fairness in antitrust protecting the strong from the weak hart studies in competition law

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Fairness In Antitrust

Author : Adi Ayal
ISBN : 9781782254027
Genre : Law
File Size : 66. 5 MB
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What drives popular support for state-enforced competition policy? What is it about antitrust law that garners approval from both the public and courts, to the point of demonizing large firms convicted of antitrust offenses? In this book Adi Ayal argues that the populist roots of antitrust are still with us, guiding sentiment towards a legal regime that has otherwise shifted towards economic analysis. Antitrust is very much about fairness and morality; this book assesses how modern policy has hijacked popular support - based on traditional conceptions of political and economic power - to combat market power in narrowly defined micro-markets. Beginning with history, but delving into moral and political philosophy, Professor Ayal shows how arguments concerning fairness in antitrust apply both to monopolists and their victims. Fairness thus requires a balancing test based on context and respecting the rights of all parties involved. While traditionally fairness arguments were used to justify intervention where economic analysis did not, this book assesses them from first principles, to show that pure efficiency analysis is flawed from a moral standpoint when the state intervenes. Protecting weak consumers from strong monopolists may carry rhetorical weight, but the reality of antitrust is that the state is much more powerful than almost all firms it regulates. Protecting the strong from the weak, especially when 'weak' consumers hold legal power and influence, might very well be a moral imperative. This book offers a philosophical account of the conundrum facing competition policy which challenges widely-held yet often implicit and unfounded beliefs.

The More Economic Approach To Eu Antitrust Law

Author : Anne C Witt
ISBN : 9781509909230
Genre : Law
File Size : 62. 20 MB
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In the late 1990s, the European Commission embarked on a long process of introducing a 'more economic approach' to EU Antitrust law. One by one, it reviewed its approach to all three pillars of EU Antitrust Law, starting with Article 101 TFEU, moving on to EU merger control and concluding the process with Article 102 TFEU. Its aim was to make EU antitrust law more compatible with contemporary economic thinking. On the basis of an extensive empirical analysis of the Commission's main enforcement tools, this book establishes the changes that the more economic approach has made to the Commission's enforcement practice over the past fifteen years. It demonstrates that the more economic approach not only introduced modern economic assessment tools to the Commission's analyses, but fundamentally changed the Commission's interpretation of the law. Emulating one of the key credos of the US Antitrust Revolution thirty years earlier, the Commission reinterpreted the EU antitrust rules as aiming at the enhancement of economic consumer welfare only, and amended its understanding of key legal concepts accordingly. This book argues that the Commission's new understanding of the law has many benefits. Its key principles are logical, translate well into workable legal concepts and promise a great degree of accuracy. However, it also has a number of serious drawbacks as it stands. Most worryingly, its revised interpretation of the law is to large extents incompatible with the case law of the European Court of Justice, which has not been swayed by the exclusive consumer welfare aim. This situation is undesirable from the point of view of legal certainty and the rule of law.

The Competitive Effects Of Minority Shareholdings

Author : Panagiotis Fotis
ISBN : 9781509900886
Genre : Law
File Size : 38. 99 MB
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The objective of this book is twofold. First, it presents the economics of minority shareholdings, under both merger and antitrust law. In particular, economic analysis provides both an overall assessment of minority shareholdings in the context of concentrations, and Articles 101 and 102 TFEU and the examination of the link between non-controlling minority shareholdings, merger control and antitrust law. Second, the book also provides a legal assessment and an analysis of selected case law. According to settled European case law, minority shareholdings are analysed not only under Regulation 139/2004, but also under Articles 101 and 102 TFEU. Nevertheless, according to current enforcement practice at European and international levels, several national competition authorities have adopted different approaches. The million dollar question is whether the existing regulatory framework is sufficient to cover all possible cases. In summary, the book will be a useful tool for students, practitioners, researchers, economic and legal experts and competition authorities. It provides a comprehensive survey of the subject, which has been missing until now and answers many questions that have been raised in the literature in the last decades.

The Interface Between Competition And The Internal Market

Author : Vasiliki Brisimi
ISBN : 9781782254485
Genre : Law
File Size : 54. 49 MB
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This book explores the interface between competition law and market integration in the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU), focusing on the notion of 'market separation'-namely conduct that may hinder cross-border trade. The discussion reviews, among other things, the treatment of geographic price discrimination and exclusionary abuse, by which out-of-state competitors are affected. 'Market separation' cases are treated in the book as a case study for appraising the interface between competition and the Internal Market. On this basis, the book provides a comparative analysis of the Treaty requirements under Article 102 TFEU when applied in 'market separation' cases and the Treaty requirements under the free movement provisions. In addition, it utilises 'market separation' cases as a springboard for advancing an informed reformulation of the application of Article 102 TFEU when state action comes into play. All in all, the analysis presented in the book deconstructs the elements for establishing 'market separation' as an abuse of the dominant position. It shows that there is nothing that would justify a distinctive treatment of 'market separation' under Article 102 TFEU, other than a principled understanding of Internal Market law as a whole: whatever understanding one reaches about the proper shape of the Internal Market, interrogation of the proper application of competition law comes after that and thus should be informed by this understanding.

Private Power Online Information Flows And Eu Law

Author : Angela Daly
ISBN : 9781509900640
Genre : Law
File Size : 38. 79 MB
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This monograph examines how European Union law and regulation address concentrations of private economic power which impede free information flows on the Internet to the detriment of Internet users' autonomy. In particular, competition law, sector specific regulation (if it exists), data protection and human rights law are considered and assessed to the extent they can tackle such concentrations of power for the benefit of users. Using a series of illustrative case studies, of Internet provision, search, mobile devices and app stores, and the cloud, the work demonstrates the gaps that currently exist in EU law and regulation. It is argued that these gaps exist due, in part, to current overarching trends guiding the regulation of economic power, namely neoliberalism, by which only the situation of market failure can invite ex ante rules, buoyed by the lobbying of regulators and legislators by those in possession of such economic power to achieve outcomes which favour their businesses. Given this systemic, and extra-legal, nature of the reasons as to why the gaps exist, solutions from outside the system are proposed at the end of each case study. This study will appeal to EU competition lawyers and media lawyers.

The Role Of Competitors In The Enforcement Of State Aid Law

Author : Fernando Pastor-Merchante
ISBN : 9781509906581
Genre : Law
File Size : 44. 82 MB
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This book explores the tools that the European rules on State aid place in the hands of competitors when it comes to fighting subsidies and other state measures of financial assistance to firms. In order to do so, the book scrutinises the means of redress available to competitors before national courts (private enforcement), as well as the opportunities that they have to make their voice heard in the course of the European Commission's enforcement procedures (public enforcement). The insights provided by the book lead to a better understanding of the rights of private parties under the rules and practices that govern the enforcement of State aid law.

Media Ownership And Control

Author : Suzanne Rab
ISBN : 9781782254584
Genre : Law
File Size : 86. 62 MB
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Competition and diversity in media and communications are fundamental to a healthy economy and democracy. In India and internationally there is no consensus on the exact manner and scope of interventions that are appropriate to protect competition and pluralism in media markets. Many emerging economies including India are seeking to adopt their own regulation in this area taking their lead from the UK. The issues have been brought into sharp focus in India in recent years. First, the enactment and implementation of modern - but sector neutral - competition law under the Competition Act 2002 has caused a step change in regulation towards an economics and effects-based approach. Second, in 2013 the India telecoms regulator launched controversial reform proposals to apply a media-specific approach to ownership regulation. As academics, lawyers, businesses, regulators and policy-makers in India cast a glance at the international experience, this book examines the legal, economic and policy issues relating to regulation of ownership and control of media markets. The focus of comparative assessment is on examples from the European Union, EU Member States and the US.

The Legality Of Bailouts And Buy Nationals

Author : Kamala Dawar
ISBN : 9781509908219
Genre : Law
File Size : 87. 94 MB
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"This book offers a well-argued and insightful critical assessment of the shortcomings of international trade and competition rules in tackling interventionist State measures in the context of an economic crisis. Dawar offers an evidence-rich account of the challenges that State protectionism creates for international trade liberalisation and for the protection of competition in international markets. Her insights will be particularly interesting in the context of current events leading to another surge of State economic interventionism, both for academics and for policy-makers with an interest in international trade." Dr Albert Sanchez-Graells, University of Bristol Law School "This book bursts the bubble of the self-congratulatory attitude that existing institutions, which were set up to discipline governments from a race to the bottom on economic policy, worked well after the financial crisis. These institutions may have prevented tariff wars, a big achievement compared to the time of the Great Depression. But they went along with the subsidies and state aid that governments put in place after 2007. Such flexibility on economic policy is essential in turbulent times. But these institutions are undermined if flexibility comes with a race to the bottom that shifts money away from policies for the more marginalized sections of society. At a time when the left behinds are changing the political landscape of the world, Kamala's book debunks the myth of the success of existing institutions in containing the economic fallout of the global financial crisis. It gives a sobering warning of what might unfold when institutions deal with economic challenges by turning a blind eye to their own rules for checking unfair competition." Dr Swati Dhingra, Senior Lecturer at the Department of Economics, London School of Economomics 'An impressive contribution to our understanding of the financial crisis. Dawar's reading of bailouts and buy national through the lens of competition law and government procurement law and policy is inspirational.' Professor Mary E Footer, University of Nottingham School of Law 'The diplomatic fiction that during the crisis years regional and global trade rules ensured a level commercial playing field is skewered by Dawar's trenchant legal analysis.' Professor Simon Evenett, University of St Gallen This book examines the international regulation of crises bailouts and buy national policies. It undertakes this research with specific reference to the crisis years 2008–2012. The book includes a comparative analysis of the regulation of public procurement and subsidies aid at both multilateral and regional levels, identifying the strengths and weakness in the WTO legal framework and selected regional trade agreements (RTAs). Ultimately, the aim of this work is to provide options for improving the consistency of these laws and the regulation of these markets. This is of immediate relevance for good economic governance, as well as for managing future systemic financial crises in the interests of citizens: as tax payers and consumers.

Anti Cartel Enforcement In A Contemporary Age

Author : Caron Beaton-Wells
ISBN : 9781782259428
Genre : Law
File Size : 44. 89 MB
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Leniency policies are seen as a revolution in contemporary anti-cartel law enforcement. Unique to competition law, these policies are regarded as essential to detecting, punishing and deterring business collusion ? conduct that subverts competition at national and global levels. Featuring contributions from leading scholars, practitioners and enforcers from around the world, this book probes the almost universal adoption and zealous defence of leniency policies by many competition authorities and others. It charts the origins of and impetuses for the leniency movement, captures key insights from academic research and practical experience relating to the operation and effectiveness of leniency policies and examines leniency from the perspectives of corporate and individual applicants, advisers and authorities. The book also explores debates surrounding the intersections between leniency and other crucial elements of the enforcement system such as compensation, compliance and criminalisation. The rich critical analysis in the book draws on the disciplines of law, regulation, economics and criminology. It makes a substantial and distinctive contribution to the literature on a topic that is highly significant to a wide range of actors in the field of competition law and business regulation generally. From the Foreword by Professor Frédéric Jenny ' ? fundamental questions are raised and thoroughly discussed in this book which is undoubtedly the most comprehensive scholarly work on leniency policies produced so far ? [the] book should be required reading for all seeking to acquire a deeper insight into the issues related to leniency policy. It is a priceless contribution ... '

Procedural Fairness In Competition Proceedings

Author : Paul Nihoul
ISBN : 9781785360060
Genre : Law
File Size : 73. 70 MB
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How substantive competition rules are enforced plays a crucial role in achieving their goals. This thoughtful book examines procedural issues that have arisen from the increased enforcement of competition law worldwide.

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