COMPETITION LAW AND ANTITRUST REGULATION

COMPETITION LAW AND ANTITRUST REGULATION

Andrea Giannaccari

Instructional goals

Teach students the fundamental principles of competition law and the most recent developments in competition policy and antitrust practice, also through a critical assessment of the main cases. In this perspective, specific consideration is placed on how the economic insights are or might be employed to decide real-life cases in the different jurisdictions. A comparative analysis is thus offered to properly understand similarities and differences in the enforcement practice of authorities and courts, especially of those operating in the European Union, in Italy, and within the US framework. In dealing with the several different economic sectors, the course will also assess the regulatory tools concerning the service providers enjoying significant market power. Lastly, specific attention is also devoted to the digital markets, to the Big Data phenomenon, and to the competitive challenges posed by primary actors as Microsoft, Facebook, Google, WhatsApp and Amazon.

Intended learning outcomes

Knowledge and understanding: By attending classes, students will acquire a first-class knowledge and understanding of the main legal and economic issues concerning the competition domain. Students will also have the ability to analyze in an interdisciplinary perspective complex market dynamics and to adopt the most efficient legal strategies in relation to the competitive conducts, both the unilateral as well as the cooperative ones. Applying knowledge and understanding: The knowledge and expertise acquired during the course will provide students the ability to scrutinize the crucial changes that are affecting the markets, in particular the hi-tech ones. In this perspective, specific attention will be devoted to the BIG DATA phenomenon and to the linkages between the competitive dynamics, the intellectual property rights’ areas as well as the personal data protection problems. Students will be able to assess the real market dynamics and to suggest the most efficient competitive strategies. Making judgments: The skills, capabilities and the interdisciplinary methodology acquired during the classes will provide students with the necessary critical attitude to analyze the main competitive concerns, in terms of the related law and economics main areas, and to advise the most efficient strategies in a business perspective. In this regard, classes will be held continuously stimulating the critical analysis of the different topics, enhancing the acquisition of truly interdisciplinary skills and approaches. Communication skills: At the end of the course, students will be able to master the law and economics terminology necessary to approach, understand and analyze the topics studied. The stimulus to an active participation during the classes, the analysis of real cases and the different tests undertaken during the course are also valuable in order to provide the accurate law and economics terminology in relation to the competitive dynamics. In this regard, the assessment of real cases will also provide students with the proper argumentative and speaking abilities in relation to practical problems. Learning skills: The interdisciplinary skills acquired during the course will allow students to understand, assess, and advise in a business perspective the most effective and efficient law and economics strategies in relation to the main competitive areas. In this regard, the study material will offer important research skills in relation to the topics addressed during the course, which in turn will allow students to autonomously undertake future researches in the different areas concerning the law and economics assessment of competition.

Course Contents

Competition theory and market structure; goals of competition policy; interface between competition law and sector-specific regulation. Market power; market definition. Restrictive agreements; rule of reason v. per se rules; the economics of collusion; horizontal cooperation; vertical restraints. Single-firm conduct; the economics of market power and abuse of dominance; excessive prices; predatory pricing; exclusive dealing and loyalty rebates; refusal to deal; margin squeeze; tying. Concentrations: unilateral and coordinated effects; efficiencies. Public and private enforcement of competition/antitrust rules. Economics of regulation. Big Data: technical, economic and legal issues.

Reference Books

The suggested, but not compulsory, textbook is: A. Giannaccari, R. Van den Bergh,P. Camesasca, Comparative Competition Law and Economics, Edward Elgar, 2017. Papers on specific topics will be distributed during the seminar, also on the basis of the students’ interests and requests.

Teaching Methods

Front teaching; interactive discussion; analysis of cases; moot court. Due to the Covid-19 pandemic, the classes may be offered on-line.

Assessment Method

Students will be asked to take an oral exam with the moot court exercise formula and to pass a final written exam. The assessment of the students will be structured as follows: The moot court exercise, borrowed from the common-law academic tradition, is based on the simulation of a real case. Students are therefore divided into various groups and have to interpret the different actors in the context of a real competitive dispute. The student groups represent the prosecutors, the defenses and the judges. A real case will therefore be assigned and the different groups will have to present their respective arguments according to the different roles and deliver a judgment aimed at solving the case. This exercise represents 20% of the final grade. • The simulation is intended to verify the ability to effectively communicate interdisciplinary skills in relation to the main competitive strategies. Moreover, it represents an ideal test to evaluate how in relation to the same practical problem opposite arguments might be raised. • As described above, classes will be held by continuously stimulating the critical analysis of the different topics, enhancing the acquisition of truly interdisciplinary skills. The written test is made up of three distinct sections. The first is based on closed questions (true/false). The second section usually contains two open-ended questions, while the third section is about solving a real case. Students - through the answers provided in the different sections - will have to demonstrate that they know the main theoretical notions concerning competition and that they are able to apply them in real cases. In turn, this will be also useful to assess whether they have properly learned the study method and the learning ability necessary to continue approaching the study of competition law and economics autonomously. This written exam represents 80% of the final grade.

Thesis assignment criteria

Marked interest for the competition topics. Passing of the exam.

Does the syllabus cover sustainability topics?

Yes, the analysis of different legal institutions is carried out by taking also into account the environmental sustainability issue. In particular, the investigation perspective is aimed at scrutinizing whether the purpose of the disciplines addressed during the course might be partially adapted as to support environmental sustainability objectives.

Week 1 Contenuto sessioni on line e on campus

Objectives of competition law: efficiency, (total and consumer) welfare, market integration, protection of the competitive process. Relation with other policy goals, such as economic growth and reduction of economic inequality. The potential conflict between economic and legal goals. The interface competition/regulation.

Week 2 Contenuto sessioni on line e on campus

Competition law and policy. Competition policy and economic development. Evolution of the competition theory and the main approaches to competition law: Chicago, Harvard, Ordoliberal School. Contestable market theory, the current state of the industrial organisation literature, behavioural economics. Substantive law: the EU, US and Italian legal regimes. Market power: economic and legal definitions. Product and geographic market. Demand and supply-side substitutability. The SSNIP test. Empirical and econometric tools. Barriers to entry. The main application problems and the markets characterized by free goods and/or services.

Week 3 Contenuto sessioni on line e on campus

Market power: economic and legal definitions. Product and geographic market. Demand and supply-side substitutability. The SSNIP test. Empirical and econometric tools. Barriers to entry. The main application problems and the markets characterized by free goods and/or services.

Week 4 Contenuto sessioni on line e on campus

Single-firm conduct. Abuse and monopolization. Types of abuses: exploitative and exclusionary practices. Excessive prices and price regulation. The general approaches to conducts which can be abuses: the EU and US perspectives. The assessment of dominant position, also in the digital markets. The intellectual property clash with antitrust: legal monopolies vs. economic monopolies. Predatory pricing: economic theories, deep-pocket models, reputational models, signaling models and behavioral approaches; the EU and US approaches; the Amazon case.

Week 5 Contenuto sessioni on line e on campus

The other types of behavior that can be abusive when practiced by firms enjoying market power. Refusal to deal and the essential facility doctrine: the economic insights; the EU and US approaches; the Microsoft case. Tying and Bundling: economic analysis and efficiency explanations; EU and US approaches; the Google case. Price discrimination: lessons from economic theory, first-second-third degree of price discrimination; the EU and US legal approaches; geographical price discrimination. Discounts and rebates: pro-competitive and anticompetitive effects; EU and US legal analysis; loyalty discounts, bundled discounts and hybrid discount schemes; the Intel case.

Week 6 Contenuto sessioni on line e on campus

Restrictive agreements: the economics of collusion. Restrictions of competition as the object or the effect of cooperation. Exemptions. Rule of reason and per se rules. Welfare effects of collusion. Conditions leading to collusion. Tacit collusion and price parallelism. Plus factors and facilitating practices. Horizontal restrictions: economic and legal approaches. Price-fixing, information exchanges. Comparison EU and US competition law. Block exemption regulations. Individual assessment. Information exchange.

Week 7 Contenuto sessioni on line e on campus

Main types of vertical restraints. Economic analysis: price and non-price restrictions. Vertical restraints under the EU and US laws. Block exemption. Individual assessment: the E-books case.

Week 8 Contenuto sessioni on line e on campus

Merger control. The economics of merger control: quantitative and qualitative analysis. Typologies of mergers: horizontal, vertical, conglomerate. Substantive tests in the US and EU. Structural parameters. Unilateral and coordinated effects. The procedure. Failing firm defence. Market shares and concentration levels. Commitments and other remedies. The General Electric/Honeywell case; the Google/DoubleClick and Facebook/WhatsApp mergers.

Week 9 Contenuto sessioni on line e on campus

Public and Private enforcement. The different measures. The EU, Italian and US regimes. The choice to impose fines. The economic effects of the sanctioning system and the optimal fine model. Deterrence and punishment. Judicial review. Other remedies: the commitments. Differences between the various legal domains. The private enforcement in the EU and US. The calculation of damages, class action schemes. The choice between public and private enforcement. A critical assessment.

Week 10 Contenuto sessioni on line e on campus

Final exam.