The Interdisciplinary Centre for Competition Law and Policy (ICC) Global Antitrust Review Celebrating International Excellence in Competition Law Research and Teaching ICC GLOBAL ANTITRUST REVIEW A PUBLICATION OF THE INTERDISCIPLINARY CENTRE FOR COMPETITION LAW AND POLICY (ICC Editors: Marsela Maci ([email protected]), Ioannis Kalozymis ([email protected]), and Andreas Themelis ([email protected]) Assistant Editors: Vineet Budhraja, Felipe Garcia, and Jutta List Advisory Board: Mr David Bailey (UK Competition Appeal Tribunal), Mr Christopher Brown (Farrer and Co.), Mr Manish Das (Freshfields Bruckhaus Deringer), Dr Ariel Ezrachi (Oxford University), and Dr Okeonghene Odudu (Cambridge University) All enquires to: Global Antitrust Review (GAR) ICC School of Law Queen Mary, University of London 67-69 Lincoln’s Inn Fields London WC2A 3JB United Kingdom Tel:+ 44 (0)207 882 8100; Fax: + 44 (0)207 882 8223; Email: [email protected] Prospective contributors should consult the ‘Guidelines for Authors’ before submitting their articles. © Individual contributors and the ICC, 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior permission of the ICC. This review may be cited as [2008] G.A.R. ICC GLOBAL ANTITRUST REVIEW Issue 1, 2008 Dedicated to the late Ms Marion Simmons QC, an affiliated member of the ICC and an alumna of Queen Mary, University of London III ICC GLOBAL ANTITRUST REVIEW Issue 1 2008 FOREWORD EDITORIAL BOARD’S MESSAGE OBITUARY ARTICLES Article 82 EC:Where do we stand after the Microsoft judgment Bo Vesterdorf 1 The future role of the non-competition goals in the interpretation of Article 81 EC Constanze Semmelmann 15 The impact of Article 6(1) ECHR on competition lawenforcement:A comparison betweenFrance and the United Kingdom Thomas Perroud 48 Competition law in the developing world: The whyand how of adoption and its implications forinternational competition law Dina I. Waked 69 Multi-jurisdiction mergers and acquisitions in an era of globalisation: The Telecom Italia- Telefónica case Marco Botta 97 Exploring the role of legal presumptions under the ‘convincing evidence’ standard in EC merger control Alexandr Svetlicinii 117 ESSAYS EC competition law and international commercial arbitration Sotiris I. Dempegiotis 135 CASE NOTES T -271/03 Deutsche Telekom v. Commission Vera Lazaridi 149 Greek Competition Commission decision No. 385/V/2008 in Vivartia Group Vera Lazaridi 155 BOOK REVIEWS EC Competition Law Mohamed El-Far 159 Competition Law and Policy in the Middle East Mohamed El-Far 161 IV FOREWORD I cannot remember exactly when I felt it would be useful to establish a ‘Global Antitrust Review’, a journal in the field that would simply be ‘different’. It was definitely long time ago. The obvious thing would have been for me to make this journal a home for major scholars and luminaries.The decision not to do this however was a very easy one to make. After all, my interest itself was rather different and my desire was to create an opportunity for competition law students – the next generation of specialists in the field – to develop a variety of key and valuable skills, chief among these the ability to achieve excellence in research and writing.The decision to choose to establish the ICC Global Antitrust Review (GAR) as a student journal was therefore the right one to adopt. Formulating this idea, however, was never going to be sufficient in itself to realise this goal.An enormous task lied ahead to turn GAR into reality.This is where the fantastic and huge efforts by many colleagues and students made all the difference and ensured that this first issue would see the light of the day on 1 July 2008. All of them deserve full credit for their hard work, dedication and support. Warm congratulations and a big ‘well done’ must go to the editorial team. In Marsela Maci, Ioannis Kalozymis and Andreas Themelis (as Editors), and Vineet Budhraja, Felipe Garcia and Jutta List (as Assistant-editors), I found a group of superb first-class young scholars. It has been a pleasure and source of pride seeing them execute this enormous task in practice with such diligence.They worked incredibly hard to ensure GAR will be what it is: a global journal. Special recognition should also go to the advisory board, a group of world-class specialists.They committed very early in the process when the whole thing was nothing but a vague and over-ambitious idea.They did an enormous amount of work to ensure this issue would be of the highest quality.Three of my fantastic team of assistants – Amandeep Bhogal, Sara Jameel and Jennifer Watts – who became involved during the last few days before this issue was sent into production made such admirable contribution, which only confirmed the superb skills they enjoy and their outstanding knowledge of competition law. I am truly proud to have taught these three talents. Colleagues at the College were extremely generous and supportive; warm thanks in particular should go to Professor William Wilson for his kind support, to Mr Kaptan Miah for looking after the technical aspect of GAR and to the Queen Mary production team for their good work. I must also thank all of my undergraduate and LLM students (past and current) who – through demonstrating an incredible interest in competition law – keep reminding me that academia is worthwhile. I am extremely fortunate to be surrounded by the best calibre of competition law students.All of my students – individually and collectively – are united in hard to find qualities. V Beyond the GAR team and Queen Mary, University of London, I would like to thank the former President of the European Court of First Instance, Bo Vesterdorf for producing a most interesting article for this issue and for honouring us with his acceptance to deliver the ICC Annual Competition Law and Policy Lecture 2008. Special thanks must also go to the law firms Crowell & Moring and Simmons&Simmons for generous financial support. In particular I would like to thank Dr Werner Berg and Mr Charles Bankes; in both of them the ICC has two major friends and affiliated members. Five of the articles featuring in this issue are based on presentations made by their authors at the ICC International PhD conference, which was held on 7 March 2008.This event proved to be a resounding success and a unique occasion for students to test their ideas in practice and interact with other students and specialists in the field. I am grateful to Judge Frederic Jenny, Professor David Gerber and Mr Paul Lasok QC for chairing three of the sessions on the day.The conference participants and especially the presenters appreciated such an opportunity enormously.The comments offered by the panel of chairs have clearly contributed towards enhancing the quality of the articles featuring in this issue. Finally, special thanks should go to present and former colleagues at the UK Competition Appeal Tribunal. They have been extremely supportive of the ICC and its activities this year; in particular Mr Adam Scott who has kindly written an obituary for our late colleague and friend, Ms Marion Simmons QC. Marion was a most loyal friend of the ICC and a most proud alumna of our college.We are proud and honoured to dedicate this issue to her. Maher M. Dabbah June 2008 VI EDITORIAL BOARD’S MESSAGE It gives us particular pleasure to be able to publish this first issue of the ICC Global Antitrust Review (GAR). GAR is intended to be a unique journal, a platform for students to engage in research and writing in the field of competition law. It comes to benefit both its authors (by giving them an opportunity to produce their research output) and its audience, young scholars especially students of competition law; though we also hope that other groups within the competition law community globally would find the content of the Review of use. The present issue brings together excellent contributions produced by a number of outstanding young scholars; additionally it features an article by Judge Bo Vesterdorf who kindly agreed to enrich the issue with his valuable thoughts on the underlying themes of the Microsoft judgment. We would like to thank Judge Vesterdorf and our team of authors for their contributions. All of the articles herein address the ‘issues of the moment’ in the field of competition law. They were carefully selected so GAR can hopefully fulfil its expected role as a publication seeking to promote competition law and policy debate around the world.The articles were all refereed to ensure that GAR would be a journal of the highest quality.We are grateful to all the referees who devoted considerable amount of their time to read through all the articles submitted for consideration. The journey towards publishing this issue has certainly been long and on more than one occasion we faced such high ‘waves’, which only made our task more challenging. Through sticking together and supporting each other as a team however, we were able to overcome these waves and to sail safely into our destination. It has been a most enjoyable process for us from which we came to learn a great deal.We were also able to reap perhaps the most important of benefits: friendship among us for surely many years to come. We dedicate our special thank you to the one who made this initiative and experience possible for us: the director of the ICC, Maher Dabbah. He supported us in every possible way and has been both our leader and our friend.