Foreword

Summary Table of Contents
Table of Contents
Welcome and Opening Remarks

Chapter 1
BRAZILIAN COMPETITION POLICY SYSTEM by Elizabeth Farina

I. Introduction
II. Benefits of Antitrust Enforcement, Measurement and Justification of Antitrust Structure in a Developing Country
III. Judicial Review
IV. Independency and Relationship Between the Competition Authority Government

Chapter 2
THE POLICY OF COMMITMENTS IN ANTITRUST LAW: FIRST STEPS AND FIRST UPDATE ON TI III FRENCH CASE by Bruno Lasserre

I. Introduction
II The Appearance of a New Market Regulation Instrument: The Commitments Procedure
A. Commitments: Continued Moves to Modernize Competition Law
B. Commitments: The Need to Adapt the National Procedural Framework
III. Adoption of the New Instrument: A Successful Start
A. A Clearly Attractive Procedure
B. A Promising Procedure


Chapter 3
ENFORCEMENT AUTHORITIES by Philip Lowe

I. Cartels
II. Sector Inquiries
III. Article 82 - Abuse of Dominance
IV. Bringing Down State Barriers
A. Competition Screening
B. Professions
V. Enforcement Action Against State Measures
A. Article 10, in Conjunction with Article 81 or 82 of the EC Treaty
B. Article 86 of the EC Treaty
VI. Private Enforcement
VII. Conclusion

Chapter 4
ENFORCEMENT AUTHORITIES ROUNDTABLE

Paul Victor, Presider
Hon. Thomas 0. Barnett
Ulf Doge
Elizabeth Maria Mercier Querido Farina
Mario Monti
Bruno Lasserre
Philip Lowe
Hon. Deborah Platt Majoras
Panel Discussion

Chapter 5
STANDARDS OF PROOF AND STANDARDS OF JUDICIAL REVIEW IN EU COMPETITION LAW by Hubert Legal


Chapter 6
STANDARDS OF PROOF AND STANDARDS OP JUDICIAL REVIEW IN EC MERGER LAW by Tony Reeves and Ninette Dodoo

I. Introduction
II. The Distinction Between Standard of Proof and Standard of Review
III. Standard of Proof
A. General Principles
B. Standard of Proof in Merger Cases
IV. Standard of Review
A. Appeal/Judicial Review
B. Errors of Law
C. Errors of Fact
D. Error of Appreciation
E. The Impact of Tetra Laval
V. Conclusion

Chapter 7
STANDARDS OF PROOF AND JUDICIAL REVIEW: A U.S. PERSPECTIVE by Richard M. Steuer

I. Introduction
II. Standard of Proof
A. Criminal or Civil
B. Court or Agency
C. Stage of Proceeding
D. Nature of Offense
III. Standard of Review
A. Criminal or Civil
B. Court or Agency
C. Stage of Proceeding
D. Nature of Offense
IV. Conclusion

Chapter 8
STANDARDS OF PROOF AND STANDARDS OF JUDICIAL REVIEW IN EC COMPETITION LAW ROUNDTABLE

Tony Reeves, Presider
Hubert Legal
Theofanis Christoforou
Richard M. Steuer
Panel Discussion

Chapter 9
OBSERVATIONS ON NEGOTIATING GOVERNMENT ANTITRUST SETTLEMENTS IN THE UNITED STATES by James R. Atwood

I. The Interplay of U.S. Government Settlements and Private Treble Damage Litigation
A. Criminal Investigations
B. Civil Investigations
II. Some Issues Unique to Investigations of International or Foreign Conduct

Chapter 10
PRIVATE ENFORCEMENT OF COMMISSION COMMITMENT DECISIONS: A STEEP CLIMB NOT A GENTLE STROLL by John Davies and Manish Das

I. Introduction
II. The Releviince of Direct Effect
III. Should Commitment Decisions be Capable of Direct Effect?
A. The Binding Nature of Commitment Decisions
B. The Principle of Effectiveness ("Effet Utile")
C. Does a Commitment Decision Create Rights in Favour of Third Parties?
D. Are Commitments Unconditional and Sufficiently Precise?
E. Conclusion and Direct Effect
F. Can Article 10 EC Treaty Help
G. Procedural Problems
IV. Conclusion

Chapter 11
SETTLEMENT OF COMPETITION CONDUCT VIOLATIONS AT THE UNITED STATES ANTITRUST AGENCIES AND AT THE EUROPEAN COMMISSION - SOME OBSERVATIONS
by Daniel P. Ducore

I. Settling Cases at the United States Federal Trade Commission
II. Conduct Remedies for Competition Violations
Ill. Procedures for Settling Competition Violations
IV. Remedies for Violations of FTC Orders
V. U.S. Settlements and European Commission Commitments
VI. Two Recent EC Settlements
VII. Fines, Criminal Penalties, and Other Monetary Relief
VIII. Some Implications of Settling With the Enforcement Agencies

Chapter 12
SOME ELEMENTS TO ENHANCE DAMAGES - ACTIONS FOR BREACH OF THE COMPETITION RULES IN ARTICLES 81 AND 82 EC
by Dr. Sven Norberg

I. Introduction
II. Issues Addressed in this Paper
A. General
B. Fault Requirement
C. The Passing-on Defence and the Indirect Purchaser
D. Recent Amendments to the Swedish Competition Act
E. Protection of Consumer Interests
III. Some Conclusions

Chapter 13
COMMITMENT DECISIONS AND SETTLEMENTS WITH ANTITRUST AUTHORITIES AND PRIVATE PARTIES UNDER EUROPEAN ANTITRUST LAW
by John Temple Lang

I. Introduction
Part I
A. Undertakings in Pre-Regulation 1/2003 Cases
B. Conditions in Decisions Under Article 81(3)

Part II
A. Regulation 1/2003 on Commitment Decisions
B. The Commission's Practice on Commitment Decisions So Far
C. The Commission's Principal Commitment Cases Publicly Known So Far

Part III
A. Companies' Reasons for Offering Commitments
B. The Commission's Reasons for Considering Commitments

Part IV
A. Procedure: The Statement of "Concerns"
B. The Parties' Access to the Commission's File When Commitments Are Envisaged
C. Publication of Proposed Commitments
D. The Rights of Third Parties
E. Safeguards within the Commission
F. Decision for Limited Periods
G. Commitments in Multiparty Cases
H. Commitments and Leniency Applications
I. Can an Offer of a Commitment Be Withdrawn?

Part V
A. Terms of Commitments
B. Legal Consequences of Commitment Decisions: Conduct within the Scope of the Commitment
C. Legal Consequences of Commitment Decisions: Does the Commission Have to conclude that the Company Will Be Doing Nothing Illegal If It Fulfills its Commitments?
D. Enforcement of Commitment Decisions
E. Commitments in Specific Situations: Article 81 Cases
F. Commitments in Article 82 Cases - Pricing
G. Commitments - Price Squeezes
H. Commitments - High Technology Industries
I. Commitments in Regulated Industries
J. Commitments Instead of Interim Measures
K. Structural and Behavioural Commitments
L Informal Commitments After Reg. 1/2003

Part VI
A. Judicial Review of Commitment Decisions 296
B. Interim Measures When a Commitment Decision Is Challenged 297
After the Commitment Decision: Changed Circumstances, and Amending and Terminating Commitments 298
D. What Assurance has the Company that the Commission Will Not Change Its Mind/ 299
E. Judicial Review of a Commission Refusal to Accept a Commitment 300

Part VII
A. Article 10 EC and the duties of National Antitrust Authorities and Courts under Commitment Decisions: Conduct after the Decision
B. Arbitration
C. Commitment Decisions by National Antitrust Authorities
D. The European Economic Arena
E. The Territorial Scope of National Commitment Decisions
F. Commitment Decisions Based Only on National Law
G. Some National Legislation on Commitment Decisions
H. Some National Commitment Cases
I. Commission Commitment Cases and U.S. Civil Consent Decrees Involving the Same Parties

Part VIII
A. Settlement of Private Actions
B. Tactics and Aims of Plaintiffs in Settlements
C. Tactics for Defendants in Settlements
D. Consequences of Commitments for Existing Contracts

Part IX
A. Some Concerns about Commitment Decisions Procedures
B. Possible Safeguards
C. Suggestions for Companies and for the Commission
D. Conclusion: A Popular Invention


Chapter 14
THE FRENCH APPROACH TO SETTLEMENTS IN ANTITRUST PROCEDURES by Dither Theophile

I. Introduction
II. The Negotiated Settlement (Article L.464-2 III)
A. Two Conditions for a Negotiated Settlement
B. Procedural Aspects
C. Calculation of the Fine

III. The commitment Procedure (Article L.464-2 I)
A. A Flexible Approach
B. Procedural Aspects

IV. First lesson to be Drawn From the French Practice
A. Comparison of Commitment Decisions and Negotiated Settlement Decisions
B. French Settlements Proceedings in Light of Article 9 of Regulation 1/2003

V. Conclusion

Chapter 15
SETTLEMENTS OF GOVERNMENT CIVIL PROCEEDINGS AND PRIVATE ACTIONS ROUNDTABLE

John Davies, Presider
James It Atwood
Daniel P. Ducore
Sven Norberg
John Temple Lang
Dither Théophile
Panel Discussion

Chapter 16
TACKLING EXCLUSIONARY PRACTICES TO AVOID EXPLOITATION OF MARKET POWER: SOME PREI MINARY THOUGHTS ON THE POLICY REVIEW OF ARTICLE 82
by Neelie Kroes

I. Article 82
II. Dominance
HI. The Concept of Abuse
IV. Price Based Abuses
V. Article 82 and Intellectual Property Rights
VI. Efficiencies
VII. Concluding Remarks

Chapter 17
JUDICIAL REMEDIES UNDER EC COMPETITION LAW: COMPLEX ISSUES ARISING FROM THE "MODERNISATION" PROCESS by Damien Geradin and Nicolas Petit

I. Introduction 393
II. Acts That Can Be Challenged within the Context of EC Competition Law Post-Modernisation
A. Establishing Whether an Act Is Challengeable within the Meaning of Article 230 EC
B. Acts Open to Challenge within the Field of Competition Law Post-Modemisation

III. Those Having the "Quality to Act" in Annulment
A. Decisions Where Applicant Is Not the Addressee
B. Acts of a General Nature

IV. The Modalities of an Annulment Action
A. Lodging and Appeal
B. The Content of an Appeal

V. Judicial Actions Parallel and Subsequent to Article 230 Proceedings
A. Increased Parallel Appeals Where the Community Courts Have Full Jurisdiction
B. Appeals for Indemnity

VI. The Effectiveness of an Annulment Action
A. Intensity of Judicial Review
B. The Expedience of Judicial Review
C. The Alternatives to the Current System of Judicial Review

VII. Conclusion

Chapter 18
COMPETITION LAW ENFORCEMENT IN SWEDEN AND IN THE EU - PRESENT TRENDS by Christer A. Holm

I. Criminalization of Competition Law
A. History of Criminalization Rules in Sweden
B. Criminalization - The Proposed Model
C. Answers to the Proposal
D. EC Legal Aspects
E. Conclusion

II. Other Signs of the Greater Impact of EC Competition Law in Sweden
A. Right to Claim Damages
B. Class Action
C. Inspections in Private Homes and Other Premises
D. Arbitration
E. AstraZeneca and Article 82

Chapter 19 TOWARDS A "SMART" ARTICLE 82 by Trevor Soames

I. Introduction
II. The Great Reform Project
III. Implications for Article 82
IV. Review of Article 82
V. Guidelines
VI. Conclusion

Chapter 20
EC COMPETITION ENFORCEMENT LAW AND POLICY ROUNDTABLE

Trevor Soames, Presider
Neelie Kroes
Damien Geradin
Christer A. Holm
Panel Discussion

Chapter 21
PUBLIC OR PRIVATE PROVISION OF INFRASTRUCTURE SERVICES? IF PRIVATE, FIXED TERM CONCESSIONS OR FULL PRIVATIZATION?
by Alberto Heimler

I. Introduction
II Concessions or Public Provision?
A. Public Versus Private Provision of Public Services
III. Fixed Tam Auctions, Privatization and Efficiency
IV. Concessions, Auctions and Renegotiations: Some Practical Experience
A. Aggressive Bidding
B. Faulty Contract Design
C. Government Failure to Honor Contract Clause
D. Defective Regulation
V. Auctions or Beauty Contests?
VI. Public Services and Competition
VII. Conclusions

Chapter 22 PRIVATIZATION OF INFRASTRUCTURE by Hal Moore and Sarah Ward

I. Concessions
II. Water War: Cochabamba, Bolivia
A. Background
B. Terms of the Contract
C. Life Under the Concession
D. Regulatory Response
E. Epilogue

III. Manila
A. Background
B. Terms of the Contract
C. Life Under the Concession
D. Regulatory Response
E. Epilogue

IV. Buenos Aires
A. Background
B. Terms of the Contract
C. Life Under the Concession
D. Regulatory Response
E. Epilogue
V. Conclusion

Chapter 23
PRIVATIZATIONS/CONCESSIONS AND COMPETMON POLICY ROUNDTABLE

Merit E. Janow, Presider
Alberto Heimler
Frederic Jenny
Harold F. Moore
Panel Discussion


Chapter 24 COMPETITION POLICY, ECONOMICS, AND ECONOMISTS: ARE WE EXPECTING TOO MUCH?
by Andrew I. Cavil

I. Introduction
II. What Are the Sources of Economic Wisdom for Antitrust Law and Policy, and How Do They Gain Access to Antitrust Law?
A. The Institutions of Antitrust Law and Policy
B. Access Points for Economic Ideas Common to Agencies and Courts
C. Access Points for Economic Ideas Unique to Agencies and Courts

III. What Filters or Institutional Checks and Balances Are in Place to Ensure that Parties, Courts and Agencies Get the Economics "Right"?
A. Checks and Balances on Economic Ideas Before Courts and Antitrust Agencies
B. The Daubert Decision and Its Implications for Antitrust

IV. What Lessons Does the U.S. Experience Offer for Those Who Would Similarly Seek to Translate Economic Ideas into Competition Policy'
A. The Dauber? Paradox: Can Courts Demand Too Much of Economics and Economists?
B. Can the Economic Analysis of Commentators and Courts Exceed Their Own Expertise?
V. Conclusion

Chapter 25
MAKING ECONOMICS MORE USEFUL IN COMPETITION CASES: PROCEDURAL RULES GOVERNING EXPERT OPINIONS by Gregory J. Werden

I. Introduction
II. Reports by Economic Experts
III. Qualifications
IV. Reliability
V. "Fit"
VI. Other Procedures for Making Economics More Useful
VII. Lessons for Competition Authorities

Chapter 26
ECONOMIC EXPERTS BEFORE AUTHORITIES AND COURTS ROUNDTABLE

Frederic Jenny, Presider
Andrew I. Cavil
Derek Ridyard
Lars-Hendrick Roeller
Gregory Werden
Panel Discussion