Francisco Marcos

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.

Desorden Judicial En Defensa De La Competencia (Judicial Disorder in Competition Law Enforcement)

Abstract: Spanish Abstract: Este trabajo pasa revista a la aplicacion de las prohibiciones de conductas anticompetitivas en Espana en los ultimos anos Tras un breve recorrido por la aplicacion administrativa de las normas de defensa de la competencia desarrollada por la Comision Nacional de los Mercados y de la Competencia (CNMC) en sus casi tres anos de existencia, el trabajo se centra la revision judicial como el reto mas preocupante que, hoy en dia, afronta la defensa de la competencia en Espana En efecto, varias decisiones erraticas de la Audiencia Nacional y del Tribunal Supremo, anulando con fundamentos varios las resoluciones sancionadoras de la extinta Comision Nacional de la Competencia (CNC), evidencian una preocupante incontinencia judicial que ha frustrado la labor desarrollada por la CNC en su sexenio de existencia, y complican aun mas la situacion a que se enfrenta la CNMC Palabras Clave: Defensa de la Competencia, Aplicacion Publica, Aplicacion administrativa, Multas, Caducidad, Inspecciones English Abstract: This article reviews public enforcement of the prohibitions of anti-competitive behavior in Spain in recent times After a brief tour of administrative enforcement of competition rules by the National Commission Markets and Competition (CNMC) in its nearly three years of existence, this article focuses on judicial review as the most worrying challenge faced by competition law enforcement in Spain nowadays Indeed, several erratic decisions of the High Court (Audiencia Nacional) and of the Supreme Court, annulling on different grounds many punitive resolutions of the defunct National Competition Commission (CNC), show a disturbing legal incontinence that has frustrated the efforts made by the CNC in its six years of existence, and further complicates the situation faced by the CNMC

Decentralisation, Regulatory Burden and Economic Development in Spain

Abstract: One of the contributions of the Chicago School to economic theory is that of underlining the importance of compliance costs on entrepreneurial activity and economic growth. From a business perspective, complying with general regulations and administrative red tape is a costly burden that may affect the competitiveness of the economy and the overall efficiency of the system. The main purpose of this paper is to estimate the effect of these compliance costs on Spanish regional economic development. The current situation of the State of the Autonomies in Spain provides a suitable scenario to test some of the main implications of the abovementioned thesis of considering regulation and compliance as costs for businesses. Indeed, the decentralisation of legislative and regulatory competences from the Central Government to the so called Self-governing Communities (Comunidades Autonomas) - which began in the early 1980s and has been progressively developed until these days - has generated a substantial variety of situations that may turn to be useful in empirically evaluating the effect of the exercise of the legislative and regulatory competences by the Self-governing Communities on their regional economic development and business activity. In practice, it is difficult to determine whether Spanish (or any other) authorities regulate in excess or not. The optimum level of regulation is nearly impossible to determine, among other issues, because it depends on the quality of regulation - which is very difficult to evaluate. However, it is possible to estimate the impact of the intensity of normative and regulatory activity of the Self-governing Communities on their regional economic performance. This paper aims to evaluate the evolution of legislative and regulatory decentralisation in Spain and its impact on economic development of the Spanish Self-governing Communities between 1988 and 2005, on the basis of certain objective proxies for legislative and regulatory activity (such as the number of pages published in the several Spanish official journals and legislative collections).

Diminishing Enforcement: Negative Effects for Deterrence of Mistaken Settlements and Misguided Competition Promotion and Advocacy

Abstract: Competition policy is conceived to preserve and promote free market competition. It can be fleshed out through a mix of tools that are used to further consumer and social welfare through preserving and promoting the efficient functioning of markets. In different countries, courts, administrative authorities and governments themselves play different roles in the execution of competition policy and in the fulfilment of its goals.On the one hand, competition policy uses prohibitions of anticompetitive actions and merger control as a legal instrument to fight or prevent market restraints by private agents. Public and private competition law enforcement leading to sanctions and/or actions for damages (i.e. the 'regular' enforcement of competition law) is the main manifestation of competition policy.However, relatively recent developments have increased the number of tools in the shed of competition law enforcement. It has gone past 'regular' enforcement and currently also foresees settlements as a tool to introduce flexibility in the prosecution of competition violations. Settlements are conceived as procedural devices in public antitrust enforcement that provide a shortcut to allow for the speedy conclusion of inquiries and administrative proceedings in those cases that would be costly and inefficient to pursue. If properly used, recourse to settlements may allow competition authorities to save costs and resources in pursuing risky proceedings with an uncertain outcome. From that perspective, the effects of antitrust settlements may seem socially valuable. However, an often overlooked effect is that settlements may also dilute the deterrent effect of 'regular' enforcement. A similar reasoning or discussion underlies the objectives and operation of leniency programs (another of the relatively recent tools for competition enforcement, at least in most EU member States), although several striking differences exist between leniency and competition settlements.On the other hand, softer new tools have also been developed. Under the headings of competition promotion and competition advocacy a variable set of instruments are created for competition authorities to create and spread the culture of free market competition in areas that have traditionally been exempted from market forces or competition. Advocacy is mainly targeted towards anticompetitive governmental regulations, whilst promotion is aimed at easing and favouring the rooting of competition policy in sectors that for whatever reason have suffered entry barriers and anticompetitive restrictions in the past.This article criticizes certain uses, mistaken or misguided, of settlements, advocacy and promotion. These are two very different settings in which the deterrent feature of competition authorities' enforcement actions may suffer a deathly blow. Paradoxically, if wrongly used, both may endanger the deterrent principle upon which competition law and policy are built. The basic point of departure is that the new tools might be diminishing the effectiveness of 'regular' competition law enforcement-which shall not be left in the shed to rust.

The Enforcement of Spanish Antitrust Law: A Critical Assessment of the Fines Setting Policy and of the Legal Framework for Private Enforcement Actions

Abstract: The enforcement of antitrust laws in Spain has mainly been a task for public authorities. Sanctions for antitrust infringements can only be pecuniary, as prison or other criminal penalties are not used as a punishment device. Public enforcement of antitrust laws has, therefore, taken the form of fines imposed by the State administrative authorities in charge with the enforcement of Antitrust Laws. However, the competition authorities' policy in setting the amount of fines has been rather erratic, which has led to the annulment of some of its opinions by the judicial courts. On the other hand, private enforcement of antitrust laws through civil actions is neither frequent nor encouraged by Spanish regulation, being anecdotic those cases in which antitrust offences have led private persons to claim for damages through a civil action in court. The discussion in 2005 of a major reform of the Defence Competition Act of 1989 provides an excellent opportunity to reflect critically on the enforcement of antitrust laws in Spain, specifically dealing with two of the main problems which will need to be addressed in the reform: (a) how to "make the penalty fit the crime" setting a fine that optimally punishes each infringement; (b) whether and how private enforcement has to be encouraged.

Competition Law in the New Member States of the European Union (El Derecho de la Competencia en los Nuevos Estados Miembros de la Unión Europea)

Abstract: This paper analyzes the evolution of Competition law and policy in the recent new Member States of the European Union Institutions and rules were established in these countries throughout the nineties and there is already some experience about their enforcement, with relevant implications for business activities

I. Antitrust Law

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).

Report and Recommendations

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”.

The Market System: What It Is, How It Works, and What to Make of It

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.

The Return of Civil Society: The Emergence of Democratic Spain

Abstract: (1994). The Return of Civil Society: The Emergence of Democratic Spain. History: Reviews of New Books: Vol. 22, No. 2, pp. 72-73.