bluuebunny/crossref_metadata_2025 huggingface dataset:
Predatory Pricing in Canada, the United States and Europe: Crouching Tiger or Hidden Dragon
Authors: Facey Brian A. , Ware Roger
Published: April 2022

In the area of competition law, comparative legal scholarship can provide insights into differences in the laws of nations and can identify gaps that affect the multinational businesses subject to such laws. It also provides opportunities for convergence initiatives, such as those envisioned by the International Competition Network, to work towards filling those gaps. In this article we attempt to contribute to the literature relating to the comparative study of antitrust law through our review and analysis of the predatory pricing laws in Canada, the United States and Europe. We begin with an explanation of the economic theories behind predatory pricing. While the laws of nations are generally limited by borders: the norms of economics are not. Thus, the discipline provides a normative barometer for the analysis of such laws.

The topic is timely because Canada has proposed changes to its enforcement policies in the area. Our observation is that predatory pricing has historically been an area of divergence between Canada, the United States and Europe. Our conclusion is that in a time of increased convergence in the area of antitrust, predatory pricing remains an area of divergence, and one that may see further divergence if Canada does in fact change its enforcement policy as it has suggested.
Abuses of Dominant Position and Intellectual Property Rights: A Suggestion to Reconcile the Community Courts Case Law
Authors: Derclaye Estelle
Published: April 2022

This article is concerned with the application of Article 82 of the EC Treaty to intellectual property rights. It argues that the conditions set out by the Court of Justice and Court of First Instance to determine whether the holder of an intellectual property right abuses its dominant position are unclear. The article summarises the relevant decisions of the Community courts (namely Volvo, Renault, Magill, Ladbroke, Bronner, IMS). Particular emphasis is put on the IMS case. The case serves to illustrate the confusion existing in this area of the law. The purpose of the article is to give a suggested way of reconciling the case law and thus clarify under which circumstances the holder of an intellectual property right abuses its dominant position. It also gives a preferred way of deciding the IMS case based upon this suggestion.
Recent Developments in Criminal Enforcement of US Antitrust Laws
Authors: Anderson Reyn C. , Magney John S.
Published: April 2022

The United States Department of Justice (``DOJ'') continues its aggressive pursuit of International Cartels. In addition to obtaining record levels of fines for corporations convicted of price fixing, the DOJ continues to seek more jail time for individual defendants found guilty of these crimes. The DOJ supports legislation now before Congress that would significantly increase penalties for both corporations and individuals convicted of antitrust violations. Increasingly, many of the individuals serving time in US prisons for antitrust crimes are foreign nationals not just US citizens. The threat of extradition to the United States on the basis of cartel behaviour looms ever larger. Recently, the DOJ has been aggressively placing foreign nationals that have been indicted in the United States on price fixing charges on Interpol's ``Red Notice'' list, subjecting them to possible arrest and detention by local officials as they enter or exit countries outside the United States. The DOJ has been using this procedure even where extradition to the United States on the basis of an antitrust offense would appear unattainable for lack of treaty support. Apparently in an increased spirit of cooperation with US cartel enforcement efforts, some countries have thus far acceded to this procedure nonetheless, providing substantial harassment impact. Whether this cooperation will continue or not remains to be seen.
The Liner Shipping Block Exemptions in European Law: Has the Tide Turned?
Authors: Townley Chris
Published: April 2022

This article discusses the competition regime as it applies to shipping or liner conferences and consortia under European Community law. The Commission is currently considering changing this regime. There are five sections to this article. Section I is a factual introduction to shipping conferences and consortia, what they are, and how they operate. Section II deals with the competition law regime as it applies to certain shipping cartels, briefly highlighting the background, as well as the substance, of the relevant legislation and jurisprudence. Section III discusses the economic effects of these rules, as well as considering their effect on developing countries; it also examines whether or not these rules achieve their underlying objectives. Section IV takes the conclusions of Section III and asks whether, and where appropriate how, these should impact upon the substantive content of the rules, as discussed in Section II. Section V concludes.
Abuse-of-Dominance Provisions of Central and Eastern European Competition Laws: Have Fears of Over-Enforcement Been Borne Out?
Authors: Pittman Russell
Published: April 2022

Fifteen years ago, when economic reformers were writing and enacting competition laws in the transition economies of Central and Eastern Europe, some critics warned that such laws, or too stringent enforcement of such laws, carried the danger of discouraging competitive behaviour and the development of markets. An examination of the enforcement experience with the abuse-of-dominance provisions of the laws of eleven countries over two separate time periods suggests that the feared evils have not materialized. Two patterns stand out in this enforcement experience: first, the number of findings of abuse of dominance has been very small in countries other than Poland, and second, a large and growing proportion of these findings of abuse have been in sectors that would in developed market economies be subject to economic regulation.
Does the Law of Predatory Pricing and Cross-Subsidisation Need a Radical Rethink?
Authors: Ritter Cyril
Published: April 2022

Predatory pricing policy in Europe is at a crossroads: while the European Court of First Instance ("CFI") is set to rule on the Wanadoo case, the European Commission is currently reflecting on its enforcement policy in the field of Article 82. This article starts by setting out the characteristics of predatory pricing -- including certain controversial aspects. In Part II, it will be argued that the proper cost standard should take account of the allocation of common costs among several product lines, which would lead to a unified theory of predatory pricing and cross-subsidisation. Part III deals with possible defences to below-cost pricing. Part IV summarises the debate on the role of recoupment in predation analysis and proposes a systematic critique of the dominant consensus in the United States, namely that successful recoupment is a necessary element of any predatory pricing claim. This article questions the major premises on which the current dominant approach is based and challenges its compatibility with sound economic theory. In particular, it will be shown that unprofitable predation (a) may be rational anyway; and (b) is not necessarily "a boon to consumers" (Brooke Group). Therefore the European courts would be well advised not to adopt the American approach as regards recoupment.
God Forbid Bid-Riggers: Developments under the Hungarian Competition Act
Authors: Hargita Árpád , Tóth Tihamér
Published: April 2022

In this article we would like to share the recent experience of the Hungarian Competition Office (GVH) with the international antitrust community. First, the relevant provisions of public procurement and competition regulations are presented. The reader will note that these are not uniquely Hungarian rules, but show remarkable similarities with corresponding legislation at EU and Member State level. Next, the characteristics of the Hungarian construction sector are set out?here again it might be noted that most EU Member States have similar market structures. Before analysing the competition issues at stake, the stories of the cases are presented. This article examines the following competition issues related to cartel activities: types of bid-rigging; the importance of market definition; the calculation of fines; and the functioning of the leniency programme. Finally, some of the procedural issues that amount to a significant part of the defence put forward by companies are scrutinised. The article concludes with a look into the future, highlighting some of the consequences of EU membership.
Did Apple’s Refusal to License Proprietary Information enabling Interoperability with its iPod Music Player Constitute an Abuse under Article 82 of the EC Treaty?
Authors: Mazziotti Giuseppe
Published: April 2022

This article concerns the decision taken in November 2004 by the French Competition Authority on Apple’s refusal to license its digital rights management (DRM) technology to a competitor in the downstream market for music downloads. The analysis here finds that neither the indispensability test spelled out in the Magill/IMS doctrine nor the new, controversial test advocated by the Commission for compulsory licensing of interoperability information in the 2004 Microsoft decision was applicable to the leveraging by Apple of its proprietary DRM technology into the music downloads market. The article draws on this analysis of the case to show that property rights and trade secrets in respect of DRM technologies have the potential to establish a "bottleneck’’ between content providers and media player manufacturers in the near future. To avoid such a bottleneck, the conclusions of the article suggest that interoperability and competition may be structurally supported and pursued either by more permissive "reverse-engineering’’ exceptions in the field of DRM software protection or, more effectively, by the collective establishment of an open DRM standard. In the absence of these structural remedies, compulsory licensing of proprietary DRM technology should remain subject to the "exceptional circumstances’’ doctrine made famous in the Magill judgment.
Compulsory Insurance of Loss to Property caused by Natural Disasters: Competition or Solidarity?
Authors: Van den Bergh Roger
Published: April 2022

There are three types of public intervention to make sure that property damage caused by natural disasters is compensated: ad hoc solutions, payments through compensation funds, and a compulsory catastrophe extension of property insurance contracts. The best known example of the latter approach is the French law, which imposes a mandatory catastrophe insurance on all owners of property (tying clause), fixes the premiums and arranges re-insurance by the State. This French scheme creates distortions that competition law is willing to prevent and it is also at odds with the principles of the group exemption for the insurance industry. However, both efficiency reasons and grounds of national solidarity may provide powerful arguments to justify a compulsory catastrophe extension of voluntarily subscribed property insurance contracts. The concerns about competitive distortions are legitimate but should be discussed in a broader social welfare context. Since pure forms of public intervention (ad hoc solutions and compensation funds) provide insufficient incentives for risk prevention and mitigation of losses, forms of public-private cooperation that avoid the latter efficiencies may generate benefits outweighing the costs of anti-competitive distortions.
The Origins, Objectives and Structure of Competition Law in Singapore
Authors: Ong Burton
Published: April 2022

Singapore’s new Competition Law has introduced to the domestic legal landscape, through the substantive provisions of the Competition Act 2004, a brand-new set of prohibitions against anti-competitive agreements and commercial conduct which is abusive of an undertaking’s position of market dominance. Following a year-long public consultation process carried out by the newly-constituted Competition Commission of Singapore, these statutory prohibitions came into force on 1 January 2006. In keeping with Singapore’s law-making traditions in other areas of commercial law, the Competition Act 2004 was modelled substantially after a similar statutory instrument in the United Kingdom: The Competition Act 1998. This article identifies the broad structural similarities between the new Competition Law regime in Singapore and the Anglo-European Competition Law framework while highlighting the key differences between the two. Explanations for these deliberate departures from the legal architecture of the Anglo-European model, and the policy choice which underlie them, will also be offered. This article has been shortlisted for the 1st World Competition Young Writer Award.
Enforcement of Articles 81 and 82 EC under Regulation 1/2003: The Case of Spain and Portugal
Authors: Brokelmann Helmut
Published: April 2022

The purpose of this article is to provide an overview of the most relevant enforcement practice of Articles 81 and 82 EC by the Spanish and Portuguese competition authorities and courts since the entry into force of Regulation (EC) 1/2003 on 1 May 2004 and the coming into operation of the European Competition Network (ECN). The cases analysed show the interplay between national procedural rules and those of Regulation 1/2003 and the problems companies are facing as regards the coherent and uniform application of the EC competition rules. Particularly in Spain, private enforcement of the EC competition rules is clearly gaining momentum as can be seen in a series of judgments awarding damages and applying Articles 81 and 82 in contractual disputes, which the newly created commercial courts have delivered in the last two years. The article also provides a brief description of the legislative amendments already enacted as well as the reform proposals envisaged in both countries to adapt national legislation to the legal exception system introduced by Regulation (EC) 1/2003.
Delimitation and Exercise of Competence between the West African Economic and Monetary Union (WAEMU) and its Member States in Competition Policy
Authors: Bakhoum Mor
Published: April 2022

WAEMU’s competition policy has been orientated towards an increasing centralization of competence within the Union by means of unified rules regarding agreements, abuse of dominant position and State aids. Accordingly, Member States have been deprived of all their competence in these fields. When legislating in the field of competition law, WAEMU Member States must respect the scope of the Union’s exclusive competence. Centralization is also to be seen with regard to procedures, which are an exclusive competence of the WAEMU Commission.A critical glance at WAEMU’s competition policy, both in material and procedural terms, reveals that even if this policy is justified, given both the relative infancy of the organization and the lack of a “competition culture” on the part of Member States, centralization nevertheless endangers the effectiveness of WAEMU competition law. Whereas a certain degree of harmonizing legislation may be justified in the framework of WAEMU, it remains doubtful whether an exclusive competence on the part of the WAEMU Commission would contribute to better achieving the goals of Community competition law.ƒAccordingly, the distribution of competences between the WAEMU Commission and the WAEMU Member States calls for a redefinition which should seek to increase the involvement of Member States as far as decision-making is concerned. In this respect, a proposal is put forward according to which WAEMU Member States would be accorded a number of competences which would coexist with the competences vested in the WAEMU Commission.
The European Commission’s 2006 Guidelines on Antitrust Fines: A Legal and Economic Analysis
Authors: Wils Wouter P. J.
Published: April 2022

On 1 September 2006, the European Commission published new Guidelines on the method it will use when setting fines for undertakings that have infringed the competition rules laid down in Articles 81 and 82 of the EC Treaty. This article discusses the questions what the purpose of the guidelines is, and how foreseeable the amount of fines should be, and analyses the method set out in the new Guidelines in the light of the Commission’s past practice, the case-law of the Community Courts and the theory on optimal fines.
Damages for the Infringement of Art. 81 EC by Cartel Agreements According to sec. 33(3) GWB: The Changes of Law Concerning “Protective Law” Requirement and the “P
Authors: Andrelang Christian
Published: April 2022

On 1 July 2005, the German legislator amended 33 GWB [Act against Restrictions of Competition] and introduced a specific statutory basis for the private enforcement of European Competition Law.

This article focuses on damages claims for the infringement of Art. 81 EC by cartel agreements in German courts and highlights the legal changes to the eligibility to damages. Previously, German courts were forced to utilize general tort law when awarding damages for the infringements of Art. 81 EC. However, some German courts were very reluctant to award damages. Only a person who was the direct target of cartel was considered to be eligible for damages. The article establishes that this jurisdiction, to which some courts might still resort when judging on damages claims for cartel agreements prior to 1 July 2005, is inconsistent with European Law principles and irreconcilable with the ECJ’s decision in Courage Ltd. v. Crehan.

Furthermore, the article addresses the statutory exclusion of the “passing on“ defence. Cartel members are now prevented from arguing that applicants passed higher prices on to their customers and did not suffer any economic loss. Yet, as far as cartel-inflicted prices of processed goods are concerned the exclusion of the “passing on“ defence can prove to be irrelevant depending on the method of assessing damages.
Public Financing of Urban Transport: The Application of EC State Aid Rules
Authors: Kekelekis Mihalis
Published: April 2022

This article provides an overview of the relevant legislation concerning the granting of State aid to transport and considers how Articles 87 and 73 of the EC Treaty apply. It outlines in detail the main provisions of Regulations Nos 1191/69 and 1107/70 which lay down the main rules on State aid for urban transport and analyses how they have been interpreted and applied in the Commission’s decisions and Courts’ jurisprudence. Consideration is given to the concept of services of general economic interest and how public service obligations may be compensated by the State. The link between transport services and infrastructure and how the acquisition or replacement of rolling stock is treated under various State aid rules is also examined, as well as the relationship between structural funds and State aid and the concept of “internal operator”, which plays a predominant role in the context of RegulationNo. 1370/2007. The article outlines the main provisions of the new regulation and concludes by introducing the steps to be followed by Member States that wish to provide public support via the discharge of public service obligations to transport operators.
Recent Economics at the Japanese Fair Trade Commission — Revision of the Business Combination Guidelines and Case Analysis
Authors: Arai Koki
Published: April 2022

This article describes the revision of the business combination guidelines of Japan and activities of the mergers and acquisitions division of the Japanese Fair Trade Commission during 2006–2007 in detail. The revision of the guidelines is based on three factors: (i) international consistency; (ii) historical experiences; and (iii) economic theory, and these factors are effective and efficient for a rapidly changing and globalized market. The main contribution of this article includes a comparison with the US and EU merger guidelines on not only a set of specific standards, but also the ideas that the United States and European Union adopted or the reason why these standards were selected.
Global Antitrust Prosecutions of International Cartels: Focus on Asia
Authors: Connor John M.
Published: April 2022

International cartelists today face antitrust investigations and possible fines in a score of national and supranational jurisdictions. This article aims at providing quantitative information about the size and impacts of international cartel activity in Asia and uses a sample of modern private cartels to evaluate the relative effectiveness of three prominent Asian antitrust authorities. The sample consists of legal and economic information on 433 international cartels detected in Asia and the rest of the world during 1990–2007.The need for assertive anti–cartel enforcement in Asia is demonstrated by the large affected commerce and economic injuries of known international cartels. Affected sales of detected Asian–region cartels combined with global cartels that fixed prices in Asia totals at least US$1.1 trillion in 1990–2007. The losses imposed on Asian consumers were at least $500 billion.

While more than $45 billion in penalties has been imposed world wide, it is doubtful that such monetary sanctions can deter modern international cartels. Optimal cartel deterrence is frustrated by the failure of compensatory private suits to take hold outside of North America, a reluctance to act against global cartels, and the low fines in most Asian jurisdictions. Of the three selected jurisdictions, the Korean FTC has the best record of anti–cartel enforcement in Asia, but even the KFTC?s surcharges are recouping less than 15 percent of damages to its citizens. Without significant increases in cartel detection, in the levels of expected fines or civil penalties, or expansion of the standing of buyers to seek compensation,international price fixing will remain rational business conduct.
Restitutionary Remedies in Competition Law: Bull in a China Shop?
Authors: Al-Ameen Abayomi
Published: April 2022

In this article, the author argues that restitution should be available in competition law cases. However, it should only be granted where the requirement of corrective justice is satisfied. Hence, as long as this justice criterion is most paramount to the court, the application of restitution could then consequently have a deterring effect. To sustain this argument, the author criticizes the Court of Appeal’s decision in Devenish v. Sanofi-Aventis SA (France), where it held that restitution was not available in competition law cases. The judgment failed to identify the basis of private antitrust actions. It also failed to work itself towards the ultimate goal of competition law. In addition, the judges failed to take into account the larger context in which private parties may legitimately seek restitutionary remedies. In order to appreciate the value of restitution in competition cases, this article discusses its application in the US. Finally, based on normative and efficiency arguments, the author recommends that the position of the law should be corrected at the earliest opportunity.
Excessive Pricing and the Prohibition of the Abuse of a Dominant Position
Authors: Pozdnakova Alla
Published: April 2022

This article contributes to the European debate on exploitative pricing abuses by dominant undertakings. Although it is questionable whether competition policy should interfere with such market behaviour, case law shows that Article 82 EC applies, in principle, to exploitative pricing abuses by dominant undertakings. The legal test for excessive pricing needs further clarification and simplification, although the test must remain sufficiently flexible for application on a case-by-case basis. The author discusses a range of factors to be taken into account when assessing the pricing policies of dominant undertakings and proposes extending the test beyond the cost-price analysis and to take into account other economic and behavioural considerations. The author further suggests that exploitative pricing abuses may arise not only under conditions of monopoly, where a single dominant company abuses its market power but also in markets jointly dominated by several actors (oligopoly). Exploitative pricing abuses under conditions of oligopoly may thus be tackled through the application of Article 82.
Criminalizing Cartels in Greece: A Tale of Hasty Developments and Shaky Grounds
Authors: Ioannidou Maria
Published: April 2022

This article is inspired by the recent criminalization of cartels in Greece and its initial hypothesis is that this reform will probably not work well in practice. It questions the necessity and potential effectiveness of the reform from a historical, policy, and practical perspective. The historical analysis addresses the enforcement regime prior to the recent amendment and its impact upon business expectations in light of the deterrence theory. The policy analysis is based on a pilot empirical project examining the prevailing moral perception among Greek consumers towards cartels. Finally, the practical level analysis examines, first, the potential problems in the coordination between the current administrative proceedings and the newly introduced custodial sanctions and, second, potential adverse impact of the recent criminalization on the Greek Leniency Programme. This three-level analysis reveals that the 'criminalization ideal' is not in line with the Greek legal system. Most importantly, since choices at national level influence policy changes at European level, any future European initiative in the field should be very cautious and not misguided by hasty national developments.
A Dual Language in Modern Competition Law? Efficiency Approach versus Development Approach and Implications for Developing Countries
Authors: Bakhoum Mor
Published: April 2022

Every cultural mode of thought has its own concept of market, competition, economy in general, property, collectivity goods, trust and decency. Unless we understand, and respect, those modes of thought, we are not entitled to superimpose our concept of market and competition, and our understanding of economy, belonging and efficient behavior upon other, non-Western, cultures. Doing so leads to cross cultural misuses, confusion, and strife.

This article discusses the parallel development and diverging trends on modern competition law. On the one hand, we seem to be heading to a soft convergence in the theory and practice (with efficiency as a core principle) of competition law. On the other hand, developing countries advocate a different competition law language: the language of development that goes beyond a mere focus on efficiency. This is true when we look at the goals of competition law in developing countries, which often encompass non-economic objectives, such as public interest, fairness, competitiveness of Small and Medium Sized Enterprises (SMEs), and preservation of employment. A growing scholarship has also started do discuss a different paradigm of competition law in developing countries that takes into account their development concerns. This paper argues that although efficiency is very relevant in the context of developing countries, it should be applied in a broader context, taking into account non-economic goals such as redistribution and inclusiveness in order to achieve an 'efficient development.' The impact of a dual language on a potential international framework on competition law is also discussed.
Health-Care Cost Containment through Evidence-Based Competition: On the Rebirth of an Old Idea and the Chances for Implementing It Today
Authors: Boscheck Ralf
Published: April 2022

The Organisation for Economic Co-operation and Development (OECD) expects market-driven reforms to increase the efficiency of health-care systems particularly if policymakers succeed in aligning incentives for multiple product and service suppliers to guarantee treatment outcome. The health-care reform of the Obama Administration reflects this approach. However, similar to the previous reform initiatives, it will be unable to ensure an efficient supply of necessary care unless performance is clearly defined in terms of treatment outcome. US regulatory initiatives, complementing the health-care bill, could put an end to the recent history of ill-defined market-driven reforms. The challenge is to navigate rather different views on the accessibility and marketability of different levels of outcome data and to coordinate seemingly conflicting regulatory agendas to promote properly constituted health-care markets.
Regulation of Cartels in India
Authors: Rai Sheela
Published: April 2022

India has transformed its competition regime to bring it in harmony with the demands of liberal market economy. One of the significant changes the new competition law has brought about is that it has differentiated between horizontal and vertical agreements. Cartels under the new regime are presumed to be anticompetitive. However, the penalty clauses initially created some confusion with regard to the interpretation of 'presumption'. Subsequent amendments and decisions of the Competition Commission of India have cleared many ambiguities but some grey areas are still left. It would be in keeping with the spirit of the new Act and the investigation procedure outlined in it that the 'presumption' in section 3 of the Indian Competition Act be read as 'quick look rule of reason' approach developed in the United States of America. This would take care of the need for flexibility in application of the competition law depending on the social and economic implications of a particular case.
Collective Dominance and its Abuse under the Competition Law of the Russian Federation
Authors: Pittman Russell , Avdasheva Svetlana , Goreyko Nadezhda
Published: April 2022

In 2006, Russia amended its competition law and added the concepts of 'collective dominance' and its abuse. This was seen as an attempt to address the common problem of 'conscious parallelism' among firms in concentrated industries. Critics feared that the enforcement of this provision would become tantamount to government regulation of prices. In this paper we examine the enforcement experience to date, looking especially closely at sanctions imposed on firms in the oil industry. Some difficulties and complications experienced in enforcement are analysed, and some alternative strategies for addressing anticompetitive behaviour in concentrated industries discussed.
Collective Redress in EU Competition Law: An Open Question with Many Possible Solutions
Authors: Andreangeli Arianna
Published: April 2022

This paper analyses the current trends of the debate in the area of collective redress of injuries caused by the consequences of anti-competitive behaviour in the EU in light of the more recent case law governing class certification of antitrust collective complaints in the US federal courts and of the legislative developments occurring in several European jurisdictions. Whilst not advocating the total 'transplantation' of opt-out class actions in EU competition law, it will illustrate that the Commission's concerns as to the viability of these collective lawsuits have become less pressing and consequently, will argue for a more open-minded discussion of how to create effective and fair mechanisms for the collective redress of individual rights.

It will first provide a brief examination of the current approach adopted by the Commission to collective redress in the area of competition law and, more specifically, in respect to 'diffuse torts'. Thereafter, the paper will analyse the case law of the US Superior Federal Courts concerning the class certification of collective antitrust complaints and illustrate that the Commission's scepticism as to the viability of these actions may no longer be justified. It will be shown that the scrupulous scrutiny of the proposed class filings, conducted by the American courts can contribute effectively to 'identifying' prima facie unmeritorious claims and thereby allowing only truly 'suitable' complaints to proceed as class actions.

In light of the forgoing, it will be concluded that the Commission's position on these issues seems difficult to sustain and could even become an obstacle to discussing how to respond to the demands of ensuring effective redress to the victims of torts having a widespread impact on society and the economy, for which individual dispute settlement may be inefficient.
The Hearing Officer: Thirty Years Protecting the Right to Be Heard
Authors: Holles Ben
Published: April 2022

The object of the present article is to undertake a critical analysis of the role of the Hearing Officer within the administrative procedure for the enforcement of European Union (EU) competition law, in the light of the Terms of Reference of October 2011. In section 2, the author analyses the powers of the Hearing Officer as regulated in the Terms of Reference of 2011 and his present institutional status. In section 3, after referring to the need to introduce far-reaching reforms in order to tackle the structural deficiencies in the administrative procedure, the author critically assesses the present legal framework regulating the post of the Hearing Officer by suggesting a wide array of less ambitious reforms that should be envisaged in the short term. Finally, the author concludes by stating that although the proposed reforms would indeed contribute to the creation of a more solid and effective check and balance within the administrative procedure, they do not suffice to definitively allay the concerns as to the potential incompatibility of the procedure with Article 6 of the ECHR.
Market Integration and Economic Efficiency at Conflict? Commitments in the Swedish Interconnectors Case
Authors: Willems Bert , Sadowska Malgorzata
Published: April 2022

According to the European Commission, Svenska Kraftnät, the Swedish network operator, might have violated competition rules by limiting cross-border transmission capacity to relieve congestion within Sweden. Eventually, the case was settled and Svenska Kraftnät offered commitments to address the Commission's concerns. As an interim remedy, it committed to reduce transmission flow of electricity on internal network bottlenecks primarily by introducing national measures and by not reducing interconnection capacity. As a final remedy, Svenska Kraftnät agreed to split the Swedish market into multiple price zones. Congestion within Sweden would then be solved by adjusting the prices of those zones.

We analyse the economic effects of the alleged abuse and the remedy package. We make three observations. First, it might be socially optimal to reduce cross-border capacity in response to internal congestion. Hence, without an in-depth economic analysis the Commission risked preventing efficient behaviour. Second, the interim remedy of handling internal congestion primarily by national measures is not socially optimal, and it cannot be ruled out that it reduces overall welfare. Third, even though splitting the market into price zones may improve allocative efficiency within Sweden, it does not prevent Svenska Kraftnät from potential manipulation of cross-border transmission capacity.
Market Power in Online Search and Social Networking: A Matter of Two-Sided Markets
Authors: Thépot Florence
Published: April 2022

The online search and social networking industries are characterized by the concentration of large market shares among a very limited number of actors. Being advertisement-based media, search engines and social networking websites fall within the category of special types of markets known as two-sided markets or platforms. Two-sided markets or platforms have two distinct user groups which produce network benefits for each other. The platforms enable the user groups to minimize the transaction costs they would otherwise incur, in interacting with or searching for each other. Competition authorities cannot ignore the economics of two-sided markets in assessing market power in the search and social networking industries. This article provides a framework for defining the relevant market and for assessing market power in the industries of online search and social networking websites, focusing on the current leaders Google and Facebook and argues that online search and social networking websites may exert competitive constraints on each other, as they both operate in the relevant market for 'monetization of user's information by online advertising'.
A Counterfactual on Information Sharing: The Commissions Horizontal Guidelines 2011 Applied to the Leading Cases
Authors: Robertson Viktoria H.S.E.
Published: April 2022

For the first time, the European Commission's Horizontal Guidelines of 2011 contain a section exclusively dedicated to the competition law analysis of 'pure' information exchanges, i.e., information exchanges that do not underpin any other anti-competitive behaviour. By way of a counterfactual analysis, this article aims at clarifying whether the Guidelines merely codify the Court of Justice's quite controversial case law in this area, or whether and to what extent they introduce a more refined - and economics-based - approach to the assessment of information sharing. For this purpose, the Guidelines' framework of analysis is set out before applying it to four leading cases on information sharing: John Deere, Asnef-Equifax, T-Mobile Netherlands, and most recently , Dole.

It will be seen that the Guidelines try to strike a balance between 'just enough economics' and 'just enough legal certainty'. They limit the finding of a restriction of competition by object to a very narrow set of cases and want to provide companies in the internal market with incentives to share those kinds of information that will indeed enhance efficiencies and ultimately benefit consumers.
The Distinction between Anti-competitive Object and Effect after Allianz: The End of Coherence in Competition Analysis?
Authors: Nagy Csongor István
Published: April 2022

The article analyses the distinction between object and effect in competition analysis in the context of the CJEU's recent ruling in Allianz. First, it examines the rationale and traditional notion of anti-competitive object. Secondly, it provides an outlook to the structure of antitrust analysis in US law and compares it with EU competition law. Thirdly, it gives an overview and assessment on the Allianz ruling as to the grasp of 'object type' agreements. The article criticizes the CJEU's ruling and submits proposals.
The Compatibility with Fundamental Rights of the EU Antitrust Enforcement System in Which the European Commission Acts Both as Investigator and as First-Instance Decision Maker
Authors: Wils Wouter P. J.
Published: April 2022

Following the Jussila and Menarini judgments, it is now entirely clear that Article 6 ECHR, as interpreted by the European Court of Human Rights, provides no grounds for abandoning the system in which the European Commission both investigates suspected infringements of the EU antitrust prohibitions and takes decisions finding such infringements and imposing fines. Article 6(1) ECHR requires however that the EU General Court, when reviewing European Commission decisions, exercises full jurisdiction. What is decisive is whether the General Court in fact exercises full jurisdiction, not any general statements which the Courts may make as to its powers. It is nevertheless also important that the General Court is seen to exercise full jurisdiction. For this reason, potentially misleading general statements should be avoided. A number of internal checks and balances and procedural guarantees apply to the European Commission's administrative procedure, and regularly show their usefulness. This however in no way reduces the need for a full review by the General Court, when requested by the undertakings concerned. Indeed, the internal checks and balances and procedural guarantees derive their full effectiveness precisely from the possibility of a subsequent full review by the General Court.
Data Protection in the Context of Competition Law Investigations: An Overview of the Challenges
Authors: Geradin Damien , Kuschewsky Monika
Published: April 2022

This paper discusses the interface between data protection law and competition rules in the context of dawnraids and internal investigations. It seeks to identify the limits that may be placed by data protection law on competition authorities, on the one hand, and undertakings, on the other hand, with respect to the collection and further processing of personal data in the context of competition law investigations. The paper sets out and compares the different legal frameworks to which the competition authorities and undertakings respectively are subject. The article explains in particular how key data protection principles, such as the lawfulness of data processing, data quality, information requirements and rights of individuals as well as international data transfers, apply in this context and sets out the consequences of non-compliance and the possibilities of judicial remedy. The paper concludes that there is a double standard, which arguably leads to an information asymmetry and inequality of arms between regulators and undertakings. The authors also give some practical suggestions for undertakings to prepare for and address potential data protection implications in advance.
A Practitioners Guide to Price Concentration Analysis
Authors: Akinrinade Temi , Wirth David
Published: April 2022

In recent years there has been a growing trend towards the use of quantitative techniques in UK and EU competition law. Price Concentration Analysis ('PCA') is one such technique which has played an important role in a number of recent high profile merger cases at both the UK and EU level. It has also played a decisive role in a number of recent market investigations in the UK, which has led to remedies (including divestments) being imposed, and specific data rooms being set up so that the analysis can be closely scrutinized by the parties' economists.

The appeal of PCA is that it provides a quantitative way of assessing the extent to which prices (or margins) are affected by market concentration, and has wide applicability in a range of situations. However, the increasing use of PCA by the UK and EU competition authorities, and the growing weight that is attached to the results of this type of analysis, means that all practitioners (and not just the economists) need to understand both the benefits and pitfalls of this quantitative technique. This article seeks to provide a non-technical explanation of the mechanics and uses of PCA, and to highlight some of the key issues and sensitivities that arise with this type of analysis.
The New Hong Kong Competition Law: Anomalies and Challenges
Authors: Kwok Kelvin Hiu Fai
Published: April 2022

Enacted in 2012, the Hong Kong Competition Ordinance represents the first cross-sector competition legislation governing the Hong Kong Special Administrative Region. This article critically evaluates the peculiar aspects of the Competition Ordinance with reference to the legislative history as well as the competition law and enforcement experience of foreign jurisdictions (such as the European Union, the United States, and Australia). These aspects include: (i) the lack of cross-sector merger control; (ii) the 'substantial market power' requirement under the second conduct rule; (iii) the 'object or effect' test under the second conduct rule; (iv) the blanket exclusion of statutory bodies; (v) the power of the Chief Executive in Council to disapply the competition rules; (vi) the turnover de minimis thresholds; (vii) warning notices; (viii) the judicial enforcement model and restrictive private actions; and (ix) the capping of fines at 10% of local turnover. This article discusses solutions to some of these problems, and the challenges ahead for competition law enforcement in Hong Kong.
Did Separating Openreach from British Telecom Benefit Consumers?
Authors: Sidak J. Gregory , Vassallo Andrew P.
Published: April 2022

In 2005, Ofcom, then telecommunications regulator in the United Kingdom, implemented functional separation of British Telecom plc (BT), separating its wholesale and retail services. BT established a division within the company, Openreach, to provide equal access to its local access network and backhaul products. The tenth anniversary of this regulatory and corporate experiment is an appropriate moment to ask whether functionally separating Openreach from BT benefited consumers. We find that Openreach's creation generated short-run consumer benefits in the form of lower prices but also led to negative long-run effects, which outweighed the short-term price reduction. Our econometric analysis indicates that prices for broadband and residential fixed-line telephone services are lower than one would expect based on prices in comparable countries. However, telecommunications investment, customer satisfaction, and measures of the United Kingdom's global competitiveness in telecommunications have also fallen. In particular, the United Kingdom's investment in next-generation networks is lagging compared with the rest of the world.
Resale Price Maintenance and Absolute Territorial Protection: Single Market Integration, the Ancillary Restraints Doctrine and the Application of Article 101 TFEU to Vertical Agreements
Authors: Apostolakis Ioannis
Published: April 2022

The treatment of vertical restraints by the European Commission and Courts is one of the most contentious aspects of EU competition law, and has been the subject of considerable criticism. In an attempt to prioritize economic efficiency over legal formalism, the European Commission endorses in its recent Vertical Guidelines the potential ancillary nature of export bans, but at the same time implicitly acknowledges that resale price maintenance (RPM) is always caught by Article 101(1) and may be exempted on an individual basis only if found to promote productive efficiency following a substantive assessment under Article 101(3). However, whether examined from a welfare perspective or through the lens of the single market imperative, RPM and absolute territorial protection merely constitute two alternative manifestations of the same economic phenomenon. The present article will demonstrate that any attempt to distinguish between these two types of vertical restraints for normative purposes is unwarranted.
The Role of Market Transparency in Assessing MFN Clauses
Authors: Vandenborre Ingrid
Published: April 2022

Recent years have shown increased antitrust attention to most favoured nation clauses. However, it is widely recognized that MFN clauses may have both pro- and anticompetitive effects. This article argues that MFN clauses should be assessed under a ‘by effect’ standard and that market transparency should play a role in this assessment. Market transparency not only determines the likelihood that an MFN clause is actually applied, it also determines the competitive conditions in the absence of the MFN clause. Both of these aspects play a crucial role in assessing the anticompetitive effects of MFN clauses, and precede the question whether potential procompetitive effects may offset potential anticompetitive effects. The importance of market transparency is illustrated with several case precedents, both within the area of MFN clauses and outside. It is also borne out by the fact that all the recent investigations are concentrated in the online sector, where markets are typically very transparent. Nevertheless, even in the online sector, market transparency is only the starting point of the analysis and does not prejudge the competitive implications of MFN clauses.