Antitrust Chronicle – CRESSE Insights

Dear Readers,

The October 2018 CPI Antitrust Chronicle includes articles based on presentations from Special Policy Sessions (“SPS”) and invited lectures of the 13th Annual CRESSE Conference organized
from June 29–July 1, 2018 in Crete, Greece.

CRESSE (www.cresse.info), is an international network of academics and other professionals, with an interest in Competition Policy and Sectoral Regulation. Every year CRESSE organizes an international conference in Greece that is widely recognized as one of the top academic conferences in the economics of competition policy and regulation worldwide. For the 2018 Conference, Keynote Speakers included John Vickers, Dennis Carlton, David Evans, Herbert Hovenkamp, and Eleanor Fox. An important feature of the annual CRESSE Conference is the organization of a number of SPS in which important topical issues of competition policy are discussed between academics (economists and lawyers), policy makers, corporate representatives, and practitioners.

The contributions here include articles by a number of prominent economists and legal experts. David S. Evans & Richard Schmalensee provide an account of the relevant economic modelling and of what sort of evidence is necessary or sufficient in markets with platform businesses to establish competitive effects, in the aftermath of the Supreme Court’s decision in American Express. James Venit discusses a potential flaw in the European Court of Justice’s Intel judgement as a result of the judgement focusing exclusively on the potential effects of the dominant firm’s conduct in an ex-post sense, where the allegeldly abusive conduct has come to an end. Mark Schankerman and Florian Schuett in their contribution on patent reform, innovation and the scope of competition policy argue that many competition policy issues related to innovation stem from the “patent quality” problem – the prevalence of patents of dubious validity – and that fixing this problem at its source can reduce the scope for competition policy intervention. Yannis Katsoulacos, Evgenia Motchenkova, and David Ulph discuss recent theoretical literature pointing to the ineffectiveness in terms of welfare impact, of currently applied sanctioning regimes for cartels by Competition Authorities and argue the case for switching to a penalty regime, in which the penalty base continues to be the currently dominant penalty base of cartel revenue but in which, in contrast to current practice, the penalty rate is based on the cartel overcharge – which is commonly estimated in order to calculate damages in private damage claims. Neil Campbell’s article on a competition law analysis of common shareholdings argues that the application of merger control laws to mergers involving two companies in an industry with significant common shareholdings or to the acquisition of common shareholding positions by institutional investors is unlikely to be effective and the costs would probably exceed the benefits. Allan Fels deals with the scope for choice and competition in schools finding that while there appears to be much scope for choice and competition in education, there are also some significant, often ignored limitations if a major goal of education policy is to promote “equality of opportunity.” Last, in an article that concentrates on how antitrust should handle highly innovative markets, Richard Gilbert, CRESSE Keynote Speaker in 2019, discusses whether and how the assessment of potentially anticompetitive conduct should be amended when enforcing competition law in such markets.

Finally the October Antitrust Chronicle presents an interview with Prof. Frederic Jenny focusing on his thought-provoking lecture in CRESSE 2018 on the role of “fairness” as a goal of competition policy. He argues that competition authorities should care about fairness but at the moment competition law enforcement seems to have several weaknesses in this respect. Competition authorities rarely, if ever, look at the consequences of competition or anticompetitive practices on labor markets. Furthermore, on product markets competition authorities generally refuse to consider exploitative abuses of dominance such as charging high prices as a competition law violation. Equally they are reticent to deal with claims of “abuses of buying power.” In short, they refuse to pass judgment on the fairness of the results of negotiations between suppliers and consumers on competitive markets.

Yannis Katsoulacos
CRESSE & Athens University of Economics and Business

Click here for the full Antitrust Chronicle.

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