The international dimension of EU competition law and policy / Anestis S. Papadopoulos.
2010
KJE6459 .P37 2010 (Map It)
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Author
Title
The international dimension of EU competition law and policy / Anestis S. Papadopoulos.
Published
Cambridge, UK ; New York : Cambridge University Press, 2010.
Call Number
KJE6459 .P37 2010
ISBN
9780521196468 (hbk.)
0521196469 (hbk.)
9780511909580 (e-book)
0511909586 (e-book)
0521196469 (hbk.)
9780511909580 (e-book)
0511909586 (e-book)
Description
xxix, 331 pages ; 24 cm.
System Control No.
(OCoLC)639166147
Summary
"Modern competition law was first employed by countries over one hundred years ago in order to address issues relating to restrictions of trade at the national level. Recent international economic integration has weakened the distinction between the domestic and the international in several fields of economic activity, and consequently the laws which regulate such activity, competition law included. Several attempts to address the paradox of adopting national competition rules to address international issues have been made at the international, regional and (lately) bilateral levels. This book discusses the international dimension of EU competition law, and examines the position taken by the EU in four distinct categories of international agreements which are devoted to competition or include competition provisions. In particular, it analyses the EU's position with regard to bilateral enforcement cooperation agreements, bilateral free trade agreements, plurilateral-regional agreements and the long negotiations for the adoption of a multilateral competition regime"--Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 297-328) and index.
Record Appears in
Variant Title
International dimension of European Union competition law and policy
Table of Contents
List of Tables
xiv
Acknowledgements
xv
Abbreviations
xvii
Table of Cases
xix
Table of Legislation
xxi
Table of Treaties and Agreements
xxiv
1.
Introduction, Structure of the Book and Method
1
1.1.
Introduction
1
1.2.
Structure of the book and method
4
2.
The National and International Dimensions of Competition Law and Policy
7
2.1.
Origins of competition law
7
2.1.1.
Canada and the United States: first modern competition statutes to be enacted
9
2.1.2.
Competition in the twentieth century in Europe
12
2.1.3.
The Treaty of Rome
14
2.2.
Expansion of competition law and policy worldwide, and factors that lead to varied application of competition law at the national level
15
2.2.1.
Influence of economics in the application of national competition rules
18
2.2.2.
Legal aspect of competition law: competition law versus sectoral regulation
26
2.2.3.
Political aspect of competition law: competition policy versus other national policies
30
2.2.4.
Cultural factors that may have an effect on the adoption and/or application of competition rules
32
2.2.5.
Competition law in developing and small countries
33
2.3.
International aspects of competition law and policy
36
2.3.1.
Economic globalisation and the appearance of anticompetitive business practices with an international effect
36
2.3.2.
Anticompetitive practices that have an international effect
39
i.
International cartels
40
ii.
Vertical restraints
42
iii.
Multijurisdictional mergers
43
2.3.3.
Governmental and hybrid practices
45
2.3.4.
Need for international cooperation on competition
47
i.
Sovereignty and its implications for the internationalisation of competition law
47
ii.
Types of formal international cooperation: classification of international agreements and introduction of the working question
48
2.4.
Conclusion
50
3.
Bilateral Enforcement Cooperation Agreements
52
3.1.
Common characteristics of enforcement cooperation agreements
52
3.1.1.
Enforcement cooperation as a substitute for harmonisation of competition laws
52
3.1.2.
Basic structure of the agreements
54
3.1.3.
Bilateral agreements as a way to contextualise international cooperation in other fields of commercial law
55
3.1.4.
Enforcement cooperation where there are trade flows
55
3.1.5.
Enforcement cooperation agreements (first generation) in the form of soft law
58
3.1.6.
Bilateral enforcement cooperation as a strategy of strong states
60
3.1.7.
Policy of the EU towards the adoption of first generation bilateral enforcement cooperation agreements
62
3.2.
Content of first generation agreements
63
3.2.1.
Early first generation agreements: reactive rather than proactive
63
3.2.2.
Agreement between the United States and the EU
64
3.2.3.
Negative comity (avoidance of conflicts)
64
3.2.4.
Extraterritorial application of competition rules
67
3.2.5.
Procedures of positive cooperation provided for by first generation agreements
70
i.
Notification, cooperation and coordination
70
ii.
Exchange of information: meetings between officials
72
iii.
Positive comity
73
3.3.
Limitations of first generation bilateral enforcement cooperation agreements
77
3.3.1.
The confidentiality clause
78
3.3.2.
Inability of first generation agreements to address some important cases
81
3.4.
So what's next? Wider soft law cooperation and closer bilateral cooperation
83
3.4.1.
Second generation agreements: The United States-Australia Agreement on Mutual Antitrust Enforcement Assistance and the Denmark-Norway-Ireland Agreement
85
3.4.2.
Use of MLATs and extradition treaties in competition cases
87
3.5.
Conclusion
89
4.
Bilateral Trade Agreements which Include Competition Provisions
93
4.1.
Historical review of trade agreements
93
4.1.1.
Bilateral agreements of the EU
95
i.
Agreements with canadidate countries
97
ii.
The European Neighbourhood Policy
100
iii.
Agreements with selected trade partners
102
4.1.2.
Role of competition in trade agreements and the way that the EU has used such provisions
103
4.2.
Substantive competition provisions in the EU bilateral agreements
105
4.2.1.
Provisions relating to private undertakings
106
i.
Agreements with candidate and potential candidate countries
106
ii.
Euro-Mediterranean agreements
109
iii.
Agreements with Eastern European and Central Asian countries
112
iv.
Agreements with selected trade partners
114
4.2.2.
Rules relating to state actions and public undertakings
115
i.
Agreements with candidate and potential candidate countries
115
ii.
Euro-Mediterranean agreements and agreements with former Soviet Union states
122
iii.
Agreements with selected trade partners
126
4.3.
Provisions on cooperation in competition
127
4.3.1.
Notification of cases
130
i.
Agreements with candidate and potential candidate countries
130
ii.
Euro-Mediterranean agreements and agreements with former Soviet Union states
131
iii.
Agreements with selected trade partners
132
4.3.2.
Exchange of information
132
4.3.3.
Consultations
133
4.3.4.
Positive comity
134
4.3.5.
Technical assistance
134
i.
Agreements with candidate and potential candidate countries
135
ii.
Euro-Mediterranean agreements and agreements with former Soviet Union states
135
iii.
Agreements with selected trade partners
136
iv.
Application of technical assistance provisions
136
4.4.
Dispute settlement and the extent to which EU bilateral agreements are considered hard law
138
4.5.
Conclusion
141
5.
Plurilateral Regional Agreements which Include Competition Provisions
145
5.1.
History of plurilateral regional agreements, reasons that led to their adoption and the role of competition law and policy
145
5.1.1.
Historical development of plurilateral regional agreements
145
i.
Europe
145
ii.
Latin America
146
iii.
Africa
147
iv.
North America and the Caribbean
149
v.
Asia
149
5.1.2.
Factors that lead to the creation of plurilateral regional agreements
152
5.1.3.
Role of competition law and policy in plurilateral regional agreements, and the role of plurilateral regional agreements in the development of international competition norms
153
5.1.4.
EU strategy regarding the formation and operation of plurilateral regional agreements
155
5.2.
Competition law and policy in the EU
159
5.2.1.
Substantive provisions
160
i.
Articles 101 and 102 TFEU (ex Articles 81 and 82 EC)
160
ii.
State aid and public undertakings
161
iii.
Control of mergers
163
5.2.2.
Institutional set-up: role of the European courts and the European Commission
164
i.
Role of the ECJ
165
ii.
Role of the European Commission and the modernisation of enforcement
167
5.2.3.
Some points on the EU competition regime
173
5.3.
Competition provisions in other plurilateral regional agreements
174
5.3.1.
Andean Community
175
5.3.2.
Mercosur
177
5.3.3.
Nafta
180
5.3.4.
Cafta-Dr
180
5.3.5.
Ftaa
180
5.3.6.
Caricom
181
5.3.7.
Waemu
183
5.3.8.
Ecowas
185
5.3.9.
Eac
186
5.3.10.
Comesa
187
5.3.11.
Sacu
188
5.3.12.
Sadc
189
5.3.13.
Asean
189
5.3.14.
Apec
190
5.4.
Competition provisions in plurilateral agreements: a comparative reading
191
5.4.1.
Substantive competition provisions in plurilateral regional agreements
192
5.4.2.
Institutional set-up and implementation of the rules
194
5.4.3.
Some final thoughts on the comparative reading of competition provisions in regional blocs
197
5.5.
Role of the EU in the formation and application of competition rules in regional blocs
199
5.6.
Conclusion
202
6.
The Role of Competition Law and Policy of the EU in Multilateral Negotiations on Competition
205
6.1.
Historical development of the negotiations on the adoption of a multilateral agreement on competition
205
6.1.1.
Attempts under the aegis of the League of Nations and the proposed International Trade Organization
205
6.1.2.
UNCTAD: the Restrictive Business Practices Code
206
6.1.3.
Re-opening of the debate on a multilateral agreement on competition in the 1990s
208
6.2.
Factors that led to the EU proposal for inclusion of competition within the WTO framework
211
6.2.1.
Leadership of Lord Brittan and creation of a network of academics and politicians who supported the adoption of a multilateral agreement at the WTO
211
6.2.2.
Expansion of the EU model on a global scale
215
6.2.3.
EU pursued inclusion of competition agreement within the WTO in order to secure market access for its firms to other national markets
216
6.2.4.
Multilateral agreement in order to avoid conflicts in the enforcement of competition law and weaken the effect of extraterritorial application of US laws
217
6.2.5.
Proposal for an agreement on competition as a way of avoiding reforms on agriculture
218
6.2.6.
Development of the EU proposal in the context of the work of the working group on trade and competition
219
6.2.7.
From Doha to Cancun
223
6.3.
Reasons that led to the failure of the EU proposal
225
6.3.1.
Resistance by the United States
225
i.
Establishment of ICPAC and the introduction of a ǹew global initiative'
227
ii.
Paradox in Doha
229
6.3.2.
Coordinated resistance by developing countries
232
i.
Developing countries, competition law and industrial policy
235
ii.
Implementation issues: lack of institutional capacity and need for technical assistance
237
iii.
Export cartels
238
iv.
Developing countries and concerns relating to agriculture
241
6.3.3.
Back to the European Commission: did everybody in the Commission really want an agreement at the WTO?
242
6.4.
Future of competition at the WTO and alternative options
245
6.4.1.
Genesis and operation of the ICN
248
6.5.
Conclusion and evaluation of the role of the EU
253
7.
Conclusions: Main Findings of the Study
258
7.1.
General observations
258
7.2.
Main findings of the study with regard to the operation of international agreements which are devoted to or include competition provisions
260
7.3.
International dimension of EU competition law and policy
264
7.4.
Final remarks
267
Appendix 1
Economic Theories Applied to Competition Law
268
A1.1.
Classical theory
268
A1.2.
Neoclassical economics
269
A1.3.
Alternatives to the perfect competition model
270
Monopolistic competition
270
Oligopoly
271
A1.4.
Workable competition and the Harvard School
271
A1.5.
The Chicago School
273
A1.6.
Game theory model
273
A1.7.
Contestable markets
274
A1.8.
Dynamic competition, innovation and technological efficiency
274
A1.9.
The Austrian School
275
A1.10.
Ordoliberalism
276
Appendix 2
General Information about Plurilateral Regional Agreements
278
A2.1.
Europe
278
A2.1.1.
The EU
278
A2.1.2.
EFTA and EEA
281
A2.2.
South America
282
A2.2.1.
The Andean Community
282
A2.2.2.
Mercosur
283
A2.3.
North America
285
A2.3.1.
North American Free Trade Agreement
285
A2.3.2.
Cafta-Dr
286
A2.3.3.
Free Trade Agreement of the Americas
287
A2.4.
Caribbean
288
A2.4.1.
Caricom
288
A2.5.
Africa
289
A2.5.1.
West African Economic and Monetary Union
289
A2.5.2.
Economic Community of West African States
290
A2.5.3.
East African Community
291
A2.5.4.
Comesa
292
A2.5.5.
Southern African Customs Union
293
A2.5.6.
Southern African Development Cooperation
294
A2.6.
Asia
295
A2.6.1.
Asean
295
A2.7.
Cross-regional
296
A2.7.1.
Apec
296
Bibliography
297
Index
329