Among other factors, one can assess the efficacy of a competition authority by its ability to choose and implement its remedies. Up until now, a dense economic literature has emerged on retrospective merger studies to measure the efficacy of merger control. Yet, little attention has been given to remedies in the other major pillar of competition policy, i.e. abuses of dominant position. In this paper, we try to fill the gap by first highlighting what is at stake and second analyse the most emblematic cases. We focus on the European Commission, while U.S. cases serve us as benchmark.

Quels Remèdes pour les Abus de Position Dominante ? Une Analyse Economique des Décisions de la Commission Européenne (What Remedies for Abuses of Dominant Positions? An Economic Analysis of the EC's Decisions)

Introduction - Rules That Govern Rules: Evidence, Proof and Judicial Control in Competition Cases Mel Marquis Introduction to the Workshop - Competition enforcement and judicial review in Europe Presentations Written contributions Bruno Lasserre, The European Competition System in Context: Matching Old Constitutional Principles and New Policy Challenges Heike Schweitzer, The European Competition Law Enforcement System and the Evolution of Judicial Review Panel I The European Commission: Standard of Proof, burden of proof and evaluation of evidence in antitrust and merger cases Panel II The European Courts: Standard of proof, burden of proof, standards of review and evaluation of evidence antitrust and merger cases Written contributions to Panels I and II I Per Hellstroem, A Uniform Standard of Proof in EU Competition Proceedings II Philip Lowe, Taking Sound Decisions on the Basis of Available Evidence III Luis Ortiz Blanco, Standards of Proof and Personal Conviction in EU Antitrust and Merger Control Procedures IV James Venit, Human All Too Human: The Gathering and Assessment of Evidence and the Appropriate Standard of Proof and Judicial Review in Commission Enforcement Proceedings Applying Articles 81 and 82 V Nicholas Forwood, The Commission's "More Economic Approach" - Implications for the Role of the EU Courts, the Treatment of Economic Evidence and the Scope of Judicial Review VI Aindrias O Caoimh, Standard of Proof, Burden of Proof, Standards of Review and Evaluation of Evidence in Antitrust and Merger Cases: Perspective of Court of Justice of the European Union VII Nils Wahl, Standard of Review - Comprehensive or Limited? VIII Eric Gippini-Fournier, The Elusive Standard of Proof in EU Competition Cases IX Fernando Castillo de la Torre, Evidence, Proof and Judicial Review in Cartel Cases X Ian Forrester, A Bush in Need of Pruning: the Luxuriant Growth of "Light Judicial Review" XI John Ratliff, Judicial Review in EC competition cases before the European Courts: Avoiding double renvoi XII Justin Coombs and Jorge Padilla, The Use of Economic Evidence before the Courts of the European Union Panel III National competition authorities: standard of proof, burden of proof and evaluation of evidence in antitrust and merger cases Written contributions to Panel III I Alberto Heimler, The Legal Significance of Economic Evidence in Antitrust Cases: Some Comments Based on the Italian Experience II Pieter Kalbfleisch, Standard of Proof, Burden of Proof and Evaluation of Evidence in Antitrust and Merger Cases: A Perspective of the Netherlands Competition Authority III Jacques Steenbergen, Rules of Evidence in Competition Cases: An NCA Perspective IV J. Thomas Rosch, Observations on Evidentiary Issues in Antitrust Cases V Rafael Allendesalazar and Paloma Martinez Lage Evidence Gathered through Leniency: From the Prisoner's Dilemma to a Race to the Bottom VI Mario Siragusa, Antitrust and Merger Cases in Italy: Standard of Proof, Burden of Proof and Evaluation of Evidence VII James Rill and Jaimee Lederman, Evidence in Judicial Review of U.S. Federal Trade Commission and U.S. Department of Justice Merger Cases VIII Dennis Carlton, How Should Economic Evidence be Presented and Evaluated? Panel IV National courts in major jurisdictions: Standard of proof, burden of proof, standards of review and evaluation of evidence in antitrust and merger cases Written contributions to Panel IV I Vaughn Walker, Evidence in Competition Cases: An American Trial Judge's Perspective II Michael Boudin, Evidence and the Formulation of U.S. Antitrust Law III Kelyn Bacon, Standard of Proof, Standards of Review and Evaluation of Evidence in UK Antitrust and Merger Cases IV Jochen Burrichter and Hans Logemann, Evaluation of Evidence in National Courts: Reflections from the German Perspective V Calvin Goldman, Robert Kwinter, Navin Joneja and Chad Leddy, A Canadian Perspective on the Evaluation of Evidence in Antitrust and Merger Cases in the Context of Recent Changes to Canada's Competition Law VI Barry Hawk and James Keyte, Separating the Wheat from the Chaff: How the U.S. Courts Analyze Antitrust Evidence

The evaluation of evidence and its judicial review in competition cases

In this article, the author argues that restitution should be available in competition law cases. However, it should only be granted where the requirement of corrective justice is satisfied. Hence, as long as this justice criterion is most paramount to the court, restitution can then be applied to deter anticompetitive behaviours. To sustain this argument, the author criticizes the Court of Appeal’s decision in Devenish v. Sanofi-Aventis SA (France), where it held that restitution was not available in competition law cases.The judgment failed to reflect the goal of competition law, the objectives of its enforcement regimes, and the Commission’s effort to enhance consumer welfare. In addition, the judges failed to take into account the larger context in which private parties may legitimately seek restitutionary remedies. In order to appreciate the value of restitution in competition cases, this article discusses its application in the US. Finally, based on normative and efficiency arguments, the author recommends that the position of the law should be corrected at the earliest opportunity.

Restitutionary Remedies in Competition Law: Bull in a China Shop?

The 2011 proposal of the European Court of Justice aiming to increase the number of judges of the General Court has mutated after four years into a complete change of the EU judicial system. This long legislative debate was the first implementation of the Lisbon Treaty in the judicial domain. It has revealed different problems – formal and substantial – of the approach of public service reform in the European institutions.

The reform of the EU courts (II). Abandoning the management approach by doubling the General Court

In November 2011 Sweden abolished the uniform national electricity price and introduced separate price zones. This was the result of an antitrust settlement between the Commission and the Swedish network operator, which was accused of discriminating between domestic and export electricity transmission services and segmenting the internal market. Based on this case, we show how the Commission uses competition law enforcement to foster market integration in the energy sector. We find that, even though the Commission’s action under competition rules was contrived and lacked economic depth, the commitment package provides an economically sound, longterm solution to network access and congestion management in Sweden. Such a quick and far-reaching change of Swedish congestion management could not have been achieved by Swedish policymakers or enforcement of the EU sector-specific regulation.

/pdf/power-markets-shaped-by-antitrust-20tjor5ssn.pdf

Power Markets Shaped by Antitrust

The present chapter deals with the relaxation of the link between harm and remedy brought about by the use of the Article 9 instead of the Article 7 procedure. In a nutshell, it aims at assessing whether and to what extent the allegation that the recourse to consensual commitments leads to remedies that go beyond what could have been imposed unilaterally is correct.

The Relaxation of the Link Between Harm and Remedy

So far, the present study has argued that most of the criticism that is levelled at the Commission’s use of commitment decisions is not justified. In the view defended here, the recourse to the Article 9 instead of the Article 7 procedure entails only a modest relaxation of the link between harm and remedy and of the procedural safeguards; it entails also only a modest negative impact on legal certainty. It is submitted that these modest shortcomings are, from an abstract point of view, acceptable in view of the consensual nature of commitments and of their underlying goal of procedural economy. This conclusion applies without prejudice to the necessity to balance the respective costs and benefits of Article 7 and Article 9 in each individual case according to the circumstances of the case at hand.

Outlook: Discussion of Reform Proposals

Critics of the Article 9 procedure deplore a relaxation of the procedural safeguards in comparison to the Article 7 procedure. In order to assess to what extent this criticism is justified, it is useful to distinguish between, on the one hand, the procedural safeguards that exist during administrative procedure, and, on the other hand, the judicial review of remedies by the EU Courts.

The Relaxation of Procedural Safeguards

The criticism that the recourse to Article 9 instead of Article 7 has a negative impact on legal certainty has several facets. The most important aspect is certainly that commitment decisions are de facto only scarcely appealed. Critics stress above all that the use of commitments reduces the likeliness that a judicial precedent is created which contributes to the clarification of the law. However, there are also other issues that raise commentators’ concerns: The absence of clear criteria when the commitment procedure applies; the lack of a right of the concerned undertaking to a commitment decision; the room left by Article 9 to the Commission’s power to prioritise cases; and the effects of commitment decisions on the practice of the competition authorities and courts of the Member States. The present chapter will organise the assessment of the mentioned aspects in a first section that deals with the disadvantages of the Article 9 procedure in terms of legal certainty. The second section will then place an emphasis on an advantage of the adoption of a commitment decision in terms of legal certainty that, it is submitted, has to date been paid too little attention: The fact that a commitment results in precise and enforceable obligations.

Korbinian Reiter

Papers

The Relaxation of the Link Between Harm and Remedy

Outlook: Discussion of Reform Proposals

The Relaxation of Procedural Safeguards

The Impact of Commitments on Legal Certainty