Volume 8 - Issue 2

Whole Issue

Competition Law Review - Volume 8 Issue 2 (1.34 MB)

Editorial

Editorial - Current Competition Law Research: Developing New Themes between Continuity and Change

Arianna Andreangeli (136 KB)

Articles

Minimum Resale Price Maintenance Agreements - And the Dilemma Continues …
Bhawna Gulati (208 KB)

Economics, as an important tool of interpreting competition law principles gained momentum by the emergence of Chicago School economics in 1960-70’s. It not only led to over-ruling of age-old established principles of competition law but elevated the ‘efficiency’ criterion as the chief decisive factor in evaluating anti-competitive effects of any conduct. The treatment accorded to vertical restraints underwent a major change during this phase and their ability to enhance consumer welfare started attracting appreciation. However, in spite of many countries (especially US) following this more liberalized approach towards vertical restraints, some countries continued to remain in dilemma and adopted strict penalization approach instead. The paper analyses one such case of vertical restraint—Minimum Resale Price Maintenance (RPM)—and inquires whether the strict penalization of such conduct by various countries is well deserved.  The paper illustrates how EU, on one hand moved towards a ‘more economic approach’ by adoption of the guideline on the TFEU (Treaty on the Functioning of the European Union), but on the other hand retains its stand of treating some vertical restraints as hard core restraints without any exemption or exception available. RPM agreements are (and were) considered anti-competitive as it is an established position, both in law and economics, that they destroy ‘intra-brand price competition’. This paper, however, proclaims that ‘intra-brand price competition’ at the distributor’s level is neither required nor is welfare enhancing. Rather, the minimum RPM agreement actually fosters the real competition among retailers/distributors by shifting their focus from illusionary price competition to the competition based on ‘services’ (pre/post sale). The paper elucidates how, at times, the non-price competition can be more welfare enhancing than the price competition. The paper concludes that in case of some goods, ‘Experience Goods’ at least, minimum RPM can be welfare enhancing.

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A Comparative Look at Foreign State Compulsion as a Defence in Antitrust Litigation
Marek Martyniszyn (290 KB)

This paper presents and investigates foreign state compulsion as a defence in transnational antitrust cases. It takes a comparative approach by looking at the doctrine and its developments in the United States and in the European Union. To illustrate the relevance of the defence and the difficulties of its applicability, this paper analyses the new antitrust case law emerging in the US involving Chinese export cartels. It is argued that at present the standard required to prove compulsion is too high to serve its function.

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Higher Education Institutions and EU Competition Law
Andrea Gideon (236 KB)

The European Union does not (yet) use the supranational method of integration in higher education and research. Instead, Member States have agreed on soft law mechanisms (Open Method of Coordination ‘OMC’ as part of the Lisbon Strategy) and extra-EU law modes (the Bologna Process). However, higher education institutions (HEIs) are not immune to the forces of directly applicable Treaty provisions, such as those on Union Citizenship, the free movement provisions and the provisions on competition law and state aid. The fact that the application of EU law can interfere with national policy concepts as regards HEIs has already been highlighted by recent cases in the field of Union Citizenship. As regards the free movement provisions, competition and state aid law, higher education and research in public institutions in the public interest were originally regarded as non-economic services rendering these provisions inapplicable. However, this is not a fixed concept; with increasing commodification of HEIs their activities can come into the ambit of these provisions and tensions could arise. Commodification is a topic discussed increasingly not only in academic literature, but also in the wider public sphere. The Browne Report and the creation of a consumer market for higher education in England was only the latest step in this direction. This paper gives insights into the competition law aspects of this developing area.

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The Objectives of the Competition Policy of the CARICOM Single Market and Economy (CSME) and Their Importance to the Development of a Coherent and Comprehensive Body of Substantive Competition Rules in the CSME
Alina Kaczorowska (330 KB)

The Revised Treaty of Chaguramas (RTC), which entered into force on 1 January 2006 between 15 Caribbean States, aims at establishing the Caribbean Community (CARICOM) including the CARICOM Single Market and Economy (CSME). A vital element of the RTC is the establishment of the CARICOM’s competition policy and law as well as a system for enforcement of competition law at both Community and national levels. At the time of writing, CSME competition policy and law are at the nascent stage and therefore a discussion relating to the objectives of CSME competition law and policy is essential bearing in mind that their determination is vital to the framing of a coherent body of substantive competition law. This article first, identifies the possible objectives of CSME competition policy and law by examining the relevant provisions of the RTC and second, suggests their ranking with a view to achieving the wider political and economic goals set out by the RTC. The article posits that two objectives should be given priority in the enforcement of CSME competition law: first, the objective of creating and maintaining the CSME and second, the objective of protecting consumers.

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The Murphy Judgment: Not Quite Full Time for Football Broadcasting Rights
Stuart Pibworth (192 KB)

The Murphy judgment of the Court of Justice of the European Union has been heralded, in legal and journalistic coverage, as a ground breaking and potentially far-reaching decision. However, it is questionable to what extent this is correct. The judgment represents an application of a consistent body of established Union competition case-law and policy to a new sector.  Although it is unclear what effect this judgment will have on football licensing models in Europe, it does appear, at present, that there are commercial challenges presented by the judgment to ensure the compatibility of exclusive territorial licensing agreements with competition law.