European Competition Law Annual 2013: Effective and Legitimate Enforcement of Competition Law

Description

This volume contains papers presented at the 18th Annual EU Competition Law and Policy Workshop. The papers examine means of balancing effective (public) competition law enforcement and the requirements of legitimate and accountable exercise of public authority. The authors address the design and performance of various enforcement tools at European and national levels, including sanctions and remedies but also distinctive instruments under Regulation 1/2003 (eg commitment procedures) and under the Treaty on the Functioning of the European Union (Article 106(3) when used as a basis for infringement procedures). From the perspective of legitimacy, reflections focus on the implications of fundamental rights standards and general principles of law for the EU’s complex and quasi-federal enforcement architecture. Issues that may sometimes escape judicial scrutiny are also discussed, such as how agencies prioritise their activities, and how investigation responsibilities are distributed within the European Competition Network. Effectiveness and legitimacy are then considered in the context of public enforcement cooperation beyond the EU, where international organisations, regional cooperation and a range of formal and informal modes of governance prevail. Contents List of Sponsors List of Participants Table of Cases Effective and Legitimate Enforcement of Competition Law: A Riddle Wrapped In a Mystery Inside an Enigma? 1. Introduction 2. A riddle ... the deterrence trap 3. Wrapped in a mystery ... the compliance trap 4. Inside an enigma ... a legitimacy trap? 5. Conclusion: regulation and the politics of markets From Regulation 1 to Regulation 2: Enforcement of EU Law by National Sanctioning Regimes and the Need for Further Convergence 1. Introduction 2. Effective and efficient cartel prosecution 3. Sanctioning cartel infringements in Germany-challenges 4. Framework for reform 5. Solutions 6. Outlook: towards a 'Regulation 2' The Federal Trade Commission and Monetary Remedies 1. Introduction 2. Summary of the 2003 policy statement 3. The FTC's 2012 Withdrawal 4. The FTC's reasons for withdrawing the statement are not persuasive 5. Would a reduction in private antitrust enforcement justify additional efforts by public enforcers to pursue monetary remedies? 6. When is it appropriate for an enforcement agency
to pursue disgorgement? The Principle of Effectiveness, Competition Law Remedies and the Limits of Adjudication 1. Introduction 2. The principle of effectiveness and remedial discretion 3. Legitimate remedies and the limits of adjudication 4. Remedial discretion and commitment decisions: exploring the limits of adjudication 5. Conclusions Negotiated Remedies in the Modernisation Era: The Limits of Effectiveness 1. Negotiated remedies in the modernisation era 2. The limits of effectiveness 3. Conclusion Behavioural Remedies for Antitrust
Infringements-Opportunities and Limitations 1. Introduction 2. The purposes of remedies 3. Practical considerations 4. Conclusion Behavioural versus Structural Remedies in EU Competition Law 1. Introduction 2. Behavioural versus structural remedies 3. Conditions under Regulation 1/2003 4. Conclusion Bibliography The Antitrust Conversation (Continued) 1. Introduction 2. US amicus practice in general 3. American antitrust amici: an update 4. Outside the US 5. A look to the future Enforcement of Article 106(1) TFEU by the European Commission and the EU Courts 1. Introduction 2. European Commission cases 3. 'Indirect enforcement' of Article 106(1) by the Court of Justice: case law on Article 106(1) TFEU arising from preliminary rulings 4. Conclusions Hard Look Review of Anticompetitive State Action 1. The state action problem and leading responses 2. The hard look alternative 3. Comparing the three models 4. Conclusion Parallel Proceedings in EU Competition Law: Rethinking Ne Bis In Idem as a Limiting Principle 1. The problem and the structure of the enquiry 2. Inadequacy of discretionary prosecutorial restraint as a limiting principle 3. Ne bis in idem as a limit to parallel proceedings 4. The function of the ne bis in idem principle in limiting multiple proceedings and decisions in EU competition law Reflections on Parallel Enforcement, Fundamental Rights and the Rule of Law in the Competition Law Context 1. Legal succession in fines and fundamental rights 2. ThyssenKrupp Nirosta 3. The Swiss Publigroupe judgment and Regulation 1/2003 Creating a Respected Brand: How Competition Agencies Signal Quality 1. Introduction 2. Brands and public institutions 3. Forces that determine the quality of a competition
agency's brand 4. Conclusion International Cooperation in Antitrust Enforcement: A Canadian Perspective 1. Introduction 2. Canada's approach to international cooperation in antitrust enforcement 3. Legitimacy of information sharing 4. International coordination of merger control and merger remedies 5. International cooperation on criminal matters 6. Conclusion Effectiveness of Enforcement Cooperation in Developing Countries: What Role Can Existing Institutions Play? 1. Introduction 2. The WTO effort to incorporate competition in
trade agreements 3. The International Competition Network
and the cooperation agenda 4. Major problems in antitrust enforcement in
developing countries 5. The role of the SADC: some reflections on the experience of three African countries (Zambia, Zimbabwe and Tanzania) 6. What kind of cooperation for cross-border cases? 7. Conclusion The Need for International Cooperation in Merger Enforcement 1. Introduction 2. The scope for disagreement on international mergers 3. The costs of international disagreements 4. Does it matter? 5. Will the situation get better or worse? The UK Competition Regime: Developments and Further Proposals for Change 1. Introduction 2. Institutional changes 3. Private enforcement/CAT jurisdiction 4. EU-level developments 5. Regulatory appeals consultation 6. Judicial independence What Is To Be Done? 1. The Hearing Officer 2. Other reforms Quis custodiet ipsos custodes? 1. Competition law and the challenge for the judge 2. Theories and fashions change 3. Differences between countries 4. Differences in priorities 5. Does 'old' law help when considering 'new' cases? 6. The Court is robust and radical in some fields 7. The European Courts as locomotives of legal innovation and policy change 8. Where do we stand as to the ECHR? 9. The ECHR and competition decision-making Interaction between Public and Private Enforcement of Competition Law 1. Full judicial review of decisions of the European Commission and of national competition authorities 2. Disclosure of evidence 3. Interim measures 4. Final decisions and remedial powers 5. Limitation periods and joint and several liability 6. Quantification of harm Selected References