Advocate General Jacobs\u27 Contribution to Competition Law

This Article focuses on some of AG Jacobs\u27 opinions regarding matters of competition, starting with his contributions on the meaning of “undertaking” in Höfner and AOK, under a combination of the Treaty Establishing the European Community (“EC Treaty”) Articles 82 and 86 (special and exclusive rights), and Risparmio, under Articles 86 and 87 (State aids). It does not deal with many other opinions he wrote on the meaning of “undertaking,” such as those in Albany and Pavlov. Finally, it discusses his opinions on refusals to deal in Bronner and Syfait, along with a selection of other judgments on the topic

Compulsory Access to Essential Facilities under section 36 of the New Zealand Commerce Act in the Light of Experience in Australia, the EC and the USA

There is concern in many jurisdictions that firms found to enjoysubstantial market power may be under a special responsibility to grant to their competitors access to essential facilities. Where a firm enjoying market power has some asset which a new entrant to a concentrated market must have or use it is tempting to say that the market would operate better if the new comer were entitled to access. On a static analysis this may be true - there will be one more firm in the market: probably more will be produced and sold at lower prices. On a dynamic analysis however it is important that the incentive to create the original asset be not reduced The reduction in the incentive to invest in other specific facilities in other industries may be more important than the static improvement in a particular market.I am concerned by the propensity of antitrust authorities to take the staticview and require access to be granted at a price at which the incumbent wouldprefer not to deal thereby reducing the incentive to the original investment. The particular investment will already have been made but if antitrust authorities frequently compel access for the benefit of free riders wishing to compete downstream the incentive to investment in facilities essential to other activities will be reduced. New Zealand competition law was inspired directly by that of Australia as part of the arrangements for the CER and in its turn the Australian trade practices legislation was largely inspired by the experience in the US and European Community.2Under s. 2 of the Sherman Act in the USA some of the cases went veryfar in finding that a firm with substantial market power was under a duty to grant access to essential facilities for the benefit of those wishing to compete with it downstream. Professor Areeda's seminal article `Essential Facilities: an Epithet in Need of Limiting Principles'3 has helped to stem the tide. Even where more than one person can conveniently use the facility there are objections to requiring access. An obligation to supply not only reduces the incentive to make the original investment it also reduces the incentive to duplicate or improve it where this would otherwise be sensible. Moreover some body will have to settle the amount of compensation to be paid often on a continuing basis

The Rise and Fall of Provisional Validity -- The Need for a Rule of Reason in EEC Antitrust

The doctrine of provisional validity invented by the Community Court now applies to very few agreements. Mrs. Korah believes that unless a rule of reason is applied to restraints ancillary to agreements that lead to new competitive pressures, the risk of collaboration may become excessive. Mrs. Korah also expresses concern that this may reduce the dynamism of Community industry in competition with American and Japanese firms

Access to Essential Facilities under the Commerce Act in the Light of Experience in Australia, the European Union and the United States

Drawing on recent developments in Australian, United Kingdom and United States jurisprudence, Professor Korah casts doubt on the approach recently taken by New Zealand courts in one of the most controversial areas of competition law: the access to its facilities that a corporation in a dominant position must give to its would-be competitors.  She argues that before imposing such obligations courts ought to be more sophisticated in assessing the economic effects of such obligations and especially the need to preserve an incentive to make the considerable investment required to create such facilities.  Professor Korah was the 1999 Chapman Tripp Fellow. This article is an edited version of a paper presented at the offices of Chapman Tripp during the tenure of the Fellowship. &nbsp