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Behavioural Versus Structural Remedies in EU Competition Law
This paper discusses the asymmetric use of structural remedies in merger control and antitrust in EU competition law. This asymmetry is explained by what is considered an erroneous legal perception concerning the subsidiarity of structural remedies over behavioural ones under Article 7 of Regulation 1/2003. This paper sets out to contribute to the clarification of the role of structural remedies from a competition policy perspective but also from the perspective of the concerned companies on which such measures would be imposed. In addition to the economic arguments that would speak in favour of rehabilitating structural remedies in abuse of dominance cases, it is argued that the Commission clearly has the legal means of following such a more economic approach in the choice of remedies. In light of the original Commission proposal for a new Regulation and on the basis of the finally adopted text that seemingly professes the impression of a priority of behavioural remedies over structural ones, a content preserving reformulation of Article 7 of Regulation 1/2003 is proposed.
The Idea of the Subsidiarity of Structural Remedies in European Competition Law (Zur Idee Der Subsidiarität Struktureller Maßnahmen Im Europäischen Wettbewerbsrecht).
The article discusses the legal basis for structural remedies under European Competition Law in light of the mainly German criticism of recent commitment decisions in the energy sector and in particular the E.ON decisions of DG Competition. In particular the article discusses what “bringing an infringement effectively to an end” as goal of any remedy implies and if Article 7 Reg. 1/2003 implies that “structural remedies are subsidiary to behavioural remedies” as has been argued by some authors. The article discusses both arguments, which constitute the myth surrounding Article 7, critically. It is argued that the effectiveness of a remedy is not a so-called binary question according ...
Toward a European Directive on Damages Actions
This paper critically reviews the European Commission's proposed Directive on future rules concerning actions for damages for competition law infringements under national law. It is argued that the proposal underestimates the importance of loss of profits induced by increased prices and does little in ensuring that such effects will receive an equal treatment to price effects in damages claims. The paper suggests that the importance of such effects could have been emphasized by introducing a rebuttable presumption on lucrum cessans based on pass-on considerations - paralleling the presumption on overcharge. Furthermore, the decision to leave questions of causality to national tort laws is criticized as a harmonized regulation of claims based on the merits of the evidence presented would have been a superior tool, in line with a more economic approach and better suited for achieving the goal of compensation for any victim due to its intrinsic flexibility. Finally the notion that legally relevant damage only accrue within a vertical value chain is challenged.
The Rescue & Restructuring Aid Guidelines of the European Commission - An Economic Point of View
In the context of its ambitious State Aid Modernisation work, the European Commission presented new guidelines on Rescue and Restructuring (R&R) aid in 2014. In this paper the consequences for generic R&R aid and in particular the balancing test for State aid proposed by the guidelines are discussed. Given the severe and pervasive harm of R&R aid explicitly recognized by the guidelines, granting R&R aid can only be justified under the proposed balancing test if the R&R aid contributes strongly to an objective of common interest. This objective of common interest may either be addressing a market failure or increasing social or economic cohesion. As is argued here, R&R aid can, by definition,...
The Two Types of Gas Network Foreclosure
Effective competition in the gas sector can only develop further if entrants have access to gas, to the networks needed for transporting the gas and also to customers. This paper discusses network access or, in other words, foreclosure of gas networks in light of recent cases by national competition authorities and the European Commission. Besides providing an overview of some of the most important gas network foreclosure cases and the remedies imposed, it is argued that these cases can be classified in two broad categories based on the incentive structure underlying the abuse, namely quantity and entry foreclosure. Such an economic classification emphasizes the distinct theories of harm underlying the different types of foreclosure cases and thereby sheds light on their respective strengths and weaknesses. In addition this paper explores to what extent vertical integration is required for network foreclosure to occur.
Private Enforcement Under EU Law
This article discusses two elements that the draft EU Directive on actions for damages treats only perfunctorily. The first concerns lucrum cessans or the quantity effect which is found to be of a relatively higher magnitude than the price effect. The second concerns the difficulties of establishing an appropriate counterfactual in the quantification of damage in the context of Article 102 TFEU cases.
The European Commission's Decision in Telefónica Deutschland/E-Plus
The article critically examines the European Commission's decision in the four-to-three merger between Telefónica Deutschland and E-Plus. Despite the explicit recognition of the importance of vertical effects in the telecommunications sector more generally as exemplified by the European Commission's past antitrust enforcement record also held up by the European Courts and as also explicitly acknowledged in the context of the Telefónica/E-Plus transaction itself, the decision does not contain any vertical effects analysis. Only the analysis of possible vertical effects such as raising rivals cost or vertical foreclosure would have allowed assessing the transaction in line with the Commissions own merger guidelines. That the Commission recognizes the importance of vertical effects in the decision but then provides no analysis of these effects is an omission reminiscent of Schneider/Legrand.
Reverse Payments
In recent years, reverse payment settlements in the pharmaceutical industry have attracted the attention of US and European competition authorities. Originator pharmaceutical companies facing patent challenges from generic companies may be incentivized to reach terms of settlement prior to a ruling at trial. Reverse payment settlements occur when the terms of settlement contain a transfer of value from the originator to the generic company. Competition authorities in particular are interested in reverse payment settlements that potentially delay the entry of the generic company's competing pharmaceutical product. The chapter reviews and compares the approaches of the US and European competit...
