single firm conduct

The Prohibition of Single-firm Market Abuses: U.S. Monopolisation versus E.U. Abuse of Dominance

This article looks at the commonalities and disparities in the rules against single-firm market abuses in the US and in the EU and their enforcement. Despite they target the same type of business behaviour, the US and the EU have always followed divergent paths. This article will examine alternative explanations for the differences and will also look at the different forms of conduct caught under the prohibition, underlining the most recent enforcement discordances
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International Company and Commercial Law Review 2017/9: 338-345

Relative Dominance and the Protection of the Weaker Party: Enforcing the Economic Dependence Provisions and the Example of Greece

A number of EU counties have adopted specific rules on the abuse of economic dependence: Germany , France , Italy , Portugal , Czech Republic and Greece. In most countries the economic dependence provisions are included in the respective competition act and are more or less conceptually associated with the notion of abuse of dominance. In Greece, the provisions regarding economic dependence formed part of the former Competition Act. Notably, the Hellenic Competition Commission (HCC) received, in the 12 years of its competency for the enforcement of said provision, numerous complaints and issued over forty economic dependence decisions - mostly dismissing the respective claims. Due to this burden on the authority , and also because it was too often invoked by enterprises with only minor impact on competition and, more often than not, involved private disputes which could have easily been resolved by civil courts, it was abolished from the Competition Act in the year 2009. Voices from the legal theory had seconded this development expressing concerns about the private interests of the weaker party which the provision sought to protect, unlike the main goals of competition law . As a result, the economic dependence provision was transferred to Law 146/1914 on Unfair Competition Practices. When a particular provision changes position, it is interesting to see what the effect on its application may be. Possible changes include changes in the requirements of a provision, its legal consequences (sanctions, commitments etc.), protection scope, and other conditions of enforcement. In this regard, the paper builds on the Greek example to touch upon a number of points of interest for European law enforcement, and in particular: How does the inclusion or exclusion of a particular provision from the competition act affect its enforcement? Which would be an optimal allocation of responsibilities between private parties, the courts and competition authorities in relative abuse of dominance cases? Is the division between unfair trade practices and competition law entirely clear? And finally, how does the aim of competition law to protect competition versus competitors affect the application of the respective provisions?
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Journal of European Competition Law & Practice, Volume 8, Issue 9, 1 November 2017, Pages 579–585,

Verweigerung von Geschäftsbeziehungen: Kartellrechtliche Analyse nach Schweizer, EU- und US-Recht

Die Arbeit ist einer Analyse von Art. 7 Abs. 2 Bst. a KG zur Verweigerung von Geschäftsbeziehungen (refusal to deal) gewidmet. Sie klärt in einem ersten Teil die relevanten Begrifflichkeiten. In der Folge wendet sie sich der Frage zu, was die Missbräuchlichkeit einer Verweigerung von Geschäftsbeziehungen ausmacht. Die im Kontext von Geschäftsverweigerungen aktuellen Themenkreise der Systemmarkttheorie, der relativen Marktmacht, der Kosten-Preis-Schere (margin squeeze), der Lizenzverweigerung (refusal to license) und der Essential Facilities-Doktrin werden dabei dogmatisch eingeordnet und erörtert. Ein letzter Teil identifiziert geeignete kartellrechtliche Massnahmen. Die Untersuchung der Missbräuchlichkeit basiert auf einer umfassenden Auslegung von Art. 7 Abs. 2 Bst. a KG. Sie berücksichtigt insbesondere die einschlägigen entstehungsgeschichtlichen, verfassungsrechtlichen und ökonomischen Grundlagen. Die Perspektive ist dabei durchgehend rechtsvergleichend, wodurch Erkenntnisse aus dem Recht der Europäischen Union und der Vereinigten Staaten von Amerika in die Abhandlung einfliessen. Als zentrale Einsicht folgt aus der vorliegenden Untersuchung, dass eine Verweigerung von Geschäftsbeziehungen nur dann als unzulässig gelten sollte, wenn die nachgefragte Ressource unerlässlich ist für das Erbringen einer Innovationsleistung durch einen effizienten Nachfrager. Formalisiert wird diese Erkenntnis im Konzept der Innovationsindispensabilität.
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Stämpfli Verlag AG, Bern 2017 (ISBN 978-3-7272-0520-0; 911 Seiten)

Margin Squeeze: Where Competition Law and Sector Regulation Compete

This paper starts with an overview of the different ways in which an undertaking can abuse its dominant position through pricing and then zooms in on margin squeeze. We start by defining margin squeeze, and then take a thorough look at its assessment framework. It is examined why some undertakings appear to be more susceptible to this abuse than others. The paper subsequently investigates the place of margin squeeze in the European legislative framework, considering which kind of antitrust abuse margin squeeze could be and how the ECJ currently conceives it. Finally, we explore the interaction of the competition law approach with the regulatory approach to margin squeeze.
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Friso Bostoen, 'Margin Squeeze: Where Competition Law and Sector Regulation Compete' (2017) 53 Jura Falconis 3.

Regulating Supermarkets: The Competition for Space

This paper shows how supermarket location, size and format are regulated privately by major supermarket chains and publicly by government planning and competition agencies. The inquiry is spurred by the tenacity of the competition policy prescription that public regulation of supermarket siting be wound back so that private regulation has a free hand. Having conducted case studies in the field, within a framework of regulatory studies, the paper finds that public regulation is often only a mild restriction on private strategies to site. Yet public regulation, and land-use planning law especially, remains a crucial point at which collective processes and social values may exert an influence over food provision and the social spaces of our suburbs and towns. The paper recommends that regulatory law reform be holistic rather than narrow minded.
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Christopher Arup, Caron Beaton-Wells and Jo Paul, 'Regulating Supermarkets: The Competition for Space' (2017) University of New South Wales Law Journal (forthcoming)

Problematising Supermarket-Supplier Relations: Dual Discourses of Competition and Fairness

The power asymmetryies that exists between major supermarket chains and suppliers, in Australia and abroad, have has been analysed largely through an economic-legal lens, focussed predominantly on consumer prices. This article takes a wider stance, considering the economic and then the social discourses that arise in response to the supermarket-supplier relationship, before examining how such discourses shape regulatory responses. We find that the two are not, as they appear on first blush, disconnected or in conflict. Rather, as with many socio-economic interactions, they are connected and interdependent. Applying a problematisation analysis, we interrogate the underlying assumptions and question the ways in which the issues relating to the imbalance in bargaining power between major supermarkets and suppliers are framed in mainstream policy debates, and then consider the implications. On our analysis, the problem that this imbalance is seen to pose has dimensions of both competition and fairness, creating challenges that require a range of responses. It is thus a problem that can be tackled by appealing to the traditional platforms of both the left and right of politics. A dual discourse also facilitates effective political risk management. While a neoliberal approach allows government to be seen as promoting competition to maximise efficiencies and consumer welfare, tough measures on socially unacceptable behaviour enables government to align with important social-cultural values.
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Caron Beaton-Wells and Jo Paul, 'Problematising Supermarket-Supplier Relations: Dual Discourses of Competition and Fairness' (2017) Griffiths Law Review (forthcoming)

Predatory Bundling and the Exclusionary Standard

Recent decisions - all relying on a stylized example first provided by the Ortho court - hold that a multi-product seller that uses a bundled discount in a way that excludes an equally or more efficient competitor engages in predatory bundling. According to these decisions, a bundle can be considered predatory even when the price of the bundle exceeds its cost. The article offers evidence demonstrating that the Ortho's stylized example and its monopoly leveraging theory are erroneous. The article further shows that even when a bundle's price excludes more efficient competitors and even when a component in the bundle is priced below cost, and thus sold at a loss, it may still have welfare enhancing effects. The result is that bundles that fail the discount allocation test and even bundles that fail the Brooke Group test may still be desirable. The article provides a number of examples from the airline and telecommunication industries to illustrate that both exclusionary and below cost bundles can be not only welfare enhancing, but also very common. Keywords: Predatory Bundling, Bundled Discount, Package Discount, Predatory Pricing, Exclusionary Behavior, Antitrust, Industrial Organization JEL Classification: K21, L12, L41, L42
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67 Wash & Lee L. Rev. 1231 (2010) (Lead Article)

Trademarks as a Media for False Advertising

This Article explores an unnoticed aspect of trademark law which in some instances may constitute a license to cheat. It shows that under certain circumstances a seller can use its own trademark to mislead its customers, free from legal sanction, in contexts where the same behavior would be sanctioned if the seller used other advertising media. The Article then explores how an alternate conception of the economic function of trademarks can be used to understand the informational value of trademarks and their advertising function. After identifying circumstances appropriate for legal intervention, the Article concludes with a proposal for a new interpretation of the false advertising provision in the Lanham Act to eliminate this disparity. Keywords: Fraud, False Advertising, Trademark Fraud, Fanciful Marks, Error Costs, Regulation of Information, Economic Analysis, Brands
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31 Cardozo. L. Rev. 327 (2009) (Lead Article)

Emergencies, Body Parts and Price Gouging

The study of emergency has received much attention from political theorists. Relying on the realms of philosophy, theology and morality, these scholars have focused on whether acts of the sovereign in times of emergency should lie "inside" the law (i.e., be subject to scrutiny) or "outside" the law (i.e., enjoy some form of immunity). This article, on the other hand, utilizes economic theory to analyze emergencies. It argues that some emergencies are subject to the same laws of demand and supply and often do not mandate any intervention; while others may deserve a unique treatment (often within the law) that can be premised on simple rational behavior models. Specifically, this paper discusses two types of emergencies: private and public. The discussion of private emergencies focuses on decisions in which courts were asked to compel one to undergo a medical procedure to give an organ that would save the life of another. The article employs economic theory to reconcile the seemingly contradictory decisions. The article also investigates strategic behaviors, remedial reactions and under what conditions, if any, courts (or regulators) should intervene in organ transactions. The discussion of public emergencies focuses on price gouging. It reviews a number of anti-price gouging laws, the conditions that trigger them as well as the justifications for and against these laws. Using a number of examples, the article demonstrates how the so called "exorbitant prices" help decrease shortages, enable inflow and storage of essential commodities, allocate scarce resources, reduce strategic behavior and queues and stabilize demand. It argues that the assumption underlying anti-price gouging laws - that markets fail in times of emergency - is often erroneous. Keywords: Emergency, Body Parts, Transplants, Organs, Price Gouging, Unconscionable contracts, Economic Analysis
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In Sovereignty, Emergency, Legality, Cambridge University Press, 2009).

Getting the Word Out: The Informational Function of Trademarks

This article challenges the statement that “the only legally relevant function of a trademark is to impart information as to the source of the product.” Information about the source of the product undoubtedly helps the consumer choose the product she wants from a set of possible products. This article argues, however, that the informational function of trademarks is broader: in addition to providing information about the source, a trademark often provides information that reduces consumers’ uncertainty about the product’s qualities and impacts purchasing decisions. Specifically, this article shows that a trademark not only helps the consumer choose the product she wants, but it can also help her decide how many units she should purchase of that product. This article then draws on several examples to illustrate that the reduction in consumers’ uncertainty enhances welfare but that under certain conditions it may be used by unscrupulous sellers to defraud customers. Drawing on these insights, this article turns to explain different types of regulations, the optimal investment in trademarks, and offers an alternative explanation as to why trademark law allows sellers to use “deceptively misdescriptive” marks. Keywords: trademarks, marks, brands, search costs, information, false advertising, interbrand, intrabrand, signaling, branding, regulation, market mechanisms, fraud, strategies, law and economics JEL Classification: D11, D81, D82, D83, D84, K00, K13, K39, L15, M37
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41 Ariz. St. L.J. 991 (2009)