References of "Petit, Nicolas"
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See detailState Created Barriers to Exit - The Example of the Acquisition of Alstom by General Electric
Petit, Nicolas ULg

in Competition Policy International (in press)

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See detailThe Antitrust and Intellectual Property Intersection in European Union Law
Petit, Nicolas ULg

in Blair, Roger; Sokol, Danie (Eds.) Roger D. Blair & D. Daniel Sokol (in press)

In European legal scholarship, many articles discuss the equilibrium reached in the case-law of the Court of Justice of the European Union (“CJEU”) when the EU antitrust prohibitions apply to, and ... [more ▼]

In European legal scholarship, many articles discuss the equilibrium reached in the case-law of the Court of Justice of the European Union (“CJEU”) when the EU antitrust prohibitions apply to, and restrain, the free and ordinary use of intellectual property rights (“IPRs”). We call this the antitrust-IP intersection. The most interesting feature of this literature is perhaps the common assumption that a unifying substantive perspective, vision or theory on IPR underpins the intersection point reached by the antitrust case-law. Whilst the theory of “absolutism” can be quickly disposed of, several other theories like inherency, exceptionalism or complementarity have been described as the lynchpin of the antitrust-IP intersection. Our paper offers a different reading of the case-law. It submits that the antitrust-IP intersection does not rest on any unitary theory which, in turn, bespeaks the Court’s vision of the social function of IPRs. Instead, the main feature of the CJEU case-law is that a specific methodology is applied to antitrust cases with IPR ramifications. The CJEU deals with most of such cases under a rule-based approach, instead of a standard-based approach. By rule-based approach, we refer to the ex ante setting of structured tests of liability, by opposition to ex post case-by-case resolution on grounds of a pre-determined, general standard (e.g., reasonableness, competition on the merits, efficiency, fairness, equity, etc.). As will be seen below, this approach has many virtues, not least in terms of legal certainty. But it also has a major qualification. Whilst the Court has consistently formulated rules of liability and justifiability at the antitrust and IP intersection, it has at the same time often embedded abstract standards within those rules. The implications of this mixed approach are unclear. [less ▲]

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See detailSignificant Impediment to Industry Innovation: A Novel Theory of Harm in EU Merger Control?
Petit, Nicolas ULg

Report (2017)

A novel theory of harm is crystallising in European Union (“EU”) merger control. Under this theory, the EU Commission (“Commission”) can intervene in mergers that it considers generally reduce innovation ... [more ▼]

A novel theory of harm is crystallising in European Union (“EU”) merger control. Under this theory, the EU Commission (“Commission”) can intervene in mergers that it considers generally reduce innovation incentives in an industry as a whole. This theory of harm can be referred to as the Significant Impediment to Industry Innovation (“SIII”) theory. This policy paper first attempts to describe the content and extent of the SIII theory (I). Second, it shows that the SIII theory marks a departure from established EU merger control practice (II). Third, it discusses the economic foundations of the SIII theory (III). Finally, it puts forward best practices for the assessment of mergers in R&D intensive industries (IV). With this, the present paper hopes to assist the development of sound merger control policy in innovative markets, and undermine crude conjectures on the relationship between market structure, patent statistics and industry innovation theory. [less ▲]

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See detailEU Competition Law Analysis of FRAND Disputes
Petit, Nicolas ULg

in Jorge L Contreras (Ed.) The Cambridge Handbook of Technical Standardization Law (2017)

This paper describes the degree of obligation created by a FRAND commitment on the holders of a Standard Essential Patent (“SEP”) from an EU competition law perspective. It shows that the EU courts case ... [more ▼]

This paper describes the degree of obligation created by a FRAND commitment on the holders of a Standard Essential Patent (“SEP”) from an EU competition law perspective. It shows that the EU courts case-law does not seem supportive of the reading of FRAND as a distributional, pricing commitment. Instead, it views FRAND as a soft commitment device, designed to promote cooperation and exchange amongst independent firms. This is apparent in the Huawei v ZTE judgment, which conveys an invitation on both SEP holders and unlicensed implementers to follow basic procedural requirements in licensing talks. In addition, the paper contributes to the debate on the legal applicability of Article 102 TFEU to SEP holders other than practicing entities. Last, the paper discusses if Standard Setting Organizations (“SSOs”) ex ante specifications of FRAND terms can constrain the conduct of SEP holders under EU competition law. [less ▲]

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See detailLe Brexit et "l'arme nucléaire" de l'UE, l'article 7
Vandenbosch, Sofia ULg; Petit, Nicolas ULg

Article for general public (2016)

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See detailThe IEEE-SA Revised Patent Policy and Its Definition of 'Reasonable' Rates: A Transatlantic Antitrust Divide?
Petit, Nicolas ULg

in Fordham Intellectual Property, Media & Entertainment Law Journal (2016)

The IEEE-SA updated patent policy and the Business Review Letter issued by the US DoJ have caused much discussion in the US (Sidak, 2015). The purpose of this paper is to assess whether a similarly ... [more ▼]

The IEEE-SA updated patent policy and the Business Review Letter issued by the US DoJ have caused much discussion in the US (Sidak, 2015). The purpose of this paper is to assess whether a similarly lenient antitrust approach to Standard Setting Organizations’ (“SSOs”) rate setting policies would prevail under the European Union (“EU”) competition rules. Recent EU competition case-law has promoted a very hard line in the area of coordinated conduct. Cases such as Dole Food Company, T-Mobile or Expedia have expanded the scope of the per se prohibition rule found in Article 101 TFEU to forms of horizontal coordination with less than obvious anticompetitive potential, such as “cheap-talk” pre-pricing communication (Dole Food Company), episodic collusion (T-Mobile) and horizontal agreements with limited market coverage (Expedia). Those judgments, and others, share a common rationale: that of deterring any coordinated interference with the price system. In the EU courts’ view, joint interference by competitors with the price system seems to be a sin in itself, regardless of actual or potential market effects. Horizontal coordination is thus increasingly prohibited on its face, and punished as a means to set an example. From an enforcement standpoint, this trend in the case-law trend has pros (lower enforcement costs) and cons (deters pro-competitive coordination). But perhaps more importantly, it has a major normative implication, which is that it raises the antitrust risk for all forms of coordination, including arrangements of the type found in the IEEE-SA updated patent policy. This paper explains that the antitrust risk generated by SSOs rate setting policies is presumably higher in the EU than in the US, where the case-law on horizontal coordination is less stringent. From a methodological standpoint, the paper choses to discuss this issue on the sole basis of the case-law of the EU courts, instead of focusing on Commission Guidelines and other soft law instruments, whose binding value on parties other than the Commission itself has been considerably degraded in recent judgments. [less ▲]

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See detailThe Smallest Salable Patent-Practicing Unit ('SSPPU') Experiment, General Purpose Technologies and the Coase Theorem
Petit, Nicolas ULg

E-print/Working paper (2016)

In the last years, some Standard-Setting Organizations (“SSOs”) active in wireless communications have experimented new pricing principles for standard essential patents (“SEPs”). One of those experiments ... [more ▼]

In the last years, some Standard-Setting Organizations (“SSOs”) active in wireless communications have experimented new pricing principles for standard essential patents (“SEPs”). One of those experiments is the “SSPPU” rule. Under SSPPU, the licensing rates paid to owners of SEPs for the use of their technology shall reflect the “value that the functionality of the claimed invention or inventive feature…contributes to the value of the relevant functionality of the smallest saleable Compliant Implementation that practices the Essential Patent Claim”. This paper reviews the SSPPU experiment through the lenses of the Coase theorem. It finds that SSPPU interferes with the efficient operation of the price system, and is likely to reduce investment in socially beneficial activities, including in General Purpose Technologies (“GPTs”) which are key drivers of economic growth. [less ▲]

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See detailThe Advocate General's Opinion in Intel v Commission: Eight Points of Common Sense for Consideration by the CJEU
Petit, Nicolas ULg

in Concurrences Review (2016), 1

The Opinion delivered by Advocate General Wahl in Intel v Commission (“the Opinion”) invites the Court of Justice of the EU (“CJEU”) to “refine its case-law relating to the abuse of a dominant position” ... [more ▼]

The Opinion delivered by Advocate General Wahl in Intel v Commission (“the Opinion”) invites the Court of Justice of the EU (“CJEU”) to “refine its case-law relating to the abuse of a dominant position” under Article 102 of the Treaty on the Functioning of the EU (“TFEU”). In essence, the Opinion invites the CJEU to return to first principles and inject common sense into the law of Article 102 TFEU, in the wake of the evolution started by Post Danmark I and Post Danmark II. This can be understood through eight key points, the common thread of which is a concern to ensure legal coherence and economic reason in the application of Article 102 TFEU. This brief commentary highlights those eight points, and suggests that some should be taken even further than AG Wahl proposes. [less ▲]

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See detailDeterring the State Versus the Firm: Soft and Hard Deterrence Regimes in EU Law
Petit, Nicolas ULg; Bogojević, Sanja

in Columbia Journal of European Law (2016), Vol. 23

This paper sheds light on the existence of a differential deterrence regime in EU law, depending on whether the State or the firm is the addressee of a legal obligation. To that end, we review two areas ... [more ▼]

This paper sheds light on the existence of a differential deterrence regime in EU law, depending on whether the State or the firm is the addressee of a legal obligation. To that end, we review two areas of EU law – environmental law and competition law. Both disciplines employ fines to deter the State and the firm respectively from violating their specific duties under the Treaty: the ‘duty to transpose’ with regard to State obligation under environmental law, and the ‘duty to compete’ in relation to firms under competition law. We show how the deterrence regime is softer on the State in at least three ways: functionally (purpose ascribed to the penalties), operationally (method followed to set and liquidate the penalty), and procedurally (requiring prior judicial approval as opposed to having immediate applicability). These findings are significant for two reasons: they suggest a State versus firm discrepancy in the EU’s deterrence regime, and serve to initiate a debate on the desirability of such a divide. [less ▲]

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See detailChinese State Capitalism and Western Antitrust Policy
Petit, Nicolas ULg

E-print/Working paper (2016)

Enthused by China’s conversion to the free market system in 1978 and its adoption of Western-style market institutions, the world has spent the last few decades turning a blind eye to China’s real ... [more ▼]

Enthused by China’s conversion to the free market system in 1978 and its adoption of Western-style market institutions, the world has spent the last few decades turning a blind eye to China’s real “governance” problem: that a shadow Party-State system permeates all branches of the economy. Whatever Washington-consensus style institutions are put in place, whatever State Owned Enterprise (“SOE”) reform is introduced, corporate and market governance occur under the rule of the Chinese Communist Party (“CCP”). And the CCP’s guidebook is the Leninist command that the whole of society shall be run as “single country-wide State syndicate”. This paper contends that China’s syndicated economic organization is akin to a “supertrust”, and that this creates conditions that are conducive to antitrust problems to which the Western world must awaken. In this context, this paper advances that the antitrust regulators of North America, Europe and elsewhere should take two simple, pragmatic steps under merger control and antitrust rules. In merger review, antitrust agencies should treat all SOEs and Privately Owned Enterprises (POEs) with a CCP cell as one unitary group and undertake a thorough competitive assessment of transactions on this basis. In addition, antitrust cases involving Chinese firms should be investigated on the default assumption that there is an underlying coordination scheme among them. [less ▲]

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See detailRebates and Article 102 TFEU: The European Commission's Duty to Apply the Guidance Paper
Petit, Nicolas ULg

E-print/Working paper (2015)

This paper shows that the European Union (EU) courts' case-law and general principles of EU law place the European Commission (“Commission”) under a duty to apply the Guidance Communication on Enforcement ... [more ▼]

This paper shows that the European Union (EU) courts' case-law and general principles of EU law place the European Commission (“Commission”) under a duty to apply the Guidance Communication on Enforcement Priorities (“Guidance Paper”) in abuse of dominance cases started after its adoption. This duty includes the obligation to test Article 102 TFEU cases under the As Efficient Competitor (“AEC”) framework, as set out in the 2009 Guidance Paper. The judgments handed down by the Union courts in Intel v Commission and Post Danmark II do not alter in any way the Commission’s “self binding” duty to apply the Guidance Paper. If the Commission wishes to depart from the AEC framework, it must officially withdraw its Guidance Paper. [less ▲]

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See detailAvis 2/13 de la CJUE : l'obsession du contrôle ?
Petit, Nicolas ULg; Pilorge, Joëlle ULg

in Revue des Affaires Européennes [= RAE] = Law & European Affairs (2015)

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See detailAntitrust and The challenge of policing « moligopolists »
Petit, Nicolas ULg

Conference (2015, May 29)

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See detailLe droit européen de l’abus de position dominante en 2014
Petit, Nicolas ULg

in Contrats Concurrence Consommation (2015)

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See detailTheories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf
Petit, Nicolas ULg

E-print/Working paper (2015)

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