CASES IN ANTITRUST AND COMPETITION

PAOLO BUCCIROSSI, Nicola Infante

Instructional goals

The course primarily aims at providing students with an adequate understanding of the legal and economic principles of national and EU competition law, equipping them with the tools necessary to carry out a sound assessment of firms’ conduct from an antitrust law perspective. A core objective of the course, pursued through the casebased analysis of national and EU proceedings concerning cartels, abuses of dominance and mergers, is also to foster students’ ability to identify and critically address the main legal and economic issues underlying the application of national and EU antitrust law.

Prerequisites

Intended learning outcomes

Independent judgement Students are expected to be able to independently formulate wellreasoned observations with regard to practical cases, legislative texts, administrative decisions and, more generally, matters relating to antitrust law. This is to be achieved through research and collection of relevant information relating to the practical cases submitted, mainly functional to the development of debates in which students can present their own personal observations. Communication skills Students are expected to be able to engage effectively in discussions relating to antitrust law, both during the final oral examination and through classroom debates, making appropriate use of the technical terminology required by the matter. Learning skills Students are expected to have developed adequate learning skills enabling them to approach the study required both for the analysis of practical cases presented during the course and for the final oral examination in a selfdirected and autonomous manner.

Course Contents

Basic economic notions Article 101(1) and 101(3) TFEU Theory of harm: collusion Horizontal agreements Theory of harm: softening competition/unilateral effects Vertical agreements Article 102 TFEU Abuse of dominance Theory of harm: foreclosure Mergers Relevant market and unilateral effects in mergers Cases

Reference Books

R. Whish, D. Bailey, Competition Law, Oxford University Press, 2024 M. Motta, Competition Policy: Theory and Practice, Cambridge University Press, 2015 Materials / papers / presentations / mock questions / resumes of the practical cases to be analyzed and discussed during the course sessions

Teaching Methods

Lectures / analysis of practical cases / interactive discussions / individual exercises / collaborative works / assignments / guest lectures.

Assessment Method

The assessment procedure is based on a grading scale out of thirty points and consists of two distinct components: (i) discussion of the practical cases addressed during the lectures, in which each student is required to participate and which is worth a maximum of 10 points per student; (ii) a final written exam, worth an overall maximum of 20 points per student. The written exam is a closedbook exam and is structured as follows: (i) one scenariobased question, aimed at testing the ability to address and structure the solution to a hypothetical case (for example, by identifying a possible line of defense in an antitrust investigation) - this component is worth an overall maximum of 10 points; (ii) one section with ten multiplechoice questions, aimed at assessing the general understanding of competition policy from both a legal and an economic perspective - this component is worth an overall maximum of 10 points. The final grade will be calculated as the sum of the scores obtained in the assessment components mentioned above.

Thesis assignment criteria

Effective attendance of the course, examination grade, overall grade average and personal motivation.

Week 1

Lesson 1 – Basic economic notions The notion of market power Relationship between market power and efficiency MP and allocative efficiency MP and productive efficiency MP and dynamic efficiency The “modern” approach: theories of harm Counterfactual (a “legal” requirement) Firms’ ability Firms’ incentives Theories of harm (introduction) Softening competition/Unilateral effects Collusion/Coordinated effects Foreclosure Efficiency justifications Proving a theory of harm (or an efficiency justification): the role of economic analysis Lesson 2 – Introduction; Article 101(1) and 101(3) TFEU Introduction Relationship between EU competition law and national competition laws Article 101(1) Undertakings and associations of undertakings Agreements, decisions and concerted practices Object or effect of preventing, restricting or distorting competition The de minimis doctrine The effect on trade between Member States Refusal to deal and margin squeeze Article 101(3) Criteria Regulation 1/2003 Block exemptions

Week 2

Lesson 3 - Theory of harm: collusion Prisoners’ dilemma Repeated games The folk theorem Factors that facilitate collusion Number of rivals Concentration Frequency of interaction Transparency Product homogeneity Firms’ symmetry (market shares, costs) Multi-market contact Cartels The use of circumstantial evidence Application of the Bayes theorem to the assessment of circumstantial evidence Plus and super-plus factors Lesson 4 – Horizontal agreements Cartels European Commission’s approach to cartels Horizontal price fixing Horizontal market sharing Quotas and other restrictions on production Collusive tendering Agreements relating to Terms and Conditions Exchange of information Advertising restrictions Anti-competitive horizontal restraints Oligopoly, tacit collusion and collective dominance The theory of oligopolistic interdependence Article 101 Article 102 and collective dominance Cooperation agreements

Week 3

Lesson 5 – Cases Cartels – Trucks, Wood Pulp Lesson 6 - Theory of harm: softening competition/unilateral effects Determinants of unilateral incentives to exercise market power Number of rivals and concentration Cournot model Measures of concentration The HHI (thresholds) Other determinants of market power Product differentiation Capacity constraints Switching costs Search costs Degree of rivalry The role of diversion ratios and closeness of competition

Week 4

Lesson 7 – Vertical agreements The distribution chain Vertical integration Commercial agents Vertical agreements: competition policy considerations Vertical agreements: Article 101(1), Regulation 720/2022, application of Article 101(3) to agreements that do not satisfy the Block Exemption Lesson 8 – Cases Vertical restraints Pierre Fabre, Coty Morellato

Week 5

Lesson 9 – Cases RPM Super Bock Bebidas (ref. to Gucci, Chloé e Loewe cases) Lesson 10 – Article 102 TFEU The Commission’s Guidance on Article 102 enforcement priorities Undertakings The effect on inter-State trade Dominant position A substantial part of the internal market Small firms and narrow markets Abuse Defences Consequences of infringing Article 102

Week 6

Lesson 11 – Abuse of dominance Non-pricing practices Exclusive dealing agreements Tying Refusal to supply Non-pricing abuses that are harmful to the internal market Miscellaneous other non-pricing abuses Pricing practices Exploitative pricing practices Rebates that have effects similar to exclusive dealing agreements Bundling Predatory pricing Margins squeeze Price discrimination Lesson 12 - Theory of harm: foreclosure Predatory pricing and discount The deep pocket theory Chicago’s critiques Predation with perfect information (sub-game perfection) The chain store paradox Predation with imperfect information Reputation Signaling

Week 7

Lesson 13 – Cases Predatory pricing: Qualcomm Lesson 14 – Cases Conditional rebates: Intel

Week 8

Lesson 15 - Theory of harm: foreclosure Refusal to deal and margin squeeze Tying and bundling Lesson 16 – Cases Self-preferencing Google Shopping

Week 9

Lesson 17 – Cases Tying Windows Media Player Google Android Lesson 18 – Cases Superleague

Week 10

Lesson 19 – Mergers Introduction – merger activity and purpose of a merger control Overview of EU merger control Jurisdiction Notification, suspension of concentrations, procedural timetable and powers of decision Substantive analysis Remedies Powers of investigation and enforcement Judicial review Internal cooperation The EUMR in practice Killer acquisitions and below-threshold mergers Lesson 20 – Relevant market and unilateral effects in mergers The notion of relevant market Unilateral effects in merger control The UPP test(s) The GUPPI index

Week 11

Lesson 21 – Cases Unilateral effects Booking/eTraveli Lesson 22 – Cases Coordinated effects Hutchison 3G Italy/WIND/JV

Week 12

Lesson 23 – Case Foreclosure EssilorLuxottica / GrandVision Lesson 24 – Cases Killer acquisition and below threshold mergers