EU Competition Policy and Law

Course Aims & Content

This course is based on the following research question: when competition policy choices are made, how does the legal system respond and react? The reason for asking this question is that policy changes in competition law enforcement occur relatively frequently (we will ask why this is so) but the way the legal system responds and thereby facilitates or hampers those policy choices has not been studied.  This is what I hope we can discuss during the course. We generally focus on EU Law, with some reference to US developments and literature.

Within this framework the course is also designed as an advanced introduction to the key competition law provisions, so that those with little knowledge of the subject may also benefit from the course. However, this course is not a basic introduction to competition law.

The topics we cover in the course are as follows: Seminar 1 opens by considering some literature on the evolution of competition law; Seminars 2 and 3 then explore the reform of the rules governing the abuse of a dominant position: we first look at what was perceived to be wrong with the dominant approach and then ask whether recent judgments of the ECJ shed any light on whether the Court has followed the policy line traced by the Commission.  Seminars 4 and 5 look at Article 101 TFEU, which regulates agreements between firms: we first take a look at a set of judgments where it appears to me the policy is driven by the Courts: that is to say the ECJ appears to re-interpret some of the key elements of the prohibition found in Article 101(1). We then turn to exemptions under Article 101(3) and consider the extent to which non-competition policy considerations are pleaded and how these pleas are received by the ECJ, and the extent to which such matters are fit for adjudication.  Seminar 6 turns to cartel policy. This is a policy priority of every antitrust agency and we test how far the courts have affected this policy choice. Seminars 7 and 8 look at the policy of decentralisation that led to Regulation 1/2003, we consider the policy choice critically first and then turn to the major legal issues that have arisen since its coming into force. Seminars 9 and 10 then consider state intervention in the economy, and the relationship between national policies and EU competition law.

Teaching and Requirements

Reading lists are made available on line; almost all material is accessible electronically, when this is not the case arrangements will be made to ensure you have access to the material.

For each seminar you are expected to: (i) carry out the reading; (ii) write a short reaction to what you have read and insert it on line; (iii) participate in the seminar discussion.  The reaction paragraphs may be framed in whatever way you wish, but they should not be a summary of the material you have read: you should engage with the readings and bring out your reflections. You may focus on one of the readings, or you may identify a theme that arises from the readings or explain how what you have read might affect or be affected by other material you are familiar with. Posting them on line allows us to also carry out a virtual discussion by responding to each other’s observations & comments.

Links to Reading lists (your comments shoud be entered underneath the relevant reading list)

Seminar 1: Preliminary Reflections (10 October 2013)

Seminar 2: Abuse of Dominance: making a new policy (17 October 2013)

Seminar 3: Abuse of Dominance: impact of the new policy (22 October 2013)

Seminar 4: Article 101(1): What is a restriction of competition (31 October 2013)

Seminar 5: Justifying a restrictive agreement (7 November 2013)

Seminar 6: Cartel Policy (14 November 2014)

Seminar 7: Regulation 1/2003 (21 November 2013)

Seminar 8: The ECJ and regulation 1 (28 November 2013)

Seminar 9: State Policy and Competition Law (5 December 2013)

Seminar 10: State Aid Control (9December 2013)

One comment on “EU Competition Policy and Law

  1. Karin Fløistad says:

    The reading material and especially the case law demonstrates that the line between vigorous price competition and illegal predation is a fine one. There is continuing disagreement about the proper definition of predation in economic terms. This economic disagreement is reflected in the law and thus creates uncertainty for economic actors as well as difficulty in predicting the legal outcomes of possible action. It is interesting that it is even questioned whether this ground of challenge may do more harm than good.

    The question of recoupment and the economic need to take this into account is also touched upon. In the case of France Telecom the CJEU seems to hold that proof of recoupment of loss was not required to find predation under Article 102. But the possibility of recoupment can be relevant in deciding whether a behavior is abusive. For predation to be a rational strategy the future flow of profits has to exceed the present losses incurred as a result of the drop in price. Into this aspect one must also look at possible price discrimination and the Post Denmark case is interesting.

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