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.

Competition private Litigation in Spanish Courts 1999-2012

This paper provides an empirical study of private enforcement of competition law in Spain from 1999 to 2012. So far, the Spanish literature on competition law private litigation is based on qualitative assessments and analysis of some key cases, but has not discussed all cases in depth. Therefore, by broadening the scope of the inquiry, this paper aims to contribute to the policy discussion on the effectiveness of private enforcement of competition law in Spain. It gives a clearer picture of how private competition litigation is evolving in Spain. Any legal intervention or other policy decisions in this area should be based on an investigation of what is going on, what is working and what is not working in private litigation. Evidence produced in this paper challenges the traditional view that private litigation in Spain is underdeveloped, amounting only to a few noted cases. The number of cases reported here suggests otherwise: there are many more private claims than previously thought, making the Spanish experience somehow comparable to that of certain other EU Member States. Nevertheless, although the case-law reported here depicts an evolution of private litigation, with a conspicuous growth in the last five years; that should not be taken as meaning we already have a mature private competition system. Many court opinions (and lawyers’ pleas) still demonstrate some confusion of the aims of competition law, occasionally mixing it up with unfair competition law (and even, consumer protection law). On the other hand, private competition litigation in Spain has particular features that this paper aims to describe. Most of the litigation involves conflicts in contractual settings and lawyers have cunningly thrown in competition law as another argument in disputes. However, many of the anti-competitive claims are flimsy or simply inappropriate. In general, courts have done a good job rejecting meritless or unsubstantiated pleas. Therefore, criticism of judicial performance in private competition litigation (based on the theoretical complexity of cases and lack of preparation) is in most of the cases unfounded and unwarranted. Judges have displayed considerable pragmatism in rejecting the strategic misuse of competition law. On the other hand, the case-law reported here also challenges the view that private enforcement of competition law has mainly a compensatory aim. Although some competition claims request damages, most of the remedies awarded by judges are declaratory (of unlawfulness/nullity). Naturally, in the few cases where pecuniary claims have been argued, the normal issues issues of effectiveness, proof and quantification of harm have arised. Finally, the paper shows consumer group litigation to be still absent in the competition law arena. Available mechanisms for collective and representative claims, strongly reliant on opt-in by potential victims may be too burdensome or rigid. Enhancing collective redress seems to be a major loophole in the current competition law system and some flexibility may be necessary to make them more attractive and operational.
Reference :

Global Competition Litigation Review, 2013, Issue 4: pages 167-208.

When Competition is the last concern? The Battle for the control of Endesa

Competition law and regulation had played a prominent role in the process of construction and liberalization of the internal energy market in the EU. Several transactions in the last decade have shown the difficulties of the process and how Member States may occasionally make a political use of merger review rules and of regulation to benefit domestic firms. This chapter describes in all its complexity the ENDESA takeover contest (2005-2007). This case is a unique example of the mixture of legal issues that may be involved in takeovers requiring competition and regulatory approval. Several lessons can be learnt from the case, not only for the history of Spanish and European competition law (especially regarding merger review). Other relevant industrial policy, regulation and corporate law issues were also raised by this landmark case, though the case is mainly illustrative of how politics, at the end, may affect or shape the final outcome in some business transactions.
Reference :

in Landmark cases in competition law: around the world in fourteen stories, ed. B. Rodger, Wolters Kluwer, Alphen aan den Rijn, 2013, ISBN 978-90-411-3843-9, pages 287-318.

'Human Rights' Protection for Corporate Antitrust Defendants: Are We Not Going Overboard?

There seems to be a clear trend of increased protection of ‘corporate human rights’ and, more specifically, due process rights (or procedural fairness) in the field of enforcement of competition law. To a large extent, that trend is based on the uncritical extension of human rights protection to corporate defendants by a process of simple assimilation of corporate and individual defendants. This paper briefly explores the rationale behind the creation of due process rights when the individual is the beneficiary of such protection. It then goes on to critically assess if the same need exists for the extension of those protections to corporate defendants, particularly in the field of competition law or antitrust enforcement. It concludes with some warnings concerning the diminishing effectiveness of competition law prohibitions and of human law protection that can result from an overstretched conception of due process protection in this area of EU economic law. From a substantive perspective, the paper submits that the extension of human rights to corporations cannot be uncritical and should not be completely symmetrical to that for human beings; but that it rather needs to be necessarily adapted to their circumstances. To put it more bluntly, it is suggested that in the field of the enforcement of economic law, administrative law procedures should be sound and there should clearly be a strong system of judicial review in place, but corporations should not have access to broader constitutional or human rights protections and any perceived shortcomings in the design and application of those procedures should remain within the sphere of regulatory reform.
Reference :

together with Albert Sánchez-Graells in Procedural Fairness in Competition Proceedings (P. Nihoul; T. Skoczny eds.) Cheltenham: Edward Elgar Publishing, 2015, ISBN 978-1-78536-005-3 pages 84-107

Transposition of the Antirust Damages Directive into Spanish Law

This chapter analyses the legal measures adopted to implement Directive 2014/104/EU into Spanish law. After briefly looking at the context of private enforcement of competition law in Spain, it examines the process followed for the transposition and the issues discussed before the adoption of the Transposition Decree in May 2017. Overall, it can be affirmed that the new rules comply with the mandates of the Directive, only in a few matters there seems that there will be doubts concerning the interpretation of the new provisions. Some of the doubts may be rooted in the Directive itself (relative responsibility of co-infringers, umbrella claimants, harm to suppliers), and others in the lack of express rules in the Transposition Decree on some matters (causation, fault requirement, interests calculation), moreover it is uncertain how the new procedural tools will play out in practice as they imply a revolutionary change in our procedural rules.
Reference :

in B. Rodger, M.S. Ferro & F. Marcos (eds) The EU Antitrust Damages Directive: Transposition in the Member States (Oxford University Press, due for publication in 2018)

Blowing Hot and Cold: The last word of the Spanish Supreme Court on Setting Fines for Competition Law Infringements

On January 29 2015 the Spanish Supreme Court issued an opinion clarifying the limits faced by Spanish competition authorities in imposing economic penalties for infringements of competition law and the criteria that guide the calculation of the amount of fines. This judgment is of paramount importance for the effectiveness of public enforcement actions by administrative authorities in Spain and it will force them to change the methods and steps followed in figuring the amount of fines. Though Supreme Court’s holdings in the case move away from EU Law, it will surely have a positive impact in deterrence by pushing the amount of fines upwards through the clarification of the relevant turnover that should be used in calculating the limit to the fine (‘total turnover’ instead of ‘turnover in the market affected by the infringement’). Nevertheless, the Supreme Court annuls the Guidelines that Spanish competition authorities have been using in the last four years in quantifying the amount of fines, leaving little room for new Guidelines to be adopted, and making more difficult to predict their amount in the future.
Reference :

Working Paper IE Law School AJ8-220-I 19-02-2015

Margin Squeeze: Where Competition Law and Sector Regulation Compete

This paper starts with an overview of the different ways in which an undertaking can abuse its dominant position through pricing and then zooms in on margin squeeze. We start by defining margin squeeze, and then take a thorough look at its assessment framework. It is examined why some undertakings appear to be more susceptible to this abuse than others. The paper subsequently investigates the place of margin squeeze in the European legislative framework, considering which kind of antitrust abuse margin squeeze could be and how the ECJ currently conceives it. Finally, we explore the interaction of the competition law approach with the regulatory approach to margin squeeze.
Reference :

Friso Bostoen, 'Margin Squeeze: Where Competition Law and Sector Regulation Compete' (2017) 53 Jura Falconis 3.

Margin Squeeze in the Telecommunications Sector: A More Economics-based Approach

A margin squeeze occurs when a vertically integrated company, dominant in the supply of an indispensable upstream input, pursues a pricing policy which prevents downstream competitors from trading profitably, thereby leading to their ultimate exclusion from the downstream market. In the telecommunications sector, where large ex-state firms still enjoy considerable market power, margin squeeze has long been frequent. Interestingly, the United States and the European Union have tackled this problem in considerably different ways. Dismayed by the idea of an antitrust court intervening in a company’s price setting, the US Supreme Court held that margin squeeze was exclusively the domain of regulation. Conversely, the Court of Justice of the European Union has endorsed a modern economics-based approach enabling competition authorities to engage in a coherent and verifiable antitrust assessment of the price differentials that potentially amount to a margin squeeze. This paper will argue that (1) the economics-based approach is the right solution in the European context, but that (2) this approach will only lead to convincing results if it includes a rigorous and transparent analysis of the effects on competition and consumers.
Reference :

World Competition 35(2)/2012, S. 205–232 (Kluwer Law International BV, The Netherlands)