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An Introductory Guide to EEC Competition Law and Practice, 4th ed.

Professor Valentine Korah's outstanding Little Yellow Book on EEC competition law and practice is now available in its fourth edition. The little book is a uniquely useful contribution to practitioners and students of European Community competition law. In only 237 pages of text Professor Korah conveys, in her direct conversational style, the skeleton, flesh and heart of European Community competition law from the point of view of a skeptic who insists that the law be logical and efficient. To Professor Korah there are certain proper ends of competition law; particularly, facilitating efficient transactions, enhancing the freedom of enterprise to get on with its business, and constraining the discretion of officials to limit such freedom. In her unwillingness to brook either soft analysis or nonallocative values, Professor Korah is very American and her critique of EEC competition law fits comfortably into the tradition of the Chicago school.

Structure and content

The Little Yellow Book is designed to be useful to business people and the lawyers advising them as a quick learning and reference tool. It is all of that and much more.

The book begins with an insightful foreword by Judge Rene Joliet of the Court of Justice of the European Communities. Judge Joliet agrees with Korah's criticism of "the legalistic and formalistic approach" often taken by EC competition officials, while noting also Korah's complimentary view of the officials' openness to the views of outsiders.

The book contains a preface by Korah, a helpful table of contents and a table of cases that includes citations to all of the significant Court of Justice competition cases, all of the most significant Commission cases, and selected English, German and U.S. cases.

The book is divided into 14 chapters. Chapter 1 lays the foundation for the competition rules, includes a section on economic analysis, and describes the Community institutions and modes of enforcement. Chapters 2 and 3 analyze article 85 of the EC Treaty of Rome, which is the provision that most closely approximates section 1 of the Sherman Act, prohibiting anticompetitive agreements and concerted practices. Chapter 4 is addressed to article 86, the Treaty provision prohibiting abuse of a dominant position; this is the provision that most nearly resembles section 2 of the Sherman Act. Chapters 5 and 6 relate to enforcement and sanctions and may inform a company's decision as to whether to notify the Commission of agreements that may distort competition. Chapter 7 analyzes agreements most clearly prohibited such as cartel agreements and tight territorial distribution restraints at member state borders.

Chapter 8 sets forth the law on distribution agreements, including exclusive distribution and franchising; and here the book analyzes group exemptions, which are available for categories of agreements that comply with the rigid do's and don'ts of Commission regulations.(1) Industrial property rights and intellectual property licensing are treated in chapters 9 and 10, specialization agreements and joint ventures in chapters 11 and 12, and mergers (which may now come under the year-old merger regulation) in chapter 13.

Chapter 14 is new to the Little Yellow Book. It offers a pungent critique, principally of the lack of economic analysis in Commission decisions, paucity of ex ante analysis, and legal uncertainty created by the variety of sometimes inconsistent interpretations of the Treaty. As well, chapter 14 contrasts analysis by the European Court of Justice with that of the Commission. The book concludes with a good bibliography, a helpful glossary of terms common in Community practice but not necessarily familiar to others (for example, it defines "advocate general, "ECU," "undertaking"); appendices including relevant provisions of the Treaty and implementing regulations, and an index.

The Little Yellow Book sets out the law in crystal clear language and comments on it. It frequently provides depth and background by including (for example) excerpts from opinions of advocates general, especially those that are in tension with the law itself and support a direction that Professor Korah finds superior to the course taken by the Court. Through these short excerpts and comments, one is able to appreciate not only the direction in which the law has gone but also an alternative direction in which it might have gone and perhaps toward which it might still be nudged.

Professor Korah emphasizes the cases with which she either most strongly agrees or most strongly disagrees. Thus, the Distillers case,(2) which condemned a dual price structure for sales in Great Britain and sales destined for the continent, is singled out for biting criticism. Professor Korah shows how the Commission's decision (affirmed by the Court on technical grounds) backfired; it caused Distillers to withdraw from the market a brand of whiskey that it could not legally offer at dual prices and could not economically offer at uniform prices. The analyst and especially the policymaker is forced to confront the question whether Distillers represents a recurrent case or a unique situation. If the latter, one might shrug off the Distillers story as eccentric and support the notion that an airtight rule against export deterrents is important to common market integration. If the former one must rethink the law.

Conclusion

The Little Yellow Book is a sparkling guide, critique, and repository of insight into the fabric of the law and into the modes of practice, procedure and decision making in the Community. It is invaluable to any business person, lawyer or student who deals with or wishes to become acquainted with EEC competition law. Far from a black letter nutshell although having all of the advantages of one, the book has a hidden complexity that reveals itself as one becomes more conversant with the law and practice. The very brevity of the book suggests that it might sometimes be used with a longer treatise by those who wish to explore the law in greater detail; and we are fortunate to have available the excellent, complementary treatise that Professor Korah herself most warmly recommends: Barry E. Hawk's four volume work: United States, Common Market and International Antitrust: A Comparative Guide (second edition with 1991 supp.).

The Little Yellow Book is a spunky little book and a joy.

(1) Group or block exemptions are provided for agreements of a sort that business people commonly use and the Commission would commonly exempt, case by case. If a group exemption is available, the parties need not notify the agreement and request an individual exemption; therefore, the paper work of the Commission is significantly lessened. Compliance with a group exemption can be very legalistic. To comply the parties must include certain clauses in their agreement (the white list), may not include certain other clauses (the black list), and may include certain other clauses (the grey list). As Professor Korah notes, by virtue of such very specific authorizations for group exemptions, the Commission steers many transactions into forms that would not otherwise be adopted.

(2) Distillers, [19781 1 C.M.L.R. 400, aff d, No. 3on8 [1980] E.C.R. 2229. See V. Korah, An introductory Guide to EEC Competition Law and Practice at [subsection] 1.3.2, 7.6.1.
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Author:Fox, Eleanor M.
Publication:Antitrust Bulletin
Article Type:Book Review
Date:Jun 22, 1992
Words:1175
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