european

A Comparative Look on Foreign State Compulsion as a Defence in Antitrust Litigation

This paper presents and investigates the foreign state compulsion as a defence in transnational antitrust cases. It takes a comparative approach by looking at the doctrine and its developments in the United States and in the European Union. To illustrate the relevance of the defence and the difficulties of its applicability, this paper analyses the new antitrust case law emerging in the US involving Chinese export cartels. It is argued that at present the standard required to prove compulsion is too high to serve its function.
Reference :

Marek Martyniszyn, 'A Comparative Look on Foreign State Compulsion as a Defence in Antitrust Litigation', 8(2) Competition Law Review 143 (2012).

Legislation Blocking Antitrust Investigations and the September 2012 Russian Executive Order

This article offers a typology of so-called blocking legislation and analyses its development, functions and legality under international law. It also presents and discusses the new Russian blocking Order, issued in September 2012, focusing on its possible effects on the European Commission’s investigation of Gazprom’s business practices (in light of EU competition law) as well as, more broadly, on foreign operations of Russian strategic enterprises.
Reference :

Marek Martyniszyn, 'Legislation Blocking Antitrust Investigations and the September 2012 Russian Executive Order', 37(1) World Competition 103 (2014).

Leniency (Amnesty) Plus: A Building Block or a Trojan Horse?

Leniency (amnesty) plus is one of the tools used in the fight against anticompetitive agreements. It allows a cartelist who did not manage to secure complete immunity under general leniency, to secure an additional reduction of sanctions in exchange for cooperation with the authorities with respect to operation of another prohibited agreement on an unrelated market. The instrument was developed in the US and, in recent years, it was introduced in a number of jurisdictions. This article contextualises the operation of and rationale behind leniency plus, forewarning about its potential procollusive effects and the possibility of its strategic (mis)use by cartelists. It discusses theoretical, moral, and systemic (deterrence-related) problems surrounding this tool. It also provides a comparison of leniency plus in ten jurisdictions, identifying common design flaws. This piece argues that leniency plus tends to be a problematic and poorly transplanted US legal innovation. Policy-makers considering its introduction should analyse it in light of institutional limits and local realities. Some of the regimes which already introduced it would be better off abandoning it.
Reference :

Marek Martyniszyn, 'Leniency (amnesty) plus: a building block or a Trojan Horse?', 3(2) Journal of Antitrust Enforcement 391 (2015).

On extraterritoriality and the Gazprom case

The European Commission's (EC) investigation of Gazprom's business practices in the EU raises a number of questions. This article comments on the issue of the EC's jurisdiction in transnational cases in general and in particular — in the context of the Gazprom case, in light of another contribution dealing with this matter. It also sheds some light on the considerations which might have informed Russia's legislative response to the EC's investigation.
Reference :

Marek Martyniszyn, 'On extraterritoriality and the Gazprom case', 36(7) European Competition Law Review 291 (2015).

How High (and Far) Can You Go? On Setting Fines in Cartel Cases Involving Vertically-Integrated Undertakings and Foreign Sales

This article examines the recent developments concerning the treatment of internal sales (intra-group or captive sales) in the process of setting fines for violations of EU Competition Law. In particular, it looks into Guardian Industries, LG Display and InnoLux, in which the Court of Justice recognised the European Commission’s right to take into account internal sales, also in the transnational setting (when infringement-affected components are sold and incorporated into the finished products outside the EU), and to impose fines which more accurately reflect the scale and significance of the investigated infringements.
Reference :

Marek Martyniszyn, 'How High (and Far) Can You Go? On Setting Fines in Cartel Cases Involving Vertically-Integrated Undertakings and Foreign Sales', 37(3) European Competition Law Review 99 (2016).

Due Process in EU Competition Proceedings

This chapter analyses the competition law procedures in the EU through a more general lens of the four features of due process identified as key by the FTC’s Chairwoman Edith Ramirez. The discussion focuses on procedures applicable in antitrust cases, although various procedural features are largely common to the area of antitrust and mergers. Part I of this chapter deals with the question of legal representation. Part II outlines the rules and practices concerning the parties’ awareness of the charges they faces and the evidence against them. With respect to these two features of due process, the EU competition law procedures are overall very progressive and can serve as a basis of good practices. The remaining discussion turns to issues in relation to which the EU competition procedures face considerable criticism. In particular, Part III presents the scope for engagement between the parties, the case teams, and final decision-makers. Part IV examines the existing checks and balances in the EU competition procedures. The conclusion notes the Commission’s awareness of the critique of its procedures and the actions it undertook in response. It is acknowledged that considerable scope for improvement remains.
Reference :

Marek Martyniszyn, 'Due Process in EU Competition Proceedings' in Daniel D Sokol and Andrew T Guzman (eds), Antitrust Procedural Fairness (Oxford University Press, 2019).

The Antitrust Damages Directive: Facilitating Private Damages Actions in the EU?

Editorial: The Antitrust Damages Directive: Facilitating Private Damages Actions in the EU?
Reference :

Journal of European Competition Law & Practice, Volume 10, Issue 3, March 2019, Pages 129–130, https://doi.org/10.1093/jeclap/lpz012

PROMOTION AND HARMONIZATION OF ANTITRUST DAMAGES CLAIMS BY DIRECTIVE EU/2014/104?

Directive EU/2014/104 is the latest legal instrument that crystalizes the evolution of EU competition law enforcement. This paper assesses critically the features of the Directive and the challenges it poses for its implementation by Member States. The Directive codifies the case law of the EUCJ and it encroaches upon the autonomy of Member States in setting the institutions, remedies and procedures available for victims’ of antitrust infringements. Although the Directive provides a fragmented and incomplete set of rules that only partially harmonizes antitrust damages claims in the EU, and it’s slanted towards follow-on cartel damages claims, it has publicised the availability of damages claims, creating momentum that will transform how competition law is enforced in the future.
Reference :

Co-written with Barry J. Rodger & Miguel Sousa Ferro, preliminary draft of Chapter 2 of The EU Antitrust Damages Directive: Transposition in the Member States (Oxford University Press, eds. B. RODGER,M.S. FERRO & F.MARCOS, due for publication in 2018).

"A Missing Step in the Modernisation Stairway – Any Role for Block Exemption Regulations in the realm of Regulation 1/2003?" with A. Sánchez

Block exemption regulations (BER) survived the modernisation of EU competition law. According to the Commission, they play a major role in the system instituted by Regulation 1/2003. Some authors consider that BER are conceptually hard to nest within the new system, but that they provide legal certainty. Others adopt a more critical approach and propose their axing. This paper adopts the latter approach. In view of the mixed messages that the Commission has been sending in the review of existing general and industry specific BER, this paper revisits the institution of BER, its justification and need in the decentralised system brought forward by Regulation 1/2003 and the more economic approach to EU competition law. After stating the initial justification for BER under the prior enforcement system, the paper stresses the difficulties for their fitness within the new paradigm, focusing on the distortions that they may generate for an effective and consistent enforcement of EU competition law. In order to complete the modernisation of EU competition law in a second wave (that is, as a consequence of the current revision of Regulation 1/2003), the paper recommends a clear-cut policy to abrogate all BER and to issue substitutive guidelines in exchange.
Reference :

together with A. Sánchez The Competition Journal, vol. 6/2, July 2010, pages 183-201.

The Spanish Property Insurance Cartel

Inherent Defects Insurance (“IDI”) for new housing buildings has been mandatory in Spain since 2000. The institution of this requirement prompted an upsurge in the IDI market in following years. Having been confronted with competition, major insurance carriers active in the property insurance market formed a cartel, which involved IDI reinsurers. This article examines the features of the Spanish IDI cartel, as uncovered by the National Competition Commission (“NCC”) in 2009. The companies involved in the cartel were punished with a fine of over €120 million, the largest fine ever imposed by competition authorities in Spain. This article describes how the cartel was organized and operated, and emphasizes the reinsurers’ key role in assuring and propagating the effectiveness of the minimum price agreement throughout the property insurance market. It also critically analyzes the Spanish NCC’s assessment of the cartel, and how it dealt with the arguments submitted by the reinsurers to defend their behavior.
Reference :

Connecticut Insurance Law Journal, vol. 18, issue 2, Spring 2012, pages 79-101.

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