Papers by Florian Wagner-von Papp
Comparative Law & Economics and the ‘Egg-Laying Wool-Milk Sow’
Proponents of a new discipline of ‘comparative law and economics’ emphasise the complementarity o... more Proponents of a new discipline of ‘comparative law and economics’ emphasise the complementarity of ‘comparative law’ and ‘law & economics’. I share this view, but highlight some of the problems that comparative law and economics encounters. My word of caution is that a good comparative law and economics analysis would be an ‘egg-laying wool-milk sow’ — an imaginary cross-breed creature that has come to signify an impossible combination of desirable attributes.
Most of this piece focuses on the considerable costs confronting the researcher who combines comparative and economic approaches. It is an elaboration on William Twining’s warning that ‘it is easy to ignore or to underestimate the difficulties, theoretical and practical, of sustained interdisciplinary work.’ However, Twining continued that ‘[i]t is easy for inflated optimism to be replaced by sour disillusion’, and to avoid this trap, the final section this piece paints a more conciliatory picture, turning to the benefits that the combination of comparative law and law & economics can bring. As long as the researcher understands and openly confronts the feasibility constraints, and acknowledges the normative choices necessarily made even when describing the ‘Is’ (that is, in the ostensibly ‘scientific’ part, not to mention the normative part on what ‘ought’ to be done), both approaches have the potential to advance knowledge considerably, and the whole can be greater than the sum of its parts. However, it is in my view better to have separate in-depth legal comparisons and in-depth economic analyses, instead of sacrificing either the richness of a functional legal comparison or the rigour of the economic analysis in a combined ‘comparative law and economics’ approach.
This report should be cited as following: Lianos, I., Jenny, F., Wagner von Papp, F., Motchenkova E., David, E. et al (2014) Judicial Scrutiny of Financial Penalties in Competition Law: A Comparative Perspective (CLES Research paper series 4/2014, UCL Faculty of Laws: London).
We proceed to a comparative analysis of the judicial scrutiny of financial penalties for competit... more We proceed to a comparative analysis of the judicial scrutiny of financial penalties for competition law infringements in the following jurisdictions: European Union, United States, Germany, United Kingdom, France and Chile.
This report should be cited as following: Lianos, I., Jenny, F., Wagner von Papp, F., Motchenkova E., David, E. et al (2014) An Optimal and Just Financial Penalties System for Infringements of Competition Law: a Comparative Analysis (CLES Research paper series 3/2014, UCL Faculty of Laws: London).
The report examines optimal financial penalties from an economic and a comparative perspective. W... more The report examines optimal financial penalties from an economic and a comparative perspective. While emphasis is put on deterrence, we also examine some limits to the optimal enforcement theory employed by economists to design effective sanctions, in particular the principle of proportionality and the need for the penalty to be related to the harm caused and the wrong committed, the legal system integrating corrective justice concerns. The report delves into the tension between over-enforcement and under-enforcement and that between a more effects-based approach for setting financial penalties (sanctions) that would rely on economic methodologies and a case-by-case analysis to provide an accurate estimate of the harm caused by the anticompetitive conduct and a more "forms-based" approach that would rely on the use of proxies of percentages of the volume of commerce or the affected sales. The latter reduce the administrative costs of the authorities in designing appropriate sanctions but are less accurate than effects-based approaches. The report examines intermediary approaches put forward by the literature and their possible application to various competition law infringements (e.g. cartels, abuse of a dominant position). The final part of the report proceeds to a detailed comparative analysis of the financial penalties (sanctions) regimes for infringements of competition Law in the European Union, United States, Germany, United Kingdom, France and Chile, taking an empirical and a doctrinal perspective. Specific recommendations for the reform of the financial penalties system for competition law infringements in Chile are also provided.
Wagner-von Papp, Florian, Comparative Antitrust Federalism and the Error-Cost Framework, or: Rhetoric and Reality
selected to appear in Nicolas Petit & Elisa Ramundo (eds.), An Antitrust Tribute, Liber Amicorum for William E. Kovacic, Volume II (Institute of Competition Law, Forthcoming)
The aim of this paper is threefold. First, it seeks to contribute to a more fine-grained comparis... more The aim of this paper is threefold. First, it seeks to contribute to a more fine-grained comparison between US antitrust and EU competition law by (selectively) including state antitrust laws as well as laws that pursue objectives different from the antitrust laws but interfere with the aims of the antitrust laws ("non-antitrust laws"). Secondly, the paper highlights the degree to which such state antitrust laws and non-antitrust laws may interfere with the error-cost framework employed in antitrust law which finely balances Type I and Type II errors. Thirdly, as a consequence of the first two points, the paper seeks to raise awareness of the importance of clearly defining the relationship between antitrust law on the federal (or EU) level and antitrust laws as well as non-antitrust laws on the (Member) state level.
Federal antitrust law in the United States has come a long way since the 1970s. Interventionism has since been replaced by the use of an error-cost framework. This error-cost framework takes into account that Type I errors (false positives, overenforcement) may actually stifle competition and be counterproductive, for example, where antitrust protection of intrabrand competition has negative effects on interbrand competition, or where the antitrust laws are used to restrict vigorous competition by a firm with monopoly power in order to protect less efficient competitors to the detriment of consumers. When comparing US antitrust law to EU competition law, EU law is usually portrayed as not having made this transition, or at least not being consist in the implementation of the error-cost framework. EU competition law is seen as interventionist and disproportionately concerned with Type II errors (false negatives, underenforcement).
This contribution acknowledges that the enforcement of EU competition law is more interventionist than the enforcement of US federal antitrust law. However, the comparison of US antitrust law on the *federal* level with competition rules on the *EU* level is an incomplete one. In comparative law, the focus must be on the "law in action" as it applies to a given factual scenario and must take "functional equivalents" into account.
Using these insights from comparative law has the consequence that in the US one has to take into account not only federal antitrust law, but also state antitrust laws and non-antitrust laws. Some state antitrust laws are more interventionist than the federal antitrust laws, for example in the treatment of resale price maintenance, and they may apply concurrently to federal law, undermining the federal law's non-interventionist stance. Alternatively or cumulatively, non-antitrust laws (on the federal or state level) may disturb the fine balance struck by the error-cost framework employed in federal antitrust law. This is, for example, the case where contract law makes resale price maintenance contracts unenforceable even though they would be considered reasonable under federal antitrust law, where franchise or car dealership laws make it difficult for the franchisor or manufacturer to structure or restructure their distribution schemes, undermining the federal law's reluctance to interfere with unilateral decision-making even by the monopolist, or where sales-below-cost statutes in the states undermine the error-cost framework employed in predatory-pricing analysis under the federal antitrust laws. Taking these functional equivalents into account narrows the seemingly wide gap between interventionist EU competition law and the non-interventionist US antitrust law to some degree.
In the EU, conversely, one also has to consider the competition laws of the Member States, and the effect of functional equivalents of laws outside competition law. A similar picture emerges: the Member States' competition laws are generally more interventionist than EU competition law (especially where competition laws apply to "economic dependency" scenarios), and non-antitrust laws, such as unfair trade law, prohibit conduct that would pass muster under EU competition law.
As most of the laws interfering with the error-cost framework analysis are enacted on the state level (or Member State level), the question of the relationship between federal and state law arises. In the US, the courts have been extremely reluctant to consider federal preemption of state antitrust laws, and state non-antitrust laws generally benefit from the non-interventionist state action doctrine. In the EU, the relationship between the national competition laws and EU competition law has changed in 2004, in a political compromise that I consider unsatisfactory: while restrictions of competition by agreement are, roughly speaking, fully harmonized across the EU, Member States are completely free to be as interventionist as they like as far as unilateral conduct is concerned.
While it is arguably unrealistic to draft an error-cost framework that comprises all antitrust and non-antitrust objectives, and at the same time takes account of federalism issues, this paper seeks to raise the awareness of the interactions between the various antitrust/non-antitrust and federal/state laws.
Competition Law, Extraterritoriality and Bilateral Agreements
The chapter describes and compares the extraterritorial reach of US Antitrust and EU Competition ... more The chapter describes and compares the extraterritorial reach of US Antitrust and EU Competition Law. Beside providing a general overview of the unilateral extraterritorial enforcement, comity considerations and bilateral agreements, the chapter focuses especially on the current developments in the qualification of the effects doctrine, especially the qualifiers that the effects have to be 'direct' (or 'immediate'), 'substantial' and 'foreseeable'.
Some courts in the US have recently begun to take the 'directness' qualifier too literally. There is a danger that this will allow infringements with substantial and foreseeable domestic effects to go without antitrust scrutiny. The chapter argues that a criterion of 'directness' makes no sense where economic effects are concerned. In the US, where the Foreign Trade Antitrust Improvements Act (FTAIA) prescribes the qualifiers by statute, the directness qualifier should be interpreted as coextensive with the foreseeability qualifier. In the EU, where no statute prescribes the qualifiers established by the General Court in the Gencor decision, the directness/immediacy qualifier should be dropped altogether.
"Where the EU Commission has concerns about possibly anticompetitive conduct, Article 9 Regulatio... more "Where the EU Commission has concerns about possibly anticompetitive conduct, Article 9 Regulation 1/2003 empowers the Commission to accept commitments from the undertakings concerned, provided that these commitments meet the concerns; if the Commission accepts the commitments, it makes them binding on the undertakings and concludes that there are ‘no longer grounds for action’ (the ‘commitment procedure’). This commitment procedure is part of a wider trend that promotes what one could call ‘consensual competition law enforcement’. The underlying problem of consensual competition law enforcement is that it departs from the traditional public-law paradigm of an authoritative top-down command in favour of a consensual dispute resolution mechanism. As a result, it is uncertain to what extent the traditional safeguards against such authoritative commands developed in public law – such as the principle of proportionality – continue to apply to this hybrid procedure; the ‘voluntary’ nature of commitments may instead suggest a hands-off approach.
In the Alrosa case, both the General Court and the Court of Justice of the European Union (CJEU) had the opportunity to adjudicate on the degree of protection to be afforded to the undertakings against disproportionate commitments. The General Court implicitly considered the public-law character of commitment decisions to govern the analysis, and as a consequence required the Commission to afford the undertakings procedural protections similar to those available in infringement procedures. In contrast, Advocate General Kokott and the CJEU stressed the consensual (‘voluntary’) aspect of the commitment procedure. The strictures of the rule of law were relaxed with the argument that the parties could sufficiently protect themselves against disproportionate remedies in the course of the negotiations. After all, nobody forces undertakings to offer commitments to the Commission.
The article starts by outlining the underlying problem of the commitment decision as a hybrid measure between unilateral command and contract, and the extent to which commitment negotiations differ from contracting between private parties (Parts 2 and 3). Parts 4 and 5 give a brief overview of the respective advantages and disadvantages of infringement procedures and commitment procedures. Part 6 describes the Alrosa judgments of the General Court and the CJEU. I will then discuss, in Part 7, why the growing reliance on consensual competition law enforcement is problematic, before concluding in Part 8.
The main criticism is that the current lack of external or internal constraints on the Commission in the commitment procedure may result in a vicious circle, leading to ever more commitment decisions and ever fewer infringement decisions. Undertakings start to extrapolate their obligations from commitment decisions and non-binding guidelines that do not authoritatively state the law. This reliance on ‘quasi case law’ increases the Commission’s discretion in future negotiations. The incentives for the Commission to resort to the commitment procedure are especially strong in cases involving novel legal issues, that is in cases in which the benefit of legal certainty provided by an infringement decision would be particularly strong. There is a danger that the struggle for law is abandoned in favor of discretionary case-to-case negotiations.
There are two ways out of this vicious circle. One is to make infringement decisions more attractive for the Commission by increasing the Commission’s discretion in devising proactive remedies. The other way is to impose more constraints on the Commission in the commitment procedure. Since the legislator and the Court have largely abandoned their role in constraining the Commission’s discretion in the commitment procedure, it now falls to the Commission to exercise self-restraint, not only in individual cases, but by issuing self-binding guidelines."
Criminal Antitrust Law Enforcement in Germany: ‘The Whole Point is Lost If You Keep it a Secret! Why Didn’t You Tell the World, Eh?’
The paper starts with a brief outline of the recent development of cartel criminalization in Germ... more The paper starts with a brief outline of the recent development of cartel criminalization in Germany, and describes the experience with the bid-rigging offense introduced in 1997. Contrary to public perception, criminal prosecutions for bid-rigging are quite frequent in Germany, with more than 260 prosecutions and 180 convictions until 2008. Recently, the courts have begun to impose severe sanctions, including at least one unsuspended prison sentence of two years and ten months (in addition to a criminal fine of €100,000). However, the effectiveness of deterrence crucially depends on the perceived level of enforcement; and in this respect, the German experience has been disappointing to date.
The paper then turns to the discussion about the further criminalization of competition law. Current legislation in Germany limits criminal sanctions to cases of bid-rigging. The German government does not at present perceive a need for a more encompassing cartel offense. However, the legal literature, which also tended to be skeptical of criminal enforcement in the context of competition law, appears to reconsider its position. The paper considers the scope for further criminalization with regard to the institutional context in Germany.
European Contract Law: Are No Oral Modification Clauses Not Worth the Paper They are Written on? – DCFR II.-4:105 v. CISG 29(2), UNIDROIT Principles 2.1.18, UCC § 2-209 and Comparative Law
The European Commission appears determined to take action in order to harmonize contract law in t... more The European Commission appears determined to take action in order to harmonize contract law in the European Union. Most recently, it has issued a Green Paper on 1 July 2010. In order to aid the process of harmonization, a large-scale academic study had been commissioned, the 'Draft Common Frame of Reference' (DCFR). The black-letter rules of this Restatement-like project were published in 2008 and 2009, the full comments and notes became available in late 2009 and early 2010. The DCFR has not only attracted praise, but also criticism on a macro-level.
My paper takes a micro-approach by analyzing one particular DCFR rule, the rule dealing with no oral modification clauses (NOM-clauses), DCFR II.-4:105. This rule is singled out because it is one of the relatively few rules in which the drafters of the DCFR have consciously deviated from the approach taken by the Convention on Contracts for the International Sale of Goods (CISG, 1980 Vienna Convention, Article 29(2)) and the UNIDROIT Principles for International Commercial Contracts 2004 (Article 2.1.18).
Following a brief introduction outlining the European activities in the area of contract law harmonization and the general problem raised by NOM-clauses, Part 2 of this article describes several jurisdictions that treat NOM-clauses as unenforceable, or did so in the past. Part 3 describes jurisdictions and legal instruments that give effect to NOM-clauses; in many jurisdictions, this approach has overcome earlier resistance. A particular focus of the comparative analysis is on the contract law in the US, in England & Wales, Germany, and the internationally harmonized legal instruments (CISG and UNIDROIT Principles), but the situation in Austria, Australia, Italy and Scotland is also briefly considered.
In Part 4, I discuss the policy reasons counseling for and against the enforcement of NOM-clauses, and conclude that NOM-clauses should generally be enforceable. Parts 5-9 address several limitations to the enforceability of NOM-clauses in jurisdictions that usually do consider them to be effective (novation, rescission/termination, collateral contracts, waiver, estoppel, venire-contra-factum-proprium exceptions, and NOM-clauses in standard terms and conditions).
Part 10 critically analyzes the solution adopted by the drafters of the DCFR in DCFR II.-4:105. I conclude that the comparative analysis regrettably opted for breadth instead of depth. The analysis is devoid of any discussion of policy arguments. The comparative analysis of the national solutions is mostly based on ‘the law in the books’, contrary to the principle of comparative law to focus on the ‘law in action’, and is not always accurate. What is more, the model rule itself is internally inconsistent.
I conclude by asking whether the deficiencies in DCFR II.-4:105 are in any way representative for the DCFR and what policy questions should be addressed when drafting a rule on NOM-clauses.
Should We Be Free Not to Be Free to Ruin Ourselves? Gambling, Self-Exclusion Agreements and the Brain
Willpower is bounded. In order to cope with bounded willpower, humans put up ‘self-paternalistic’... more Willpower is bounded. In order to cope with bounded willpower, humans put up ‘self-paternalistic’ safeguards to shield themselves from diminished self-control when faced with temptations. Willpower is especially bounded where ‘addictions’ are concerned.
This paper focuses on the legal treatment of one specific class of safeguards against limited self-control: Self-exclusion agreements between casinos and problem gamblers, in which the gambler vows not to return to the casino.
The common denominator of all ‘self-paternalistic’ safeguards is that the actor tries to limit his or her future strategy space in order to maximise his or her perceived overall self-interest. The limitation of the future autonomy is itself autonomously chosen. This leads to the philosophical and legal question, to what degree (if at all) it is possible to limit one’s future autonomy.
The paper is divided into four parts. The first part will outline the dimensions of problem gambling and describe the mechanism of self-exclusion schemes (Chapter II).
The second part will deal with the questions whether the law should allow the effective limitation of one’s future autonomy, whether it does allow it, and – if the answer to the latter question is in the affirmative – to what extent actors can limit their future strategy space (Chapters III-IV).
The third part of the article addresses the question if there is a good reason to prefer the decision to self-exclude over the later decision to gamble (Chapter V). I will point to several studies which show that there are physiological dysfunctions suggesting that the gambler's decision to gamble is indeed arrived at by different neural processes than the decision to self-exclude.
The fourth and final part (Chapters VI-VII) discusses several regulatory options, and scrutinizes the self-exclusion arrangements proposed by the Gambling Commission in the United Kingdom against the background of the experience gained in Germany and the United States. I conclude that the enforcement of self-exclusion agreements by private litigation is preferable to the exclusively public enforcement envisaged by he Gambling Commission.
BGH, 15.12. 2005-III ZR 65/05: Die Rechtsfolgen einer" Eigensperre" des Spielsüchtigen
Juristenzeitung, Jan 1, 2006
... BGH, 15.12.2005 - III ZR 65/05: Die Rechtsfolgen einer "Eigensperre" des Sp... more ... BGH, 15.12.2005 - III ZR 65/05: Die Rechtsfolgen einer "Eigensperre" des Spielsüchtigen. Autores:Florian Wagner-von Papp; Localización: Juristenzeitung, ISSN 0022-6882, Nº. 9, 2006 , págs. 468-472; Resumen: Die Rechtsfolgen einer "Eigensperre" des Spielsüchtigen. ...
Empfiehlt sich das Empfehlungsverbot?
Wirtschaft und Wettbewerb, Jan 1, 2005
UCL logo UCL Discovery. ...
Internationales Wettbewerbsrecht
Internationales Wirtschaftsrecht, Jan 1, 2009
Antitrust Modernization Commission Report and Recommendations (April 2007); J. BätgeWettbewerb de... more Antitrust Modernization Commission Report and Recommendations (April 2007); J. BätgeWettbewerb der Wettbewerbsordnungen (im Erscheinen); D. Baetge The Extraterritorial Reach of Antitrust Law between Legal Imperialism and Harmonious ...
Die Privatautonome Beschränkung Der PrivatautonomieGewillkürte Schriftformklauseln Und Sperrverträge In Spielbanken Als Ausprägungen Des …
Archiv für die civilistische Praxis, Jan 1, 2005
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Anmerkung Zu BGH V. 15.12. 2005, III ZR 65/05
JuristenZeitung, Jan 1, 2006
Marktinformationsverfahren: Grenzen Der Information Im Wettbewerb
Page 1. Florian Wagner-von Papp Marktinformationsverfahren: Grenzen der Information im Wettbewerb... more Page 1. Florian Wagner-von Papp Marktinformationsverfahren: Grenzen der Information im Wettbewerb Die Herstellung praktischer Konkordanz zwischen legitimen Informationsbedtirfnissen und Geheimwettbewerb Nomos Page 2. Inhaltsiibersicht Einleitung 26 ...
Die Privatautonome Beschränkung Der Privatautonomie
Archiv für die civilistische Praxis, Jan 1, 2005
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Kriminalisierung Von Kartellen
WUW: Wirtschaft und wettbewerb= …, Jan 1, 2010
... | Ayuda. Kriminalisierung von Kartellen. Autores: Florian Wagner-von Papp; Localización: WUW ... more ... | Ayuda. Kriminalisierung von Kartellen. Autores: Florian Wagner-von Papp; Localización: WUW : Wirtschaft und wettbewerb = Concurrence et marché = Competition and trade regulation, ISSN 0043-6151, Vol. 60, Nº. 3, 2010 , pags. 268-281. ...
Der Richtlinienentwurf Zu Kartellrechtlichen Schadensersatzklagen
Europaisches wirtschafts und steuerrecht, Jan 1, 2009
... | Ayuda. Der Richtlinienentwurf zu kartellrechtlichen Schadensersatzklagen. Autores:Florian W... more ... | Ayuda. Der Richtlinienentwurf zu kartellrechtlichen Schadensersatzklagen. Autores:Florian Wagner von Papp; Localización: Europaisches wirtschafts und steuerrecht, ISSN 0938-3050, Vol. 20, Nº 11, 2009 , pags. 445-454. © 2001 ...
Kartellstrafrecht In Den USA, Dem Vereinigten Königreich Und Deutschland
WUW: Wirtschaft und wettbewerb= …, Jan 1, 2009
... | Ayuda. Kartellstrafrecht in den USA, dem Vereinigten Königreich und Deutschland. Autores:Fl... more ... | Ayuda. Kartellstrafrecht in den USA, dem Vereinigten Königreich und Deutschland. Autores:Florian Wagner-von Papp; Localización: WUW : Wirtschaft und wettbewerb = Concurrence et marché = Competition and trade regulation, ISSN 0043-6151, Vol. 59, Nº. 12, 2009 , pags. ...
Die Doppelte Inlandsumsatzschwelle Und Der Entwurf Eines Dritten Mittelstandsentlastungsgesetzes (MEG III-E)
WUW: Wirtschaft und wettbewerb= …, Jan 1, 2008
... Autores: Florian Wagner-von Papp; Localización: WUW : Wirtschaft und wettbewerb = Concurrence... more ... Autores: Florian Wagner-von Papp; Localización: WUW : Wirtschaft und wettbewerb = Concurrence et marché = Competition and trade regulation, ISSN 0043-6151, Vol. 58, Nº. 11, 2008 , pags. 1167-1176. © 2001-2009 Universidad de La Rioja · Todos los derechos reservados. ...
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Papers by Florian Wagner-von Papp
Most of this piece focuses on the considerable costs confronting the researcher who combines comparative and economic approaches. It is an elaboration on William Twining’s warning that ‘it is easy to ignore or to underestimate the difficulties, theoretical and practical, of sustained interdisciplinary work.’ However, Twining continued that ‘[i]t is easy for inflated optimism to be replaced by sour disillusion’, and to avoid this trap, the final section this piece paints a more conciliatory picture, turning to the benefits that the combination of comparative law and law & economics can bring. As long as the researcher understands and openly confronts the feasibility constraints, and acknowledges the normative choices necessarily made even when describing the ‘Is’ (that is, in the ostensibly ‘scientific’ part, not to mention the normative part on what ‘ought’ to be done), both approaches have the potential to advance knowledge considerably, and the whole can be greater than the sum of its parts. However, it is in my view better to have separate in-depth legal comparisons and in-depth economic analyses, instead of sacrificing either the richness of a functional legal comparison or the rigour of the economic analysis in a combined ‘comparative law and economics’ approach.
Federal antitrust law in the United States has come a long way since the 1970s. Interventionism has since been replaced by the use of an error-cost framework. This error-cost framework takes into account that Type I errors (false positives, overenforcement) may actually stifle competition and be counterproductive, for example, where antitrust protection of intrabrand competition has negative effects on interbrand competition, or where the antitrust laws are used to restrict vigorous competition by a firm with monopoly power in order to protect less efficient competitors to the detriment of consumers. When comparing US antitrust law to EU competition law, EU law is usually portrayed as not having made this transition, or at least not being consist in the implementation of the error-cost framework. EU competition law is seen as interventionist and disproportionately concerned with Type II errors (false negatives, underenforcement).
This contribution acknowledges that the enforcement of EU competition law is more interventionist than the enforcement of US federal antitrust law. However, the comparison of US antitrust law on the *federal* level with competition rules on the *EU* level is an incomplete one. In comparative law, the focus must be on the "law in action" as it applies to a given factual scenario and must take "functional equivalents" into account.
Using these insights from comparative law has the consequence that in the US one has to take into account not only federal antitrust law, but also state antitrust laws and non-antitrust laws. Some state antitrust laws are more interventionist than the federal antitrust laws, for example in the treatment of resale price maintenance, and they may apply concurrently to federal law, undermining the federal law's non-interventionist stance. Alternatively or cumulatively, non-antitrust laws (on the federal or state level) may disturb the fine balance struck by the error-cost framework employed in federal antitrust law. This is, for example, the case where contract law makes resale price maintenance contracts unenforceable even though they would be considered reasonable under federal antitrust law, where franchise or car dealership laws make it difficult for the franchisor or manufacturer to structure or restructure their distribution schemes, undermining the federal law's reluctance to interfere with unilateral decision-making even by the monopolist, or where sales-below-cost statutes in the states undermine the error-cost framework employed in predatory-pricing analysis under the federal antitrust laws. Taking these functional equivalents into account narrows the seemingly wide gap between interventionist EU competition law and the non-interventionist US antitrust law to some degree.
In the EU, conversely, one also has to consider the competition laws of the Member States, and the effect of functional equivalents of laws outside competition law. A similar picture emerges: the Member States' competition laws are generally more interventionist than EU competition law (especially where competition laws apply to "economic dependency" scenarios), and non-antitrust laws, such as unfair trade law, prohibit conduct that would pass muster under EU competition law.
As most of the laws interfering with the error-cost framework analysis are enacted on the state level (or Member State level), the question of the relationship between federal and state law arises. In the US, the courts have been extremely reluctant to consider federal preemption of state antitrust laws, and state non-antitrust laws generally benefit from the non-interventionist state action doctrine. In the EU, the relationship between the national competition laws and EU competition law has changed in 2004, in a political compromise that I consider unsatisfactory: while restrictions of competition by agreement are, roughly speaking, fully harmonized across the EU, Member States are completely free to be as interventionist as they like as far as unilateral conduct is concerned.
While it is arguably unrealistic to draft an error-cost framework that comprises all antitrust and non-antitrust objectives, and at the same time takes account of federalism issues, this paper seeks to raise the awareness of the interactions between the various antitrust/non-antitrust and federal/state laws.
Some courts in the US have recently begun to take the 'directness' qualifier too literally. There is a danger that this will allow infringements with substantial and foreseeable domestic effects to go without antitrust scrutiny. The chapter argues that a criterion of 'directness' makes no sense where economic effects are concerned. In the US, where the Foreign Trade Antitrust Improvements Act (FTAIA) prescribes the qualifiers by statute, the directness qualifier should be interpreted as coextensive with the foreseeability qualifier. In the EU, where no statute prescribes the qualifiers established by the General Court in the Gencor decision, the directness/immediacy qualifier should be dropped altogether.
In the Alrosa case, both the General Court and the Court of Justice of the European Union (CJEU) had the opportunity to adjudicate on the degree of protection to be afforded to the undertakings against disproportionate commitments. The General Court implicitly considered the public-law character of commitment decisions to govern the analysis, and as a consequence required the Commission to afford the undertakings procedural protections similar to those available in infringement procedures. In contrast, Advocate General Kokott and the CJEU stressed the consensual (‘voluntary’) aspect of the commitment procedure. The strictures of the rule of law were relaxed with the argument that the parties could sufficiently protect themselves against disproportionate remedies in the course of the negotiations. After all, nobody forces undertakings to offer commitments to the Commission.
The article starts by outlining the underlying problem of the commitment decision as a hybrid measure between unilateral command and contract, and the extent to which commitment negotiations differ from contracting between private parties (Parts 2 and 3). Parts 4 and 5 give a brief overview of the respective advantages and disadvantages of infringement procedures and commitment procedures. Part 6 describes the Alrosa judgments of the General Court and the CJEU. I will then discuss, in Part 7, why the growing reliance on consensual competition law enforcement is problematic, before concluding in Part 8.
The main criticism is that the current lack of external or internal constraints on the Commission in the commitment procedure may result in a vicious circle, leading to ever more commitment decisions and ever fewer infringement decisions. Undertakings start to extrapolate their obligations from commitment decisions and non-binding guidelines that do not authoritatively state the law. This reliance on ‘quasi case law’ increases the Commission’s discretion in future negotiations. The incentives for the Commission to resort to the commitment procedure are especially strong in cases involving novel legal issues, that is in cases in which the benefit of legal certainty provided by an infringement decision would be particularly strong. There is a danger that the struggle for law is abandoned in favor of discretionary case-to-case negotiations.
There are two ways out of this vicious circle. One is to make infringement decisions more attractive for the Commission by increasing the Commission’s discretion in devising proactive remedies. The other way is to impose more constraints on the Commission in the commitment procedure. Since the legislator and the Court have largely abandoned their role in constraining the Commission’s discretion in the commitment procedure, it now falls to the Commission to exercise self-restraint, not only in individual cases, but by issuing self-binding guidelines."
The paper then turns to the discussion about the further criminalization of competition law. Current legislation in Germany limits criminal sanctions to cases of bid-rigging. The German government does not at present perceive a need for a more encompassing cartel offense. However, the legal literature, which also tended to be skeptical of criminal enforcement in the context of competition law, appears to reconsider its position. The paper considers the scope for further criminalization with regard to the institutional context in Germany.
My paper takes a micro-approach by analyzing one particular DCFR rule, the rule dealing with no oral modification clauses (NOM-clauses), DCFR II.-4:105. This rule is singled out because it is one of the relatively few rules in which the drafters of the DCFR have consciously deviated from the approach taken by the Convention on Contracts for the International Sale of Goods (CISG, 1980 Vienna Convention, Article 29(2)) and the UNIDROIT Principles for International Commercial Contracts 2004 (Article 2.1.18).
Following a brief introduction outlining the European activities in the area of contract law harmonization and the general problem raised by NOM-clauses, Part 2 of this article describes several jurisdictions that treat NOM-clauses as unenforceable, or did so in the past. Part 3 describes jurisdictions and legal instruments that give effect to NOM-clauses; in many jurisdictions, this approach has overcome earlier resistance. A particular focus of the comparative analysis is on the contract law in the US, in England & Wales, Germany, and the internationally harmonized legal instruments (CISG and UNIDROIT Principles), but the situation in Austria, Australia, Italy and Scotland is also briefly considered.
In Part 4, I discuss the policy reasons counseling for and against the enforcement of NOM-clauses, and conclude that NOM-clauses should generally be enforceable. Parts 5-9 address several limitations to the enforceability of NOM-clauses in jurisdictions that usually do consider them to be effective (novation, rescission/termination, collateral contracts, waiver, estoppel, venire-contra-factum-proprium exceptions, and NOM-clauses in standard terms and conditions).
Part 10 critically analyzes the solution adopted by the drafters of the DCFR in DCFR II.-4:105. I conclude that the comparative analysis regrettably opted for breadth instead of depth. The analysis is devoid of any discussion of policy arguments. The comparative analysis of the national solutions is mostly based on ‘the law in the books’, contrary to the principle of comparative law to focus on the ‘law in action’, and is not always accurate. What is more, the model rule itself is internally inconsistent.
I conclude by asking whether the deficiencies in DCFR II.-4:105 are in any way representative for the DCFR and what policy questions should be addressed when drafting a rule on NOM-clauses.
This paper focuses on the legal treatment of one specific class of safeguards against limited self-control: Self-exclusion agreements between casinos and problem gamblers, in which the gambler vows not to return to the casino.
The common denominator of all ‘self-paternalistic’ safeguards is that the actor tries to limit his or her future strategy space in order to maximise his or her perceived overall self-interest. The limitation of the future autonomy is itself autonomously chosen. This leads to the philosophical and legal question, to what degree (if at all) it is possible to limit one’s future autonomy.
The paper is divided into four parts. The first part will outline the dimensions of problem gambling and describe the mechanism of self-exclusion schemes (Chapter II).
The second part will deal with the questions whether the law should allow the effective limitation of one’s future autonomy, whether it does allow it, and – if the answer to the latter question is in the affirmative – to what extent actors can limit their future strategy space (Chapters III-IV).
The third part of the article addresses the question if there is a good reason to prefer the decision to self-exclude over the later decision to gamble (Chapter V). I will point to several studies which show that there are physiological dysfunctions suggesting that the gambler's decision to gamble is indeed arrived at by different neural processes than the decision to self-exclude.
The fourth and final part (Chapters VI-VII) discusses several regulatory options, and scrutinizes the self-exclusion arrangements proposed by the Gambling Commission in the United Kingdom against the background of the experience gained in Germany and the United States. I conclude that the enforcement of self-exclusion agreements by private litigation is preferable to the exclusively public enforcement envisaged by he Gambling Commission.