Looking back at 2012 antitrust developments and browsing through this blog, I was surprised not to see any posting on what was in my view a major highlight of the past year, namely the EU Court of Justice (ECJ) judgment in Post Danmark (C-209/10). In a sweet and short judgment (8 pages) issued on March 27, 2012, the ECJ embraced indeed a modern vision of Art. 102 TFEU enforcement that had been badly missing until then. The judgment was rendered in response to a request for preliminary ruling, so it is unclear whether and how the ECJ will translate that approach in annulment cases (the Tomra judgment dated a couple of weeks later was not exactly encouraging in that respect), but it still se [...]

Stanford University Press has just released the first volume of a series on Global Competition Law and Economics, entitled “The Global Limits of Competition Law” (I. Lianos & D. Sokol, eds). This first volume contains a wealth of ideas on how law, economics and institutions respond to an increasingly global and interconnected antitrust community. It is divided in five parts:

(i) “The Competition Law Process” deals with the process rules that constitute the backbone of the competition law system and ultimately define its reach;
(ii) “The Economic Limits of Competition Law” explores the extent to which economics is a limit to antitrust and probes whether and how the competition [...]

Cross-border antitrust enforcement issues are back on the agenda. The recent Toshiba judgment of the European Court of Justice (“ECJ”) has confirmed a number of principles governing the network enforcement system set forth in the EU by Regulation 1/2003. Recent national decisions involving the same companies and/or closely related sectors (e.g., the flour milling industry) testify of the dynamic cooperation among national competition authorities (“NCAs”). Yet, lasting uncertainties remain. In Toshiba, the ECJ has largely left open the ne bis in idem question and the reliance on the cooperation mechanisms provided for by Regulation 1/2003 – i.e., the cross-border exchange of inf [...]

A review of all decisions adopted pursuant to Article 81 EC/101 TFEU between the first of January 2000 and the first of January 2011 reveals that, excluding hardcore cartels, the Commission has issued altogether 18 infringement decisions and 10 commitment decisions. This is in addition to 6 negative clearance decisions and 18 exemption decisions adopted under Regulation 17/62. Among the 28 infringement and commitment decisions, 14 related to vertical restraints and 14 to horizontal restraints. Among the 18 infringement decisions, 10 are posterior to the entry into force of Regulation 1/2003 but only 5 have been adopted over the past 5 years and all in relation to horizontal cases.

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One of the main concerns raised by the decentralization of EU competition law enforcement related to the risk of different competition authorities prosecuting and sanctioning the same cross-border anticompetitive practice, in breach of the ne bis in idem principle (protection against double jeopardy, as provided for by Art. 50 of the EU Charter of Fundamental Rights and Art. 4 of Protocol 7 to the ECHR). This is notably because Regulation 1/2003 does not contain clear rules allocating jurisdiction/competence horizontally among the various national competition authorities (“NCAs”). In contrast, the vertical allocation of jurisdiction between NCAs, on the one hand, and the European Commi [...]

We live in a world of network antitrust enforcement, to borrow the expression introduced by H. First a decade ago (here) to refer to the loose arrangements among the federal agencies and/or State Attorneys General offices presiding over the enforcement of federal and state antitrust laws in the US. This is increasingly the case on a global scale with the multiplication of bilateral cooperation agreements, supported by the establishment of connecting points or network nods such as annual bilateral or multilateral meetings of enforcers (including the ICN). Since the entry into force of Regulation 1/2003, antitrust enforcement in the European Union also operates according to a very structured [...]