Dr Peter Whelan publishes a case note on the CISAC judgment in the Journal of European Competition Law and Practice

In April 2013 the General Court partially annulled the Commission’s CISAC decision on the basis that there was a lack of sufficient evidence to prove a concerted practice involving copyright collecting societies. Dr Whelan‘s case note explains the judgment and analyses its future implications.

To access the case note, please click here.

Dr Peter Whelan publishes article on cartel criminalisation and due process in the Northern Ireland Legal Quarterly

Dr Peter Whelan (CCP and UEA Law School) has had his article, ‘Cartel Criminalisation and Due Process: the Challenge of Imposing Criminal Sanctions Alongside Administrative Sanctions within the EU’, published in the latest edition of Northern Ireland Legal Quarterly. An abstract of his article can be found below.

Abstract

There is increasing debate within the EU concerning the imposition of criminal sanctions upon those individuals who engage in cartel activity. For it to be legitimate, such cartel criminalisation must respect the due process guarantees contained in the European Convention on Human Rights. Unfortunately the literature on this issue is deficient and the specifics of this legal challenge are not fully understood. In particular, a comprehensive analysis of the due process-related challenge presented when personal criminal antitrust sanctions are employed alongside administrative sanctions for a given cartel is conspicuously absent from the literature. This article rectifies this deficiency by examining this particular legal challenge and its relevance to information exchange, double jeopardy and concurrent antitrust proceedings. In doing so, it identifies practical techniques designed to meet the challenge of due process in this context, as well as the inherent tensions between due process and the objectives of European antitrust criminalisation.

Peter Whelan, ‘Cartel Criminalisation and Due Process: the Challenge of Imposing Criminal Sanctions Alongside Administrative Sanctions within the EU’ (2013) 64(2) Northern Ireland Legal Quarterly 143.

Cartel Criminalization and the Challenge of ‘Moral Wrongfulness’

The latest research offering of the CCP’s Dr Peter Whelan has been published in the prestigious Oxford Journal of Legal Studies. His article, entitled ‘Cartel Criminalization and the Challenge of ‘Moral Wrongfulness’‘, is available for advance access download via Oxford Journals. An abstract for his paper can be found below.

Abstract

There is considerable debate at present, particularly in the Member States of the European Union, concerning the necessity and appropriateness of imposing custodial sentences upon individuals who have engaged in cartel activity. The vast majority of those contributing to this debate have focused on the punishment theory of (economic) deterrence. Little room is devoted to the punishment theory of retribution or to consideration of the ‘moral wrongfulness’ of cartel activity. This article posits that the issue of ‘moral wrongfulness’ is a central issue in the debate on cartel criminalization, irrespective of whether it is deterrence theory or retribution theory that informs the debate. By employing a norms-based approach, this article then examines the extent to which cartel activity can indeed be interpreted as conduct that is ‘morally wrong’ due to its violation of the moral norms against stealing, deception and/or cheating. By doing so, this article not only challenges traditional views of the nature of cartel activity but also provides scholars, legislatures and policymakers with specific analyses which are crucial to a decision whether to justify (or indeed to oppose) the introduction and maintenance of criminal cartel sanctions.

New Journal Article: ‘Strengthening Competition Law Enforcement in Ireland’

Dr Peter Whelan (CCP and UEA Law School) has had his article ‘Strengthening Competition Law Enforcement in Ireland: The Competition (Amendment) Act 2012‘ published in the latest issue of the Journal of European Competition Law & Practice. An abstract for Dr Whelan’s paper can be found below.

Abstract

Ireland has increased the maximum custodial sentence that can be imposed on a convicted cartelist from 5 to 10 years, has increased the maximum fines for competition offences and has introduced Director Disqualification Orders for non-indictable competition offences.

The increase in the maximum custodial sentence in particular has some potential to perform a signalling function to trial judges in Ireland regarding the seriousness of cartel activity and the need for the imposition of custodial sentences on cartelists.

Recent experience in Ireland demonstrates that juries may be prepared to convict alleged individual cartelists, even when their doing so may result in the imposition of a custodial sentence.

By no longer requiring plaintiffs in follow-on private actions to prove a breach of competition law, Irish law has also facilitated less burdensome private competition law enforcement.

Non-Discrimination Clauses in the Retail Energy Sector

Each month we collect up and record all the outputs made by CCP members. To give people an idea of the scope of the research we undertake we publish the abstracts and links to papers written by our colleagues in the Centre.

Morten Hviid and Catherine Waddams have published Non-Discrimination Clauses in the Retail Energy Sector in The Economic Journal.

The British energy regulator has recently reviewed a non-discrimination licence condition imposed to ensure that energy retailers charge the same mark-up in different regions. Loyalty by many to incumbent firms necessitated heavy discounting by entrants to attract customers, which had led to regional price discrimination. Matching characteristics of the energy market to models of discrimination, we identify the necessary conditions for the licence condition to have a positive effect for consumers, and particularly ‘vulnerable’ consumers. The licence condition is likely to have reduced competition in the mainstream energy markets, which seems confirmed by the regulator’s subsequent review of the retail market.

The role of ‘freedom’ in EU competition law

Each month we collect up and record all the outputs made by CCP members. To give people an idea of the scope of the research we undertake we publish the abstracts and links to papers written by our colleagues in the Centre.

Pinar Akman has published The role of ‘freedom’ in EU competition law in Legal Studies.

An initial reading of EU competition law jurisprudence and literature may suggest that there might be a competition-related freedom in the EU, expressed along the lines of ‘freedom of competition’ or ‘freedom to compete’. If competition is to be protected as a ‘freedom’ rather than merely as a ‘policy’, what this freedom involves should be established. It is important to establish the role of ‘freedom’, since it has been argued that EU competition law is a product of or has been significantly influenced by ‘ordoliberalism’. Under ordoliberalism, protecting the ‘economic freedom’ of market actors is the aim of competition policy. This paper examines the entire jurisprudence of the EU Courts to establish the role of ‘freedom’ in EU competition law as perceived by the EU Courts. This inquiry establishes whether ordoliberalism has so fundamentally influenced the jurisprudence that welfare-based objectives cannot be adopted as an/the objective of EU competition law. This is the first such comprehensive study regarding ‘freedom’ in EU competition law. The paper demonstrates that there is little quantitative or qualitative support for the ordoliberal argument when one considers the relevant jurisprudence. A quantitative analysis of the case-law and in particular the historical trend raises serious doubts concerning the validity of the conventional ordoliberal-influence thesis.

Legal Certainty and Cartel Criminalisation within the EU Member States

Each month we collect up and record all the outputs made by CCP members. To give people an idea of the scope of the research we undertake we are going to be publishing the abstracts and links to papers written by our colleagues in the Centre.

Peter Whelan has published Legal Certainty and Cartel Criminalisation within the EU Member States in The Cambridge Law Journal.

Legal Certainty and Cartel Criminalisation within the EU Member States

Abstract

There is a trend within the EU Member States to introduce criminal sanctions for cartel activity. Such criminalisation must respect the human rights of the accused. Unfortunately the literature on cartel criminalisation pays scant regard to the investigation of human rights issues. A comprehensive analysis of the impact of the principle of legal certainty (Article 7 ECHR) upon cartel criminalisation in the EU Member States is conspicuously absent from the literature. This article rectifies this deficiency by examining how this particular principle of European human rights law may impact upon the concept, substance and existence of a criminal cartel offence.

Commodity Market Dynamics and the Joint Executive Committee (1880-1886)

Franco Mariuzzo (together with his joint author Patrick Paul Walsh) has had Commodity Market Dynamics and the Joint Executive Committee (1880-1886) accepted for publication in The Review of Economics and Statistics.

Commodity Market Dynamics and the Joint Executive Committee (1880-1886)

Abstract

Using weekly spot and future commodity prices in Chicago and New York, we construct expected transportation rates for grain between these two cities, expected inventory levels in New York, and realized errors in the expectations of such variables. We incorporate these exogenous commodity market dynamics into Porter’s (1983) structural modeling of the Joint Executive Committee Railroad Cartel. As in Porter, we model marginal cost as a parametric function of (instrumented) output, among other factors. Unlike Porter, we model pricing over marginal cost as a nonparametric function of a set of variables, which include expectations of deterministic demand cycles and Cartel stability. We estimate the pricing and demand equation simultaneously and semi-parametrically. Our estimated weekly mark-ups during periods of Cartel stability are shown to reect optimal collusive pricing over deterministic business cycles, as modeled in Haltiwanger and Harrington (1991). Periods of Cartel instability are proven to be triggered by realized mistakes in expectations of New York grain prices.

From Gigs to Giggs: politics, law and live music

Each month we collect up and record all the outputs made by CCP members. To give people an idea of the scope of the research we undertake we are going to be publishing the abstracts and links to papers written by our colleagues in the Centre.

John Street has published “From Gigs to Giggs: politics, law and live music” in Social Semiotics.

From Gigs to Giggs: politics, law and live music

Abstract

This paper explores what it means to talk of live music as a right. It does so by looking at the ways in which courts and other actors constitute music as a political entity to which such rights might be attached. It considers two case studies. The first is the cancellation of a tour by the UK grime artist Giggs; the second is the merger of Live Nation and Ticketmaster. Drawing upon the work of Paul Chevigny, the article argues that in both instances we can see music being constituted as “political”, where this entails the recognition or denial of particular rights claims.