bluuebunny/crossref_metadata_2025 huggingface dataset:
Unilateral Conduct in an Oligopoly according to the Discussion Paper on Art. 82: Conscious Parallelism or Abuse of Collective Dominance?
Authors: Vecchi Teresa
Published: April 2022

Oligopolies are characterised by the presence of few strong players and a high level of transparency that allow undertakings to monitor each other’s conduct and to unilaterally adapt their behaviour to that of the other undertakings. The unilateral conduct of oligopolists may have anticompetitive effects. Since EC Courts have concluded that the peculiar interdependence between oligopolists can lead to a position of collective dominance, it is important to determine whether such unilateral conducts is a legitimate reaction to the other members’ behaviours, or to the exploitations of a collective market power, which would represent an abuse prohibited under Article 82. In the absence of clear guidance from the Discussion Paper on Article 82, distinguishing features of abuses of collective dominant positions can be derived from the principles previously elaborated by the Courts for complex agreements under Article 81 in light of the similarities between the two legal institutes. If applied by analogy, these principles lead to the conclusion that unilateral conduct should be considered as an abuse of collective dominance only when it is the manifestation of a collective dominant position, when the other members of the oligopoly are aware of them and, most importantly, when they benefit from them.
Private v. Public Interest: the Strategic Use of Competition Law in Ireland by Private Interests
Authors: Gorecki Paul K.
Published: April 2022

This article considers two major issues. First, what is strategic behaviour by firms and what incentives do firms have for engaging in such behaviour with respect to the Irish Competition Authority (“the Authority”)? Second, since firms are an important source of information about breaches of competition law, how should the Authority encourage such pro–competitive complaints, while, at the same time, discouraging anti–competitive complaints from firms that reflect the normal workings of the market? These questions were examined by a review of complaints received by the Authority between 2002 and 2006. Anti–competitive complaints are primarily concerned with firms that are disadvantaged in the competitive process. They have an incentive to appeal to the Authority to intervene on their behalf to provide some sort of insurance against market forces. However, the role of the Authority is to promote consumer, not producer, welfare. Pro–competitive strategic behaviour is made by firms that want to promote change, entry and innovation. However, incumbent suppliers wish to preserve their market power and in the process may breach competition law. The article discusses various ways in which the Authority encourages more pro– and less anti– competitive complaints.
The Economic and Financial Crisis, Regulation and Competition
Authors: Jenny Frédéric
Published: April 2022

The financial crisis and the economic crisis it sparked are raising legitimate questions about the market economy’s capacity to promote growth and well-being. Although the 1990s and the early 2000s saw competition law acquire growing power to shape our economic activity, it is government intervention and regulation – more intrusive than competition law – on which hopes for economic recovery and a return to prosperity are now pinned.

However, we need to qualify the arguments of those who proclaim the death of economic liberalism and the end of competition law as the pre-eminent tool for regulating the functioning of markets, by analysing closely the roots of the crisis, its symptoms and the remedies envisaged, and then looking at the role of competition authorities in a time of crisis and how the crisis will influence the application of competition law. The competition authorities of the Organization for Economic Cooperation and Development (OECD) member countries engaged in just such an exercise in mid-February 2009 at a meeting of the Organisation’s Competition Committee. The remarks that follow are not a summary of these discussions, but rather a commentary on the main themes that were addressed.
Fostering Competition Culture in the Emerging Economies: The Brazilian Experience
Authors: Botta Marco
Published: April 2022

The lack of competition culture is one of the keys factors which undermine the enforcement of the competition law in an emerging economy. The lack of competition culture may only be ‘cured’ through activities of competition advocacy vis-a-vis the different stakeholders: State’s agencies, regulators, business community and consumers’ association. The paper analyzes this broad issue through a case study on the Brazilian experience in the field of competition advocacy. During the last years Brazil sensibly progressed in the enforcement of the competition law, and one of the reasons of this development was the functions of competition advocacy carried out by the Brazilian competition authority. The paper argues that the Brazilian success was mainly due to the institutional framework provided by the Brazilian competition act, which splits the activities of enforcement and of competition advocacy between two different agencies. While a fully independent authority enforces the competition law, an advisory body part of the Ministry of the Economy monitors the anti-competitive regulations adopted by other State agencies. The conclusions provide a number of lessons applicable to other emerging economies which have recently started to enforce a competition law regime.
Fines against Parent Companies in EU Antitrust Law: Setting Incentives for ‘Best Practice Compliance’
Authors: Ludescher Melanie , Hofstetter Karl
Published: April 2022

Antitrust fines imposed by the European Commission have reached record levels and have scratched or passed the EUR 1 billion mark in several cases. This expansion was, inter alia, made possible by the Commission’s practice to not only sanction responsible subsidiaries, but their parent companies as well. As a result, the fine cap, which Community law sets at 10% of the annual sales of responsible undertakings, has been ratcheted up significantly. This article maintains that the current practice of the European Commission, which finds at least arguable support in the case law of the Community courts, ignores the fundamental concept of limited liability for subsidiary corporations. It also lacks a sound basis in EU antitrust law. Perhaps most important, the fining practice of the Commission does not do justice to its pursued goal of effectively preventing antitrust violations by corporate managers and employees. Antitrust fines against corporations, be they subsidiaries or parent companies, should primarily be aimed at deterrence and therefore be based on fault. Absent any direct involvement in the antitrust violations of the top representatives of a corporation, fault on the part of the company should be defined as a deficiency in its compliance organization. ‘Best Practice Compliance’ should, therefore, take centre stage in an optimally designed antitrust fining policy. As a result, the amount of fines against companies, but also the question of whether a parent company bears co-responsibility for antitrust violations by its subsidiaries, should primarily hinge on whether and to what extent ‘Best Practice Compliance’ standards had been implemented.
The Standstill Obligation in the ECMR
Authors: Lelart Stephane , Depoortere Frederic
Published: April 2022

This article discusses the standstill obligation under the EC Merger Regulation (ECMR) and a number of issues arising from its application in the context of acquisitions of minority shareholdings as well as possible solutions to address these issues. The standstill obligation is often characterized as a cornerstone of the ECMR. The EUR 20 million fine imposed by the Commission on Electrabel in June 2009 confirms that the Commission will take the enforcement of the standstill obligation very seriously. However, there are a number of issues in the interpretation of the standstill obligation that make its application in real-world cases extremely complex. Now that the Electrabel decision has increased the price of making mistakes, the importance of the issues surrounding the practical application of the standstill obligation has increased as well. This article focuses on the application of the standstill obligation in the context of acquisitions of minority shareholdings and more particularly the concepts of (1) de facto control, (2) partial implementation, and (3) interrelated transactions. This article then goes on to propose a number of possible solutions to enhance the level of legal certainty for practitioners and undertakings.
The Use and Abuse of Intent Evidence in Antitrust Analysis
Authors: Melícias Maria João
Published: April 2022

References in recent case law to a firm’s ‘anticompetitive malice’ and ‘dreams of monopoly’ or to documentary evidence purporting to show a firm’s malevolent plans to squash a rival and ‘pre-empt the market’ may sound puzzling in a modern antitrust world supposedly driven by the objectivity of economic theory. This article discusses the meaning of intent in antitrust analysis and whether this element should be given any role in abuse cases and, in the affirmative, what role should that be. To this effect, it carries out a comparative exercise on the relevance of intent evidence in abuse investigations under US and EU laws. Although it primarily focuses on predation, it also considers other forms of exclusionary conduct where appropriate. It then explores the interplay between the different uses of this standard, the notion of anticompetitive harm, and the goals of antitrust in the two jurisdictions. Finally, it examines the consequences of adopting a given intent rule in terms of policy enforcement.
Group Liability for Antitrust Infringements: Responsibility and Accountability
Authors: Burnley Richard
Published: April 2022

The principle of ‘group liability’ can have huge significance for corporate groups yet there has been considerable uncertainty about its nature and scope. The European Court of Justice’s (ECJ’s) ruling in Akzo answers some questions but raises others. Does the logic of the ‘wholly owned’ presumption apply to shareholdings of less than but near to100%? How can the presumption be rebutted in practice? What is the position with respect to part-owned subsidiaries? What is the standard of proof?

This article considers the current position on group liability for cartel infringements under EU competition law, setting out and explaining in detail the basis on which parent companies may be held accountable for antitrust offences carried out by their subsidiaries. It goes on to consider how the principle might best be applied to achieve the overall regulatory goals of maximum deterrent effect while ensuring the fairest outcome in every case. In conclusion, the article suggests the need for a specific set of Commission Guidelines laying down the broad parameters of the group liability in EU competition law.
Astrazenecas Abuse of IPR-Related Procedures: A Hypothesis of Anti-Trust Offence, Abuse of Rights, and IPR Misuse
Authors: Montagnani Maria Lillà
Published: April 2022

The General Court has recently upheld the AstraZeneca decision by ascertaining that AstraZeneca enforced fraudulently the procedure to obtain the Supplementary Protection Certificates (SPCs) connected to one of its patented drugs and misused the procedure governing the withdrawal of the related market authorizations. AstraZeneca manipulated these procedures and - since it held a dominant position - was deemed liable under Article 102 Treaty on the Functioning of the European Union (TFEU). However, enforcing fraudulently the procedure to obtain SPCs and misusing the procedure governing the withdrawal of market authorizations may qualify as offences even when firms do not hold market dominance insofar as the acts do not find any justification in the rationale underpinning the patent system. This behaviour may amount to conduct that harms the single market as it abuses both the intellectual property (IP)-related procedure and the underlying intellectual property right (IPR). This behaviour may also amount to conduct that, by falling outside the scope of a Community provision, distorts its purpose and abuses the underpinning right. The paper uses the discussion of AstraZeneca's behaviour from the European Union (EU) and US antitrust standpoint to explore the further offences that such behaviour may constitute.
Should Cable Be Included in the Wholesale Broadband Access Market Definition? A Critique of the European Commission Test
Authors: Baistrocchi Pablo Asbo
Published: April 2022

In the analysis of the Wholesale Broadband Access (WBA) market, an issue that has constantly been discussed between the European Commission (EC) and the National Regulatory Authorities (NRAs) within the mechanism of the Article 7 Framework Directive Consultation Procedures is whether cable-based access services should be included in the market definition. This article provides an overview of the Commission decisional practice in this market in the period 2008-2010 (up to September), summarizes the Commission's requirements for such inclusion, and ends with some critical remarks on the applicable test and the effects on the NRA's work due to the deployment of Next Generation Networks (NGNs).
Merger Remedies Imposed by the Competition Authoritites of the Emerging Economies
Authors: Botta Marco
Published: April 2022

This article analyses the challenges faced by the National Competition Authorities (NCAs) of the emerging economies in imposing structural remedies on the notified concentrations that generate anticompetitive effects. Contrary to what is usually argued in the literature, this article argues that the NCAs of the emerging economies usually 'under-enforce' their system of merger control, by imposing behavioural rather than structural remedies. This is due to the widespread practice of gun jumping and due to the need not to disincentive foreign investors. This article relies on a case study on Brazil and Argentina as examples of emerging economies that have been enforcing a system of merger control for more than a decade in order to elaborate policy conclusions applicable to other emerging economies. In particular, this article argues that the NCAs of the emerging economies could enforce more effectively their system of merger control if an ex ante system of notification that sanctions the practice of gun jumping is introduced, together with a clear time frame of merger review that the NCA has to comply with.
Administrability and Business Certainty in Abuse of Dominance Enforcement: An Economists Review of the South African Record
Authors: Roberts Simon
Published: April 2022

The article examines the record of abuse of dominance cases in South Africa, after more than a decade of the new competition regime, and in light of international debates in this area. The South African Competition Act identified separate specifically proscribed exclusionary abuses of dominance in 8(d) which on the face of it increases business certainty. However, in practice the interpretation of the provisions have been highly contested as it matters how conduct is characterized, separately from whether the conduct has a substantial anti-competitive effect. Moreover, the South African experience raises the question of whether conduct by a dominant firm which has different dimensions can be readily pigeon-holed in the way anticipated by the legislation. This article critically reflects on the record, against local expectations and the international debates.
Enforcement of Singapores Competition Act 2004: Financial Penalties for Infringement of Section 34 Prohibition on Anti-Competitive Agreements
Authors: Cheong May Fong
Published: April 2022

Enforcement is the backbone to any successful competition regime. The Competition Commission of Singapore in enforcing Singapore's Competition Act 2004 has performed this role steadily having issued Guidelines on Enforcement, Appropriate Amount of Penalty and Leniency Programme. This article considers the principles applied by the Commission in setting financial penalties upon an infringement of section 34 of the Act which prohibits anti-competitive agreements. Since section 34 came into force more than five years ago, three significant decisions have represented 'firsts' in the development of competition law in Singapore: (i) first infringement decision on 9 January 2008 involving six pest control operators for bid-rigging or collusive tendering; (ii) decision against sixteen coach operators and their trade association for price-fixing; six parties appealed and the Competition Appeal Board made its first decision on 24 March 2011, and (iii) decision against fourteen electrical and building works companies for bid-rigging; one company was given full immunity representing the first whistle-blowing case under the Leniency Programme. This article has three parts: setting out facts, principles of setting fines as applied by the Commission on the three cases and concluding with observations on the Commission's approach to using penalties for a deterrence objective complimented with a leniency programme.
The Internet, Jurisdiction and EU Competition Law: The Concept of Over-territoriality in Addressing Jurisdictional Implications in the Online World
Authors: Themelis Andreas
Published: April 2022

This article attempts to advance the discussion on the extraterritorial application of EU competition law in establishing jurisdictional competence in relation to anticompetitive conduct occurring in the Internet. In doing so, it considers the suitability of applying the available jurisdictional basis to address anticompetitive practices manifesting within the virtual environment. Specifically, the article investigates the absence of territorial connection when looking at the Internet as the transaction's medium, and the jurisdictional implications arising in such transaction. Such analysis assists in identifying those elements that suffice as a link for asserting any of the available jurisdictional principles. In attempting to address various problematic scenarios that may arise in such context, the article introduces the 'over-territoriality' concept as an approach on the methodology of jurisdictional analysis. This approach emphasizes the importance of technology and the necessity to reconsider the employment of jurisdictional principles for their use in respect of anticompetitive practices. It offers an alternative to the stereotypical analysis and application of jurisdictional principles, while its application is explained and supported by providing certain hypothetical examples.
State Aid Modernization: Institutions for Enforcement of State Aid Rules
Authors: Nicolaides Phedon
Published: April 2022

The European Commission has embarked on a reform of State aid rules. One of the objectives of this reform is better application of State aid rules in the Member States. This article examines how the problem of incorrect application of State aid rules can be solved. If their application can be improved, the Commission is willing to expand the scope of the General Block Exemption Regulation so that fewer measures are notified for approval. This would result in considerable savings in administrative costs. The article proposes a system of institutional certification similar to those that exist in other policy areas such as the common agricultural policy and structural funds. A fundamental component of such certification is the establishment of transparent institutional procedures to cover all types of funding, not only those that may contain State aid. It will then be easier for competitors to identify and challenge non-notified aid or aid that is incorrectly applied.
Leniency Programme of the Competition Commission of Pakistan: Improvement is Indeed Essential
Authors: Fatima Sayyeda
Published: April 2022

Leniency programmes have been used as an effective investigative tool world-wide, however Pakistan's leniency regime has not been able to reach that triumph in cracking cartels. The article aims to highlight noteworthy characteristics of the contemporary leniency programme of Pakistan underscoring legal mechanisms established by the competition regime of Pakistan to curtail cartels. The analysis will mainly focus on the system in Pakistan but will draw comparison with the leniency programme of the European Union, where appropriate. An appraisal of the effectiveness of the leniency programme of Pakistan in comparison with the European Union programme will be done in order to make possible recommendations for improvement of the leniency programme in Pakistan, based on the European Union experience.
Identifying Two-Sided Markets
Authors: Geradin Damien , van Damme Eric , Filistrucchi Lapo
Published: April 2022

We review the burgeoning literature on two-sided markets focusing on the different definitions that have been proposed. We then identify the crucial elements that make a market two-sided and explain that two-sidedness is a matter of degree. Drawing from both economic theory and competition policy practice, we derive suggestions for the identification of the two-sided nature of a market. We argue that one can follow different qualitative or quantitative approaches. A qualitative approach is sufficient to establish whether the market is two-sided. A quantitative approach is more time-consuming but it allows measuring the degree of two-sidedness. Hence, a qualitative approach is a useful preliminary tool, but a quantitative approach is often necessary for a correct decision, if the market is two-sided. Our suggestions are relevant not only for the analysis of traditional markets, such as newspapers and payment cards, but also for the analysis of many new markets, such as those for online social networks, online search engines and Internet news aggregators. Given the time constraints competition authorities face, we would expect most quantitative approaches to take the form of a well-designed survey of customers on both sides of the markets. Some recent decisions seem to move in this direction.
Analysing the Role of the Central Bank in Bank Merger Regulation in India: A Scrutiny from the US and the EU Perspectives
Authors: Mukherjee Arunava
Published: April 2022

The article analyses the recently proposed legislation (in India) to exclude the jurisdiction of the competition regulator and bring bank mergers under the exclusive purview of the central bank. The article takes a look at bank merger regulation and its evolution in the US and in the EU, and argues that India should take lessons from the approach in various jurisdictions to implement a mechanism of concurrent review by the central bank and the competition regulator to ensure an independent review from a competition perspective. Various issues relating to the banking sector and bank merger regulation are examined. The efforts of the fledging Competition Commission of India and its scrutiny of the banking sector are discussed. While acknowledging the special nature of the banking sector, the possible adverse impact of the move on India's position as a favoured global investment destination is also discussed. A study of the global approach is undertaken by analysing the trends in the US and in the EU where bank mergers have been increasingly brought under the scrutiny of the competition regulators (instead of leaving them under the exclusive jurisdiction of the banking sector regulators) on the basis that the banking sector must adhere to the general rules of competition legislation and may not be afforded any special treatment. It is argued that the competition regulator is best suited to review mergers from a competition perspective and its exclusion from the review of bank mergers would result in India moving in the opposite direction from the global approach in recent years.
Justifications and Anti-competitive Unilateral Conduct: An International Analysis
Authors: van der Vijver Tjarda
Published: April 2022

Many jurisdictions across the globe prohibit companies with market power to engage in anti-competitive unilateral conduct. This prohibition is anything but absolute, however. Several reasons can offer a justification for conduct that would otherwise be unlawful. Although such justifications can make the difference between whether or not unilateral conduct should be allowed, they have not been subject to many cross-border comparative studies. This article seeks to propel a much-needed global debate on this topic. It discusses how various jurisdictions around the world deal with justifications as regards prima facie anti-competitive unilateral behaviour. It takes EU law as a starting point, and attempts to distil lessons from the non-EU jurisdictions under review: Australia, Canada, Singapore, South Africa and the United States.
Copyright Societies under Scrutiny: From the EU Approach to the Italian Solution
Authors: Falce Valeria
Published: April 2022

In line with the most recent EU trends, the Italian collecting management system has just been modernized. However, despite the pro-competitive intent inspiring the new regulation, the final outcome is almost unsatisfactory. In fact, the 2012 law is aimed on one hand at liberalizing the related right management system (only), and on the other hand at shaping the feature on the new market without considering the relevant implications for the copyright management. As a result, the Italian management and intermediation system of copyright and related rights is still looking for a consistent reform. In such perspective, it becomes urgent distinguishing those functions traditionally assigned to single collecting societies that must be dismantled from those tasks that are justifiable under a general interest perspective. In the new environment, the latter rules only shall be confirmed under an exclusive regime, being economically and legally sound to open the others to competition.
The Treatment of Late Filings in Indian Merger Control
Authors: Patel Ruchit
Published: April 2022

In 2013, the Competition Commission of India (CCI) adopted three decisions fining companies for delay in notifying transactions under the relevant provisions of Indian merger control law. The decisions are notable because they relate to transactions that: (1) are not reportable under the laws of most merger control regimes around the world (e.g., intra-group transactions), (2) advisors would not routinely expect to require notification in India (i.e., transactions with no immediate, substantial, or foreseeable effect in India), and/or (3) were not ultimately implemented. Critically, there is no suggestion that these were necessary because the transaction in question was likely to give rise to an appreciable adverse effect on competition in India. This article seeks to identify and analyse the implications of those decisions for companies (and their advisors) who do business in India.
The Role of Exclusionary Intent in the Enforcement of Article 102 TFEU
Authors: O’Grady Colm
Published: April 2022

The role to be played by intent evidence in antitrust enforcement has always been a controversial issue. The debate is particularly significant as regards unilateral exclusionary abuses. On one hand, it is argued that intent evidence is irrelevant, insofar as objective standards should determine antitrust liability. On the other hand, intent evidence may assist in informing the analysis of potentially abusive behaviour, and can act as a check against both under and over-enforcement. This article will explore the usage of intent evidence in EU competition law under Article 102 Treaty on the Functioning of the European Union (TFEU). It will be argued that evidence of exclusionary intent is an essential component in the enforcement of certain types of abuses and that its continued usage is desirable, notwithstanding the move towards a more effects-based approach under Article 102. Whereas an effects-based approach seeks to ascertain the likely impact of behaviour by recourse to economic data, intent evidence seeks to establish the likely impact of behaviour by examining the motivation of the undertaking concerned. While different, such approaches are not mutually exclusive and may complement each other. In particular, intent evidence plays a vital and irreplaceable role in disambiguating ambiguous practices which may, by their nature, constitute pro or anti-competitive behaviour depending upon the intent motivating the dominant undertaking in so acting.
The Contribution of Management Studies to Understanding Firm Behaviour and Competition Law
Authors: Van den Bergh Roger , Bhattacharya Shilpi
Published: April 2022

Notwithstanding criticisms, behavioural economics has found a place in competition policy discussions. This paper explores how contributions from the field of management studies may strengthen behavioural theories of the firm and competition law. Various linkages may be drawn between management studies and the behavioural theory of the firm, which can inform existing debates within behavioural antitrust. Both disciplines relate a firm's internal processes to its competitive position in the market. Further, both disciplines emphasize the cognitive limitations of managers and the effect of organizational structures on firm behaviour. The empirical findings of management studies supplement behavioural theories of the firm. This paper examines the insights from management studies and behavioural theories of the firm with the objective of determining whether these insights can lead to a better understanding of firm behaviour, which in turn may be able to inform the normative debate in competition law.
Introduction of Competition and Environmental Regulation in the Electricity Sector in Hong Kong
Authors: Lin Jolene
Published: April 2022

This article explores both the competition and the environmental aspects of the electricity sector in Hong Kong, and a possible linkage between them. There has been considerable public pressure to liberalize the electricity sector in Hong Kong due to longstanding discontent with the persistently high profit of the sector and a regulatory structure that is widely perceived to be ineffective. In light of the government's seeming reluctance to pursue liberalization, this article examines an alternative approach - litigation under the recently adopted Competition Ordinance. It assesses the likelihood of success of the strategy and its potential shortfalls. The article proceeds to analyse whether competition can be used as a tool to improve the environmental performance of the sector. It concludes that the effect of the introduction of competition is ambiguous if not adverse and therefore proactive regulatory intervention will be needed to ensure that environmental performance does not deteriorate following the introduction of competition. Competition will not be an effective tool to improve the environmental performance of the sector. Thomas K. Cheng & Jolene Lin 569.
The Rescue and Restructuring Aid Guidelines of the European Commission: An Economic Point of View
Authors: Milde Christopher , Maier-Rigaud Frank
Published: April 2022

In the context of its ambitious State Aid Modernization work, the European Commission presented new guidelines on Rescue and Restructuring (R&R) aid in 2014. In this article, the consequences for generic R&R aid and in particular the balancing test for State aid proposed by the guidelines are discussed. Given the severe and pervasive harm of R&R aid explicitly recognized by the guidelines, granting R&R aid can only be justified under the proposed balancing test if the R&R aid contributes strongly to an objective of common interest. This objective of common interest may either be addressing a market failure or increasing social or economic cohesion. As is argued here, R&R aid can, by definition, not address or alleviate a market failure. Regarding social and economic cohesion, while R&R aid may plausibly prevent the increase of unemployment in a particular region or prevent the interruption of a service of general economic interest, it is rather doubtful that R&R aid is an appropriate policy instrument in these circumstances. In summary, in all but possibly two special cases R&R aid would fail the balancing test. To the extent that the economic principles set out in the new guidelines are taken seriously, the guidelines for R&R aid may therefore ultimately mean nothing less than the abolition of R&R aid in practice.
Kenyas New Competition Policy Regime
Authors: Ross Thomas W. , Mudida Robert , Ndiritu S.Wagura
Published: April 2022

With the coming into force of the Competition Act (2010) and creation of its two key enforcement institutions, the Competition Authority and Competition Tribunal, Kenya has laid the foundation for a modern competition policy regime. This article provides a critical review of the new Act, describing its main elements and highlighting key features that distinguish it from other modern competition laws. While some of these distinctive features follow logically from particularities in the Kenyan historical and economic context, others may invite some discussion – and possibly amendments – in the coming years. Taken together, there is reason for considerable optimism with respect to the future for a modern, effective competition policy in Kenya.
Market Definition and Market Power in Data: The Case of Online Platforms
Authors: Graef Inge
Published: April 2022

With the emergence of data as an asset for market players operating in the digital economy, questions have risen about the relevance of data for competition enforcement. This article focuses on the role of data in the competitive process between online platforms including search engines, social networks and e-commerce platforms. After arguing that situations can be identified in which access to data is a competitive advantage for incumbents and an entry barrier for new entrants, it is analysed how a relevant market for data can be defined and how market power can be established in such a market. Most providers of online platforms do not trade data as a stand-alone product as a result of which no supply and demand exists and no relevant product market for data can be defined under current competition law standards. However, it may still be appropriate for competition authorities in this situation to assess proposed concentrations and alleged abusive behaviour of dominant firms beyond the relevant markets for the services provided to users and advertisers. By defining a wider market for data, a form of potential competition can be taken into account whereby market players also compete for the asset that is used as an input to develop or improve services offered on online platforms.
The Fall and Rise of the Antitrust Class Action
Authors: Weber Waller Spencer , Popal Olivia
Published: April 2022

Jurisdictions all over the world are experimenting with different forms of collective actions in order to provide compensation for large numbers of victims with small claims in competition cases. This article surveys two nearly simultaneous developments: the cautious development of collective actions in competition cases outside the United States and the narrowing of class actions in the United States. This article then focuses on the key issue that will determine the fate of the nascent movement toward collective actions, namely the need for an opt-out mechanism to provide proper incentives with the collective assertion of small value claims. We conclude that, as a matter of both theory and practice, opt-in mechanisms are merely an inadequate form of joinder ill suited for collective actions in competition cases.
The European Commissions Pharmaceutical Merger Control Practice: An Overview of the State of Play
Authors: ten Have Floris , Demertzi Evangelia , Martinez Jan Truijens
Published: April 2022

With characteristics rendering it prone to consolidation, the pharmaceutical industry has seen numerous waves of M&A over the last few decades.1 The USD 221 billion worth of pharmaceutical deals completed in the first half of 20152 marks the largest surge of transactions since 2009. A substantial number of pharmaceutical M&A deals required EU merger control clearance. This has resulted in a large body of European Commission (‘Commission’) decisions. In light of the particular features of the pharmaceutical industry, the Commission has developed a specific framework for assessing pharmaceutical concentrations. This analytical framework has evolved significantly over time. The present contribution aims to provide an overview of the state of play of the Commission’s pharmaceutical merger control practice, and also identifies some elements that arguably warrant reconsideration.
Tail Wagging the Dog: The Manipulation of Benchmark Rates  A Competitive Bone of Contention
Authors: Pascall Alexander K.
Published: April 2022

The manipulation of financial benchmarks, such as the London Interbank Offered Rate (Libor), has resulted in swift enforcement by regulators across the globe and the imposition of a multitude of impressive fines. In 2013, the European Commission settled with eight financial institutions for EUR 1.7 billion for their role in an alleged cartel relating to interest rate derivatives pegged to Libor. This article seeks to analyse the manipulation of financial benchmarks under Article 101(1) TFEU from both an economic and legal perspective. It is hoped that this exercise will shed some much needed light on what remains a relatively obscure area in competition law. Following the analysis herein, it is argued that EU competition law, in its current guise, is not well placed to deal with the mischief at issue. In light of the specificities of Libor and the markets in which products indexed to Libor are traded, the manipulation should, instead, be left to market regulatory tools specifically designed for this purpose.
Price-Related Cartels under the Chinese Anti-monopoly Law Regime: The Need to Clarify Four Substantive and Procedural Issues
Authors: Yang Yichen
Published: April 2022

This article reviews the development of anti-monopoly enforcement against price-related cartels since the entry into force of the Anti-monopoly Law in 2008 and critically illustrates various inconsistencies and deficiencies in its enforcement with reference to the competition law and the enforcement experience of foreign jurisdictions, i.e., the EU and US. It proceeds to argue that compared with the flexibility of decisions made on a case-by-case basis brought by Court judgments, legal certainty and predictability offered by the administrative guidelines and regulations may be a more urgent requisite for Chinese anti-monopoly enforcement against price-related cartels at this stage. A substantial part of this article is devoted to exploring four aspects which need to be clarified through the issuing of administrative regulations or guidelines, namely: (1) the boundary between the application of the Anti-monopoly Law (AML) and the Price Law to horizontal price fixing; (2) the standardized approach (the ‘object’ or ‘effect’ test) towards horizontal price fixing; (3) the gap of burden of proof between public enforcement and private litigation towards minimum and fixed RPM; and (4) the basic competition law techniques in assessing anticompetitive effects. This article further demonstrates that these clarifications may be conducive to shaping a more consistent internal approach towards public and private enforcement against price-related cartels, and constructing a solid ground for exploring unsettled substantive issues concerning minimum and fixed resale price maintenance (RPM).
Integrating Healthcare Quality Concerns into the US Hospital Merger Cases, A Mission Impossible?
Authors: Stavroulaki Theodosia
Published: April 2022

Hospitals merge to constrain costs and improve quality. Although hospital consolidation can yield substantial cost and qualitative efficiencies, it can also harm competition by creating market power. Can the agencies and the courts strike the appropriate balance between the quality improvements a hospital merger brings and the risk of market power? Can they assess the quality improvements stemming from the hospital merger and weigh them against potential anticompetitive harm? And, if yes, how? These questions are not easy. However, this essay raises and examines them. Exploring the seminal US hospital merger cases, it underlines that the agencies, driven by the belief that healthcare is not special, focus more on the mergers’ impact on prices and less on quality. It concludes that the agencies, by narrowing their analysis to the price concerns of a hospital merger, disincentivize merging parties from bringing quality of care arguments at the heart of the merger analysis and health policy researchers from developing research examining hospital mergers’ impact on quality. It suggests that the Federal Trade Commission (FTC) should issue guidelines explaining what quality dimensions it values most on the basis of the main objectives of the US healthcare system and how these dimensions can be balanced against harm to competition.
Arbitrability of EU Competition Law-based Claims: Where Do We Stand After the CDC Hydrogen Peroxide Case?
Authors: Geradin Damien , Villano Emilio
Published: April 2022

In this article, we discuss the extent to which EU competition rules are arbitrable. There is a wide consensus that Articles 101 and 102 TFEU are fully arbitrable and we share that opinion. More challenging questions may, however, arise when the dispute subject to arbitration raises issues under the other competition provisions of the Treaty on the Functioning of the European Union, i.e. Articles 106 to 108, as well as in secondary EU competition legislation (e.g. the EU Merger Control Regulation). Moreover, in the recent CDC Case, the question has arisen as to whether arbitration is a suitable method to settle claims for damages arising from breaches of competition law made by one of the parties to a contract containing an arbitration clause. We discuss AG Jääskinen’s controversial Opinion, the judgment of the CJEU, and their possible implications on the arbitrability of damages actions based on breaches of EU competition rules.
Free and Open Source Software Programs in European Union Merger Control
Authors: Canapa Damiano
Published: April 2022

This article proposes an analytical framework for assessing free and open source software programs in merger control procedures. When one of the merging parties owns the intellectual property rights associated with a Free and Open Source Software (FOSS) program, the competition authorities should first assess the ability and likelihood of the merged undertaking to remove this program from the market. To this end, the authority must evaluate whether the incentive of the merged undertaking to make the program involved in the transaction available post-merger under a FOSS licence will be reduced in comparison with the pre-merger situation. If, post-merger, it is still more profitable for the merged undertaking to provide the program under a FOSS licence than under a proprietary one, this program will then continue to exercise a significant competitive constraint in the market and no competitive concern will arise. By contrast, if the competition authority concludes that the FOSS program may disappear from the market, the authority must assess whether the competitive pressure this program wielded pre-merger will be taken up postmerger. In addition, this article discusses the possible role of FOSS licences in the design of merger remedies.
Pharmacy Benefit Managers: Fixing Healthcare Market Failures or Straining Regulatory Logics!?
Authors: Boscheck Ralf
Published: April 2022

US healthcare spending has made healthcare market reforms a critical and ongoing priority of regulatory policy. Healthcare markets are intrinsically fragile simply because providers deliver heterogeneous services to generally ill-informed patients who cover only a fraction of the costs. Intermediaries respond to the root causes of failing market coordination by injecting knowhow, aggregating demand and screening supplies. But they themselves are subject to regulatory concerns, as non-transparent practices could give rise to deceptive conduct and the scale of operations may eliminate actual, or foreclose potential, competition. Pharmacy benefit managers (PBMs) are a case in point. PBMs organize the sale and reimbursement of prescription drugs between producers, pharmacists and diverse sets of private and public health plans. They are also the focal point in the current ‘drug-price blame game’ with independent pharmacists and drug producers zeroing in on PBMs as the main culprits. At the same time, the Federal Trade Commission (FTC) itself is called upon to reconsider its allegedly ‘laissez-faire’ position on healthcare markets, if only to avoid that a growing number of US states are to enact new regulations and licensing rules to curtail presumably abusive PBM behaviour. Observing the situation, Moody’s warned that if any of the legislative proposals aimed at reining in PBMs took hold, the value of the PBM model would be lost.

Given the contradictory atmosphere, how is one to know whether structural relief is needed or, on the contrary, if overregulation should be averted? This article addresses some of the key issues emerging from the current debate. By way of introduction, section 1 sketches ‘PBMs: Market contexts and benefits’. Section 2 assesses ‘Monopolization fears and fiduciary duties’. Section 3 discusses ‘Federal enforcement actions and local regulatory capture’. Section 4 sums up.
Revisiting the Imprisonment Sentence under the Egyptian Competition Regime
Authors: Momtaz Mahmoud A.
Published: April 2022

This article addresses the Egyptian competition regime’s adoption of type II errors (under enforcement) in hardcore cartel cases. This article provides an analysis of the Egyptian Cement Cartel Case, and draws general conclusions drawn from it. This article explores the extent to which the fine imposed in the aforementioned case (the maximum fine at the time) was sufficient enough to recoup the cartel’s overcharges and to create the necessary deterrence effect for future anticompetitive practices in general and from creating cartels in particular.

This article further explores an alternative approach to addressing concerns about the adequacy of a fine sentence in light of the applicability of an imprisonment sanction impeded within the Egyptian Penal Code. Moreover, this article examines the limits of this alternative approach, and how it could be practically enforced by Egyptian courts.

Interviews with senior judicial figures in the Egyptian legal system were conducted to explore the applicability and limitations of the imprisonment approach. The assessment is not limited to qualitative data, however, but also encompasses quantitative data to further support the findings. As a result, it was found that imprisonment sanctions would eventually result in better enforcement policies. That is to say that fines were found not to be the optimal sanctioning mechanism since they are either extremely low or impossibly high.
Developing Object Restrictions in Singapore Competition Law
Authors: Seet Joshua
Published: April 2022

The concept of a ‘restriction by object’ is important under Singapore competition law as a vast majority of section 34 Prohibition cases involve object restrictions. This article explores how object restrictions are developed in Singapore, and makes various suggestions on how this approach can be strengthened going forward.