max-planck-institute for research on collective goods doctrinal sources of legal uncertainty in both...
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Max-Planck-Institutefor Research on Collective Goods
Doctrinal sources of legal uncertainty in both Art. 82 EC and Sec. 2 ShA
Alexander Morell
MPI Bonn
The deep roots of legal uncertainty
Max Planck Institute for Research on Collective Goods
Intro
The Stereotypes: – Application of Antitrust law: US economics based, EU
conduct based
– More economic approach => legal uncertainty I would like to suggest (very much work in progress) :
– It‘s not only the application
– More economic approach => exchanges source of persisting legal uncertainty
Max Planck Institute for Research on Collective Goods
Outline
Fundamental Texts Definitions Implementation of Definitions Things to be astonished about Conclusions
Max Planck Institute for Research on Collective Goods
I. The fundamental texts
Sec 2 ShAEvery person who shall monopolize,
or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.
Art. 82 ECAny abuse by one or more undertakings of a
dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.
Such abuse may, in particular, consist in:(a) directly or indirectly imposing unfair purchase or
selling prices or other unfair trading conditions;(b) limiting production, markets or technical
development to the prejudice of consumers;(c) applying dissimilar conditions to equivalent
transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
Max Planck Institute for Research on Collective Goods
II. Definitions: monopolization and abuse
US: Definition of monopolization
Monopolization– ShA protect competition – Stifle competition and harm social
welfare– Spur competition as reward for
success Tradeoff when prohibiting
achievement of monopoly
Definition competition by goal of comp.
– Make consumers better off
– Monopolization = market power increases => consumers worse off.
EU: Definition of abuse Monopolization
– Reward for competition– Can’t be forbidden regulate monopolies: abuse
Definition of abuse:– By goal of competition?
Abundance of goals (Freedom of action, prevent exploitation, distribution of income in accordance to performance, optimal allocation of resources, technical progress, adaptive flexibility)
– By structure or process?Nobody can define competition
– De facto ad hoc definitions
Max Planck Institute for Research on Collective Goods
II. Definitions: monopolization and abuse
Social goals in the USWe have been speaking only of the economic reasons
which forbid monopoly; but, as we have already implied, there are others, based upon the belief that great industrial consolidations are inherently undesirable, regardless of their economic results. In the debates in Congress Senator Sherman himself in the passage quoted in the margin showed that among the purposes of Congress in 1890 was a desire to put an end to great aggregations of capital because of the helplessness of the individual before them… Throughout the history of these statutes it has been constantly assumed that one of their purposes was to perpetuate and preserve, for its own sake and in spite of possible cost, an organization of industry in small units which can effectively compete with each other. We hold that "Alcoa's“ monopoly of ingot was of the kind covered by § 2 (Learned Hand, UNITED STATES V. ALUMINUM CO. OF AMERICA 148 F.2d 416 (2d Cir. 1945).)
What goals in EU? (About regulation 17) : That is because the
Commission’s power (…) to impose fines on undertakings which have, intentionally or negligently, infringed Article 81(1) EC or Article 82 EC, not only includes the duty to investigate and punish individual infringements, but also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. Opinion AG Verika, (2008) C-510/06
so we don‘t know what principles are guiding the interpretation, we only know there are many.
Max Planck Institute for Research on Collective Goods
II. Definitions: monopolization and abuse
Early importance of Economic goals in US
A single producer may be the survivor out of a group of active competitors, merely by virtue of his superior skill, foresight and industry. In such cases a strong argument can be made that, although the result may expose the public to the evils of monopoly, the Act does not mean to condemn the resultant of those very forces which it is its prime object to foster: finis opus coronat. The successful competitor, having been urged to compete, must not be turned upon when he wins. (Learned Hand, UNITED STATES V. ALUMINUM CO. OF AMERICA 148 F.2d 416 (2d Cir. 1945).)
The only „clear“ goal in EU is Art. 3 I g) EC „undistorted competition“.
EuGH “British Airways“, Rs, C- 95/04 P, Rn. 62;
Opinion GA Verica, 15 May 2008, C‑510/06 P, Rn. 229;
Bechtold Bosch et al. Art. 82 Rn. 27
Lenz/Grill Art. 81-86 no. 2 Wish, Competition Law, 28
Max Planck Institute for Research on Collective Goods
II. Definitions: monopolization and abuse
Conceptual effects of US-definition
The (partial) efficiency goal delivers systematic that can structure the law
Clear definition of competition: Competition is what makes consumers better off.
Increases predictability Builds solid ground to built
arguments upon
Conceptual effects of EU-definition
Open definition => incorporate many policies (EU market integration, distributive, fairness,
protectionist, …) Amplification by systematic
interpretation of treaty (Art 2 EG: create common market, ECJ “Metro I” 26/76 no. 20, and other social and economic goals)
Shifts power from legislator to ECJ (and Commission);
Ad hoc approach makes ECJ less predictable
Max Planck Institute for Research on Collective Goods
II. Definitions: monopolization and abuse
Examples for legal uncertainty in EU: loyalty rebates • Michelin test (totally over-inclusive)
Roll back rebate Market share considerably larger than those of competitors Reference period relatively long
• British Airways Rebate illegal with reference period of ONE month!!! (relatively long !?) Add to test: rebate threshold close to total demand or (!) individually negotiated
• “Excuse”: “It is necessary to consider all the circumstances…and to investigate whether …the discount tends to (1) restrict the buyers’ freedom to choose his sources of supply, to (2) bar competitors from access to the market, (3) to apply dissimilar conditions to equivalent transactions with other parties or (4) to strengthen the dominant position by distorting competition.” (Michelin I. No. 73)
pretends effects based approach either test is inadequate for finding effects or effects are inadequate for being found. legal certainty?
• Reason: Don’t know what to protect => no systematic framework
Max Planck Institute for Research on Collective Goods
III. Implementation/application of the definitions
Effects based US-law central topos “making
consumers better off” care for effects care about false negatives as
much as about false positives
Although you look for effects they are hard to see Difficult factual questions Decrease predictability
Conduct based EU-law integrate various policy goals
into one article major difficulty: constructing
the rule loads of per se rules
Guidance in deciding cases? You will always find at least
one helpful principle No need to look into the
details/facts Increases predictability Detachment from reality
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III. Implementation/application of the definitions
US: Standards of proof become decisive Good example: Concord
Boat model was insufficiently rooted in data of the case
illegality of single product rebates rejected
Usually plaintiff bears burden of proof less enforcement
EU: Rules tend to seem economically odd
Importance of length of rebate reference periods (Michelin); (Maybe that’s why it was abandoned in BA)
Per se illegality of targeted rebates (Michelin + BA)
Max Planck Institute for Research on Collective Goods
IV. Weird: Why wasn’t it the other way around?
US legal system actually tuned to per se rules and simple fact finding? The more general statute Often a circuit judge takes the
decision– DoJ cannot bindingly deem illegal
a monopolization– (FTC can, though)
Jury trials possible in antitrust issues (LePage vs. 3M)
Can lead to problematic rules too: AVC-test in single product rebate
cases (concord boat) Separation of tied rebates and
single product rebates (3M)
EU enforcement system actually tuned to combining legal and economic knowledge?
The more precisely framed statute
Commission has expertise on both legal and economic side and can bindingly decide
No jury trails economic advice easily
available to courts (Discussion paper could initiate
some sensitivity to false positives)
Max Planck Institute for Research on Collective Goods
V. Conclusion
The differences are deeply rooted in legal thinking and principles
It‘s not just a matter of how to apply very similar norms, it is a matter of deeply rooted doctrinal thought.
Both system have a predictability problem: The EU triggered by conceptual issues, the US by factual issues. You can only trade the one against the other.
Max Planck Institute for Research on Collective Goods
Thank you!
Most important sources that are not case law:Bechtold/ Bosch/ Brinker/ Hirsbrunner, EG Kartellrecht – Kommentar, 2005
Lenz, EG-Vertrag – Kommentar, 2003
Eilmansberger, CMLR 2005, 129-177
Fox, Antitrust Law Journal 70, (2002-03), 371-411.
Kolasky, Antitrust Bulletin 49 (2004), 29-53.
Wesseling, The Modernization of EC Antitrust Law, 2000
Whish, Competition Law, 2003