DOES ECONOMICS PROVIDE A RELIABLE GUIDE TO REGULATING COMMODITY BUNDLING BY FIRMS? A SURVEY OF THE ECONOMIC LITERATURE

This article surveys the voluminous economic literature on commoditybundling. While bundling has been widely studied, the vast majorityof the literature has focused on theoretical treatments of bundlingthat demonstrate a wide range of reasons why firms might engagein bundling. These papers generally contain restrictive assumptions,including assumptions regarding the existence of monopoly insome markets, and the nature of rivalry in others. The modelscontained in these papers also generally suppress the more obviousand ubiquitous reasons firms may use bundling. Moreover, thesemodels have not been subject to robustness checks, nor havetheir assumptions been tested empirically. This review of theeconomic literature generally confirms the US Solicitor General'sview in 3M v. LePage's regarding the underdeveloped state ofthe economics literature and its position that the US SupremeCourt should defer promulgation of antitrust standards for bundling.While the literature has demonstrated the possibility that bundlingcan generate anticompetitive harm, it does not provide a reliableway to gauge whether the potential for harm would outweigh anydemonstrable benefits from the practice. As a result, the widespreadapplication of the antitrust laws to bundling by firms can generatesignificant error costs by erroneously condemning or deterringefficient business practices. In the future, economists shouldseek to expand their understanding of both the anticompetitiveand procompetitive reasons firms engage in bundling. This willentail studying the reasons why bundling is adopted by firmswithout market power, relaxing the assumption of monopoly intheoretical models, and generating testable hypotheses and thedata to test them.     

Trade mark use in transit: EU-phony or cacophony?

Legal context The present article discusses the opinion of Advocate-GeneralJacobs in Case C-405/05 Class International BV v Unilever NVand others, according to which trade mark owners cannot opposethe entry into the European Union of grey market non-Communitygoods placed in external transit, on the grounds of Article5(1) of the Trade Mark Directive, or any equivalent provision,as such entry does not constitute trade mark use. Key points We examine the consistency of this approach withprior case law of the European Court of Justice, namely in theCommission v France, Rioglass, The Polo/Lauren and Rolex casesand draw a parallelism with Council Regulation (EC) 1383/2003. Practical significance We conclude that trade mark owners shouldbe allowed to prohibit the placing in transit of goods whichwould infringe an intellectual property right under the lawof the transit country, unless the owner or consignor of thelitigious goods can undeniably prove that the goods are notdestined for the internal market. Stop press. At the end of the article the authors provide abrief analysis of the European Court of Justice's decision of18th October 2005 in this case.     

A review of telecom markets in the EU: What did the European Commission learn or not from the past?

The EU telecom regulation relies on a market-by-market sunset approach. In order to facilitate the market review of national regulatory authorities, the European Commission has offered two successive sets of recommended markets susceptible to ex ante regulation. The inclusion or exclusion of a recommended telecom market is analyzed on its competition conditions across the EU. Beginning in 2014 the European Commission published the draft third Market Recommendation. This article aims to give a critical evaluation of those recommended markets by surveying the competition situations on every telecom market in the EU Member States. It observes that while the drafted Third Recommendation makes a reasonable assessment for most telecom markets, it may not have appropriately addressed markets such as retail fixed access, wholesale call origination, wholesale fixed and mobile call termination, wholesale high-quality access, and wholesale broadcasting transmission.     

Dominance in the Tetra Pak Case: An Empirical Approach

The 1991 decision of the European Commission on the Tetra Pak case was based on information which seemed to prove the firm's anti-competitive behavior. The Tetra Pak case is investigated here focusing on the meaning of multimarket dominance, using empirical techniques. We find that a more rigorous analysis of the data available would not confirm the Commission's assertions. That is, it cannot be concluded with certainty that the Commission was right to relate Tetra Pak's dominance in the aseptic sector to its market power in the non-aseptic sector. Our results suggest a general framework for the analysis of abusive transfer of market power across vertically or/and horizontally related markets.     

Negligence, Public Bodies, and Ruthlessness

The Law Commission has concluded in a recent consultation paper ('Administrative Redress') that claimants are able to sue public bodies successfully in negligence in an unacceptably wide range of circumstances. For this reason, it has proposed the introduction of a new touchstone of liability: 'serious fault'. The Law Commission regards the liability regime it proposes as superior to the existing law since it would reduce the number of occasions on which claimants deflect public bodies from their core concerns (delivering goods and services that serve the public interest). The Law Commission also finds support for its proposal in a 'principle of modified corrective justice'. On the analysis offered in this essay, the requirement of 'serious fault' is better understood as strengthening a commitment to ruthlessness (in the sense specified by Thomas Nagel) that is present in the existing law. This essay also argues for a reform of negligence law (as it applies to public bodies) that is very different from that proposed by the Law Commission. This is the application of the proportionality principle at the third stage of the duty of care test in Caparo Industries plc v Dickman . More generally, this essay criticises the Law Commission on the ground that it assumes that public bodies have sufficient information to perform a wide range of tasks effectively. This is often not the case. Moreover, negligence law in its existing form is a (non-market) discovery-procedure by means of which public bodies can, when defending novel claims, become better acquainted with the environment in which they operate.     

The US financial regulatory reform, causes of financial crisis and its enlightenment on China

Deficiency of the US financial regulation has stimulated the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The fundamental causes of the regulatory deficiency can be categorized as follows: excessively indebted consumption culture in a long term, permanently abolishing the regulation on financial derivatives by the US Commodity Futures Trading Commission, and the regulations before the reform not fitting for the fictitious economy. The operation of financial products is like to fly a kite. The financial product is the kite, governmental adjustment is the string, market regulation is the wind, national culture and legislature and judicature are the environment. Those coordinated elements can guarantee a healthy financial market. To construct an effective financial regulatory system in China, it is needed to make culture with Chinese characteristics, advance the coordinated development of governmental and market regulation, and promote financial legislations and related implementation.     

Heller,Schmitt and the Euro

Heller understood that Schmitt's ‘authoritarian state’ was in fact the liberal state in its pure form, weak in relation to the capitalist economy but strong in fending off democratic interventions in its operation. Had he lived, Heller would not have been surprised by the close affinities between Schmittian economic authoritarianism and postwar German ordoliberalism, as mediated by a figure like Alexander Rüstow. Neoliberalism as today we know it drew heavily on ordoliberal doctrine, in particular through Friedrich von Hayek who managed to merge it with Austrian economics into a powerful ideological force to replace Keynesianism after the 1970s. Today the European Union, especially in its incorporation as monetary union, closely follows the liberal‐authoritarian template as devised by Schmitt and others in the final years of the Weimar Republic. The paper shows this with reference to the five European‐level institutions that today govern the European free market while protecting it from democratic interference: the Parliament, the Council, the Commission, the European Court of Justice and the European Central Bank.     

The Future of the British Post Office

Recent proposals of the U.K. government to privatize the British Post Office are considered in relation to broader European trends and in terms of economic efficiency. The proposals appear to open the possibility of moving away from a geographically uniform tariff that conflicts with proposals from the EU Commission for the EU, as well as reducing the postal monopoly. Uniform postal charges may or may not improve economic welfare, as there are clear-cut conditions under which their welfare effect can be positive or negative. A practical mechanism is suggested to allow the postal monopoly to be challenged by alternative suppliers without encouraging cream skimming.     

THE ATTEMPTED MERGER BETWEEN GENERAL ELECTRIC AND HONEYWELL: A CASE STUDY OF TRANSATLANTIC CONFLICT

The thwarted merger of General Electric and Honeywell standsout, so far, as the only merger between US companies to be derailedsolely by the European anti-trust authorities, while being clearedby the US Department of Justice (DoJ) and 11 other jurisdictions.In this paper, the authors examine the European Commission'sdecision, and the theories underlying it and compare the Commission'sapproach with that followed by the DoJ. They observe that theCommission and the DoJ had a different assessment of broadlysimilar facts, and attempt to understand the source of the divergence.The authors find that (1) the horizontal effects identifiedby the European Commission rely on a particular perspectiveof market definition, which is debatable (and leaves some questionsunanswered); (2) the anticompetitive effects in the bundlingand Archimedean leveraging theories are not sufficiently robustthat they could be presumed (Accordingly, their likelihood shouldbe supported by strong evidence, but the evidence presentedby the Commission was far from compelling); (3) the deal mayhave involved significant efficiencies that were overlooked.These observations raise the suspicion that the Commission'sdecision may have been affected by bureaucratic capture, suchthat civil servants did not follow the mandate that had beenassigned to them. We find that the procedure enforced at thetime was vulnerable to capture and that the Commission had anincorrect perception of the standard of review that the Courtwould apply to its decision in the context of an appeal. Theaccountability to which the Commission felt subject was thusbiased downwards and enlarged the scope for capture. In addition,some (admittedly casual) evidence regarding the actual unfoldingof the procedure, as well as subsequent reforms of process andprocedure undertaken by the Commission, would support the viewthat significant problems arose in this area.     

The Bundling of Similar Interests in Litigation. The Incentives for Class Action and Legal Actions taken by Associations

The European directive 98/27/EC of 15 of May 1998 widens the scope of action for consumer interests. The new directive follows the green book on the rights of the consumer of 11 June 1993. The necessity to transform this directive into national law has led to discussions on whether it is advisable to generally expand the scope of liability for widespread damages. Should the possibilities to collect damages for consumer associations and to establish new forms of bundling similar interests in cases of civil liability be widened? This article deals with economic consequences of such forms of bundling with a focus on the class action and actions by associations. The American discussion on the merits of class action is not very encouraging and does not lead to proposing far reaching legal innovations for European countries in this field. It seems however that some of the adverse effects of class action can be avoided by slightly different forms of bundling.     

Tying and bundling by online platforms – Distinguishing between lawful expansion strategies and anti-competitive practices

The assessment of tying and bundling practices under Art. 102 TFEU in the case of online platforms will require adjusting current practice to correspond to their technical complexity and multi sided nature. Although the current framework may appear suitable to deal with this kind of abuses, The recent cases against Google show that there is still much uncertainty in practice. Therefore this article seeks to address the matter of tying and bundling by online platforms and provide guidance with regard to the application of the current legal framework to such complex cases in order to prevent false finding in ongoing and future cases.This article shows that finding an abuse of dominance in platform related cases requires great diligence as the joint provision of products or services and market power leveraging by platforms is an inherent part of their commercial evolvement. In this regard the article offers insight on how to distinguish between anticompetitive tying and bundling practices and legitimate expansion strategies. In order to do so, the article discusses how such practices can manifest and how they should be addressed under the framework of EU competition law in light of the similar competitive concerns they share with non-platform cases.     

Race,Crime, and Criminal Justice

Fifty years ago, the U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson did not frequently mention race and ethnicity in its discussion of and recommendations for the criminal justice system, but it did have a lot to say about race and crime. Through the use of arrest rates to measure racial differentials in criminal involvement, the Commission concluded that Blacks commit more crime as a consequence of Black people living in greater numbers in criminogenic “slum” conditions. To address racial differences, the Commission favored the Great Society programs of Johnson's War on Poverty. Contemporary criminologists continue to debate the racial distribution of crime, the causes of crimes, and the best policies to reduce crime and racial differentials. The Commission did not anticipate the current debate among scholars regarding how much racial disproportionality exists in the criminal justice system and its causes and consequences. The policies that led to mass incarceration have been significant drivers of continued criminal justice racial disparity. Those policies are inconsistent with the recommendation in The Challenge of Crime in a Free Society (1967), upending the pursuit of a more fair and just system.     

How I stopped worrying and learned to love the press

This article argues that the conclusions reached by the Hutchins Commission were wrong 50 years ago, and even more wrong today. First, greater diversity of media and market segmentation have made it easier, not harder, to voice an opinion today. Second, the expanding number of media outlets allows deserving opinions to reach large audiences indirectly by persuading the mainstream press to pick up on the subject. Third, the First Amendment should not be construed to place a special responsibility on the media to make judgments about what kinds of views and ideas the public should be exposed to.     

美国、欧盟、韩国、日本微软案件比较研究——以软件产业中滥用支配地位的认定和规制为视角

关于拒绝交易，欧盟、美国的司法救济没有本质差别。至于捆绑，美国要求微软隐藏被捆绑软件的图标；欧盟要求微软提供删除多媒体播放器源代码的视窗版本，但仍允许销售提供捆绑播放器的视窗版本；韩国除了采用类似于欧盟的救济以外，还要求微软在视窗操作系统中安装辅助软件，以方便用户下载微软竞争对手的软件；在针对微软IE浏览器与视窗的调查中，欧盟迫使微软承诺在视窗操作系统中设置选择屏，以便用户自由选择浏览器。比较而言，欧盟2004年的救济比美国的有力，韩国的救济比欧盟2004年的救济又更进一步，而欧盟2009年迫使微软在视窗中设置选择屏足迄今为止解决软件捆绑最彻底的救济手段。     

Electricity Market Restructuring and Energy Contracts: A Critical Note on the EU Commission’s NEA Decision

As highlighted in the economic literature, contracts are crucial policy instruments to organize and manage restructured electricity markets. In the early 90’s, during the restructuring of the electricity market in UK, the three main Scottish electricity generators stipulated a long-term, “take-or-pay” contract, the Nuclear Energy Agreement, which contained provisions for the trade of wholesale electricity in Scotland.The European Commission scrutinized such contract in order to derive the congruity of the agreement to European laws. Whilst the NEA was awarded an exemption under Article 85, paragraph 3 of the EU Treaty, the Commission recognized the inner anticompetitive content and potential effects of the contract.In this paper, we criticize the Commission NEA decision and economic reasoning and provide an alternative reading and analytical approach, which lead to opposite results and conclusions (the NEA contract is not anticompetitive and it enhances efficiency in competitive electricity markets). Given that the restructuring process in the EU electricity market is still in fieri, we select the NEA contract as a benchmark-case, in order to provide an alternative reading and a case-study for eventual, future energy contracts administration and authority decisions.JEL K, K2, K230     

论证券发行审核中的监管权配置

我国证券虚假发行上市问题屡禁不止,这折射出证券发行监管无力。透过证券发行监管中的问题,可以看到根源在于证监会、保荐人及证券交易所监管权配置被扭曲,因而应当重新定位三者的职能,合理配置监管权。证监会应当逐步放松股票公开发行审核的行政管制,回归执法者角色,配合完善的保荐人制度和证券交易所的一线监管职能;这样,可以在很大程度上解决虚假发行上市问题。     

The Question Concerning the Common Frame of Reference

The many directives on private consumer law enacted in the last three decades have met with considerable neglect and resistance amongst domestic judges, legislatures and scholars, bringing about less legal unity and more ‘legal fragmentation'—to say it in the words of the Commission. The Draft Common Frame of Reference is one more attempt, on the part of certain strands of European private law scholarship, at imposing a formal break on, and at overcoming, such fragmentation. Presented as a ‘comprehensive and self‐standing’ document, its ambition is to definitively implement the Commission‐generated, market‐orientated agenda of private law reform, so much resisted at the national level. The article argues that the EU legislative institutions should not go ahead with the plan of incorporating the Draft's content in EU law, by adopting a CFR. A CFR would confer an unprecedented degree of authority on a range of contested directive‐generated rules, from the test of fairness to the risk development defence in product liability. In creating a climate in which CFR‐based legalistic arguments promote unity over fragmentation, a CFR would emasculate public debate by implementing, under the spell of legal necessity, exactly those partisan, Commission‐initiated policies that have been, and still are, openly opposed in domestic legal circles. The Draft embodies a grammar of imposition that should be questioned.     

Antitrust issues in the settlement of pharmaceutical patent disputes, Part II

The settlement of patent disputes in the pharmaceutical industry, and the possible antitrust issues arising therefrom, are of notable concern to the Federal Trade Commission. In this Comment, based on his second speech on the subject, Commissioner Leary re-examines some of this earlier positions under the light of the Commission's further experience with these matters, and provides the industry with some additional objective standards under which it may legally operate. With the Hatch-Waxman Act as a backdrop for patent settlements between manufacturers of patented drugs and potential generic entrants to the market, the Commissioner reviews a variety of scenarios that may or may not be permissible. After initially noting the circumstances of presumptively valid settlements, Commissioner Leary reviews the often complex settlement structures that will be deemed unlawful when and if the finding of reverse payments is evidenced. Finally, the Commissioner concludes with a brief examination of other settlement structures and offers his general views as to their likely legality.     

Child-related leave and women’s labour market outcomes: towards a new paradigm in the European Union?

The current European Union (EU) legislative framework on child-related leave is facilitating an imbalance in the take-up of leave by women over men. There is a consolidated EU right to maternity leave for mothers but there is no parallel EU right to paternity leave for fathers. The EU right to parental leave is for both working mothers and fathers, but its design does not encourage an equal take-up by women and men. The aim of this article is to gain insight into the effects of child-related leave on women’s labour market outcomes. On the one hand, it reviews and analyses economic literature which points to the adverse consequences of leave on women’s earnings, and even on women’s labour market participation when the absences from work are very prolonged. On the other hand, it underlines the new direction followed by the European Commission towards greater equality between men and women at home and at work.     

论“光大证券事件”中的期货内幕交易

光大证券在期货市场的交易行为是否构成内幕交易值得深究。从解释论的角度看,证监会的处罚没有说明为何光大证券属于内幕知情人,通过对《期货交易管理条例》第82条第12项的解释,应当认为光大证券作为期货投资者,不属于期货内幕知情人,因而不构成期货内幕交易;从英、美两国的规定看,无论是通过对期货内幕人范围的限定还是规定相应的抗辩事由,比较法上的经验都说明了并非利用重大非公开的信息都可构成内幕交易;分析期货市场的特殊性,可以发现期货市场的主要功能是套期保值,而套期保值者相比于投机者具有不可避免的市场信息优势,为了实现套期保值与市场的流动性,利用信息优势进行期货交易属于期货市场的惯常做法;"光大证券乌龙指事件"给资本市场造成了很大的冲击,但在我国期货监管机构以及交易所对该种异常情形缺乏规定的情况下,其利用信息优势进行套期保值,仍然属于该惯常做法的范围内;若监管机构拟对这类行为进行规制,应该事先制定例外规则,对特定类型的做空交易进行限制。