Antitrust and Trade Regulation Commons^™

Pharmaceutical "Pay-For-Delay" Reexamined: A Dwindling Practice Or A Persistent Problem?, Laura Karas, Gerard F. Anderson, Robin Feldman

Articles

The Supreme Court ruled in FTC v. Actavis that a delay in generic entry may be anticompetitive when part of a patent settlement includes a large and otherwise unjustified value transfer to the generic company, termed a reverse payment patent settlement, or "pay-for-delay." Following Actavis, drug companies have limited the size of reverse payments and have fashioned settlement terms that include more discreet categories of compensation to generic companies. In light of the fact that such settlements retain the potential for anticompetitive effects, the apparent size of the reverse payment may no longer be a useful gauge of the …

Joint Response To The House Judiciary Committee On The State Of Antitrust Law And Implications For Protecting Competition In Digital Markets, Jonathan Baker, Joseph Farrell, Andrew Gavil, Martin Gaynor, Michael Kades, Michael Katz, Gene Kimmelman, A. Melamed, Nancy Rose, Steven Salop, Fiona Scott Morton, Carl Shapiro

Legislative Testimony & Comments

Economic research establishes that market power is now a serious problem. Growing market power harms consumers and workers, slows innovation, and limits productivity growth. Market power is on the rise in a number of major industries, including, for example, airlines, brewing, and hospitals, where multiple horizontal mergers that were allowed to proceed without antitrust challenge have markedly increased concentration in important markets and facilitated the exercise of market power. Exclusionary conduct by dominant companies that stifles competition from actual and potential rivals — including nascent rivals with capabilities for challenging a dominant firm’s market power and firms with competing R&D …

Why It's A Bad Idea To Let A Few Tech Companies Monopolize Our Data, Maurice Stucke

Book Chapters

No abstract provided.

Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande

All Faculty Scholarship

The House Judiciary Antitrust Subcommittee asked me to submit suggestions concerning the adequacy of existing antitrust laws, enforcement policies, and enforcement levels insofar as they impact the state of competition in the digital marketplace. My submission recommends the following nine reforms:

1. A textualist analysis of the Sherman Act shows that Section 2 actually is a no-fault monopolization statute. At a minimum Congress should enact a strong presumption that every firm with a 67% market share has violated Section 2. This would move the Sherman Act an important step in the right direction, the direction Congress intended in 1890. My …

Vertical Merger Enforcement Actions: 1994–April 2020, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

We have revised our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 66 vertical matters beginning in 1994 through April 2020. It includes challenges and certain proposed transactions that were abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 JOURNAL OF ANTITRUST ENFORCEMENT 1 (2016).

A Few Critical Remarks On The ‘Explanatory Note For Entrepreneurs – Searches’, Issued By The President Of Polish Office Of Competition And Consumer Protection On 9 December 2019, Anna Mlostoń-Olszewska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The subject of the article is the ‘Explanatory note for entrepreneurs – searches’, which was issued by the President of the Polish Office of Competition and Consumer Protection (hereinafter; President of UOKiK) on 9 December 2019. This Explanatory note is an act of soft law, which, by defi nition, should be the source of information for entrepreneurs about the interpretation of the law made by the President of UOKiK. It was pointed out in the article that the Explanatory note doesn’t refer to many important problems connected with searches provided by the President of UOKiK, which can negatively affect entrepreneurs’ …

Soft Law Of The President Of The Office Of Competition And Consumer Protection (Uokik) On The Example Of The ‘Information On How To File A Motion To Restrict The Right To Access’, Joanna Affre, Krzysztof Witek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article focuses on the problem of the relationship between the rights of defence of the parties in the proceedings before the President of UOKiK and the protection of trade secrets. The issue has been assessed taking into account the notion of the application of soft law by the Authority, including the information on how to submit applications to restrict the right to access in the proceeding. The text took into account the problem of the outdated soft law and possible risk for entrepreneurs following the instructions of the President of UOKiK.

Defining The Relevant Market In The Pharmaceutical Sector In Antitrust Cases – Role Of The European Commission Notice On The Defi Nition Of Relevant Market For The Purposes Of Community Competition Law, Katarzyna Racka, Weronika Herbet

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The relevant market is one of the key concepts of competition law; its determination is a fundamental element of any antitrust procedure, both at the EU and national level, and a tool allowing entrepreneurs to assess their market position for the purpose of identifying potential risks related to implemented operational activities. One of the instruments used to ensure consistency in the defi nition of the relevant market in the practice of antitrust authorities is the European Commission Notice on the defi nition of relevant market for the purpose of Community competition law. The aim of this article is to assess …

Is It Worth Talking About Concentrations? Considerations On The Possibility, Legitimacy And A Method Of Introducing A Hearing To An Antitrust Proceeding As An Obligatory Element, Dariusz Aziewicz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article concerns issues regarding the possibility of conducting oral hearings as part of Polish merger control proceedings conducted by the President of the Office of Competition and Consumer Protection. The subject of this article is the possibility and legitimacy, as well as the way of introducing an oral hearing into antitrust proceedings concerning merger control as an obligatory element of these proceedings

A Vehicle Blind Spot - Considerations On Gun-Jumping, Anna Laszczyk

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

A vehicle blind spot, that is, an area that cannot be seen in a car mirror. This article claims that, despite the development of the EC’s and CJEU’s case law, gun-jumping consisting of a partial contribution to the change of control is a blind spot of EU merger control. The CJEU explained that the key criterion for the assessment of the standstill obligation is the lasting change of control, but it also encompasses said partial contribution and this leaves a wide margin of interpretation. EC’s decision practice does not so far allow for anticipating behaviour that would be considered as …

Polish Investment Zone – A Technology Transfer Tool For The Development Of Industry 4.0. De Lege Ferenda Conclusions, Janusz Michałek, Mirosław Pachucki, Mateusz Rzeszowski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In this article, the authors analyze the legal aspects of using the state aid instrument within the Polish Investment Zone for technology transfer to SME companies. In the opinion of the authors, granting public aid to entrepreneurs operating on the basis of a decision on support, implementing new investment projects in support areas, should be an incentive not only for the implementation of projects, but also to create conditions for the sharing of technological solutions with contractors and subcontractors. An appropriate modification of the regulations on the Polish Investment Zone may constitute an element of intensification of technology transfer on …

Feature Of A Valuable Consideration Of “Free” Facebook Service – A Thesis Of The Judgement Of The Regional Administrative Court Of Lazio (Rome), Dated 10.01.2020, In Case No. 261/20 Facebook, Marcin Kulesza

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article presents a thread of a decision of the Italian competition and consumer protection authority and of a judgment of the administrative court deciding the case on an appeal, regarding the acknowledgement of the economic value of data provided to Facebook by users subscribing to its service. The court confirmed the AGCM’s finding that data have such economic value and, therefore, the transaction of service subscription is mutual and, further, it creates certain operator’s obligations towards the user treated as a consumer. It is the first instance of such a decision of an authority or of a court of …

Ascola Central Europe Chapter Webinars Series, ‘Competition Law Enforcement And Covid-19: Developments In Central Europe’, June-July 2020, Maciej Bernatt, Laura Zoboli

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

A Non-Compete Clause Covering The Entity Ultimately Controlling The Seller In Transactional Contracts And The Commission Notice And Case Law Concerning Ancillary Restraints, Marcin Kulesza

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The paper presents an analysis of the European Commission Notice on restrictions directly related and necessary to concentrations and Commission merger control decisions from the perspective of the admissibility of ancillary restrictions including non-compete clauses covering as their subject, apart from a direct seller, entities placed above it in its capital group’s structure, including persons or entities ultimately controlling the seller. Such clauses often appear in transactional practice, usually raising doubts as to their compatibility with competition laws. The paper aims at presenting arguments supporting the admissibility of such clauses derived from the Notice and from Commission decisions. In addition, …

Guidelines On The Method Of Setting Fi Nes Versus Proportionality Of Fi Nes Imposed By The President Of Uokik – Attempted Analysis, Szymon Murek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In this article, the author discusses the policy of fining undertakings applied by the President of UOKiK through soft law acts pertaining to the method of calculating fi nes issued by the President of UOKiK. The initial part of the article outlines the system of fines in competition law, with particular emphasis on their functions. The next part of the article analyses the President of UOKiK’s decision-making practice, in particular at the turn of 2019 and 2020, in terms of the necessity of updating the Polish guidelines on fines with new categories of infringements.

Soft Law As A Contemporary Instrument For Regulating Economic Life, Monika Iwaniec

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This study focuses on the nature (Part II), functions (Part III) and legal effects of soft law instruments (Part IV) both in the national and international system. Its aim is to construct a theoretical and practical framework for legal compliance (in particular in the form of: guidelines, communications, compliance programmes, best practices, etc.) – in the discourse of national and EU courts. Courts do not convert soft law into hard law, but subject it to judicial interpretation and/or recognition. Recognition and binding force are used in cases where the judiciary clearly interprets – that is, agrees or disagrees with the …

Justiciability Of Soft Law. The Approach Of The Court Of Justice Of The European Union In The Light Of The Case Law Of Selected Member States, Agnieszka Chudyba

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Should soft law issued by national regulators or the European Commission be subject to judicial review? On the one hand, given the non-binding nature of the soft law, the supporters of the traditional approach deny its justiciability. On the other hand, albeit non-binding, soft law may deploy significant legal effects. It not only limits the discretion of public authorities, but also impacts on the behavior of market participants. Leaving soft law outside the sphere of judicial review could amount to a violation of the right to an effective remedy. Having regard to these discrepancies, the article aims to present and …

Leniency Programme In Poland And France – Legal And Comparative Analysis, Ewa Weinar

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The study is devoted to the leniency programme in the Polish and French legal system. As an introduction to the comparative analysis, the paper presents the genesis of the leniency institution in European law and the implementation of the Model Leniency Programme by the European Competition Network. This comparison of legal systems makes it possible to catch the differences between the two leniency models, which appear despite the fact that both competition authorities are members of the European Competition Network. The analysis gives an overview of the leniency programme in France and the way the French competition authority operates.

Tim Wu, The Curse Of Bigness: Antitrust In The New Gilded Age, Columbia Global Reports, Columbia Global Reports, New York 2018, Jan Polański

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Report On The Seminar ‘Financial Penalties For Violations Of Competition And Consumer Protection Law And The Qualifi Cation Of Entrepreneurs’ Behavior As Elements Of One Or Separate Violations’, Inp Pan, Warsaw, 30.01.2020, Artur Szmigielski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.