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

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

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

Chlorophyll fluorescence data reveals climate-related photosynthesis seasonality in Amazonian forests

This is the final version of the article. Available from MDPI via the DOI in this record.Amazonia is theworld largest tropical forest, playing a key role in the global carbon cycle. Thus, understanding climate controls of photosynthetic activity in this region is critical. The establishment of the relationship between photosynthetic activity and climate has been controversial when based on conventional remote sensing-derived indices. Here, we use nine years of solar-induced chlorophyll fluorescence (ChlF) data from the Global Ozone Monitoring Experiment (GOME-2) sensor, as a direct proxy for photosynthesis, to assess the seasonal response of photosynthetic activity to solar radiation and precipitation in Amazonia. Our results suggest that 76% of photosynthesis seasonality in Amazonia is explained by seasonal variations of solar radiation. However, 13% of these forests are limited by precipitation. The combination of both radiation and precipitation drives photosynthesis in the remaining 11% of the area. Photosynthesis tends to rise only after radiation increases in 61% of the forests. Furthermore, photosynthesis peaks in the wet season in about 58% of the Amazon forest. We found that a threshold of ≈1943 mm per year can be defined as a limit for precipitation phenological dependence. With the potential increase in the frequency and intensity of extreme droughts, forests that have the photosynthetic process currently associated with radiation seasonality may shift towards a more water-limited system.We gratefully acknowledge the CAPES and FAPESP (Grants No. 13/14520-6 and No. 2013/50533-5) agencies for providing research fellowships and support this work. L.O.A and L.E.O.C.A thank the National Council for Scientific and Technological Development (CNPq), for the productivity fellowship, processes number 309247/2016-0 and 305054/2016-3, respectively. F.H.W. have been funded by the FAPESP (process number 13/14520-6, process number 15/50484-0 and process number 16/17652-9)

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

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

Regional Mapping and Spatial Distribution Analysis of Canopy Palms in an Amazon Forest Using Deep Learning and VHR Images

Mapping plant species at the regional scale to provide information for ecologists and forest managers is a challenge for the remote sensing community. Here, we use a deep learning algorithm called U-net and very high-resolution multispectral images (0.5 m) from GeoEye satellite to identify, segment and map canopy palms over ∼3000 km2 of Amazonian forest. The map was used to analyse the spatial distribution of canopy palm trees and its relation to human disturbance and edaphic conditions. The overall accuracy of the map was 95.5% and the F1-score was 0.7. Canopy palm trees covered 6.4% of the forest canopy and were distributed in more than two million patches that can represent one or more individuals. The density of canopy palms is affected by human disturbance. The post-disturbance density in secondary forests seems to be related to the type of disturbance, being higher in abandoned pasture areas and lower in forests that have been cut once and abandoned. Additionally, analysis of palm trees’ distribution shows that their abundance is controlled naturally by local soil water content, avoiding both flooded and waterlogged areas near rivers and dry areas on the top of the hills. They show two preferential habitats, in the low elevation above the large rivers, and in the slope directly below the hill tops. Overall, their distribution over the region indicates a relatively pristine landscape, albeit within a forest that is critically endangered because of its location between two deforestation fronts and because of illegal cutting. New tree species distribution data, such as the map of all adult canopy palms produced in this work, are urgently needed to support Amazon species inventory and to understand their distribution and diversity

Mapping Atlantic rainforest degradation and regeneration history with indicator species using convolutional network

The Atlantic rainforest of Brazil is one of the global terrestrial hotspots of biodiversity. Despite having undergone large scale deforestation, forest cover has shown signs of increases in the last decades. Here, to understand the degradation and regeneration history of Atlantic rainforest remnants near São Paulo, we combine a unique dataset of very high resolution images from Worldview-2 and Worldview-3 (0.5 and 0.3m spatial resolution, respectively), georeferenced aerial photographs from 1962 and use a deep learning method called U-net to map (i) the forest cover and changes and (ii) two pioneer tree species, Cecropia hololeuca and Tibouchina pulchra. For Tibouchina pulchra, all the individuals were mapped in February, when the trees undergo mass-flowering with purple and pink blossoms. Additionally, elevation data at 30m spatial resolution from NASA Shuttle Radar Topography Mission (SRTM) and annual mean climate variables (Terraclimate datasets at ∼ 4km of spatial resolution) were used to analyse the forest and species distributions. We found that natural forests are currently more frequently found on south-facing slopes, likely because of geomorphology and past land use, and that Tibouchina is restricted to the wetter part of the region (southern part), which annually receives at least 1600 mm of precipitation. Tibouchina pulchra was found to clearly indicate forest regeneration as almost all individuals were found within or adjacent to forests regrown after 1962. By contrast, Cecropia hololeuca was found to indicate older disturbed forests, with all individuals almost exclusively found in forest fragments already present in 1962. At the regional scale, using the dominance maps of both species, we show that at least 4.3% of the current region’s natural forests have regrown after 1962 (Tibouchina dominated, ∼ 4757 ha) and that ∼ 9% of the old natural forests have experienced significant disturbance (Cecropia dominated)

Large-scale variations in the dynamics of Amazon forest canopy gaps from airborne lidar data and opportunities for tree mortality estimates

We report large-scale estimates of Amazonian gap dynamics using a novel approach with large datasets of airborne light detection and ranging (lidar), including five multi-temporal and 610 single-date lidar datasets. Specifically, we (1) compared the fixed height and relative height methods for gap delineation and established a relationship between static and dynamic gaps (newly created gaps); (2) explored potential environmental/climate drivers explaining gap occurrence using generalized linear models; and (3) cross-related our findings to mortality estimates from 181 field plots. Our findings suggest that static gaps are significantly correlated to dynamic gaps and can inform about structural changes in the forest canopy. Moreover, the relative height outperformed the fixed height method for gap delineation. Well-defined and consistent spatial patterns of dynamic gaps were found over the Amazon, while also revealing the dynamics of areas never sampled in the field. The predominant pattern indicates 20–35% higher gap dynamics at the west and southeast than at the central-east and north. These estimates were notably consistent with field mortality patterns, but they showed 60% lower magnitude likely due to the predominant detection of the broken/uprooted mode of death. While topographic predictors did not explain gap occurrence, the water deficit, soil fertility, forest flooding and degradation were key drivers of gap variability at the regional scale. These findings highlight the importance of lidar in providing opportunities for large-scale gap dynamics and tree mortality monitoring over the Amazon