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Author

Francisco Marcos

Other affiliations: Autonomous University of Madrid
Bio: Francisco Marcos is an academic researcher from IE University. The author has contributed to research in topics: Competition law & Competition (economics). The author has an hindex of 9, co-authored 55 publications receiving 333 citations. Previous affiliations of Francisco Marcos include Autonomous University of Madrid.


Papers
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Journal ArticleDOI
TL;DR: In this article, the authors provide an empirical study of private enforcement of competition law in Spain from 1999 to 2012, showing that there are many more private claims than previously thought, making the Spanish experience somehow comparable to that of certain other EU Member States.
Abstract: This paper provides an empirical study of private enforcement of competition law in Spain from 1999 to 2012. So far, the Spanish literature on competition law private litigation is based on qualitative assessments and analysis of some key cases, but has not discussed all cases in depth.Therefore, by broadening the scope of the inquiry, this paper aims to contribute to the policy discussion on the effectiveness of private enforcement of competition law in Spain. It gives a clearer picture of how private competition litigation is evolving in Spain. Any legal intervention or other policy decisions in this area should be based on an investigation of what is going on, what is working and what is not working in private litigation.Evidence produced in this paper challenges the traditional view that private litigation in Spain is underdeveloped, amounting only to a few noted cases. The number of cases reported here suggests otherwise: there are many more private claims than previously thought, making the Spanish experience somehow comparable to that of certain other EU Member States.Nevertheless, although the case-law reported here depicts an evolution of private litigation, with a conspicuous growth in the last five years; that should not be taken as meaning we already have a mature private competition system. Many court opinions (and lawyers’ pleas) still demonstrate some confusion of the aims of competition law, occasionally mixing it up with unfair competition law (and even, consumer protection law).On the other hand, private competition litigation in Spain has particular features that this paper aims to describe. Most of the litigation involves conflicts in contractual settings and lawyers have cunningly thrown in competition law as another argument in disputes. However, many of the anti-competitive claims are flimsy or simply inappropriate. In general, courts have done a good job rejecting meritless or unsubstantiated pleas.Therefore, criticism of judicial performance in private competition litigation (based on the theoretical complexity of cases and lack of preparation) is in most of the cases unfounded and unwarranted. Judges have displayed considerable pragmatism in rejecting the strategic misuse of competition law.On the other hand, the case-law reported here also challenges the view that private enforcement of competition law has mainly a compensatory aim. Although some competition claims request damages, most of the remedies awarded by judges are declaratory (of unlawfulness/nullity). Naturally, in the few cases where pecuniary claims have been argued, the normal issues issues of effectiveness, proof and quantification of harm have arised.Finally, the paper shows consumer group litigation to be still absent in the competition law arena. Available mechanisms for collective and representative claims, strongly reliant on opt-in by potential victims may be too burdensome or rigid. Enhancing collective redress seems to be a major loophole in the current competition law system and some flexibility may be necessary to make them more attractive and operational.

9 citations

Posted Content
TL;DR: In this article, the authors analyze the principles governing the admissibility of public restraints to competition that can be extracted from Spanish constitutional rules and the mechanisms available under Spanish law regarding information, prevention or reaction to public restraints.
Abstract: Spanish Abstract: Uno de los retos de la politica de la competencia es hacer frente a las restricciones de la competencia provocadas o favorecidas por normas juridicas o por decisiones de los poderes publicos. Sus efectos negativos en el funcionamiento del mercado y en el bienestar de los consumidores pueden ser tan relevantes como los de las practicas anticompetitivas estrictamente privadas realizadas por las empresas.Este trabajo analiza los instrumentos juridicos existentes para prevenir y luchar contra las restricciones publicas a la competencia en Espana. Al margen de las limitaciones que el Derecho de la Union Europea introduce a estas intervenciones de los poderes publicos, a partir de la Constitucion economica este articulo examina los principios que gobiernan la admisibilidad de restricciones publicas a la competencia y los mecanismos previstos en el ordenamiento juridico espanol para informar, prevenir o reaccionar frente a ellas.English Abstract: One of the challenges of competition policy is to address the restrictions of competition caused or favored by the State through legal rules or decisions of public authorities. Its pernicious effects on the functioning of the market and on consumer welfare can equal those arising from private business anticompetitive practices.This paper analyzes existing legal tools to prevent and combat public restrictions on competition in Spain. Apart from the relevant limitations that European Union law introduces in this matter, this article analyzes the principles governing the admissibility of public restraints to competition that can be extracted from Spanish constitutional rules and the mechanisms available under Spanish law regarding information, prevention or reaction to public restraints to competition.

9 citations

Journal ArticleDOI
Francisco Marcos1
TL;DR: In this article, the authors analyze whether the efforts of international institutions are justified and evaluate the conditions upon which CP may root, and stress the institutional background affecting how CP should be arranged in practice.
Abstract: When international institutions (UN, IMF, The World Bank, OECD) evaluate the conditions countries should meet in the road towards economic development and prosperity, the formulation and implementation of an effective competition policy (CP) appears always as one of the major requirements. Besides, in the case of young and developing nations the relevance given to CP is stressed by several specific programmes aimed at helping them in the adoption of competition laws and the establishment of effective competition policies. A considerable amount of resources is committed by international organizations to this end. Looking at some of the experiences of developing countries adopting competition laws in the last few years and also of countries resilient to the establishment of a CP, this paper analyzes whether the efforts of international institutions are justified and evaluates the conditions upon which CP may root. Several prior institutional conditions are needed before the implant of CP may be successful (rule of law, State's commitment to respect a free market economic system). Institutional factors aside, widespread consciousness about the benefits of the market system and acceptance of the merits of free competition in the market by the business community and by the consumers are needed. This paper analyzes all those conditions and stresses the institutional background affecting how CP should be arranged in practice.

8 citations

Journal ArticleDOI
TL;DR: In this paper, the authors revisited the institution of BER, its justification and need in the modernised and decentralised system brought forward by Regulation 1/2003 and the more economic approach to EC competition law.
Abstract: Block exemption regulations (BER) survived the modernisation of EC competition law. According to the European Commission and some commentators, BER have a major role to play in the system instituted by Regulation 1/2003. Others are more critical and consider that BER are hard to nest within the new system, but that they can continue to play a role in providing legal certainty. Still others adopt a more critical approach and propose their axing. This paper adopts the latter approach. In view of the mixed messages that the European Commission is sending in the recent and current review of existing general and sector - specific BER, this paper undertakes to revisit the institution of BER, its justification and need in the modernised and decentralised system brought forward by Regulation 1/2003 and the more economic approach to EC competition law. After reminding the initial justification for BER under the prior enforcement system, the paper stresses the difficulties for its fitness within the new paradigm - with particular focus on the distortions that BER can generate for an effective and consistent enforcement of EC competition law. The paper concludes with the recommendation of a complete repeal of the BER mechanism and its substitution with general guidance through non‐binding guidelines.

7 citations

Posted Content
TL;DR: In this article, the authors examine alternative explanations for the differences and also look at different forms of conduct caught under the prohibition, underlining the most recent enforcement discordances in the US and the EU.
Abstract: This article looks at the commonalities and disparities in the rules against single-firm market abuses in the US and in the EU and their enforcement. Despite they target the same type of business behaviour, the US and the EU have always followed divergent paths. This article will examine alternative explanations for the differences and will also look at the different forms of conduct caught under the prohibition, underlining the most recent enforcement discordances.

7 citations


Cited by
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Journal Article
TL;DR: The Sherman Act (1890) prohibits conspiracies to create monopolies and anticompetitive conduct, and the Clayton Act (1914) regulates mergers (Hylton) as mentioned in this paper.
Abstract: Antitrust law consists primarily of three federal laws: The Sherman Act (1890) prohibits conspiracies to create monopolies and anticompetitive conduct. The Clayton Act (1914) regulates mergers (Hylton). The Federal Trade Commission Act (1914) created the Federal Trade Commission and regulates advertising and other interstate competition (DOJ). Cases related to these laws are either decided using the “reasonable rule” which requires the plaintiff prove that defendants’ actions created an “unreasonable” restriction of competition in the market; or by the per se rule which infers the conduct and intent of the defendant based on their actions’ result (Hovenkamp).

130 citations

Journal ArticleDOI
01 Mar 1981
TL;DR: In 2014, the United States Nuclear Regulatory Commission (NRC) issued a final rule on continued at-reactor storage of spent nuclear fuel and terminated a two-year suspension of final licensing actions for new nuclear power plants and license renewals of existing plants as discussed by the authors.
Abstract: On August 26, 2014, the United States Nuclear Regulatory Commission (NRC) issued a final rule on continued at-reactor storage of spent nuclear fuel and terminated a two-year suspension of final licensing actions for new nuclear power plants and license renewals of existing plants. The 2014 “Continued Storage” rule is good news for opponents of Yucca Mountain. First, the NRC determination that spent nuclear fuel can be safely managed in dry casks for up to 160 years eliminates the argument that the successful licensing of Yucca Mountain is required to assure the continued licensing of nuclear reactors. The future of Yucca Mountain and the future of nuclear power are now separate. Second, the NRC environmental impact statement (EIS) prepared in support of the Continued Storage Rule defines the “no action” alternative required under the National Environmental Policy Act (NEPA) in a manner that negates the key “no action” alternative in the U.S. Department of Energy’s (DOE’s) 2008 Supplemental EIS for Yucca Mountain, which was submitted to NRC as part of the license application. DOE’s conclusion that constructing and operating a repository at Yucca Mountain is the preferred alternative under NEPA is no longer supported by DOE’s and NRC’s own NEPA analyses. This paper reviews the developments that led up to the NRC’s new “Continued Storage of Spent Nuclear Fuel” Rule, beginning with the adoption in 1980 of the former “Waste Confidence Rule”.

115 citations

Journal ArticleDOI
TL;DR: The Market System as mentioned in this paper is an excellent guide to thinking about the advantages and disadvantages of a market economy, and it is a good place to start a course on the normative dimensions of market society.
Abstract: Charles Lindblom has long been one of the country’s most interesting political theorists writing about the economy. In The Market System, he offers the general reader an excellent guide to thinking about the advantages and disadvantages of a market economy. Half of the book is devoted to an analysis of the market as a social institution. Lindblom’s account of the nuts and bolts of the system is fi rst-rate. He insists that we should think of the market as a mechanism for coordinating human behavior, much like a system of authority or a voting process. What is distinctive about the market is that it coordinates our activities through a process of “mutual adjustment.” There is no central authority here: each individual decides for himself how to respond to what other people are doing given the moves available to him under the rules. The image makes vivid to the reader one of the most attractive features of the market, namely the way that it simplifi es the enormously complex task of social coordination by decentralizing the decision-making process. The other half of the book is devoted to assessing the market in terms of values such as effi ciency, freedom, culture and democracy. Lindblom is at his best on democracy. He argues that the market does poorly in terms of both popular control over economic elites (e.g. bankers, fi nanciers and corporate executives) and popular control over political elites. One of the main problems lies in the fact that corporations participate in the political process as though they were ordinary citizens. His discussion of allocative effi ciency, on the other hand, could have been better. It never quite makes clear to the reader that the market generates outcomes that are “effi cient” in a sense that is much weaker than we normally associate with the idea of effi ciency. Overall, though, this book provides an excellent survey of the issues as well as some penetrating insights from Lindblom’s unique perspective. It would serve well as a companion piece to any general course on the normative dimensions of market society.

70 citations

Journal ArticleDOI
TL;DR: The Return of Civil Society: The Emergence of Democratic Spain this article is a history book about the Spanish Civil War and its aftermath, which is based on the idea of the return of civil society.
Abstract: (1994). The Return of Civil Society: The Emergence of Democratic Spain. History: Reviews of New Books: Vol. 22, No. 2, pp. 72-73.

70 citations