Best and even better practices in commitment procedures after Alrosa: The dangers of abandoning the “Struggle for Competition Law”

In the Alrosa case, the ECJ adjudicated on the degree of protection to be afforded to undertakings against disproportionate commitments in the procedure under Article 9 of Regulation (EC) 1/2003. The General Court required a substantially full proportionality review, because commitments are made binding on the undertakings by a unilateral Commission decision. In contrast, the ECJ largely dispensed with the review for proportionality, because commitments are voluntarily offered by the undertakings. The article discusses the hybrid character of commitment decisions between a purely unilateral command and a freely negotiated contract. It argues that the ECJ's Alrosa decision has removed practically all constraints on the Commission in the commitment procedure. This lack of constraints may result in a vicious circle, leading to ever more commitment decisions and ever fewer infringement decisions. Undertakings start to extrapolate their obligations from commitment decisions and guidelines that do not authoritatively state the law. This reliance on "quasi case law" increases the Commission's discretion in future negotiations. The incentives for the Commission to resort to the commitment procedure are especially strong in cases involving novel legal issues, in which the benefit of legal certainty provided by an infringement decision would be particularly large. There is a danger that the struggle for law is abandoned in favour of discretionary case-to-case negotiations. In order to avoid this development, one could either subject the commitment procedure to more demanding constraints or one could make infringement decisions relatively more attractive by allowing the Commission increased discretion in devising proactive remedies

Should Google's Secret Sauce be Organic?

This commentary discusses the European antitrust investigation into Google and the international implications of the case. It focuses on Google's alleged dominance and the allegations concerning Google’s self-preferencing of its Google Shopping results on general web search result pages, which form the subject matter of the Statement of Objections that the Commission sent on 15 April 2015. The EU Commission's international jurisdiction to prescribe is found to be unproblematic. However, the tendency towards overenforcement resulting from the cumulation of national and supranational investigations by competition authorities worldwide counsels caution in borderline cases. And Google is a borderline case. While it seems possible to construct a story of dominance and consumer harm, the paper doubts Google's ability to act to an appreciable extent independently of its competitors and customers. Ultimately, this is an empirical question, and the Commission may have sufficient evidence at its disposal. However, the publicly available evidence does not seem to support a finding of dominance, despite Google's high share of user searches. A finding of abuse would require changing the goalposts: one would have to accept that instead of a constructive refusal to deal, it is already abusive if services are not provided to third parties on identical conditions, or that instead of requiring coercion of consumers to acquire a tied product or service, it is already abusive if consumers are merely nudged to preferring the vertically integrated firm's products. These changes would amount to a paradigm change. Traditionally, competition is to force producers to be responsive to consumer preferences. Consumer choices are taken to reveal their preferences unless coercion can be shown. Allowing intervention already below the threshold of coercion, when consumers are merely nudged to make particular choices, risks substituting the competition authority's assessment for consumer preferences

Access to Evidence and Leniency Materials

This paper discusses the current state of disclosure/discovery in the United States, England & Wales, Germany, and the European Union, and the changes brought about by Directive 2014/104/EU on Actions for Damages for Infringements of Competition Law ("Damages Directive"). The Damages Directive is meant to create a "level playing field" across the Member States of the European Union. The paper describes previous legislative interventions in the United States (with various amendments to FRCP 26) and England (following the Woolf and Jackson reviews) that tried to limit "excessive discovery" with limited success, and legislative intervention in Germany as well as judicial intervention on the EU level that tried to expand disclosure in continental Europe with equally limited success. The paper analyses the Damages Directive's provisions on disclosure and access to evidence in detail, and concludes that they are, in themselves, unlikely to change the legislatures' or courts' attitude in continental Europe, because they only enable courts to order disclosure, but do not require them to do so. If any change towards more disclosure is to happen in Europe, either the Member States will have to gold plate when implementing the Directive, or the Court of Justice of the European Union will have to give clear guidance under the principle of effectiveness. The paper also discusses the Directive's provisions limiting disclosure that could interfere with public enforcement, in particular leniency statements and settlement provisions

Individual Sanctions for Competition Law Infringements: Pros, Cons and Challenges - Introduction

S uite à l’harmonisation des règles matérielles dans le cadre du règlement ( CE ) no. 1/2003, la C ommission a récemment commencé à se pencher sur la question de l’harmonisation des règles de procédures et de sanctions, alors que le Parlement européen a, en janvier 2016, demandé l’introduction de sanctions contre les personnes physiques. C e dossier examine l’état actuel des sanctions individuelles dans les États membres, fait état des difficultés institutionnelles posées par ces sanctions individuelles en particulier à l’égard des programmes de clémence, et se penche sur les avantages et inconvénients de l’introduction de sanctions individuelles, en particulier de nature pénale. C e dossier examine l’expérience de la France, de l’Allemagne, du R oyaume- U ni et des États- U nis en matière de sanctions pénales et présente des données empiriques ayant trait aux attitudes du public dans différents États membres et aux États- U nis envers les infractions au droit de la concurrence. * Following the substantive harmonisation in Regulation (EC) no. 1/2003, the Commission has started more recently to focus on procedure and sanctions, and in January 2016, the European Parliament called for penalties against natural persons. This ‘On Topic’ issue looks at the current state of individual sanctions on the Member State level, examines the institutional challenges these individual sanctions present especially for leniency programmes, and discusses the pros and cons of introducing further individual, in particular criminal sanctions. This ‘On Topic’ issue examines the experience with criminal sanctions in France, Germany, the United Kingdom and the United States, and presents empirical evidence on public attitudes towards competition law infringements in various Member States and the United States

Comparative antitrust federalism and the error-cost framework, or: rhetoric and reality: you protect competitors, we protect competition - except when we protect competitors

The aim of this paper is threefold. First, it seeks to contribute to a more fine-grained comparison between US antitrust and EU competition law by (selectively) including state antitrust laws as well as laws that pursue objectives different from the antitrust laws but interfere with the aims of the antitrust laws, such as sale-below-cost statutes, car dealer and franchise statutes, or general contract law invalidating resale price maintenance agreements ("non-antitrust laws"). Secondly, the paper highlights the degree to which such state antitrust laws and non-antitrust laws may interfere with the error-cost framework employed in antitrust law which finely balances Type I and Type II errors. Thirdly, as a consequence of the first two points, the paper seeks to raise awareness of the importance of clearly defining the relationship between antitrust law on the federal (or EU) level and antitrust laws as well as non-antitrust laws on the (Member) state level. Neither the US approach nor the current EU approach to this relationship are considered satisfactor

The use of graphs in annual reports of major Italian companies

This paper shows the potential benefits and risks, in terms of communication, involved in the use of graphs in corporate annual reports.Financial support from the University of Tuscia - Viterbo (Italy

Description of Anteon seramense (Hymenoptera. Dryinidae), a new species from Indonesia

Anteon seramense sp. nov. is described from Seram Island (Indonesia). Seram is an island situated in a transition area between the Oriental and the Australian regions. Anteon seramense can be distinguished from the related Australian species A. giluwense Olmi and A. chelogynoides (Perkins) by the different sculpture of the scutum (granulated in A. seramense, punctate and unsculptured among punctures in A. giluwense and A. chelogynoides) and the different distal apex of the protarsal segment 5 (deeply hollow in A. seramense, not hollow in A. giluwense and A. chelogynoides). Anteon seramense sp. nov. can be distinguished from the related Oriental species A. heppneri Olmi and A. thai Olmi by the different shape of the protarsal segment 5 (basal part slightly longer than distal part in A. seramense, much longer in A. heppneri and A. thai)

Private damages actions before and after the implementation of the Directive (implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017)

The majority of Member States have implemented the European Directive on Private Damages Actions for Breach of Competition Law, into their respective law, albeit with some delay. In particular, England, Germany, and the Netherlands, but also France and Italy have faced a certain number of private damages actions well before the implementation of the new regime. Partly the national rules and legal innovations have inspired the European legislator

Disclosure of evidence included in the file of a competition authority (implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017)

The disclosure provisions of the EU Damages Directive allow national courts to order competition authorities to disclose certain documents and information in damages proceedings. In addition, private parties can also be ordered to disclose certain evidence that they have obtained through access to the files of a competition authority. Leniency applications as well as settlement submissions and certain other documents are, however, excluded from disclosure. While the disclosure provisions at first glance seem to be rather clear in this respect, both the Damages Directive as well as the national provisions implementing the Directive raise a number of questions. This article explores the issues raised by the new provisions under the laws of France, Germany, Italy, the Netherlands, and the United Kingdom