In this issue:
We welcome Spring with two collections. The first, sponsored by Senior Editor Kyriakos Fountoukakos, focuses on comments by inspired by DG Comp’s Draft Paper on Best Practices in Antitrust Proceedings–how to define due process? Our first two authors compare current practices to those in the United States and Sweden, to which we add a paper by Bo Vesterdorf, former judge and president of the EU General Court.
Next is a series of reactions to previous issues. Yves Botteman introduces a new approach to the parent liability issue we discussed in November while Coate & Simons continue their debate with Farell & Shapiro over Critical Loss. Maureen Olhausen introduces a consumer protection angle into the Intel debate and Janusz Ordover & colleagues take issue with Einer Elhauge on loyalty discounts.
EU Best Practices on Due Process
The Swedish system involves an institutional structure with a division between the investigator (the SCA) and the adjudicator (the Stockholm City Court) and far-reaching transparency (under the principle of public access)”two aspects that have often been criticized as missing in the current Commission procedure. Marcus Glader (Vinge)
The Best Practices were issued amid intense debate concerning the Commission’s dual role as prosecutor and judge and the lack of adversarial fact finding procedures, against the backdrop of the significant fines imposed by the Commission for anticompetitive conduct. Ingrid Vandenborre & Nikolaos Peristerakis (Skadden)
Due Process Before the Commission of the European Union? Some Reflections Upon Reading the Commission Draft Paper on Best Practices in Antitrust Proceedings
In order for the Commission to adhere to its stated aim of giving a “high priority to due process and fairness in antitrust proceedings,” the document should not principally be an enumeration of existing practices but should indeed put in place truly “best” practices in antitrust enforcement. Bo Vesterdorf (Herbert Smith and Plesner)
The criminalization of cartel behavior against employees of subsidiaries could be used to achieve a higher level of deterrence while reducing fines on parent companies. Yves Botteman & Laura Atlee, Steptoe & Johnson
In this rejoinder, we will first elaborate on the Critical Loss consensus identified in the Farrell & Shapiro paper and then move on to address the areas of misunderstanding associated with our work. Malcolm Coate (Federal Trade Commission) & Joseph J. Simons (Paul Weiss)
The FTC’s expansive interpretation of Section 5 coupled with the proposed strengthening of the FTC’s remedial authority; the corrective advertising remedy it seeks; and the truncated process it followed in bringing the complaint all signal extraordinary changes in the FTC’s approach that may have far-reaching effects for American business. Maureen Olhausen (Wilkinson Barker Knauer)
The academic literature on loyalty discounts and exclusive dealing demonstrates that the welfare effects of these practices are ambiguous and that market details determine the direction of the effect. Assaf Eilat, Jith Jayaratne, Janusz Ordover (Compass Lexecon) & Greg Shaffer (University of Rochester)