This contribution is an attempt to provide a comprehensive list of the rights of defendants in infringement procedures before the European Commission. We gather eparse prerogatives that have been defined by the case law and propose ten rights, of which we track back the origin, define the substance and undertline the sanction in case of violation.
This article examines whether small and middle-sized businesses could or should be subject to specific competition rules under Belgian competition Law. These businesses account for 99% of the enterprises in Europe. The paper considers both the public and private enforcement rules.
The present contribution provides an overview of various issues susceptible to arise in the international management of intellectual property right. Chapter I deals with patents and describes, on the one hand, a variety of legal options (novelty, exhaustivity, mandatory licensing, ...) that States can take to influence the management of patent portfolios abroad and, on the other hand, the forum shopping strategies that multinationals may implement to take advantage from the rules that favor them most. Chapter II deals with traditional knowledge issues and lists the various methods of protection – whether defensive or offensive – that States may implement to prevent free exploitation of traditional knowledge abroad. Sui generis regimes, trade secrecy, unjust enrichment and extra contractual liability are discussed. Various examples are given.
The settlement procedure – which can be defined as the offer made to an undertaking liable for infringement of competition law to acknowledge its wrongdoings in exchange of a reduction of the amount of the sanction – has flourished in numerous jurisdictions.
In Belgium, the limited amount of resources of the Competition Authority and the length of the procedures are notorious. Hence, it is no surprise that the services of the Ministry for Economy offer to introduce a settlement procedure. The present contribution provides an overview of the settlement procedure and examines the settlement procedure proposal supported by the Ministry of Economy. We discuss the institutional and practical issues that this proposal raises and make several legal recommendations.
This paper muses on whether there can be, there is, and there should exist a nexus between European Union (“EU”) competition law and industrial policy. A well-known, long lasting grievance in the history of EU competition law is indeed that the European Commission (“the Commission”) has allegedly enforced the competition rules dogmatically, and turned a blind eye on industrial policy considerations. Lately, this policy debate has revived. With the current economic debacle in the Western world, decades of free-market economic policies – including competition policies – inherited from the so-called “Washington consensus” are called into question. In contrast, thriving economic models like Brazil, China, or India where the State interferes with the market at the expense of free competition, are increasingly looked by the “old world” as a possible source of inspiration.
Those new developments justify devoting another paper to the question whether industrial policy considerations could and should inform EU competition enforcement. To address it, we follow a four steps methodology. We first solve definitional issues by describing the various possible meanings of “industrial policy” (I). Second, we follow a legalistic approach to review whether such considerations can, as a matter of positive law, play a role (II). Third, we turn to empirical analysis, to examine if there has been some industrial policy influence in the Commission’s case-law (III). Fourth, we review consequentialist arguments to assess whether industrial policy considerations should play a stronger role in EU competition enforcement (IV).
This article aims at providing an overview of the national case law on collective dominance in Europe. We observe that overall, most domestic decisions have manifestly integrated the EU case law and followed the shift from a structural approach towards a more behavioral approach. We higlight several protruding cases on the definition of the notion of abuse and the most creative remedies devised by national competition authorities so far.
Interestingly, while all the evidence points to the existence of a competition problem in the rating industry, almost nothing has been written on whether the CRAs could be amenable to antitrust scrutiny. This paper aims at identifying competition law tools that could be used to redress the functioning of the market for credit rating services.
This paper seeks to uncover an inconvenient truth. The Microsoft decisions are not tying cases. Rather, the two decisions taken by the EU Commission against Microsoft – i.e. the Windows Media Player (“WMP”) case of 2004 and the Internet Explorer (“IE”) case of 2009 – mark departures from conventional tying analysis (I). First, they deviate from standard tying law in that in the Microsoft cases, a key component of abusive tying, namely coercion, is missing (II). Second, the Microsoft decisions share many analogies with “essential facility” cases. One may thus question to what extent the Commission has not pursued disguised refusal to supply cases (III).
Competition law aims at securing the existence of an efficient competition on the market. However, if adequately used, that competition law can also offer a relevant advantage to companies facing a powerful competitor. In France, Bouygues Telecom’s behavior when the value added tax raised in 2011 for cell phone activities is a good example of this tendency towards the strategic use of competition law by weak parties.
This paper explore whether, and to what extent, firms can instrumentalize the competition rules to free ride on others’ efforts. We come to the conclusion that attempts to free ride through Article 101 TFEU allegations are likely to fail. In contrast, Article 102 TFEU offers a more promising legal avenue to wanna-be free riders.
The present contribution comments the undertaking decision of the European Commission in the Rambus case. We put the case into context and introduce the economic notions needed to understand patent ambush issues. We then explain how such strategies may harm the economy. Second, we present the various legal tools which may be invoked to fight patent ambushes, with a specific emphasis on competition law tools. Third, we discuss whether such tools provide an efficient answer to the patent ambush issue. If the intervention of the Commission seems legally possible, by offering commitments, Rambus gets the Commission out of a difficult situation.
This article supports the view according to which cartels should be criminalized in EU. Despite their impressive amounts, administrative fines fail to deter collusion. In order to tackle "agency issues", managers should be held responsible for their involvement in cartels.
The Belgian Competition Council issues an infringement decision for the imposition of minimum prices by the Belgian professional association of real estate agents and orders the publication of its decision (Beroepsinstituut van Vastgoedmakelaars)
Behavioral economics has become a popular field of study. With the reconsideration of the homo economicus paradigm, psychology and sociology have infiltrated economic theory. More recently, several commentators have argued in favor of an incorporation of behavioral economics within antitrust law. This paper argues, however, that EU competition law already integrates the findings of behavioral economics. A review of the Article 102 TFUE case-law reveals that contrary to the more conservative approach adopted by US agencies and courts, EU competition authorities already acknowledge the boundaries and biases of economic agents, and take into account the limits of the rationality assumption whilst drafting their decisions.
The Belgian competition Council’s College of Prosecutors dismiss multiple complaints against the incumbent telecom operator for abuse of a dominant position on the international transit services for call termination in Belgium