Ioannis Lianos | University College London (original) (raw)

Books by Ioannis Lianos

Brands and brand management have become a central feature of the modern economy and a staple of b... more Brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Contrary to the law's conception of trademarks, brands are used to indicate far more than source and/or quality. This volume begins the process of broadening the legal understanding of brands by explaining what brands are and how they function, how trademark and antitrust/competition law have misunderstood brands, and the implications of continuing to ignore the role brands play in business competition. This is the first book to engage with the topic from an interdisciplinary perspective, hence it will be a must-have for all those interested in the phenomenon of brands and how their function is recognized by the legal system. The book integrates both a competition and an intellectual property law dimension and explores the regulatory environment and case law in both Europe and the United States.

Co-authored by Ioannis Lianos, Peter Davis and Paolisa Nebbia, the book provides a critical discu... more Co-authored by Ioannis Lianos, Peter Davis and Paolisa Nebbia, the book provides a critical discussion of the emerging field of competition law damages and explores the important questions it raises about the use of the traditional tort law categories in an area of law that is heavily infused with economic analysis. The book combines a corrective justice perspective with an empirical and theoretical analysis of the practice of competition law damages in various jurisdictions in Europe. Rather than adopting the traditional economic analysis of law approach, the authors respect the autonomy of the fields of law and economics, while attempting to identify the areas of conflict that may emerge when economic concepts and categories are integrated in the legal system.

Competition and the State analyzes the role of the state across a number of dimensions as it rela... more Competition and the State analyzes the role of the state across a number of dimensions as it relates to competition law and policy across a number of dimensions. This book re-conceptualizes the interaction between competition law and government activities in light of the profound transformation of the conception of state action in recent years by looking to the challenges of privatization, new public management, and public-private partnerships. It then asks whether there is a substantive legal framework that might be put in place to address competition issues as they relate to the role of the state. Various chapters also provide case studies of national experiences. The volume also examines one of the most highly controversial policy issues within the competition and regulatory sphere—the role of competition law and policy in the financial sector.

The Handbook on European Competition Law: Substantive Aspects sets the context for examination of... more The Handbook on European Competition Law: Substantive Aspects sets the context for examination of substantive law by reviewing and analyzing the goals of competition law. It then covers the substantive building blocks of EU competition law, including horizontal and vertical agreements, cartels, mergers, and also provides valuable coverage of the interaction between competition and regulation, hub and spoke collusion, and information exchange agreements. The importance of the abuse of dominance doctrine is reflected in three discrete chapters considering exploitative abuses, exclusionary pricing abuses, and exclusionary non-pricing abuses.

The Handbook on European Competition Law: Enforcement and Procedure sets out in detail the proced... more The Handbook on European Competition Law: Enforcement and Procedure sets out in detail the procedural aspects of EU competition law, ranging from fines, remedies and judicial review. It also gives unique insight into both private and public enforcement of completion law, and offers commentary on the relationship between EU competition law and national competition law, and on the relationship between competition law and private international law.

The vast majority of the countries in the world are developing countries—there are only thirty-fo... more The vast majority of the countries in the world are developing countries—there are only thirty-four OECD (Organisation for Economic Co-operation and Development) countries—and yet there is a serious dearth of attention to developing countries in the international and comparative law scholarship, which has been preoccupied with the United States and the European Union. Competition Law and Development investigates whether or not the competition law and policy transplanted from Europe and the United States can be successfully implemented in the developing world or whether the developing-world experience suggests a need for a different analytical framework. The political and economic environment of developing countries often differs significantly from that of developed countries in ways that may have serious implications for competition law enforcement.
The need to devote greater attention to developing countries is also justified by the changing global economic reality in which developing countries—especially China, India, and Brazil—have emerged as economic powerhouses. Together with Russia, the so-called BRIC countries have accounted for thirty percent of global economic growth since the term was coined in 2001. In this sense, developing countries deserve more attention not because of any justifiable differences from developed countries in competition law enforcement, either in theoretical or practical terms, but because of their sheer economic heft. This book, the second in the Global Competition Law and Economics series, provides a number of viewpoints of what competition law and policy mean both in theory and practice in a development context.

Over the last three decades, the field of antitrust law has grown increasingly prominent, and mor... more Over the last three decades, the field of antitrust law has grown increasingly prominent, and more than one hundred countries have enacted competition law statutes. As competition law expands to jurisdictions with very different economic, social, cultural, and institutional backgrounds, the debates over its usefulness have similarly evolved.

This book, the first in a new series on global competition law, critically assesses the importance of competition law, its development and modern practice, and the global limits that have emerged. This volume will be a key resource to both scholars and practitioners interested in antitrust, competition law, economics, business strategy, and administrative sciences.

Advance praise

"Given the increasingly global dynamics of competition law and economics, Lianos and Sokol will make an important contribution to the field of antitrust with this new series."—Einer Elhauge, Harvard Law School

"This series promises to offer a vital set of books that will fill a real need. The interaction of competition law, economics, and institutions in view of globalized markets is a critical problem of our times."—Eleanor Fox, NYU School of Law

"With over 100 jurisdictions enforcing competition policy, officials need to know how to cooperate with other authorities, and undertakings devising a global strategy need to know how to comply with the requirements of many different authorities operating under different legislation. Both groups need to understand competition advocacy. Skills in both economics and law are required. Laws that suit large well-developed countries may not suit smaller or less-developed countries. The two series editors are well-known internationally in the area of competition law, and I am sure that they will attract excellent authors for the different volumes of the series. This new series of books will fill a gap and is warmly welcome."—Valentine Korah, University College London

"With the growth in the number of competition agencies worldwide, there is an increasing opportunity to apply sophisticated economic reasoning to shape competition policy and make it work for the long-run interests of society. A series in global competition policy is a welcome development that should accelerate the dissemination of knowledge in this important area of policy."—Dennis Carlton, University of Chicago Booth School of Business

This volume of essays casts light on the shape and future direction of the EU in the wake of the ... more This volume of essays casts light on the shape and future direction of the EU in the wake of the Lisbon Treaty and highlights the incomplete nature of the reforms. Contributors analyse some of the most innovative and most controversial aspects of the Treaty, such as the role and nature of the EU Charter of Fundamental Rights and the relationship between the EU and the European Court of Human Rights. In addition, they reflect on the ongoing economic and financial crisis in the Euro area, which has forced the EU Member States to re-open negotiations and update a number of aspects of the Lisbon 'settlement'. Together, the essays provide a variety of insights into some of the most crucial innovations introduced by the Lisbon Treaty and in the context of the adoption of the new European Financial Stability Mechanism.

This volume assesses the viability of various theories of economic integration that take into acc... more This volume assesses the viability of various theories of economic integration that take into account the legal, economic, political and social challenges of incorporating free trade with retaining the plurality of social welfare standards and consumer protection. Chapters cover the governance of trade in services at the European and global level; studies on the recent Services Directive and how this interacts with the principle of managed mutual recognition and harmonization in different sectors of trade in services (social services, financial services); the recent case law of the European Courts on the enforcement of the principle of free movement of services and how this accommodates various national public interest concerns; and the interaction of the freedom to provide services with fundamental rights, including social rights. The operation of the principle of managed mutual recognition in other economic integration regimes, in particular in the context of the WTO, is also discussed.

Contents
Introduction Ioannis Lianos and Okeoghene Odudu; Part I. The 'Trust' Theory of Integration: 1. Trust, distrust and economic integration: setting the stage Ioannis Lianos and Johanness Leblanc; Part II. Unpacking the Premises: Mutual Recognition, Harmonization: 2. Forms of mutual recognition in the field of services Vassilis Hatzopoulos; 3. Trust and mutual recognition in the services directive Gareth Davies; 4. Mutual recognition in the global trade regime: lessons from the EU experience Wolfgang Kerber and Roger Van Den Bergh; 5. Public procurement and public services in the EU Chris Bovis; Part III. The Interaction between Pluralism, Trust and Economic Integration: 6. Shifting narratives in European economic integration: trade in services, pluralism and trust Ioannis Lianos and Damien Gerard; 7. Trusting the poles, Mark 2: towards a regulatory peace theory Kalypso Nicolaidis; Part IV. Private Parties and the Economic Integration Process: 8. Who's afraid of the total market? On the horizontal application of the free movement provisions in EU law Harm Schepel; 9. The EU Services Directive and the mandate for the creation of professional codes of conduct Panagiotis Delimatsis; Part V. Seeds of Distrust: Regulatory Competition and Diversity in the Social Sphere: 10. Transborder provision of services and social dumping: rights-based mutual trust in the establishment of the internal market Olivier De Schutter; 11. Reconceptualizing the constitution of Europe's post-national constellation – by dint of conflict of laws Christian Joerges and Florian Rödl; 12. Fundamental rights as sources of trust and voices of distrust in the European internal market Antoine Bailleux; Part VI. Extensions: the Relevance of the 'Trust Theory' of Integration in the Context of the WTO: 13. I now recognize you (and only you) as equal: an anatomy of (mutual) recognition agreements in the GATS Juan A. Marchetti and Petros C. Mavroidis; 14. Importing regulatory standards and principles into WTO dispute settlement: the challenge of interpreting the GATS Arrangements on Telecommunications Robert Howse.

Responding to external and internal pressure for change the slow reform of EC competition law sin... more Responding to external and internal pressure for change the slow reform of EC competition law since the 1989 Merger Regulation can now be seen as a major thread rather than a series of peripheral developments. Now, a body of ‘new’ law may be discerned that encompasses several far-reaching regulations as well as their clarification and extension by official guidelines, discussion papers, ECJ decisions, and legal scholarship.
Twenty-nine prominent competition law authorities – representing all three ‘estates’(practice, administrative regulation, and academe) – bring their deeply informed knowledge and perspectives on this crucially important body of law to the table. The many issues they address include the following:
the decentralization of competition law enforcement;
the development of private actions for damages;
private versus public enforcement;
the role of national competition authorities;
the role of arbitration;
the impact of human rights law;
recourse to economic evidence;
special cases (e.g., pharmaceuticals, high technology industries);
mergers;
cartel enforcement; and
state aid measures.
This book represents a fresh approach to EC competition law – one that is of singular value in grappling with the huge economic challenges we face today. As a critical analysis of the law and options available to European competition authorities and legal practitioners in the field, it stands without peer. It will be greatly welcomed by academics, lawyers, policymakers and other interested professionals in Europe and throughout the world.

« La thèse de Ioannis Lianos s’ouvre sur une investigation enrichissante des relations du droit e... more « La thèse de Ioannis Lianos s’ouvre sur une investigation enrichissante des relations du droit et de l’économie ¨(…) Le souci d’une analyse économique réaliste l’amène à considérer toutes les formes que peuvent prendre les restrictions verticales qu’elles soient liées à des concentrations ou à des abus de domination. Cette approche globale lui permet de mettre en évidence la cohérence économique des restrictions verticales et de préconiser de leur appliquer un traitement d’ensemble. (…) La masse de la documentation traitée avec rigueur et clarté est un des apports de cette étude dont la qualité doit être soulignée. Le chercheur comme le praticien trouvera à sa disposition une quantité d’informations exceptionnelles. Mais, le lecteur sera également stimulé par une réflexion critique qui ne pourra lui être indifférente. L’auteur ne se contente pas d’accumuler, de décrire, d’ordonner, il n’hésite pas à discuter, à juger avec mesure mais aussi avec pugnacité, comme le doit un universitaire, les doctrines, les décisions, les prises de position des autorités de concurrence et de ceux qui, avant lui, se sont intéressés à ce sujet. (…) Toutes ces qualités autorisent à penser que la thèse de Ioannis Lianos est et restera longtemps, dans un domaine pourtant souvent mouvant, un ouvrage de référence et que d’autres travaux viendront confirmer ce sentiment. (…) L’ouvrage de Ioannis Lianos s’adresse aussi bien à ceux qui s’intéressent au droit de la concurrence qu’à la théorie du droit. Sa lecture leur procurera, j’en suis certain, de grandes satisfactions ».

Papers by Ioannis Lianos

The paper explores the competition dynamics of the global seed market. It documents the growth st... more The paper explores the competition dynamics of the global seed market. It documents the growth strategies of the major seed companies, in particular their M&A activity and their reliance on complex intellectual property strategies in order to offer a one stop shop solution to farmers. Recent merger activity in this sector (the Monsanto bid to buy Syngenta, the DuPont and Dow merger deal, ChemChina’s bid to buy Syngenta) illustrates its rapid transformation from an already concentrated industry to a tight oligopoly on a global scale. The increasing global consolidation of this industry raises new challenges for competition law enforcement authorities dealing with the emergence of new powerful actors at the factor of production (input) level, in view of the broader concerns animating public policy in the food sector and the existence of a nexus of international commitments for biodiversity, sustainability, the right to food etc. By exploring this under studied but fascinating area of competition law enforcement we open the debate over the inclusion of broader public interest concerns in competition policy and the consideration of its distributive impact from a global perspective.

In this paper we analyse the role of superior bargaining power in competition law and policy in t... more In this paper we analyse the role of superior bargaining power in competition law and policy in the agri-food value chain. Conventional approaches to competition law based on a neoclassical price theory perspective tend to neglect or to stay opaque on the role of bargaining power in competition law. However, national competition authorities and national legislators seem to be less biased by specific theoretical approaches and have increasingly engaged with the application of the concept of bargaining power in competition law. In this paper we discuss both positions and set a general theoretical framework, the global value chain approach, to better understand the interactions between suppliers and retailers in the food sector. Finally, we observe the framing of new tools of competition law intervention at national level, in order to deal with situations of superior bargaining power in specific settings related to the food value chain.

This consultancy report for the Eurasian Economic Commission explores the compatibility of variou... more This consultancy report for the Eurasian Economic Commission explores the compatibility of various forms of differentiated international exhaustion with WTO law (TRIPS and GATS).

In a tort law regime established on the basis of corrective justice considerations, causation req... more In a tort law regime established on the basis of corrective justice considerations, causation requirements will tend to play a predominant role in regulating the damages claims brought forward. The requirement of the causal link between the harm suffered and the anticompetitive conduct in damages claims for the infringement of EU competition law has nevertheless received remarkably little attention in the recently adopted EU Damages Directive and in academic literature. The Damages Directive and some recent case law of the Court of Justice of the EU proceed to some limited harmonization of evidential presumptions and procedural requirements, as well as the exclusion of national rules that may deny the right of the parties harmed by the competition law infringement to receive compensation. Yet, the contours of the requirement of causal link are left to the interpretative work of national courts, in view of their respective tort law doctrines on causation and the lack of a proper EU tort law. The study first explores the role of the concept of causation in claims for damages for infringement of EU competition law and the different approaches taken by the legal systems of EU Member States in conceptualizing the inquiry of a causal link. It then focuses on the methods used by the tort law systems of the EU Member States, the recent Damages Directive and the case law of the EU Court to engage with situations of causal uncertainty, which may frequently arise in the context of competition law actions for damages, in view of the complexity of the commercial environment and the multiple factors influencing markets.

This report should be cited as following: Lianos, I., Jenny, F., Wagner von Papp, F., Motchenkova E., David, E. et al (2014) Judicial Scrutiny of Financial Penalties in Competition Law: A Comparative Perspective (CLES Research paper series 4/2014, UCL Faculty of Laws: London).

We proceed to a comparative analysis of the judicial scrutiny of financial penalties for competit... more We proceed to a comparative analysis of the judicial scrutiny of financial penalties for competition law infringements in the following jurisdictions: European Union, United States, Germany, United Kingdom, France and Chile.

This report should be cited as following: Lianos, I., Jenny, F., Wagner von Papp, F., Motchenkova E., David, E. et al (2014) An Optimal and Just Financial Penalties System for Infringements of Competition Law: a Comparative Analysis (CLES Research paper series 3/2014, UCL Faculty of Laws: London).

The report examines optimal financial penalties from an economic and a comparative perspective. W... more The report examines optimal financial penalties from an economic and a comparative perspective. While emphasis is put on deterrence, we also examine some limits to the optimal enforcement theory employed by economists to design effective sanctions, in particular the principle of proportionality and the need for the penalty to be related to the harm caused and the wrong committed, the legal system integrating corrective justice concerns. The report delves into the tension between over-enforcement and under-enforcement and that between a more effects-based approach for setting financial penalties (sanctions) that would rely on economic methodologies and a case-by-case analysis to provide an accurate estimate of the harm caused by the anticompetitive conduct and a more "forms-based" approach that would rely on the use of proxies of percentages of the volume of commerce or the affected sales. The latter reduce the administrative costs of the authorities in designing appropriate sanctions but are less accurate than effects-based approaches. The report examines intermediary approaches put forward by the literature and their possible application to various competition law infringements (e.g. cartels, abuse of a dominant position). The final part of the report proceeds to a detailed comparative analysis of the financial penalties (sanctions) regimes for infringements of competition Law in the European Union, United States, Germany, United Kingdom, France and Chile, taking an empirical and a doctrinal perspective. Specific recommendations for the reform of the financial penalties system for competition law infringements in Chile are also provided.

An epiphenomenon of the culture of evaluation of public policies and normative production, among ... more An epiphenomenon of the culture of evaluation of public policies and normative production, among various alternatives (e.g. indicators), the tool of impact assessment (IAs) has emerged as a major policy innovation, which was diffused to almost all Member States of the EU during the last decade. Although the existence of various practices and understandings of the concept makes an effort of a precise definition particularly challenging, this contribution attempts to provide a typology of Impact Assessments in Europe, based on an empirical analysis of IA practices by the EU in 25 EU Member States as well as a theoretical reflection on the interaction of expertise with politics

The diffusion of the use of various forms of impact assessments (IAs) in different political sett... more The diffusion of the use of various forms of impact assessments (IAs) in different political settings and legal traditions illustrates the great malleability of the tool. This diversity is not only reflected in the adoption of different models of IA across the various jurisdictions examined, but also in the way this practice is effectively implemented. Factors explaining the various types of IA implemented in various European jurisdictions include the patterns of diffusion from one country to another, the interaction of politics with expert knowledge and the prevailing “evidence eco-system” in each jurisdiction. In this study we explore diffusion patterns, not only in terms of the adoption of the tool of IA, but also in terms of the specific types of IA implemented. We do so by introducing a taxonomy developed with the purpose to describe the interaction of politics and expertise in each jurisdiction. The last part of the chapter empirically connects the diffusion process with the type of IA prevalent in a jurisdiction.

The Keck and Mithouard case law of the CJEU constituted an important milestone in the effort to d... more The Keck and Mithouard case law of the CJEU constituted an important milestone in the effort to develop workable principles for the interpretation of Article 34 TFEU in a way that would not jeopardize the ability of Member States to regulate their economy and pursue other public policy objectives than promoting trade.. Yet it seems that the Keck era has come to an end. In its most recent case law on free movement of goods the Court returned to an overbroad definition of MEQR, using the notion of “market access”, and restricted the legal categorization approach previously used in favour of one that would rely on the balancing of conflicting interests and values. The paper first explores the rise and progressive demise of the legal categorization approach before focusing, in a second part, on the return to a broad definition of what may constitute an obstacle to trade, under Article 34 TFEU, with a re-interpretation of the market access rule. The broader implications of this approach are then examined, in particular the reformation of the free movement of goods EU law in the era of the EU/Canada Comprehensive Trade and Economic Agreement (CETA) and the ongoing negotiations on the Transatlantic Trade and Investment Partnership (TTIP).

Advance praise

Ioannis Lianos, Brands, Product Differentiation and EU Competition law, in D. Desai, I. Lianos & S. Weber Waller (eds.), Brands, Competition Law and IP (Cambridge University Press, forth. 2015)

The paper explores how EU competition law has integrated so far the concept of brands in differen... more The paper explores how EU competition law has integrated so far the concept of brands in different areas of enforcement. Although EU competition law has engaged in multiple instances with branding and product differentiation, brands do not yet constitute an operational concept in EU competition law. This is due to an important uncertainty as to the normative choices that need to be made with regard to the relation between brands and the formation of consumer preferences. The concerns raised by retailer power and the development of private labels also indicate that the existing economic theory on product differentiation may not also provide a complete picture on the effects of brands on the competitive process and ultimately on consumers. Competition law will also need to tackle the issues raised by the development of ‘social branding’ and the dialogic interaction between brand owners and consumers in the constitution of their brand identity.

The principle of effectiveness is closely related to the development of the emerging EU law on re... more The principle of effectiveness is closely related to the development of the emerging EU law on remedies. Its instrumental use has enabled the EU courts to restrict the principle of national procedural autonomy, when this was convenient in order to ensure the accomplishment of the aims set by EU competition law enforcement, and to establish EU-granted remedies, the most notable one being the right to claim competition law damages. The principle of effectiveness may also influence the design of injunctive relief by the European Commission, which should be adequate to ensure not only that the results of the violation of competition law are reversed, but also that there is no risk that the aims of competition law will be jeopardized in the future (general deterrence, specific deterrence and prophylactic/preventive aims). Left unbound, the principle of effectiveness may offer the opportunity to competition authorities to expand their remedial discretion and to re-design market processes and outcomes in accordance with the dominant interpretation of their statutory objectives. The point made in this paper is that, whatever one thinks of the appropriateness of an expansive view of remedial discretion, which is not, in our view, supported by the restrictive interpretation of the principle of effectiveness in EU law, remedial discretion is naturally limited by the specific function exercised by the remedial process chosen or, more contentiously, imposed by the nature of the dispute. Drawing on Fuller’s account of the existence of various forms of social ordering, each of them emerging in specific circumstances/context and having its own principles and limitations, the paper offers some reflections on the possible limits that the essence of each ideal type of social ordering sets to the expansive interpretative potential of the principle of remedial effectiveness. The polycentric nature of competition law disputes calls for flexibility in the choice of the adequate form of social ordering aiming to achieve the objectives set by the legislator. This breaks with the classic view of the adjudication model and hints to the prevalence, in a significant number of cases with a pronounced polycentric element, of what has been called the “structural adjudication” model, still distinct from the model of regulatory governance. The paper explores the nature of commitment decisions as an illustration of the difficulties of classification, without a proper consideration of the functions and respective limits of each form of social ordering. It does this by examining some recent cases, such as the ongoing Google saga at the European Commission or the Skyscanner judgment of the UK Competition Appeal Tribunal (CAT).

Skolkovo Foundation report, Apr 2013

This report presents a critical discussion of the hot topics in the intersection of intellectual ... more This report presents a critical discussion of the hot topics in the intersection of intellectual property law with innovation and competition law and policy. The report examines first the interaction between horizontal IP rules and sector specific IP regimes. It then delves into the analysis of the interface between competition law enforcement and IP rights in Europe and in the United States, before examining the doctrine of exhaustion in these jurisdictions, which is particularly interesting in view of some recent case law of the US Supreme Court. The final part of the study focuses on issues of governance of IP law and competition law and more generally the need for establishing cross-disciplinary links between these two areas of law and between the institutions in charge of their enforcement.

The study first takes a normative perspective and examines the various goals that have been advan... more The study first takes a normative perspective and examines the various goals that have been advanced by competition law literature on the objectives of EU competition law. A critical analysis of this literature shows the weaknesses of an economic welfare approach and the difficulties, as well as some normative objections, to incorporating non-welfare goals in the implementation of EU competition law. The normative perspective is then followed by an analysis of positive EU competition law arriving to the conclusion that the case law of the EU Courts is ambiguous as to the existence of a hierarchy of objectives in EU competition law and that the drafting of the Lisbon Treaty opens the door to a more holistic competition law, in congruent co-existence with the other Treaty provisions and policies instituted by the EU Treaties. The final part criticizes the literature on the goals of EU competition law for its monotonous emphasis on goals. I argue that the choice of a general objective as an enforcement criterion tells us little about whether any particular institution, for example the adjudicative process, should be charged with implementing that criterion. Comparative institutional analysis emphasizes the connections between issues of institutional choice and goals. The question of goals should follow and not precede that of institutional choice. Institutional choice should, however, be comparative and not proceed to choosing an institution without a proper analysis of the weaknesses of the alternative institutions on offer. The conceptualization of the role of courts, and other institutions in a holistic competition law, using comparative institutional analysis, is one of the major challenges faced by EU competition law, and new competition law regimes, in the future.

The fragmentation of EU competition law enforcement in various institutions and legal provisions ... more The fragmentation of EU competition law enforcement in various institutions and legal provisions (Articles 101, 102 TFEU, merger control) have led to the development of ad hoc remedial action without this being backed up by a solid theory of competition law remedies. This study aims precisely to fill this gap by providing the first systematic theoretical analysis of competition law remedies in Europe, including conduct and structural remedies, voluntary and coercive remedies, in the areas of merger control and antitrust. The study challenges the optimal enforcement theory that seems to have provided so far the intellectual backbone of the remedial action of EU competition authorities, although this influence has not been exercised in a systematic and uniform way in all cases. Such theory does not provide an adequate understanding of the remedial discretion of competition authorities and consequently the necessary boundaries of such discretion. The study provides a novel analytical framework integrating both economic and legal principles, taking the view that although deterrence (and economic efficiency) constitutes an important objective of EU Competition law enforcement, this should be achieved in the context of established legal understandings of the concept of remedy. More specifically, the paper examines the impact of the economic approach on the linkage between the competition law wrong and remedies as the foundation for an economically inspired but still respectful to legal tradition concept of remedial discretion in EU Competition Law.

CLES Research paper series 06/12, Oct 1, 2012

Competition authorities and litigants worldwide have increased the use of economic quantitative ... more Competition authorities and litigants worldwide have increased the use of economic quantitative methods and economic expert witnesses as a means to produce and support evidence in merger and antitrust cases. The application of quantitative techniques to antitrust has arisen naturally from the need to answer the central questions of antitrust analysis, such as, market definition and market structure issues, analysis of pricing and non-pricing behaviour by firms, quantification of damages and efficiencies and dynamic issues of entry and product reallocation. The paper aims, on the one hand, to briefly describe the main aspects of the most commonly used quantitative techniques in antitrust analysis, and on the other hand, to quantify their use in EU merger and antitrust decisions from 2004 until 2011. Moreover, we also codify the Commission‘s opinion on the techniques utilized. The paper then explores the substantive law framework for the assessment and evaluation of this quantitative evidence in EU competition law by the European Commission and the Courts, in particular topics relating to the standard of proof and evidential cogency and the interaction between the different concepts of causation in law and econometrics, whereas Section 5 provides a unique empirical analysis of the probative value of different kinds of econometric evidence, by performing for the first time a quantitative analysis of the opinion of the European Commission for the particular techniques used and their average evidential weight.

The emergence of the role of forensic economics in competition law and policy the last four decad... more The emergence of the role of forensic economics in competition law and policy the last four decades has been a major episode in the professionalization of economics and its increasing interaction with the legal sphere. Yet, there have only been very few studies examining from a sociological perspective the impact of forensic economics on the development of the research agenda of industrial economics and more generally the production of economic knowledge. This study attempts to set the first foundations of a sociological analysis of the impact of forensic economics on the development of academic economics in the area of industrial organization but also beyond.

We analyze a search engine market from a law and economics perspective and incorporate the choice... more We analyze a search engine market from a law and economics perspective and incorporate the choice of quality improving innovations by a search engine platform in a two-sided model of internet search engine. In the proposed framework we, first, discuss the legal issues the search engine market raises for antitrust policy through analysis of several types of abusive behavior by the dominant search engine. We also explore the possible consequences of monopolization of the search engine market for advertisers and users in the form of excessive pricing and deterioration of the quality of the search results. Second, in the technical analysis part we incorporate these considerations in the two-sided market model and analyze the rate of innovation, pricing, and quality choices by the dominant search engine. Our findings show that a dominant monopoly platform results in higher prices and underinvestment in quality improving innovations by a search engine relative to the social optimum. More generally, we show that monopoly is sub-optimal both in terms of harm to advertisers in the form of excessive prices, harm to users in the form of reduction in quality of search results, as well as harm to the society in the form of lower innovation rates in the industry.

The paper (written in French) examines the recent reforms of the healthcare system in the UK, fol... more The paper (written in French) examines the recent reforms of the healthcare system in the UK, following the adoption of the Health and Social Care Bill 2012 (now voted by the Parliament).

Current accounts of the interaction between competition law and state activities are based on a c... more Current accounts of the interaction between competition law and state activities are based on a clear-cut old liberalism style distinction between “state”/“government” and “market”, which do not take into account the emergence of the neo-liberal state. By doing so, they also ignore the multi-faceted nature of the concept of “state”, and the important inputs of political science and sociological literature on the different forms of state and the role of public bureaucracies. By advancing a “bureaucracy theory” of the competition law and state interaction, this chapter aims to offer an alternative inter-disciplinary theoretical framework that can be successfully transposed into different institutional and cultural settings.

By integrating more fully the retailer power story, the new vertical restraints guidelines and bl... more By integrating more fully the retailer power story, the new vertical restraints guidelines and block exemption regulation provide for a more equilibrated regime for vertical restraints in Europe. The objective of the Commission was not only to address the important concern of retailer power and its possible anticompetitive effects in a retail sector that is characterized by increasing concentration, although not necessarily increasing profitability, but also to respond to the concerns (and political pressure) over big distribution and the power of multi-brand retailers that have been expressed at the national level, with the adoption of a hard or a soft law type of approach in order to regulate the relation between suppliers and retailers. By bringing these concerns within the realm of EU competition law, the Commission offers an alternative relief valve that takes more into account the effect of these practices on consumers than the regulations adopted at the national level.

This study will argue that Intellectual property rights present distinct characteristics than phy... more This study will argue that Intellectual property rights present distinct characteristics than physical property rights. It will then focus on the possible areas of conflict between competition law and intellectual property. These should not be considered as fixed and should follow the evolution of recent antitrust law and economics learning.The inadequacy of the “property rights” terminology for intellectual property becomes obvious if one examines the antitrust law standards that apply to unilateral refusals to license intellectual property, which are different from those that apply to tangible property rights. Competition law takes into account the specificities of intellectual property by requiring additional conditions for finding that a refusal to license an IP right constitutes a competition law infringement. However, the emergence of multiple standards concerning the analysis of refusals to license illustrates the difficulties of finding the right balance between IP and competition law. The concept of “property” is not helpful in reaching a point of equilibrium between the different objectives pursued and other concepts have been used instead. Another possibility would be to “internalize” competition law concerns within the boundaries of IP. The last part of this study will examine the regulatory theory of IP as well as the implications of this theory for the antitrust/IP interface, in particular in the biotechnology sector.

We propose a simple and accurate test method for recognizing anticompetitive sham suits. We consi... more We propose a simple and accurate test method for recognizing anticompetitive sham suits. We consider the problem of testing the null hypothesis that a lawsuit vis-´a-vis an actual or potential competitor is not sham against the alternative that the suit is sham. We develop game theoretical model of bargaining and litigation in the context of entry deterrence, to analyze the incentive of a predator, reacting strategically to the judicial norm creating process, to pursue sham litigation and achieve anticompetitive goals. The theory implies that the question of whether an illegal sham act is baseless or not is irrelevant. When considering open suits-against-competitors to antitrust liability, assessing whether the
alleged predator’s legal expenditures can be expected to pay off is necessary, but insufficient. An appropriate test for sham litigation should be based on close examination of the market structure and thorough analysis of the economic relationship between the parties in dispute. Reputation is the hallmark of the test: the incumbent battles to maintain others’ perception of its readiness to fight entry via frivolous legal battle.