bluuebunny/crossref_metadata_2025 huggingface dataset:
A Tale of Two Economic Approaches to Evaluate Forbearance Petitions
Authors: Meisel John B.
Published: April 2022

Telecommunications networks are in a state of transition from legacy narrowband networks utilizing predominantly copper loops and circuit switches to advanced broadband networks built with fibre loops and packet switches. Since passage of the Telecommunications Act in 1996, advances in technology and increases in local economic competition have shocked the telephone industry causing telecommunications companies to increasingly seek relief from federal regulations by petitioning the Federal Communications Commission (FCC) to forbear from certain federal regulations. Based on an analysis of forbearance orders from 2004 to 2008, it is the contention of this research that the FCC utilizes different economic frameworks when considering relief from narrowband regulations in contrast to relief from broadband regulations. For instance, the FCC requires demonstration of actual, facilities-based intermodal competition before forbearing from regulations for narrowband services, while the FCC assigns much more weight on facilitating entry into broadband and thus relies on dynamic, Schumpeterian competition. In addition, this research identifies key legal, regulatory, and economic decisions that largely account for these differences in forbearance approach. Overall, the FCC is moving cautiously in granting relief for traditional voice services but boldly in deregulating advanced broadband facilities and services.
Evidence, Proof and Judicial Review in Cartel Cases
Authors: Castillo de la Torre Fernando
Published: April 2022

This paper examines different issues relating to evidence, proof and judicial review, having certain recent criticisms in mind. It examines how judges approach certain types of evidence and submits that standards of proof in competition law have in practice been set very high. Judicial review has also been thorough from the beginning, and issues that are presented as issue of fact may hide simply differences about the law. It is also submitted that criticisms of the institutional system based on its alleged incompatibility with fundamental rights do not appear to find a robust basis in the existing case law of the European Court of Human Rights.
Competition Law in Vietnam: A Critique
Authors: Furse Mark
Published: April 2022

This article presents a critique of the Vietnamese Law on Competition, which entered into force on 1 July 2005. The fact that one of the ‘tiger’ economies enacted a competition law has gone largely unremarked, with very little being written about this law in English. While the lack of examination of the terms of the law may reflect simply a prioritization among the international community I argue here that other factors are also at play. At the time of writing only one formal decision has been made by the relevant enforcement authority. This lack of activity has undoubtedly had an impact on the profile enjoyed by the law, both inside and outside Vietnam. The regime is under-enforced, and although the authorities have undertaken advocacy work, recognition of the law within the country is only slowly growing. The external community may be as influenced by the structure of the law, which I argue here is overly complex and, partly as a result of this very complexity, lacking in clarity as it is by institutional dynamics. Some of the problems that beset the law at present are discussed and commented on here.
A Framework to Enforce Anti-predation Rules
Authors: Weigand Jürgen , Hüschelrath Kai
Published: April 2022

The paper develops a theoretical framework to enforce anti-predation rules that explicitly takes the intervention stage into account. In particular, it is proposed to improve predation enforcement by focusing on two channels: refining the current regime and amending it. With respect to the refinement of the current predation enforcement regime, criteria for the imposition of optimal gain- or harm-based fines are derived in order to sharpen the deterrent effect of predation enforcement. However, given the very low probability of conviction for predators a policy proposal solely based on an increase in the fines for detected and convicted predators might be too weak to significantly amplify the deterrence effect in particular and to improve predation enforcement in general. As a consequence, the introduction of a pre-screening approach is proposed as an amendment to the current predation enforcement regime, which aims at identifying industries in which entry is difficult but desirable and a predation strategy might be a suitable instrument for an incumbent to fight such occasional entry attempts. In those industries, it is advisable to reduce the high standard of proof in predation enforcement, as its basic justification – the danger to create a negative deterrence effect – is significantly reduced.
EU Competition Remedies in Consumer Cases: Thinking Out of the Shopping Bag
Authors: Strievi Stéphanie
Published: April 2022

Compensation for victims of competition law infringements is not satisfactory in today’s European Union: too few victims seek damages. This is even truer in consumer cases. This article explains how a fairly simple alternative use of two current public competition law tools could contribute to improving this situation. Compensation could be accepted as an undertaking in the framework of a commitment procedure. Alternatively, compensation could be treated as a mitigating circumstance in the fine setting process. Previous Commission decisions and the case law show that the proposed solution is feasible. Compensation at the public enforcement stage clearly benefits consumers as victims, but also companies as (alleged) wrongdoers. Consumers receive an early and, in most cases, unexpected or unanticipated compensation. Companies obtain either the termination of the investigation that has been initiated or the reduction of their fine. The benefit of this alternative remedy is extended to competition law enforcement in both its private and public forms.
Unchallenged Market Power? The Tale of Supermarkets, Private Labels, and Competition Law
Authors: Ezrachi Ariel
Published: April 2022

The proliferation of private labels has transformed the landscape of retail competition in developed countries. Major retailers are no longer confined to their traditional roles of purchasers and distributors of branded goods. By selling their own label products they compete with their upstream brand suppliers on sales and shelf space. The paper explores the emergence of ‘vertical competition’ between retailers and suppliers and the pro-competitive and possible anti-competitive effects that stem from the use of private labels. It reviews the enforcement of European competition laws in a private label environment and the difficulty in balancing the beneficial short-term effects of private labels and their possible, harmful, long-term effects. It subsequently questions whether these difficulties imply a lack of competitive harm or reflect a gap in regulation, as traditional analysis fails to encompass the increased market power of retailers and the competitive effects of private labels.
Competition and Development: Towards an Institutional Foundation for Competition Enforcement
Authors: Mateus Abel M.
Published: April 2022

We bring together three strands of contributions to the study of institutions in the development process in order to lay down the foundations for an economic approach to the formulation of competition policies and competition law. Competition policies need to be complemented by trade, industrial, and procurement policies that provide the context for the operation of any policy regime in developing countries, laying down the foundations of a competitive market economy. First, models of the political economy of development that incorporate interest groups and their influence in the political process show that when a small group of vested interests dominate economic policy there is little room for competition policy. Second, based on the decision theory and the theory of torts of Glaeser and Shleifer we define the different regimes of competition law according to the capability to avoid subversion, elicit the optimal precaution of damages, and minimize information costs. This shows that competition regimes should be graduated by the level of institutional development. Third, we characterize the level of institutional development with a composite index of governance and government capture. Bringing together these three strands of research, we stress the need that the competition policy regime should fit each institutional level of development. We thus propose a research agenda to help policy makers and advisers better ground competition regimes and laws. This type of approach of policy, paying particular attention to the institutional background, could be applied to most areas of policy and law.
Competition Law and Policy in Senegal: A Cautionary Tale for Regional Integration?
Authors: Weick Daniel P.
Published: April 2022

This article surveys the development of competition policy in Senegal since 1994. It discusses the original Senegalese competition law and its early enforcement and the pre-emption of Senegal’s competition law enforcement by a decision from the West African Economic and Monetary Union (WAEMU) Court of Justice. Because Senegal had begun to develop competition law enforcement competency and the WAEMU is severely lacking in competition law enforcement resources, the pre-emption decision has been a disaster for competition policy in Senegal. Participation in WAEMU is on balance beneficial to Senegal and the Court of Justice is unlikely to revisit its opinion, so this paper examines ways Senegal may rehabilitate competition policy and promote liberal markets within the boundaries of the Court of Justice opinion. While not ideal, use of sector-specific regulations, criminal penalties for cartel behaviour, and aggressive pursuit of competition investigations with an eye to forcing WAEMU action could all provide the necessary oversight to open and preserve liberal markets. The Senegalese National Competition Commission should also undertake appropriate studies to develop a more comprehensive understanding of the Senegalese economy and the competition problems it faces.
Creative Competition with a Pan-European Licensing Body: Reconsidering the European Commissions Approach to Collecting Societies
Authors: Yow Jeffrey Wern Loong
Published: April 2022

Collecting societies are organisations which are responsible for managing the copyright licenses and royalty payments of right holders. In the European Union, collecting societies which manage the public performance of music rights have historically operated with reciprocal representation agreements, with many of them being national monopolies. These prima facie anti-competitive agreements were cirticised, particularly by commercial users, who felt that such a system was inefficient and a hindrance to digital music broadcasting. On 16 July 2008, following an investigation, the European Commission adopted a decision which introduces competition between collecting societies by prohibiting membership and territorial restrictions as well as a concerted practice among the societies. The decision is the subject of an ongoing appeal. The objective of this article is to critically evaluate the decision and its implications. It will be argued that the Commission has over looked several implications of its decision, which could have negative effects on the collecting societies themselves as well as on cultural diversity in the EU. A preferable solution is to retain the respective national collecting societies, but to establish a central licensing body to grant pan-European licenses. The dynamic concept of 'creative competition' should also be implemented within the framework of each collecting society to preserve cultural diversity in the European music industry.
Can Big Wireline Broadband Internet Networks be Considered an Essential Facility?
Authors: Meisel John B.
Published: April 2022

The structure of 'big' wireline broadband Internet access markets is transforming in many geographic areas from a duopoly (broadband Internet access provided by telecommunications carriers and cable operators) to a monopoly. Incumbent operators of 'big' wireline broadband Internet access markets reserve a portion of the broadband capacity within their last-mile networks to provide favourable treatment to their own broadband applications and content. In particular, providers of emerging online video distribution services are relegated to accessing their customers by means of a less efficient path. This paper considers the question as to whether reserved broadband capacity can be deemed an essential facility and access opened up to stand-alone Internet applications and content through application of the antitrust laws. The arguments for and against treating reserved broadband capacity as an essential facility are presented and evaluated. The paper finds that reserved broadband capacity can be treated legally as an essential facility and that mandating access to the facility promises to provide significant efficiency benefits to consumers who purchase online video distribution services.

'Net neutrality maintains that I have paid for an Internet connection at a certain quality, say, 300 Mbps, and you have paid for that quality, then our communications should take place at that quality. Protecting this concept would prevent a big ISP from sending you video from a media company it may own at 300 Mbps but sending video from a competing media company at a slower rate. That amounts to commercial discrimination' (Tim Berners-Lee, Scientific American Magazine, December 2010).
Patenting Strategies of the EU Pharmaceutical Industry: Regular Business Practice or Abuse of Dominance
Authors: Tuominen Nicoleta
Published: April 2022

The aim of the present article is to offer a critical and objective view on the use or abuse of patents and defensive strategies in the pharmaceutical industry. It shall also seek to establish whether patents as currently regulated offer an appropriate degree of protection of intellectual property (IP) held by the economic operators in the pharmaceutical sector and whether there is a need or, for that matter, scope for improvement.
Rethinking Sanctions for Breaching EU Competition Law: Is Director Disqualification the Answer?
Authors: Khan Aaron
Published: April 2022

This article seeks to contribute to the debate surrounding how to reform the EU's system of antitrust sanctions by arguing the case for the introduction of director disqualification orders, such as those currently used in the UK. Through an analysis of corporate governance theory, it will be established that there is a real need for individualized sanctions to target those who are truly responsible for the implementation of anticompetitive conduct. Directors are particularly influential in this regard, as they are often responsible for instigating an infringement or could have prevented it from taking place. After considering various political, cultural, and legal factors, it will be contended that criminalization of competition law is not, at the current stage of development, the appropriate step forward. Instead, a system of disqualification would be a more proportionate and workable solution that would combat the underlying causes of competition law breaches and have a significant deterrent effect. A specific proposal for a decentralized model of implementation is made, which would alleviate many Member State's concerns over national procedural autonomy.
The Dialectics of Competition Law: Sketching the Ordo-Austrian Approach to Antitrust
Authors: Andriychuk Oles
Published: April 2022

This paper explores the qualitative (deontological) approaches to the phenomenon of economic competition, synthesizing the Ordoliberal and the Austrian perceptions of antitrust economics, policy and law. It critically addresses the main normative motto of the contemporary antitrust, embedded in the ethos of consumer/total welfare, as well as the methodological reduction of competition policy to the empirical analysis. Not contesting the paramount role of economics in the realm of antitrust, it demonstrates why the phenomenon of competition cannot be narrowed down to its welfare-generating function. By comparing the regulatory mechanisms of the competitive process in the real economy and sports it depicts some potential methodological analogies, between the two realms.
The Role of the Hearing Officer in Competition Proceedings before the European Commission
Authors: Wils Wouter P. J.
Published: April 2022

This paper deals with the role of the Hearing Officer in competition proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 TFEU (antitrust proceedings) and under the EU Merger Regulation (merger proceedings). After a brief discussion of the status of the Hearing Officer, the paper examines the various powers and tasks of the Hearing Officer (other than the organization and conduct of the oral hearing, which is discussed in a parallel paper 'The Oral Hearing in Competition Proceedings before the European Commission', published in the same issue of this journal).
The Paradox of Australian Competition Policy: Contextualizing the Coexistence of Economic Efficiency and Public Benefit
Authors: Nagarajan Vijaya
Published: April 2022

Although competition law is viewed as being focussed on fostering competition, there is more depth to it. Australian competition policy has been designed to provide space for public benefits, whereby prima facie anticompetitive conducts that eventually result in a public benefit can continue. This is a unique feature which reveals the importance of having flexibility in legislative design and the benefits of case by case approach.

The objective of this article is to identify the types of public benefits that have been recognized through the authorization process in Australian competition law. The article uses an innovative methodology to study 244 authorization determinations made between 1976 and 2010 and analyses them in their economic and social context. This study demonstrates that the authorization process has been a valuable one which has allowed competition policy to operate effectively while accommodating many wider concerns. Conducts that promote competition or encourage cost savings have been recognized alongside those which enhance product safety or encourages environmental protection, demonstrating the complexity and breadth of competition law in practice. This type of decision making can be explained as a triumph of practice.
Environmental and Competitive Performances: An Exploratory Note
Authors: Benöhr Iris , Pacini Henrique , Diaz Maria Dolores Montoya , Guimarães Valéria
Published: April 2022

This note examines the relationships between indicators of competition and environmental performances, based on country-level data sourced from the International Energy Agency and the IMD´s world competitiveness survey. For this purpose, an econometric analysis is undertaken to explore the relationships between environmental and competition law indicators, using data representing economic performance, perceived efficiency of competition policy and carbon intensities for a sample of fifty-eight countries over fourteen years. Results shows little evidence of direct relationships between environmental and competition policies, indicating a need for deeper reflections on how to strengthen bridges between the two fields.
The SEP Holders Guide to the Antitrust Galaxy: FRAND and Injunctions
Authors: Zografos Alexandros S.
Published: April 2022

Standardization has proven to be a source of considerable benefits but for antitrust it can be a field laden with dangers. Recent Article 102 TFEU investigations related to standard-setting focus on the issue of availability of injunctive relief for FRAND-encumbered SEPs and compatibility of such litigation with antitrust rules on unilateral behaviour. The heterogeneity, which characterizes the outcome of these probes across jurisdictions reflects the diversity of opinions found in academic scholarship. This notwithstanding, there is consensus that the concept of the willing licensee is decisive in this regard, while public interest considerations can play an equally crucial role. A German reference for a CJEU preliminary ruling sought guidance regarding the appropriate legal standard for such cases. SEP holders appear creative as to their lines of defence against Commission allegations, but past antitrust practice vis-à-vis dominant pioneers indicates that the avenue of offering legally binding commitments is an option that merits consideration.
Investigation of Collusion in Procurement of One Russian Large Buyer
Authors: Avdasheva Svetlana , Shastitko Andrei , Golovanova Svetlana
Published: April 2022

The article discusses a recent antitrust case brought against Russian manufacturers of large diameter pipes (LDPs) that aimed to investigate supposed collusive practices that contradicted the law 'On the Protection of Competition', which prohibits market sharing and restricting production. The Russian competition agency (FAS) confirmed the infringement under Article 11 of the law 'On the Protection of Competition', but at the same time exempted companies from liability under Article 13, which allows applying rule of reason to agreements which promote efficiency. We presume the infringement charge was based on weak substantial evidence standards. The case under consideration illustrates the importance of investigating the institutional details when qualifying the actions of market participants and their effects. The analysis of the evidence in this case indicates that the nature of cooperation between pipe manufacturing companies and OJSC Gazprom, namely indicative planning, may be explained from the perspective of reducing contract risk in an environment characterized by large-scale investment.
Antitrust Damages Actions: Obtaining Probative Evidence in the Hands of Another Party
Authors: Henry David , Bentley Philip
Published: April 2022

To support an antitrust damages claim a private litigant will seek to rely on documents that are not in his possession. In the absence of any specific EU rules on disclosure, however, a private litigant established in one Member State may be disfavoured as compared to a private litigant established in another. In seeking to establish a common approach to document disclosure, the EU institutions recently agreed upon the Damages Directive. At its core, the Damages Directive provides that national courts should, as a matter of principle, be able to order the disclosure of evidence, whether in the hands of the defendant or claimant, or included in the file of a competition authority. With respect to the latter, in particular, national rules implementing the Damages Directive must ensure that leniency statements and settlement submissions are never disclosed. It would seem that the Pfleiderer case law is no longer applicable to these two categories of documents, but continues to be applicable in other areas. The Damages Directive does not answer all the questions that will come before a judge faced with a request for disclosure, but marks a significant step towards facilitating the bringing of antitrust damages actions in the EU.
Conglomerate Mergers: Lessons from Vertical Foreclosure
Authors: Proctor Adrian J.
Published: April 2022

This article compares and contrasts the approach to merger issues in vertical and conglomerate cases including likely efficiencies, useful data, and the approach to looking at each of ability, incentive, and effect in turn. The paper considers when conglomerate mergers are more likely to mirror vertical cases and result in static price rises. The article considers the relationship between conglomerate foreclosure and predatory pricing to determine whether merger analysis is the most suitable place to intervene and stop short-term benefits that may harm competition in the longer term. Finally, potential amendments to the existing analysis framework are discussed.
Evading Portfolio Royalties for Standard-Essential Patents through Validity Challenges
Authors: Sidak J. Gregory
Published: April 2022

A no-challenge clause prevents a patent licensee from challenging the validity of a licensed patent. In the 2014 Guidelines on Technology Transfer Block Exemption Regulation, the European Commission discouraged parties from including a no-challenge clause in a settlement and license agreement concerning standard-essential patents (SEPs).The Commission said that eliminating invalid patents serves the public interest because it promotes competition. For similar reasons, in 2014, the Advocate General of the Court of Justice of the European Union opined in Huawei Technologies Co. v. ZTE Corp. that EU competition law should allow a licensee to retain the right to challenge a licensed SEP’s validity notwithstanding that the licensee has entered into a settlement and license agreement with the SEP holder. I analyze the Commission’s and the Advocate General’s assumption that a licensee’s challenging the validity of SEPs unambiguously benefits consumers. I assess the merits of that legal proposition within the well-established economic framework of cost-benefit analysis. I particularly focus on the marginal benefits and the marginal costs that eliminating no-challenge provisions would generate for consumers. I explain that the Commission and the Advocate General exaggerated the marginal benefits and understated the marginal costs of validity challenges to licensed SEPs, particularly when the typical SEP holder repeatedly licenses its SEPs in a large portfolio to a sophisticated licensee. The discovery that several SEPs in a licensed portfolio of hundreds are invalid would neither surprise the parties nor justify reducing the portfolio royalty. The Commission and the Advocate General ignored that encouraging a licensee to challenge the validity of individual licensed SEPs invites opportunistic litigation by the licensee so as to delay paying the SEP holder the agreed-upon royalty for the use of the many more valid patents in its licensed portfolio. Thwarting the SEP holder’s ability to receive prompt compensation for its innovative contribution lessens the SEP holder’s incentive to invest in innovation and thus decreases quality of collective standard setting. Those effects in turn impose significant marginal harm on consumers. Consequently, the Commission and Advocate General erred to assume that consumers derive a net marginal benefit from the announced policy encouraging a licensee to challenge to the validity of licensed SEPs.
Securing the Legitimacy of Individual Sanctions in UK Competition Law
Authors: Galloway Jonathan
Published: April 2022

Traditional deterrence theory relies on a combination of probability and severity of punishment to impose a perception of sufficiently high costs to deter wrongdoing. Yet when a very high severity of punishment counters a low probability, disproportionate outcomes give rise to societal concerns about procedural fairness and justice, such that the law loses legitimacy. Any loss of legitimacy undermines would-be offenders’ normative commitment to, and voluntary compliance with, the law. The UK has encountered significant obstacles in efforts to enhance the deterrence of competition law. The Enterprise Act 2002 (EA02) and the Enterprise and Regulatory Reform Act 2013 (ERRA13) introduced individual sanctions, consisting of a criminal cartel offence and director disqualification orders, to deter anti-competitive behaviour. This article argues that poor drafting and prosecutorial failure are responsible for the failure to earn and secure the legitimacy of the cartel offence. Yet the greatest regulatory failure is not making fuller use of the disqualification powers, which have greater legitimacy. By following the approach suggested in this article the deterrent value and legitimacy of UK competition law would increase, and we would be closer to achieving the goals of the individual sanctions when they were introduced over 13 years ago.
The Opinion of AG Wahl in the Intel Rebates Case: A Triumph of Substance over Form?
Authors: Clarke Julie
Published: April 2022

Rebates are a ubiquitous form of price competition which can be utilized either to intensify or to harm competition. Distinguishing pro-competitive from anti-competitive rebates and translating this into effective and administrable legal rules, remains a key challenge for competition law. The recent Opinion by Advocate General Wahl in the Intel appeal has identified deficiencies in the legal approach to dominant firm rebates under Article 102 TFEU and has proposed a ‘more economic’ case-by-case approach to their assessment. The proposed approach and the attempt by AG Wahl to reconcile it with existing case-law, raises a number of important questions for consideration by the European Court of Justice. This article examines AG Wahl’s Opinion and suggests that, while the substance of the proposed approach has merit, the form proposed is deficient in a number of respects.
Reverse Payment Patent Settlements in the Pharmaceutical Sector Under EU and US Competition Laws: A Comparative Analysis
Authors: Colangelo Margherita
Published: April 2022

Within the tool-box developed by originator companies in order to prepare and respond to generic entry, a prominent position must be recognized to a category of patent strategies particularly controversial under antitrust scrutiny, i.e. patent settlement agreements, in particular in the form of reverse payment patent settlements (also called pay-for-delay settlements), due to the fact that they provide for the patentee to pay the alleged infringer, rather than the opposite, with the aim of delaying its market entry. It is a fact that reverse payment settlement agreements arise mainly in the pharmaceutical industry. The article firstly analyses US and EU regulatory frameworks in order to highlight similarities and differences between them. Then, it examines the relevant case law in both contexts with a view to conducting a comparative study. Finally, the article discusses the approaches to reverse payment patent settlements adopted by antitrust authorities and courts and their clashes with intellectual property law, and contains a final proposal for the assessment of these agreements.
Comparing Parent Company Liability in EU and US Competition Law
Authors: Koenig Carsten
Published: April 2022

It is a well-established principle of EU competition law that parent companies can be fined for antitrust infringements by their subsidiaries. Under the new EU Directive on Antitrust Damages Actions, parent company liability is likely to be extended to private antitrust litigation. In the United States, in contrast, no fines are imposed on parent companies unless they are directly involved in an antitrust infringement. Moreover, US courts are reluctant to hold parent companies directly or indirectly liable in private damages suits. Against this background, I explore in this article the striking difference between EU and US competition law with regard to parent company liability. I show that one of the main purposes of holding parent companies liable in EU competition law is to solve an underdeterrence problem that occurs when subsidiaries lack sufficient assets to pay for fines or damages. I argue that the same function is fulfilled in US antitrust law by other enforcement instruments, in particular, the individual liability of managers and employees. On this basis, I conclude that primarily the existence of these functional substitutes explains why a need for parent company liability has not arisen in US antitrust law.
Evidencing the Goals of Competition Law in the Peoples Republic of China: Inside the Merger Laboratory
Authors: Furse Mark
Published: April 2022

In the analysis of competition law the most fundamental question to be asked of any regime is that of what the goals of that regime are. The goals of competition law will determine the outcomes of cases, and transparency in goals will permit robust analysis of decisions against a clear benchmark, and facilitate firms’ analysis of transactional risk. Mergers which are notified to multiple authorities provide a distinctive opportunity to compare the operation of the different regimes in respect of, in essence, the same case at the same time. Where divergent outcomes are identified these may simply indicate that in the face of complex sets of facts different conclusions are drawn, or that competitive conditions vary across the relevant regimes. More importantly, divergence may suggest that different goals are being applied. This article focusses on the approaches taken in the People’s Republic of China (PRC), the United States and the European Union – the three ‘key’ merger regimes, from each of which a clearance is a ‘must have’ – in a defined set of merger cases in which at least two of these jurisdictions applied, covering the years 2013–2016. Recognizing the limitations pertaining to any such analysis, I compare the approaches taken across this set of merger cases seeking to explain and critique any divergence, focussing in particular on the more expansive approach to merger control demonstrated here to be applied in the PRC. The focus throughout is on the operation of the substantive test(s) of merger control, which provide a focal point for testing the goals of competition law and policy.
Drawing the Boundaries Between Hub-and-Spoke Cartels and Vertical Agreements: Lessons from the United Kingdom and the United States to Chilean Competition Law
Authors: Hernández Diego
Published: April 2022

Indirect contacts or exchanges of information between competitors through a common third party can sometimes lead to the existence of a cumulus of vertical agreements and, sometimes, can imply the configuration of a horizontal agreement. In competition law, vertical and horizontal agreements are treated in very different ways. Therefore, establishing whether a set of facts amounts to one or the other is critical. After analysing the situation in the United Kingdom and in the United States, this presentation will explain why the limit between the hub-and-spoke (horizontal) conspiracies and a mere aggregation of vertical agreements lies in the existence not only of vertical information exchanges (or, to phrase it differently, in an indirect horizontal exchange) but also in the established existence of an additional mental element. Towards the end, relevant conclusions will be reached in relation to the application of the Chilean Competition Act.
The Right of Defence in the Decentralized System of EU Competition Law Enforcement: A Call for Harmonization from Central and Eastern Europe
Authors: Bernatt Maciej , Svetlicinii Alexandr
Published: April 2022

The article compares the application of the right of defence in competition law proceedings by seven National Competition Authorities (NCAs) of Central and Eastern Europe (CEE). In particular, the article focuses on four sub-rights that are part of the right of defence: right to be informed; right to access the file; privilege against self-incrimination (PASI) and legal professional privilege (LPP). The article shows that the NCAs selected as case studies generally provide lower procedural guarantees in comparison to DG Competition of the European Commission. The findings of the article are relevant in view of the Directive aiming at harmonizing the powers of NCAs (‘ECN Directive’). The legislation aims at strengthening the investigatory tools of NCAs, while it pays limited attention to the procedural guarantees followed by NCAs. In view of the diverging application of the right of defence by the NCAs selected as case studies, the article challenges such policy choice, claiming that stronger investigative powers should be counterbalanced by a more homogenous application of the right of defence by NCAs of the EU Member States.
The Interaction of Public and Private Cartel Enforcement
Authors: Rosenboom Nicole , Veld Daan in 't
Published: April 2022

The prohibition of cartels is enforced by both public and private legislation, which may interact in a way that reduces their effectiveness. This article investigates these interaction effects specifically for the leniency programme and civil damages claims, by means of a conjoint analysis. Dutch companies and competition lawyers were faced with different enforcement situations containing a mix of public and private enforcement elements and were asked in which case they were most likely to apply for leniency. Their answers are analysed with a nested logit model, allowing for the possibility that respondents would continue the cartel in either of the presented enforcement situation. For firms, the corporate and personal fine and the fine reduction mattered in deciding to apply for leniency. Competition lawyers took the fine reduction, disclosure of leniency and burden of proof into account when advising on self-reporting the agreement. Both groups of respondents answered that in 16–19% of the situations they would continue the agreement and not apply for leniency/advice to so do (The authors thank the participating economists of the Dutch Competition Authority for their input and suggestions. Special thanks to Dr Ron Kemp, the competition lawyers who were willing to discuss the research results with the authors, prof. Dr Barbara Baarsma and prof. Dr Bas ter Weel.).
Digital Polyopoly
Authors: Jedlicková Barbora
Published: April 2022

The digital economy has significantly changed many aspects of our lives, including the way firms do business and compete with each other. In addition to the benefits the digital world has introduced, it has also brought challenges for competition law, including new ways to restrict competition, with computing algorithms representing one of the most prominent examples. Algorithms can lead to, facilitate and maintain anticompetitive collusion, and one of the most pressing tests for competition law and its enforcement in the digital world is algorithmic parallel conduct. The terminology introduced for this conduct in this article is ‘digital polyopoly’. Digital polyopolies encompass conditions similar to oligopolies, in particular, interdependency and transparency. However, unlike parallel conduct arising from oligopolies, digital polyopolies are not limited by their number of competitors. This new phenomenon requires fitted interpretation and rethinking of existing competition-law and economic concepts. What digital polyopolies are, how they differ from pre-digital era concepts and how competition law should tackle them (with a particular emphasis on the European Union competition law’s concept of ‘concerted practice’), are questions explored in this article.
Public Opinion on Cartels and Competition Policy in France: Analysis and Implications
Authors: Monnier-Schlumberger Constance , Combe Emmanuel
Published: April 2022

In this article, we analyse the foundations, methodology, results and implications of a survey conducted by the French Competition Authority on the perception of cartels and competition policy by general public in France. The results show that French people consider these practices to be harmful and are in favour of dissuasive sanctions. In addition, while not in favour of imposing a prison sentence on individuals, public opinion favours the implementation of criminal sanctions, in particular in the form of disqualification. The results also suggest that cartels are considered to be as serious or more serious breach of the law than other types of fraud. Moreover, French people agree to denounce this practice, but on ethical grounds more than in exchange for a monetary reward. Finally, the French Competition Authority enjoys a certain notoriety, unlike the cartel cases it deals with and despite the amount of sanctions imposed. These empirical results can help to better guide competition policy and enhance its effectiveness.
Antitrust Über Alles. Whither Competition Law after Facebook?
Authors: Colangelo Giuseppe
Published: April 2022

After a three-year investigation the German Competition Authority (GCA) found Facebook’s data policy to be abusive. In its assessment the authority stated that, by making the use of its social-networking service conditional upon users granting extensive permission to collect and process their personal data, Facebook unlawfully exploited its dominant position in the German market for social networks. Hence, the GCA has found a way – uniquely German-specific – to limit Facebook’s ability to gather, combine, and analyse data. In order to achieve this, it has acted as a self-appointed enforcer of data protection rules, establishing a violation previously undetected by any data protection authority and placing a ‘special privacy responsibility’ on dominant firms.
The Optimal Assessment Rule for EU State Aid Procedure
Authors: Nowak-Salles Anna
Published: April 2022

This article fills the gap in the State aid literature by discussing the optimal rule for State aid assessment, which shall increase the reliability and accuracy of State aid enforcement by the European Commission. Moreover, it contributes to decision theory more broadly, by putting emphasis on the error in application of law, which hampers an effective distinction between desirable and undesirable measures.

The argument developed in this article is that the informational asymmetries, which the Commission faces when assessing measures, may be overcome to a different extent at each procedural stage. Hence, and due to the interrelation between complexity of rules and the probability of error in their application, State aid assessment requires two assessment rules, one for the preliminary examination and one for the formal investigation. However, it seems that such optimal assessment rules have not been identified, and no concern about accuracy in application of complex rules is reflected in the literature or in the legal framework. Consequently, the Commission shall structure and make known the rules which guide its assessment, especially in the preliminary examination. This would benefit the quality and transparency of the decision-making and might be particularly valuable in the context of the on-going revision of State aid guidelines.

EU State aid law, Article 107 TFEU, Decisional Errors, Decision Theory, State Aid Procedure, Compatibility Assessment, Notion of Aid, State Aid Modernisation, Revision of State Aid Guidelines, Optimal Assessment Rule
Cartel Effects and Component Makers’ Right to Damages
Authors: Franck Jens-Uwe , Peitz Martin
Published: April 2022

The focus of the law on competition damages is on the recovery of overcharges appropriated by the cartels. Parties other than purchasers are often neglected, not only as a matter of judicial practice but also due to legal restrictions. We argue that a narrow concept of standing – which excludes parties that supply either the cartels or the firms that purchase from them with complementary product components – falls short of the normative objectives associated with actions for competition damages: effective deterrence of competition infringements and pursuit of corrective justice. We propose a simple economic framework with two complementary products and show that under neither competition nor cartelization do the allocation and distribution of surpluses depend on whether producers of complements purchase from a cartel or supply a cartel or its customers. This indicates that producers of complements should be treated alike, regardless of their position in the supply chain. Based on various factors that determine the enforcement effect of actions oncompetition damages and their role as an instrument to restore corrective justice, we conclude that a broad concept of standing is preferable.

competition damages, pass-on, suppliers, complementary goods, causality, antitrust standing, cartel overcharge, effective deterrence, corrective justice, Directive 2014/104/EU, principle of effectiveness
Competition and Trade: The Rise of Competition Law in Trade Agreements and Its Implications for the World Trading System
Authors: Choi Yo Sop , Heinemann Andreas
Published: April 2022

Since the failure of the Havana Charter in 1950, it has not been possible to agree upon a binding competition law at the global level. However, following the fiasco of the World Trade Organization (WTO) Ministerial Conference in Cancún in 2003, the number of bilateral and regional trade agreements containing competition law chapters, or at least competition-related rules, has increased noteworthy. This reflects that trade and competition are closely intertwined. In an ever more integrated, globalized, and digitized economy, the competition law framework needs to be internationalized. If a binding competition law is not possible at the global level, it is only logical that bilateral and regional trade agreements fill the gap. This article questions the extent to which these agreements contribute to the convergence of competition law. In this context, the development in Northeast Asia seems promising and may provide a guidepost for establishing international standards of competition law cooperation and enforcement. Presented here is the idea of localized harmonization, which takes advantage of closer affinity between bilateral and regional partners. With a sufficient degree of convergence, it is not excluded that efforts towards a multilateral competition agreement could be relaunched one day.

competition law, world trade law, WTO, free trade agreement, regional trade agreement, bilateral cooperation, convergence, localized harmonization, Asian competition law, digital economy
Online Advertising and the Competition for Data: What Abuse are We Looking For?
Authors: Köhler Alexandre
Published: April 2022

Competition law has to adapt to the challenges of the digital era, not by changing its objectives but by changing its analytical tools. At a time where the Commission contemplates going back to using exploitative abuses under Article 102 (a) TFEU, an enquiry into the use of these quite unexplored abuses for prohibiting excessive data gathering seems necessary. Considering that online advertising is the financial lungs of the zero-price economy in which platforms operate, we will address the competitive problems of third-party data processing from the standpoint of online advertising. Thus, we will analyse the functioning of advertising markets, how they interact with the consumer-facing markets as regards data extraction and what competitive problems may arise out of this interaction. The framework being set, we will give a detailed analysis of the Facebook decision from the German Competition Authority (GCA) by which it sanctioned Facebook for abuse of dominant position for its extensive data collection policy. Considering the successes and pitfalls of this attempt, we will suggest an analytical framework for approaching third-party data gathering under European competition law and Article 102 (a) TFEU in particular, taking into account exclusionary effects on the advertising side of platforms.

advertising market, Facebook case, abuse of dominance (exploitative), abuse of dominance (exclusionary), third-party data gathering, unfair trading conditions, GDPR, causal link, theory of harm, DMA
El papel de la prensa en la gestación del proceso independentista de Cataluña. Análisis desde los marcos del conflicto
Authors: Pérez López Eva Pérez-López , Martin Pena Daniel
Published: April 2022

Este artículo analiza los marcos de conflicto predominantes en la prensa de ámbito estatal (El País y El Mundo) y catalán (La Vanguardia y El Periódico de Cataluña) durante la fase de gestación del proceso independentista (2010-2014). Para ello, se ha elaborado una nueva tipología sobre marcos de conflicto atendiendo a su nivel de sustantividad. El estudio ha permitido comprobar que el origen territorial incide en la definición del conflicto que elabora la prensa y en su preferencia por un determinado modelo de organización territorial, aunque no lo determina. Es más bien la identificación entre partidos y medios la variable que mejor explica la orientación «independentista, constitucionalista o federalista» de cada periódico. Asimismo, se ha constatado la actuación de la prensa como agente de polarización en función de la preferencia del modelo territorial.