procedural issues

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).

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.

'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

Verweigerung von Geschäftsbeziehungen: Kartellrechtliche Analyse nach Schweizer, EU- und US-Recht

Die Arbeit ist einer Analyse von Art. 7 Abs. 2 Bst. a KG zur Verweigerung von Geschäftsbeziehungen (refusal to deal) gewidmet. Sie klärt in einem ersten Teil die relevanten Begrifflichkeiten. In der Folge wendet sie sich der Frage zu, was die Missbräuchlichkeit einer Verweigerung von Geschäftsbeziehungen ausmacht. Die im Kontext von Geschäftsverweigerungen aktuellen Themenkreise der Systemmarkttheorie, der relativen Marktmacht, der Kosten-Preis-Schere (margin squeeze), der Lizenzverweigerung (refusal to license) und der Essential Facilities-Doktrin werden dabei dogmatisch eingeordnet und erörtert. Ein letzter Teil identifiziert geeignete kartellrechtliche Massnahmen. Die Untersuchung der Missbräuchlichkeit basiert auf einer umfassenden Auslegung von Art. 7 Abs. 2 Bst. a KG. Sie berücksichtigt insbesondere die einschlägigen entstehungsgeschichtlichen, verfassungsrechtlichen und ökonomischen Grundlagen. Die Perspektive ist dabei durchgehend rechtsvergleichend, wodurch Erkenntnisse aus dem Recht der Europäischen Union und der Vereinigten Staaten von Amerika in die Abhandlung einfliessen. Als zentrale Einsicht folgt aus der vorliegenden Untersuchung, dass eine Verweigerung von Geschäftsbeziehungen nur dann als unzulässig gelten sollte, wenn die nachgefragte Ressource unerlässlich ist für das Erbringen einer Innovationsleistung durch einen effizienten Nachfrager. Formalisiert wird diese Erkenntnis im Konzept der Innovationsindispensabilität.
Reference :

Stämpfli Verlag AG, Bern 2017 (ISBN 978-3-7272-0520-0; 911 Seiten)

Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion

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.
Reference :

Caron Beaton-Wells and Christopher Tran (eds), Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion (Bloomsbury, 2015)