. On a legislative front, Commissioner Monti has brought the Commission’s modernization program through to adoption of a new enforcement system in May 2004, with significant re-emphasis of Commission activity on cases with market power, interesting initiatives to allow dominant companies to benefit from Article 81(3) and a general review of Article 82 enforcement

WTO Dispute Settlement and Competition Law: Views from the Perspective of the Appellate Body\u27s Experience

The current discussions on a future framework for competition policy within the World Trade Organization ( WTO )have revealed reservations against the full application of the WTO dispute settlement system to such a framework. The current dispute settlement system of the WTO is one of the results of the Uruguay Round negotiations. For an international agreement of nearly universal scope, this system is unique in its obligatory and quasi-automatic character. In general, complaints can be brought to the WTO against national laws which fail to comply with WTO obligations and also against a WTO-inconsistent application of national laws in individual cases. The possibility of enforcing the legal obligations resulting from the agreements negotiated within the WTO and the stronger force that these agreements thus have is one of the reasons why the proponents of a WTO competition agreement favor the WTO as a negotiation forum. Nevertheless, several of these proponents contemplate at most a limited future role for the WTO dispute settlement system within a future competition agreement. At the outset, the United States in particular took a skeptical approach, which the European Communities seem to have now joined in

Unilateral Effects: The Enforcement Act under the Old EC Merger Regulation

The reform of the EC Merger Regulation was preceded by an animated debate about whether the traditional dominance test allowed the Commission to challenge mergers that did not lead to single firm or collective dominance in the traditional sense, but nevertheless may have reduced competition to the detriment of consumers. The authors submit that the dominance test failed to reach such situations of unilateral or non-coordinated effects. The old Merger Regulation therefore suffered from a potential enforcement gap that was closed only by the legislative change to the significant impediment of effective competition test. National jurisdictions still using variants of the dominance test may want to consider this aspect in their legislative reform plans

Antitrust and Competition Law Update: Tetra Laval--A landmark judgement on EC Merger Control

On 15 February 2005, the European Court of Justice (ECJ) dismissed the European Commission’s appeal in the Tetra Laval/Sidel merger case.2 The ECJ’s judgment establishes two significant principles that apply beyond the facts of this particular case:The judgment confirms that the Court of First Instance (CFI) for all practical purposes will continue to be the ultimate arbiter of disputes about the Commission’s use of evidence and economic assessment in merger control proceedings. The ECJ has signaled that it will generally not entertain appeals asserting that the CFI engaged in excessive scrutiny of the Commission’s assessment and therefore overstepped the permissible boundaries of judicial review. Had the ECJ upheld the arguments raised by the Commission, this may well have had a chilling effect on the CFI’s willingness to subject the Commission’s merger decisions to strict scrutiny. This in turn would have severely limited the effectiveness of judicial review, in particular in the age of the Commission’s “more economicsbased approach” and the increasing importance of complex factual and economic evidence in merger cases. • While the judgment does not preclude prohibition of conglomerate mergers under the Merger Regulation, it imposes stringent legal and practical constraints on the Commission’s ability to challenge such mergers on the basis of “leveraging”- type theories of competitive harm: Finding that “the chains of cause and effect [underlying leveraging theories] are dimly discernible, uncertain, and difficult to establish”, the ECJ required a particularly high quality of evidence to support a conclusion that the leveraging developments will occur following the merger. By requiring that the Commission examine on a case-by-case basis whether behavioral commitments (such as not to bundle different products) might be effective, the ECJ’s judgment makes it less likely that the Commission will pursue leveraging theories in merger review. The judgment effectively compels the Commission to reassess its method of evaluating commitments, which currently calls for the rejection of even the most carefully crafted long-term behavioral commitments that adequately address conglomerate concerns

Schering-Plough Corp. v. Federal Trade Commission: Eleventh Circuit Rejects the FTC’s Position on “Reverse Payments” in Patent Suit Settlements

In recent years, the Federal Trade Commission (“FTC” or the “Commission”) has investigated several settlement agreements between pioneer and generic drug manufacturers involving “reverse payments.” In the view of the FTC, reverse payments are cash that a pioneer drug manufacturer pays to a generic manufacturer who has challenged the patent(s) protecting the pioneer drug, in exchange for the generic manufacturer’s agreement to delay market entry. Such payments sometimes occur in the settlement of patent infringement actions. The Commission has been extremely skeptical of reverse payments, viewing them as objective indicia of intent to illegally share monopoly profits that the delayed generic entry perpetuates. It has successfully challenged settlement agreements that included reverse payments involving the market entry of generic Cardizem (hypertension treatment) and generic Hytrin (hypertension and angina treatment)

Antitrust and Competition Law Update

The US Federal Trade Commission(FTC) has announced sweeping changes to the Hart-Scott-Rodino (HSR) Act premerger reporting rules, including those governing transactions involving partnerships and LLCs, that will come into effect on April 6, 2005. See 70 Fed. Reg. 11526 (March 8, 2005). In addition to reconciling the HSR analysis of LLCs, partnerships and other unincorporated entities with that of corporations, the new rules will make a number of technical adjustments and codify some informal FTC interpretations. The changes will make some transactions reportable that have historically be exempt; this effect will be offset to some extent by new exemptions from filing, most notably a significant expansion of the exemption for acquisitions of voting securities of entities whose assets would be exempt if acquired directly. We discuss all of these changes in more detail below