ASCOLA Conference (27-29 May 2010)

Not yet published on ASCOLA website, but available at Daniel Sokol’s blog.

The 5th ASCOLA Conference will be held in Bonn on 27-29 May 2010. The general topic will be “Goals of Competition Law”

Discussions at earlier ASCOLA Conferences have revealed a need for a profound debate on the normative foundations of competition law. Accordingly, the General Assembly decided at the Zürich Conference to dedicate a conference to this issue to be held in Bonn.

(1) Forms of active participation

Similar to the approach taken by the organisers of this year’s Washington conference, there will be two groups of active participants – speakers and commentators. The speakers will be identified by a call for papers, and, if needed, will be reimbursed for their travel expenses.

Commentators will only be requested to make short comments on the speakers’ papers. ASCOLA will not reimburse the commentators. But being on the programme may be helpful to the commentators to finance their trip to Bonn through their home institutions or through other sources.

(2) On the topics to be covered

The conference will address the “Goals of Competition Law” in two parts:

Part I: “The normative foundations of competition law”

Part I aims at developing a more common understanding of the normative foundations of competition law. It is suggested that we take a comparative approach. Contributors are therefore kindly requested to take account of the legal situation in one (preferably: their “own”) or a few jurisdiction(s). Papers could, for instance, focus on the following questions:
- Does competition law serve one or more than one goal? What is/are this/these goal/s?

- If it serves more than one goal, how are these goals inter-related?

- Is competition an open concept, or is it defined by certain (market) results?

- If it is an open concept, what are the prerequisites of competition?

- When and in which way do aims such as efficiency and (consumer) welfare come into play? If consumer welfare (or consumer benefit) is an issue, who will be considered to be a consumer?

- If efficiency is an issue, in which way is it assessed (short term allocative efficiency or long term assessment, including dynamic efficiencies)?

- Are competitors protected in their own right?

If you are considering preparing a paper for Session I, you may find it helpful to have a look at the report on the objectives of unilateral conduct rulesprepared by the International Competition Network, which is the result of considerable comparative work. The goal of the discussion in the framework of part I is to arrive at some common understanding with respect to an underlying concept of competition. It is hoped to reach some conclusions as to the ingredients or ‘living conditions’ of such competition.

Session II: “Selected issues related to the goals of competition law”

Session II will cover selected issues that are related to the general theme of the goals of competition law. Here contributors are invited not to report from the perspective of one particular jurisdiction, but to take a broader view. They may, if they wish, develop comparative analyses of various legal systems. They may also follow an interdisciplinary approach such as an economic, historical or philosophical analysis of law.

Suggested topics for Session II include:

- Ways to recognise other goals (in particular: ‘non-economic’ goals) when applying competition law

- The relationship between competition law (in the narrow sense of antitrust law) and the law of unfair competition

- To what extent is buyer power an issue for competition law?

- Is ‘too big to fail’ an issue for competition law?

- Are there special goals of competition law in the media industry?

- Are there particular goals for competition law in developing countries?

You are kindly invited to suggest other issues for Session II. If you offer to contribute to Session II, please indicate which methodology you intend to apply.

(3) Information for potential speakers – Call for papers

Step 1:

If you want to become a speaker to the conference, please return the attached form by 8 January 2010, accompanied by an abstract of no more than three pages setting out the main points of the paper you would like to present. If you offer to contribute to session II, please also indicate which methodology you intend to apply.

Step 2:

A committee installed by the ASCOLA Executive Board will select the papers for presentation at the Bonn conference and invite the speakers for submission of a full paper.

The speakers are kindly requested to submit their papers electronically by the 30 April 2010 so as to enable the commentators to prepare for the conference.

Note that you do not have to be a member of ASCOLA in order to become a speaker.

(4) ASCOLA Young Researcher Award

For the first time, ASCOLA will grant the ASCOLA Young Researcher Award to the best papers submitted by a young researcher. The person to whom the award will be granted will be identified by the committee that selects the papers for the conference and will act as a speaker at the conference. The following persons qualify for the award:



35 years or younger at the time of the conference



ASCOLA membership not required

As a member of ASCOLA, you are kindly requested to spread the news on this award to young researchers and try to convince promising young researchers to take part in the process by handing in the attached form with a declaration that they are willing to compete for the award.

The committee may decide to grant the award to more than one contributor; it may also decide not to grant the award.

(5) Publication

All the papers and comments will be published in the ASCOLA series with Edward Elgar. Commentators will have the possibility to expand more toward “stand-alone” articles.

Daniel Zimmer,

Member of the ASCOLA Executive Board, Organiser of the conference

Josef Drexl

Chair of ASCOLA

We are not alone…

In 2007 we established a research centre on competition law at the Pázmány Péter Catholic University, Faculty of Law and Political Sciences. I have just discovered an other centre at a similar university: Centro de Libre Competencia UC.

Fifteenth CLaSF Workshop, Brussels, Friday 16 April 2010

The XVth CLaSF Workshop will focus on due process in EU and national competition law. We invite proposals in respect of the reform of EU and Member State Leniency, reform of EU and national procedural antitrust law, comparative analysis of procedures and in respect of optimal sanctions in the context of price-fixing and the application of the ECHR to EU and national antitrust sanction policy.

Reforming Leniency.

Despite the success of the Leniency Programme a number of serious questions have arisen as to whether a thoroughgoing modernisation is required to European anti-cartel policy. In the first place notwithstanding the success of the 2002 and 2006 Leniency Notices, the EU approach to leniency, and that of many NCAs, do not include some of the effective procedures of the US Corporate Leniency Programme. For example, there is no express Amnesty Plus programme in either the 2002 or 2006 Leniency Notices. Nor do any of the European leniency notices limit the damages that a successful leniency applicant would otherwise have to pay in civil cases. Should EU and national leniency procedures take greater account of lessons from the US Corporate Leniency programme or are those lessons not transferable to a European context?

The Commission ‘s Powers and Procedures and the ECHR

There are also increasing concerns over the conflict between the Commission’s procedures and the case law of the European Convention of Human Rights. Concerns abound over questions relating to the application of the power to obtain information contained in Article 18 of Regulation 1/2003, and its compliance with Article 6 ECHR, in the light of the Strasbourg ruling in Saunders. Further concerns centre around the powers contained in Articles 20 and 21 relating to the Commission’s powers to undertake unannounced inspections and the potential conflict with ECHR case law stemming from the Colas Est case. In respect of the contentious procedure itself a series of Strasbourg cases such as Engel, Le Compte, Findlay and latterly Jussila have been prayed in aid by corporate defendants to challenge the legality of a procedure which makes the Commission investigator, prosecutor and judge. As a result of the large number of cartel cases now flowing through the contentious procedure these issues have become much sharper in recent years. Furthermore, the potential for direct conflict with the ECHR has now increased with the coming into force of the Lisbon Treaty as under Lisbon the Union is required under Article 6(2) TEU to accede to the Convention. 
There appears therefore to be a compelling argument on grounds of procedural efficiency and the prospect of potential ECHR challenge to consider significant reform of the Commission’s powers and procedures.

Enhancing Deterrence and Recalibrating Sanction Policy

A further concern revolves around the financial sanctions levied by the Commission. It is open to question whether the existing financial corporate sanctions themselves provide sufficient deterrence. Individual executives who undertake price-fixing are never personally at risk, and may feel themselves far removed from the ultimate parent company which will ultimately receive a large fine. Moreover such individuals well have moved on by the time an undertaking has been fined. There is therefore an argument to increase deterrence by creating significant civil fines, and perhaps director disqualification at EU level as an effective way of enhancing deterrence. An alternative approach to sanctions policy would be to consider criminal sanctions at EU and/or national levels.
Equally there are concerns over the effectiveness of the Commissions 2006 Fines Notice: principally whether a turnover calculation is the best approach to sanctioning price-fixers, notably when the punishment for infringements by object seems to date to be basically the same as for infringements for which significant anti-competitive effects have been shown, and whether a calculation based on profits obtained may in fact provide a stronger basis for imposing corporate sanctions. There are also questions surrounding the application of the recidivism rule in the Fines Notice. For instance, when should it apply and can a repeat offence ever be spent?

Please contact Professor Barry Rodger, at barry.j.rodger@strath.ac.uk with an abstract of 500 to 1000 words by no later than 29 January 2010, and decisions on successful submissions will be taken by early February 2010.

Submission of presentation/draft paper is also required a week prior to the workshop.

Papers presented at the workshop can be submitted to the Competition Law Review editorial board with a view to being published in the Review. Note that the Review is a fully refereed scholarly law journal: Submission does not guarantee publication.

Up To Five £5000 CLaSF Research Fellowships

The CLaSF Management Board may be able to offer up to 5 Fellowships of up to £5000 each. The Fellowships are open to
-Those holding a University teaching post in any University within or outwith the European Union who wish to buy out some of their teaching to give them time to research and write a paper for the Workshop, and
-Postgraduate Students in any University within or outwith the European Union who wish to provide a paper for the Workshop.

Deadlines

Applicants have until January 29th 2010 to make an application. All applications should provide an abstract of no more than 1000 words, together with address and electronic mail details. Applications should in the first instance contact Professor Barry Rodger at barry.j.rodger@strath.ac.uk.

Decisions on the Fellowships will be made by the Management Board by the end of the first week in February 2010, at which stage all applicants will be informed of the success or otherwise of their application. Those holding University teaching posts will be required to provide a letter from their institution, together with their application, giving details of the teaching time to bought out and its cost. The institution will then be paid that amount, up to £4500, upon receipt of an undertaking to the Management Board that the applicant will write a paper, circa 6-10k, attend and present the paper at the workshop and submit a finalised version timeously for publication only in the Competition Law Review, subject to the review process. Similarly, postgraduate students will be required to provide a an undertaking that the applicant will write a paper, circa 6-10k, attend and present the paper at the workshop and submit a finalised version timeously for publication only in the Competition Law Review, subject to the review process, prior to the £4500 payment being made.

An additional amount of up to £500 will be paid to holders of the Fellowship for  (2nd class/economy) travel and accommodation costs of attending the Workshop.

CALL FOR PARTICIPATION

From June 20 to June 22, 2010, the International Max Planck Research School for Competition and Innovation and the Professorship for Intellectual Property at ETH Zurich will jointly organize their

2010 WORKSHOP FOR JUNIOR RESEARCHERS ON THE LAW AND ECONOMICS OF INTELLECTUAL PROPERTY AND COMPETITION LAW

The workshop will enable a small number of junior researchers from law and from economics to engage in an intensive, rigorous discussion of their own scholarly work. Several senior professors from law and from economics departments in Europe and the United States will provide feedback on the research projects. The workshop will be held in Wildbad Kreuth, a lovely region one hour south of Munich, Germany, from June 20 to June 22, 2010. The organizers will fund travel and hotel expenses for all invited workshop participants.

Excellent junior researchers (doctoral students, post-docs, research fellows and assistant professors) from law and from economics are invited to submit curriculum vitae, a list of two references as well as an extended abstract of their research project and/or a draft paper by February 15, 2010. Notifications of acceptance will be sent out by March 1, 2010. Papers are due for circulation among workshop participants and commentators on May 15, 2010. Please send your submissions to Prof. Stefan Bechtold, sbechtold@ethz.ch. For junior researchers from economics, research projects should relate to industrial organization, competition, innovation and/or intellectual property and may include formal models as well as empirical or experimental approaches. For junior scholars from law, research projects should relate to intellectual property and/or competition law and must use law and economics as a research approach. In order to achieve a good international mix of workshop participants, submissions from researchers from outside Europe are particularly encouraged.

The International Max Planck Research School for Competition and Innovation is a joint initiative by the Max Planck Institute for Intellectual Property, Competition and Tax Law as well as the Department of Economics, the Munich School of Management, and the Faculty of Law of the Ludwig Maximilians University of Munich. Any questions concerning the workshop should be directed to Prof. Stefan Bechtold, sbechtold@ethz.ch, phone:
+41-44-632-2670.

Goodbye Articles 81-89

Today we have entered the world of Articles 101-109.

MIF

Going European. An interesting initiative against Mulitlateral Interchange Fees (MIF): StopUnfairCardFees.

 

Intel’s fine

In July the Wall Street Journal had a short debate whether the fine by the European Commission on Intel has violated its (?) human rights. See: Has the EU Violated Intel’s Human Rights?; Intel Cites Human Rights In EU Fight On Antitrust; Do Companies Have Human Rights?) The articles inspired also many comments on the newspaper’s page and also on other sites. See for example: LANDE, R. H. (2009) Quick – Somebody Call Amnesty International! Intel Says EU Antitrust Fine Violated Human Rights. SSRN eLibrary.

In its application to the CFI (Case T-286/09), Intel argued that

“all or part of the Decision should be annulled on the basis that the Commission infringed essential procedural requirements during the administrative procedure, which materially infringed Intel’s rights of defence. In particular, the Commission failed:

• to grant Intel an oral hearing in relation to the Supplementary Statement of Objections and Letter of Facts, even though they raised entirely new allegations and referred to new evidence which feature prominently in the contested decision;
• to procure certain internal documents from the competitor for the case file, when requested to do so by the applicant notwithstanding that, in the applicant’s opinion, the documents:

(i) were directly relevant to the Commission’s allegations against Intel,

(ii) were potentially exculpatory of Intel and

(iii) had been identified by Intel with precision;

to make a proper note of its meeting with a key witness from one of Intel’s customers, who was highly likely to have given exculpatory evidence.”

Today the European Commission published its decision. 518 pages long. On page 515, the decision sais: “Intel has submitted that its annual turnover in the business year ending 29 December 2008 was EUR 25 555 million (USD 37 586 million).  The final amount of the fine to be imposed on Intel should therefore be EUR 1 060 000 000.” (paras. 1082 and 1083). This means that the fine was about 4,15% of the pervious year’s turnover.

In the application before the CFI Intel argues that: “… the fine of EUR 1 060 000 000 (the largest ever fine imposed upon a single firm by the Commission) is manifestly disproportionate given that the Commission fails to establish any consumer harm or foreclosure of the competitors.”

Merger statistics – update

Update: today it worked again and had the right content.

Today I wanted to look at the merger statistics, but DG COMP’s webpage under http://ec.europa.eu/competition/mergers/statistics.pdf includes the antitrust statistics…

America’s vigorous new antitrust policy: Return of the trustbusters | The Economist

America’s vigorous new antitrust policy: Return of the trustbusters | The Economist

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Complying with Europe…

A very interesting article in WSJ on the convergence of the two major antitrust system. I remember the huge outcry at the time when the CFI judgment in Microsoft was delivered. See for example.