‘Recent Competition Policy and Law Developments in China and Hong Kong’

After a short break, the CCP Seminar Series returns in 2016 with another inspiring line-up of presentations on competition policy (you can find out more by clicking here). On Friday 8th January 2016, we are delighted to welcome Mark Williams (Asian Competition Forum and Melbourne Law School) who will be kicking-off the year with his dissection of the ‘Recent Competition Policy and Law Developments in China and Hong Kong‘. Mark is the Executive Director of the Asian Competition Forum, as well as a Professor of Law at the University of Melbourne Law School where he teaches inter alia competition law and Hong Kong company/commercial . An abstract for his seminar can be found below.

Abstract

Mainland China brought the Antimonopoly Law into force in 2008. The intensity of enforcement has increased markedly in the last two years, especially in relation to business conduct within its territory as opposed to global mergers that have some effect on Chinese markets. Whilst the application of the merger rules has been relatively orthodox, there has been increasing concern about the activities of the NDRC and SAIC with regard to ‘price monopoly’ cases. Transparency and due process issues have caused considerable anxiety, especially amongst the international business community and it is noteworthy that there have been no judicial appeals against any decision of the Chinese agencies since the antitrust system became operational. In Hong Kong, which retains its separate common law -based legal system, the Competition Ordinance only became fully operational on 14 December 2015. This structurally flawed system, that has no merger control provisions save in the telco sector, and adopts a judicial enforcement model, is, necessarily, wholly untried. This seminar will concentrate on recent developments in both systems and the challenges they face to attain international credibility.

The seminar takes place from 13:00-14:00 in the Thomas Paine Study Centre, Room 1.03. Tea will be provided directly afterwards in the MBA Café (TPSC, Floor 2).

‘Reconceptualising deterrence within competition policy’

Only three more sessions remain in our Autumn seminar series, including the tantalising prospect of some distinguished guest speakers. On Friday 11th December, we are delighted to welcome back the ever-enthralling Jonathan Galloway (Newcastle Law School), who presented at our Annual Conference back in 2007. Jonathan is a Senior Lecturer in Law at Newcastle University and an expert in Competition Law. His research interests include the intersections of competition law (particularly its relationship with politics, innovation, and industrial policy), international convergence, and cooperation between competition authorities.

Jonathan will be presenting one of his current research projects, entitled ‘Reconceptualising deterrence within competition policy‘. An abstract for his paper can be found below.

Abstract

Competition authorities, and the politicians who hold them to account, primarily rely upon deterrence theory in order to achieve their objective of preventing anti-competitive behaviour. Broad trends of increased severity of sanctions, particularly for cartel behaviour, are easily observable and yet it is far from clear that the deterrence led approach is effective. Heightened severity of sanctions, and heightened probability of sanction, facilitated in part through the operation of leniency, ought to prevent recidivism and also lead to lower levels of infringements as part of a successful deterrence strategy, yet there is little evidence to suggest this is taking place. Efforts to ‘double down’ on deterrence through introducing individual sanctions in jurisdictions such as the UK can be useful but are unlikely to provide a complete answer in order to prevent anti-competitive behaviour. This paper will argue that deterrence should continue to be an important driver of competition authorities’ enforcement strategy, but that it should be framed within an overarching strategy of regulatory compliance, which affords greater priority to individual accountability, and embraces insights from behavioural economics in order to foster the creation of a competition culture and so as to align the incentives between corporation and individual.

The seminar takes place from 13:00-14:00 in the Thomas Paine Study Centre, Room 1.03. Tea will be provided directly afterwards in the MBA Café (TPSC, Floor 2).

‘The Damages Directive fails to deliver – Can it be fixed?’

After a short interval for the Annual Conference last week, the CCP seminar series returns on Friday 26th June with the our good friend Sebastian Peyer (University of Leicester) presenting ‘The Damages Directive fails to deliver – Can it be fixed?‘. Seb is a Lecturer in Law at the University of Leicester and an alumnus of CCP and the UEA Law School. He specialises in the area of the private enforcement of competition law and his research interests also encompass empirical legal studies, law and economics and comparative law. An abstract for his seminar can be found below.

Abstract

The EU Damages Directive came into force in December 2014. It seeks to ensure the effective private enforcement of competition law rules by facilitating claims in the courts of the EU Member States. However, the proposed measures do not address pressing issues such as claim aggregation or the funding of claims. Instead, the Directive introduces complex rules regarding access to information and joint and several liability.

This paper investigates the goals and key features of the EU Directive on antitrust damages actions. It demonstrates that the EU framework, if implemented without further changes, is unlikely to encourage more claims and create the envisaged level playing field. The Member States, however, could devise a more balanced system of private actions if they are willing to regulate private antitrust actions beyond the Directive’s remit.

The seminar takes place from 13:00-14:00 in the Thomas Paine Study Centre, Room 1.03.

‘Cartel Survey Project: The Sequel’

Our seminar series continues on Friday 28th May with CCP stalwart and survey supremo Andreas Stephan (CCP and LAW) presenting ‘Cartel Survey Project: The Sequel‘. Andreas is a Professor of Competition Law at the UEA Law School. He is an expert in cartel enforcement with a particular interest in the competition laws of emerging and developing economies. An abstract for his presentation can be found below.

Abstract

This presentation will give a summary of the results of the second Cartel Survey Project. This time questions gauging attitudes and awareness of price fixing and cartel enforcement were put to members of the public in the UK, Germany, Italy and the United States. The results present some surprising similarities in responses between these jurisdictions and suggest that the impact of enforcement on popular attitudes may not be as significant as previously thought.

The seminar takes place from 13:00-14:00 in the Thomas Paine Study Centre, Room 0.1.

This is the second occasion where Andreas has surveyed public perceptions to cartel activity. The findings from his first survey (of the British public) is freely downloadable here: Andreas Stephan, ‘Survey of Public Attitudes to Price-Fixing and Cartel Enforcement in Britain’ (2008) 5(1) Competition Law Review 123. [PDF, 309KB]

‘An Examination of Russia’s Anti Bid Rigging Policy’

Natalya Mosunova, a PhD Researcher at CCP and the UEA Law School, is at the Competition Law and Economics European Network (CLEEN) Workshop which, this year, is hosted by the Tilburg Law and Economics Center (TILEC). Natalya is presenting her most recent paper entitled ‘An Examination of Russia’s Anti Bid Rigging Policy‘. An abstract for the paper can be found below.

Abstract

The research focuses on the ineffectiveness of cartel criminalisation in Russia, in relation to bid-rigging, investigating whether or not the causes are specific to Russia. The peculiarity of the case lays in the fact that criminalisation is a rather widespread and well-functioning mechanism in Russia. Criminal responsibility for anticompetitive conduct was adopted into Russian criminal legislation in 1997; however, criminalisation is an often overlooked instrument.

For the purpose of the research, the specific characteristics of collusive tendering have been defined. The paper investigates the role of criminal sanctions, among other types of enforcement actions, for this category of antitrust violation. Officials from the Russian Federal Competition Commission and from one of its regional offices were interviewed in order to understand the reasons of malfunctioning of criminal responsibility in bid rigging. The findings from interviews are supplemented by study of relevant cases and demonstrate that the lack of adjustment of legislation to needs of competition law, mismatch of anti bid rigging policy with social expectations and, mainly, resistance of the system of public authorities to eliminate the effect of cartel criminalisation. The paper’s findings help to assess the enforcement of existing law and the reforms.

 

‘What can the European Commission’s Direct Settlement Procedure learn from the US Plea Bargaining System?’

The CCP seminar series continues on Friday 20th May with the magnificent Scott Summers (CCP and LAW) asking ‘What can the European Commission’s Direct Settlement Procedure learn from the US Plea Bargaining System?‘. Scott is a PhD Researcher and Associate Tutor at the UEA Law School. He reads widely in the area of Competition Law with a specialist interest in cartels. His research also extends to Human Rights Law and his PhD thesis considers the extent to which EU cartel enforcement complies with the rights enshrined within the European Convention on Human Rights and the principle of equal treatment. An abstract for his paper can be found below.

Abstract

Since 2008 the Commission has operated a settlement procedure for cases involving cartels. However, the uptake and use of this procedure has been slow; so far there has been a mere seventeen settlements. The EU settlement procedure has a variety of differences to that of the US plea bargaining system. The US system is utilised in more than ninety percent of cases. This paper therefore seeks to ask the question of what the EU settlement procedure can learn from the US plea bargaining system to help improve its utilisation, success and efficiency, whilst ensuring that it complies with Article 6 of the European Convention on Human Rights (ECHR). The paper begins by considering the cases that the Commission has settled so far under the procedure to identify weaknesses and procedural issues within the current approach. Then, the question of whether plea bargaining is compatible with Article 6 of the ECHR is deconstructed and analysed. Once it has been established that it is compatible, a discussion is had about the possibility of implementing such a system within the EU. The paper concludes by identifying ways in which the EU direct settlement procedure’s efficiency and utilisation can be improved whilst ensuring compatibility.

The seminar takes place from 13:00-14:00 in the Thomas Paine Study Centre, Room 1.03.

‘AstraZeneca 2.0 – A unilateral pay for delay story’

The CCP seminar series continues on Friday 8th May with the inimitable Sven Gallasch (CCP and LAW) presenting his research on ‘AstraZeneca 2.0 – A unilateral pay for delay story‘. Sven is a Lecturer in Law at the UEA Law School. His main research interests lie in the intersection of competition law and intellectual property rights. An abstract for his paper can be found below.

Abstract

Agreements in the pharmaceutical sector by which the brand pharmaceutical company pays the generic entrant to stay off the market as part of a patent settlement, so-called pay for delay settlements, are currently at the centre of attention of the European Commission at the moment, with decisions against Lundbeck and Johnson & Johnson and Servier. Predominately, the European Commission’s current enforcement efforts so far rest on Art. 101 TFEU, similar to the longstanding enforcement against these types of agreements in the United States. The antitrust scrutiny in the United States is based on the fact that a pay for delay settlement between a brand company and a single generic company can foreclose the entire market concerned.

In Europe, however, actual market foreclosure based on the pay for delay settlement itself is only possible in a small number of cases and only with very limited anticompetitive potential compared to the situation in the United States. This reduced anticompetitive potential arises from the differences in the European regulatory framework, which does not block subsequent generic entrants despite the conclusion of a pay for delay settlement in the market.

However, it would be misleading to think that pay for delay settlements have no anticompetitive potential in Europe. This article aims to extend the common understanding of the anticompetitive nature of pay for delay settlements in Europe. It argues that the brand company can cause significant consumer harm by using pay for delay settlements as a means to achieve broader unilateral anticompetitive conduct, such as product hopping, akin to the second abuse in the AstraZeneca judgment.

The seminar takes place from 13:00-14:00 in the Thomas Paine Study Centre, Room 0.1.

‘Anticompetitive Injunctions in Competition Law’

It’s back to the future for this week’s CCP seminar as we welcome the return of CCP alumna Sebastian Peyer (University of Leicester). Seb completed his PhD at the UEA Law School in 2010 and also worked as a Post Doctorate Research Fellow at the CCP. Seb will be presenting one of his latest research topics, ‘Anticompetitive Injunctions in Competition Law‘. An abstract for his presentation can be found below.

Abstract

Claimants frequently use injunctions to enforce competition law in the courts of the Member States. Injunctions force the defendant to do or stop doing something, and they are powerful tools in the hands of claimants that seek access to infrastructure, wish to be supplied with a particular input or feel unfairly treated. This raises the question whether injunctions based on competition law can be used to achieve anticompetitive outcomes. In this paper, I will describe potential strategies and factors that can be used to identify anticompetitive injunction claims. These factors are used to analyse antitrust litigation in Germany and England. I will demonstrate that in some instances injunction claims have a higher risk of leading to anticompetitive outcomes, and I will discuss potential safeguards to filter out potentially anticompetitive injunctions.

The seminar will take place on Friday 17th October from 13:00-14:00 in the Thomas Paine Study Centre, Room 1.03.

‘Bismarck vs Beveridge: what can healthcare-specific merger control in the Netherlands and England achieve?’

The CCP Spring seminar series reaches its conclusion on Friday 10th July with the magnificent Mary Guy (CCP and UEA Law School) presenting the preliminary findings of her latest research project, entitled ‘Bismark vs Beveridge: what can healthcare-specific merger control in the Netherlands and England achieve?‘. An abstract for her presentation can be found below.

Abstract

(Work-in-progress).

Despite representing two very different healthcare models – a Bismarck health insurance system and Beveridge national health service funded by general taxation, respectively – the Netherlands and England are experiencing a number of similarities as they introduce competition into healthcare. These include modifications to the assessment of (typically) hospital mergers after gradually applying general merger control to the healthcare sector.

In the Netherlands, following initial reluctance to subject hospitals to general merger control (which is closely related to the EU regime), there have been moves to modify the assessment process following a range of controversial merger decisions. These modifications started with a reduction in turnover thresholds and the adoption of specific assessment criteria and in 2014 have culminated in the implementation of a controversial statutory “healthcare-specific” test, which sees the healthcare and quality regulators examine a proposed merger prior to determination by the ACM.

In England, the traditional distinction between the Private Healthcare (PH) sector and the NHS was reflected in the practical application of the general merger test of the Enterprise Act 2002 (EA02) to the former and a non-statutory NHS merger test to the latter. However, the Health and Social Care Act 2012 (HSCA 2012) has prompted two potentially significant changes to healthcare merger review in England. Firstly, mergers involving NHS Foundation Trusts are now subject to EA02 and Monitor, the economic regulator for healthcare, has an advisory function in relation to these. Secondly, the removal of the private patient income cap by the HSCA 2012 has led the CMA to respond to an anticipated increased in Private Patient Unit (PPU) transactions by proposing a new test.

As the ultimate competence to determine mergers remains with the competition authorities in both countries, what can be achieved by regulator input and modified tests is perhaps questionable. However, the sensitivities which attach to healthcare in general (with regard to the continuity and affordability of care) suggest that there is a need to consider carefully how merger control is to be applied in a transition (and “problem”) market, particularly given the increasing lack of Ministerial competence in this area in both countries.

This presentation considers some of the difficulties of assessing hospital mergers, such as defining markets and how public interests have been reflected in both countries. It then proceeds to consider the development of “healthcare-specific” merger tests in light of what these can achieve in terms of developing competition in the sector and addressing non-competition concerns such as patient interests.

The seminar will take place from 13:00-14:00 in the Queens Building, Room 0.08.

From the CCP, we thank all of those who have presented this semester. The Seminar Series will return after the Summer break on Friday 19th September 2014. Further information will be posted on our Seminar Series pages in due course, where you can also access additional information on previous seminars.

Mary Guy awarded inaugural SSF Publication Prize

A PhD researcher at the CCP has become the inaugural recipient of a publication award at the SSF Graduate School Prize-Giving Ceremony at the University of East Anglia.

Mary Guy (centre) with Yann Lebeau (l) and Jacqueline Collier (r)

Mary Guy (centre) with Dr. Yann Lebeau (l) and Prof. Jacqueline Collier (r) upon being presented with her award.

Mary Guy, who is also a researcher at the UEA Law School, was awarded the prize in recognition of a paper she has recently co-authored with Dr. André den Exter (Erasmus University Rotterdam). Their article, ‘Market Competition in Health Care Markets in The Netherlands: Some Lessons for England?‘,  was published in a special issue of the prestigious Medical Law Review that was devoted to discussion on the impact of the Health and Social Care Act 2012 on Health Law and, in particular, markets and vulnerable patients.

Professor Morten Hviid, Director of the CCP, led the congratulations upon hearing of Mary’s achievement: “It is great that research by one of CCP’s members on the very complex and topical theme of competition law and health care is recognised in this way.

Dr. Michael Hamilton, Director of Postgraduate Research at the UEA Law School, described Mary’s award as ‘hugely deserved‘ in light of the numerous considerations taken into account by the Selection Panel: ‘The assessment criteria include the quality and originality of research; its importance to both the immediate and wider research community; its potential interest to the wider community in terms of public engagement; and the potential for the paper to generate future research.

In presenting the award, Dr. Yann Lebeau (Associate Dean of Postgraduate Research in the Faculty of Social Sciences) praised Mary for developing research links with other institutions through her co-authorship. Professor Jacqueline Collier (Executive Dean of SSF) was on hand to present Mary with a certificate and a prize of £200. Congratulations Mary!

Further reading: André P. den Exter and Mary J. Guy, ‘Market Competition in Health Care Markets in The Netherlands: Some Lessons for England?’ (2014) 22(2) Medical Law Review 255-273. Full text available to OUP subscribers at this link.