Competition Law and Regulation Law From an EC Perspective

These comments look at the subject from a legal viewpoint, in contrast to the Essay by Professor Dr. Günter Knieps, which uses an economic approach. His Essay raises several issues concerning access: (1) who should be obliged to give it; (2) to whom; (3) in what circumstances; and (4) on what terms? In practice, the precise answers will depend on whether European Community (“Community” or “EC”) competition law, national competition law, or national telecommunications law based on Community directives, are being applied. As far as possible, the same answer should be given in all cases

Competition Law and Regulation Law From an EC Perspective

These comments look at the subject from a legal viewpoint, in contrast to the Essay by Professor Dr. Günter Knieps, which uses an economic approach. His Essay raises several issues concerning access: (1) who should be obliged to give it; (2) to whom; (3) in what circumstances; and (4) on what terms? In practice, the precise answers will depend on whether European Community (“Community” or “EC”) competition law, national competition law, or national telecommunications law based on Community directives, are being applied. As far as possible, the same answer should be given in all cases

The Commission: The Key to the Constitutional Treaty for Europe

Political inventions are so rare that when they do arise they are not recognized--we try to fit them into traditional classifications, or criticize them for not being something that they were never intended to be. The European Commission (“Commission”) was a genuinely new political invention, created to solve a problem. The problem was that the European Community (“EC”) had to have majority voting. That meant that from time to time minorities would be out-voted. Majority voting--an old idea, but never before used in an international organization--had to be made acceptable

Three Possibilities for Reform of the Procedure of the European Commission in Competition Cases under Regulation 1/2003. CEPS Special Report, 18 November 2011

Following an examination of the present procedures of the European Commission in competition cases under Regulation 1/2003, this paper finds that the existing safeguards for due process are not sufficient and explains why reform is urgently needed. Three possible radical solutions are outlined: 1) setting up a decision-making body within the Commission, 2) setting up a separate European competition authority and 3) making the Commission a “prosecutor” bringing competition cases before the General Court, which would adopt the first legally binding decisions

Article 82 EC – The Problems and The Solution

The Commission's Guidance paper on exclusionary abuse under Article 82 EC is open to three fundamental criticisms. First, it leads to less legal certainty, because the rules suggested are vague and imprecise, because dominant companies will not have the information needed to apply them, and because the Commission is trying to change the law, which it has no power to do. Second, it would lead to some anticompetitive effects, because in practice it discourages price competition, by discouraging individualised price negotiations and retroactive rebates, and by suggesting that the Commission will protect not-yet-as-efficient competitors from price competition. Third, it leads to too many "false positives", i.e., findings of exclusionary abuse that are not justified in economics or law. The solution is to return to the test in the Treaty as interpreted by the Court of Justice: an exclusionary abuse must involve limiting the production, marketing or technical development of competitors of the dominant company, if harm is caused to consumers.Article 82EC, Competition, Abuse

The Commission, the Community Method, and the Smaller Member States

This Article discusses several developments concerning the position of the Commission in the institutional structures of the European Union ( EU ) that have occurred since then. It does not touch on the many other matters that influenced the debate on the draft Constitutional Treaty, leading to its failure at referendum in France and the Netherlands; these matters include the scope of the draft Treaty, questions concerning its economic, social, and political benefits or disadvantages, the working of the Stability Pact in the Eurozone and the ongoing debate on freedom of services legislation, the purposes for which the EU was originally created and their modification, further enlargement of the EU, and so on. These subjects require separate treatment

Managing the unintended consequences of competitive tendering : Monopolies, public monopolies, competitive tendering: how and when should each be used under EU law?

This paper outlines the legal position in terms of EU regulations of the various options for delivering public services. It considers the situation where for a number of reasons the service is delivered by a public or private monopoly. The circumstances in which the procuring authority uses competitive tendering, regulation or some combination of both are outlined. The regulations around State aid and the Altmark and Teckal exemptions are explained. Crucially, for the Scottish ferry industry, the question of what happens when the domestic incumbent loses a contract is raised. The broad scope for taking into account social and environmental considerations in awarding a contract for the delivery of a public service are elucidated. The difficulty of ensuring such contracts are specified in a way that is both lawful and effective are explained. The paper concludes that regulation rather than tendering of public contracts may be a simpler and more effective method to ensure that the ‘most economically advantageous’ outcome is achieved

Defining Legitimate Competition: Companies\u27 Duties to Supply Competitors and Access to Essential Facilities

This Article considers the European Community (“Community” or “EC”) antitrust law rules on the duty to supply competitors with important goods or services. It is convenient to begin, in Part I of this Article, by summarizing the relevant Treaty provisions, and the case law of the Court of Justice of the European Communities (the “Court”) and the Commission of the European Communities (the “Commission”) on essential facilities. Part I begins with the less specialized cases, and outlines the Court and Commission cases on telecommunications and performing rights societies, as well as some relevant Community legislation. This provides the basis for a discussion of the general principles and problems in Part II of this Article. Part II is a synthesis, based on the principle that a dominant company has, at least in some cases, a duty to supply, if refusal will cause a significant effect on competition

European Community Competition Law and Member State Action

Article 90 of the European Economic Community Treaty ( Treaty ) prohibits member states from authorizing or ordering behavior infringing upon European Economic Community ( Community ) antitrust law, even in the case of state enterprises. Indeed, Community law does not include a state action doctrine. However, it is not yet clear to what degree this prohibition prevents member state measures having competition-restricting effects. This article considers that question

Regulating Multinational Corporate Concentration-The European Economic Community

It is the purpose of this article to discuss the policies and goals of the efforts of the European Communities to regulate multinational corporate concentration. For reasons that will become clear in the course of the article, it is necessary to start by outlining the means available to the European Communities, both presently and potentially, to promote these policies. It is not possible to see what those policies might be or how they are likely to develop without understanding the practical implications of the various legal rules on which the Community might rely in the future. This article does not deal directly with merger regulation under the European Coal and Steel Community Treaty (ECSC Treaty), or with procedural questions, although both of these are of some interest in connection with the main topic