The More Economic Approach to European Competition Law

The More Economic Approach to European Competition Law

Conferences on New Political Economy 24 The More Economic Approach to European Competition Law Edited by Dieter Schmidtchen,Max Albert, and Stefan Voigt Mohr Siebeck Manuscripts are to be sent to the editors (see addresses on page 357). We assume that the manuscripts we receive are originals which have not been submitted elsewhere for publication. The editors and the publisher are not liable for loss of or damage to manuscripts which have been submitted. For bibliographical references please use the style found in this volume. ISBN 978-3-16-149414-7 eISBN 978-3-16-156553-3 ISSN 1861-8340 (Conferences on New Political Economy) The Deutsche Nationalbibliothek lists this publication in the Deutsche National- bibliographie; detailed bibliographic data is available in the Internet at http://dnb.d- nb.de. 2007 by Mohr Siebeck,P. O. Box 2040,D-72010 Tübingen. This book may not be reproduced,in whole or in part,in any form (beyond that permitted by copyright law) without the publishers written permission. This applies particularly to reproductions,translations,microfilms and storage and processing in electronic systems. The book was typeset and printed by Konrad Triltsch in Ochsenfurt-Hohestadt on non- aging paper and bound by Großbuchbinderei Spinner in Ottersweier. Contents Dieter Schmidtchen: Introduction ................................. 1 Christian Kirchner: Goals of Antitrust and Competition Law Revisited ........................................................ 7 RogerVan den Bergh: The More Economic Approach and the Pluralist Tradition of European Competition Law (Comment) ..... 27 Wulf-Henning Roth: The “More Economic Approach” and the Rule of Law ................................................. 37 Roland Kirstein: “More” and “Even more Economic Approach” (Comment) ...................................................... 59 Clifford A. Jones: The Second Devolution of European Competition Law: The Political Economy of Antitrust Enforcement Under a More Economic Approach . ................................... 65 Stefan Voigt: “More Economic” Does Not Necessarily Mean “Better” – Perils and Pitfalls of the “More Economic Approch” as Recommended by the European Commission (Comment) ......... 97 Wernhard M˛schel: Should Private Enforcement of Competition LawBeStrengthened? ........................................... 101 Gerhard Wagner: Should Private Enforcement of Competition Law Be Strengthened? (Comment) . ................................... 115 Maarten Pieter Schinkel: Effective Cartel Enforcement in Europe 131 Pau l H e i d h u e s : On the Economic Theory of Illegal Collusive Activity (Comment) ...................................................... 171 Hans W.Friederiszick and Frank P. Maier-Rigaud: The Role of Economics in Cartel Detection in Europe ........................ 179 Christian Koboldt: Searching Where the Light is Brightest (Comment) ...................................................... 197 Wout e r P. J. Wils: Leniency in Antitrust Enforcement: Theory and Practice .............................................. 203 Michele Polo: Leniency in Antitrust Enforcement: Theory and Practice (Comment) .............................................. 249 VI Contents Tomaso Duso, Klaus Gugler and Burcin Yurtoglu: Remedies in Merger Control ............................................... 255 Wolfgang K e r be r: Measuring the Effectiveness and/or Predictability of European Merger Control: Problems of an Event Study (Comment) ...................................................... 267 Daniel L. Rubinfeld: Empirical Methods in Antitrust: New Developments in Merger Simulation ........................ 277 Roy J. Epstein and Daniel L. Rubinfeld: Merger Simulation: A Simplified Approach with New Applications ................... 281 Christian Wey: Empirical Methods in Antitrust: New Developments in Merger Simulations (Comment) ................................ 317 Pau l H e i d h u e s and Rainer Nitsche: Comments on State Aid Reform – Some Implications of an Effects-based Approach ....... 321 Justus Haucap: The More Economic Approach to State Aid Control: A New Institutional Economics Perspective (Comment) ........... 345 Contributors and Editors ........................................... 357 Introduction by Dieter Schmidtchen Over the past ten years European competition policy has undergone dramatic change, largely inspired by the European Commissions move towards a more economics-based approach in the application of Article 81 ECTon anti- competitive agreements and in merger control. Following these reforms, the European Commission is also considering reform in the application of Article 82, concerning abuses of market dominance, and of Article 87 ECT, as regards state aid. A more economic approach to the application of competition law means that the assessment of each specific case will not be undertaken on the basis of the form or the intrinsic nature of a particular practice (form-based approach) but rather will be based on the assessment of its anti- and pro- competitive effects (effects-based approach). This move will lend itself to a rule of reason approach in Antitrust proceedings, and efficiency as a goal of Antitrust can be expected to play a more important role in the future. The effects-based approach is well illustrated by Recital 29 of Regulation 139/2004 (the Merger Regulation),1 which reads as follows: “In order to determine the impact of a concentration on competition in the common market, it is appropriate to take account of any substantiated and likely efficiencies put forward by the undertakings concerned. It is possible that the efficiencies brought about by the concentration counteract the effects on competition, and in particular the potential harm to consumers, that it might otherwise have and that, as a consequence, the concentration would not significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position. The Commission should publish guidance on the conditions under which it may take efficiencies into account in the assessment of a concentration.”2 While economic reasoning is becoming increasingly common in the study of substantive Antitrust, little attention has been devoted to procedural and enforcement issues. The main purpose of this conference was to investigate a number of basic questions concerning the law and economics of EC Antitrust enforcement, thereby taking into account the three dimensions in which methods of Antitrust enforcement can generally differ: the timing of legal intervention (ex ante enforcement through pre-screening and ex post 1 See Regulation 139/2004 [2004] O. J. L24/1. 2 An excellent discussion of an effects-based rather than a form-based approach to competition policy can be found in: An economic approach to Article 82, Report by the EAGCP Group, July 2005; see also Röller (2005) and Van den Bergh/Camasesca (2006). 2 Dieter Schmidtchen enforcement through deterrence), the form of sanctions (whom sanctions should be imposed on and what form sanctions should take) and the role of private vs. public enforcement (including the assignment of tasks among dif- ferent public enforcement agents). Quite naturally, the nature of enforcement and litigation problems as well as the feasible solutions also depend on the goals of Antitrust and the organisational architecture of the enforcement and litigation industry (including Public Choice issues). Economists and jurists both from academia and practice have contributed to this volume, both as authors and commentators. The aim is to create a collection of papers which is as stimulating to read as were the discussions at the conference which took place in October 2006 in Saarbrücken, Germany. All papers are accompanied by a comment that was also presented at the conference. An interdisciplinary approach was realized here not only insofar as representatives of various disciplines contributed to the volume but also because we tried to select commentators from different disciplines as the paper presenters. We succeeded in most cases, but not in all. In his paper Goals of Antitrust and Competition Law Revisited, Christian Kirchner provides a positive analysis of the process in which goals of com- petition law are being defined. The paper starts by distinguishing the following three levels: (1) competition as a game, (2) competition law as a set of rules of the game, and (3) law-making in the field of competition law as a game on the level of rule-making. Subsequently, the relevant actors on the third level are identified: The Member States, the Council and the Parliament as legislature of the European Community, the European Commission as executive power and the European Court of Justice as judiciary of the European Community. Having introduced these actors, the more economic approach as a relevant factor for changing the game is being brought into play. The paper analyses the attitudes of the various actors towards the introduction of the more economic approach and the expected impact on goals of competition law. In the end a hypothesis on expected revisited goals of competition law is for- mulated, accompanied by a plea to better study the process of revisiting goals of competition law than the expected outcomes of that game. In his paper The “More Economic Approach” and the Rule of Law, Wulf- Henning Roth addresses the question whether there is a conflict between the more economic approach which is pursued by the EU-Commission,

View Full Text

Details

  • File Type
    pdf
  • Upload Time
    -
  • Content Languages
    English
  • Upload User
    Anonymous/Not logged-in
  • File Pages
    17 Page
  • File Size
    -

Download

Channel Download Status
Express Download Enable

Copyright

We respect the copyrights and intellectual property rights of all users. All uploaded documents are either original works of the uploader or authorized works of the rightful owners.

  • Not to be reproduced or distributed without explicit permission.
  • Not used for commercial purposes outside of approved use cases.
  • Not used to infringe on the rights of the original creators.
  • If you believe any content infringes your copyright, please contact us immediately.

Support

For help with questions, suggestions, or problems, please contact us