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Safe harbours – BAILEY – December 2017 OECD discussion

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This presentation by David Bailey, Visiting Professor at King’s College was made during the discussion “Safe harbours and legal presumptions in competition law” held at the 128th meeting of the OECD Competition Committee on 5 December 2017. More papers and presentations on the topic can be found out at oe.cd/21v.

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Safe harbours – BAILEY – December 2017 OECD discussion

  1. 1. VISITING PROFESSOR DAVID BAILEY OECD, PARIS 5 DECEMBER 2017 David Bailey5 December 2017 1
  2. 2. OUTLINE OF PRESENTION ISSUE 1: WHAT IS A PRESUMPTION? ISSUE 2: WHY DOES EU COMPETITION LAW ALLOW PRESUMPTIONS? ISSUE 3: PRESUMPTIONS IN PRACTICE ISSUE 4: FUTURE OF PRESUMPTIONS David Bailey5 December 2017 2
  3. 3. WHAT IS A PRESUMPTION?  A PRESUMPTION IS AN INFERENCE THAT CAN NORMALLY BE DRAWN FROM THE EVIDENCE  PRESUMPTIONS CAN BE CREATED BY LEGISLATION, GUIDELINES OR JUDGES  PRESUMPTIONS CAN BE ADMINISTRATIVE, PROCEDURAL, FACTUAL OR LEGAL  PRESUMPTIONS CAN BE CONCLUSIVE OR REBUTTABLE David Bailey5 December 2017 3
  4. 4. WHAT IS A PRESUMPTION? HOW DOES A PRESUMPTION DIFFER FROM:  AN ASSUMPTION?  AN ASSERTION?  A ‘PER SE’ RULE?  A BLOCK EXEMPTION?  COMMON SENSE?! David Bailey5 December 2017 4
  5. 5. EXAMPLES OF PRESUMPTIONS IN EU LAW  DOMINANCE MAY BE INFERRED FROM VERY HIGH MARKET SHARES: HOFFMANN-LA ROCHE, 1979, PARA 41  SALES BELOW AVERAGE VARIABLE COSTS ARE PRESUMED TO BE ABUSIVE: AKZO, 1991, PARA 71  PARTICIPATE IN A CARTEL IF FIRM ATTENDS A MEETING WITH AN ANTI-COMPETITIVE PURPOSE: AALBORG PORTLAND, 2000, PARA 81  FIRMS ARE POTENTIAL COMPETITORS IF THEY GO TO THE TROUBLE OF MAKING A MARKET-SHARING AGREEMENT: TOSHIBA, 2016, PARAS 33-4 David Bailey5 December 2017 5
  6. 6. WHY DOES EU LAW ALLOW PRESUMPTIONS?  EXPERIENCE SHOWS THE PRESUMED FACT TO BE TRUE  AG KOKOTT IN T-MOBILE, 2009, §93  CJEU IN CARTES BANCAIRES, 2014, §51  ECONOMICS SUPPORTS THE PRESUMED FACT  ARTICLE 101(3) GUIDELINES, §21 ON LIKELY NEGATIVE EFFECT OF OBJECT RESTRICTIONS  ENFORCEMENT BENEFITS FROM PRESUMPTIONS  AG MAZÁK IN GENERAL QUIMICA, 2011, §61  BUT SHOULD THIS BE SUFFICIENT ON ITS OWN? David Bailey5 December 2017 6
  7. 7. PRESUMPTIONS IN PRACTICE: EXAMPLE OF LOYALTY REBATES  THERE IS A LONG-STANDING PRESUMPTION IN EU LAW THAT LOYALTY REBATES OF DOMINANT FIRMS ARE ANTI-COMPETITIVE: HOFFMANN-LA ROCHE v COMMISSION, 1979, PARA 89  HOWEVER, THE PRESUMPTION LOOKED AND FELT LIKE A ‘PER SE’ RULE David Bailey26 April 2017 7
  8. 8. PRESUMPTIONS IN PRACTICE: EXAMPLE OF LOYALTY REBATES  THE PRESUMPTION THAT LOYALTY REBATES ARE ANTI-COMPETITIVE IS REBUTTABLE AND CAN BE REBUTTED BY  ABSENCE OF FORECLOSURE AND/OR  EFFICIENCIES  COURT OF JUSTICE IN INTEL v COMMISSION, 2017, PARAS 137-139 David Bailey5 December 2017 8
  9. 9. THE FUTURE OF PRESUMPTIONS  PRESUMPTIONS MAY BE EXTENDED TO NEW SCENARIOS: E.G. ETURAS, 2016  PRESUMPTIONS MAY BE REFINED TO REFLECT NEW THINKING: E.G. MARKET SHARES AS A ‘USEFUL FIRST INDICATION’ RATHER THAN A STRONG PRESUMPTION David Bailey5 December 2017 9
  10. 10. THE FUTURE OF PRESUMPTIONS  NEW PRESUMPTIONS WILL BE BORN:  E.G. EXPEDIA, 2012, PARA 37 — OBJECT RESTRICTIONS ARE PRESUMED TO BE APPRECIABLE  E.G. MERCK (GUK), 2016, PARA 286 PAYMENTS IN EXCESS OF LITIGATION COSTS TO DELAY ENTRY ARE PRESUMED TO BE ANTI-COMPETITIVE David Bailey5 December 2017 10
  11. 11. THANK YOU FOR YOUR ATTENTION David Bailey5 December 2017 11

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