bluuebunny/crossref_metadata_2025 huggingface dataset:
Impact-Based Assessment and Use of Legal Presumptions in EC Competition Law: The Search for the Proper Mix
Authors: Bruzzone Ginevra , Boccaccio Marco
Published: April 2022

This article discusses the reasons for a more effects-based approach in the application of Articles 81 and 82 (EC) and identifies the main challenges which must be met when making this approach operational. Both for Article 81 and for Article 82, the current assessment of infringements follows a structured scheme and includes the use of safe-harbours and presumptions. The search for the proper mix is an ongoing task. The article argues that the shift from a notification system to a more prosecutorial-style application of Article 81, resulting from Regulation 1/2003, suggests a more symmetric application of Articles 81 and 82. However, symmetry does not mean exporting an Article 81(3) style assessment into Article 82, as sometimes understood. The article submits that it requires, above all, that the assessment of the entire competitive impact of the agreement or unilateral conduct on consumer welfare should be made in the first part of the analysis, that is when ascertaining an appreciable restriction of competition under Article 81(1) or the existence of an abuse under Article 82. A split assessment of the impact on competition of an agreement or conduct, postponing consideration of its allegedly positive effects to the heading of ‘exceptions’ or ‘defences’, has several shortcomings from both an economic and a legal viewpoint: above all, it is likely to lead to a biased assessment.
South Africa’s Corporate Leniency Policy: A Five-Year Review
Authors: Lavoie Chantal
Published: April 2022

Five years since the adoption of South Africa’s Corporate Leniency Policy (CLP) in 2004, it is time to take stock. The CLP has proved a formidable tool for assisting the Competition Commission of South Africa in cartel enforcement. Few cartels were uncovered prior to 2004. Since then, major cartels have been dismantled and punished under the Competition Act, mostly as a result of increasing applications for immunity under the CLP. The CLP offers cartel members immunity from fines and from prosecution in return for information on the cartel. The stakes are high: only the first cartel member to approach the Commission gets immunity. The CLP sets out the framework and the conditions for being granted immunity. Recent amendments to the CLP, such as the addition of a marker procedure and oral statements procedure, have further enhanced the CLP’s attractiveness and reach. However, recent legislative amendments introducing criminal liability for persons involving their firms in cartel conduct are expected to affect the future of the CLP. This paper analyses the current provisions of the CLP and its impact on cartel enforcement. Finally, the scope for improvements and the future of the CLP will also be considered.
Leeway of Member States in Shaping the Notion of an ‘Undertaking’ in Competition Law
Authors: Szydlo Marek
Published: April 2022

While generally the notions of an undertaking accepted within national competition laws are very similar or even identical to the notion of an undertaking adopted under Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), there are nevertheless still some divergences existing in that respect. The present article argues that Member States are fully allowed to widen the national concept of an undertaking in comparison with the EU competition law, because, among others, such an extension takes the relevant national norms outside the (personal) scope of application of Articles 101 and 102 of TFEU and does not infringe the convergence rule (included in Article 3(2) of Regulation 1/2003). On the other hand, Member States are not allowed to narrow the national concept of an undertaking as compared with the one accepted under Articles 101 and 102 of TFEU. The restriction of the discussed notion within the national competition law as compared with that accepted under Articles 101 and 102 of TFEU is always carried out within the scope of application of the above-mentioned Articles of the TFEU, and the principle of supremacy of EU law over national law clearly excludes such national actions.
Driving Innovation: A Case for Targeted Competition Policy in Dynamic Markets
Authors: Galloway Jonathan
Published: April 2022

Innovation consists of new ideas, methods, and products, and together, they drive economic growth and deliver benefits to society as a whole. Competitive intensity and rewards both drive innovation, but the importance of providing high rewards, which are secured by intellectual property rights (IPRs), is regularly overstated. Indeed, greater competition and the role of competition law are often claimed to have a 'chilling effect' on innovation in spite of facilitating greater dynamic efficiency. This article argues that competition and rewards, and indeed competition law and IPRs, are not mutually exclusive and suggests an approach to maximize innovation in dynamic markets whereby competition law applies to conduct beyond the natural scope of IPR protection. This article tests the suggested approach by applying it to a number of controversial practices in the pharmaceutical sector, as well as standard setting in high-technology markets, which give rise to competition concerns. This article concludes by advocating pro-active, justifiable competition intervention when conduct exceeds the natural scope of IPRs and thereby presents a case for targeted competition policy in dynamic markets.
Ne Bis in Idem, Part 'Bis'
Authors: Accardo Gabriele , Louis Frédéric
Published: April 2022

This article addresses the relevance of ne bis in idem, that is, prohibition on double jeopardy, six years after Regulation 1/2003 introduced a major reform of the enforcement system of European Union (EU) competition law. In particular, it considers whether and to what extent parallel action by the European Commission and/or National Competition Authorities (NCAs) is still possible under the modernized system. This article calls for the EU Courts to review the application of the principle of ne bis in idem not only to reflect the changes brought about by Regulation 1/2003 but also to give full effectiveness to the Charter of Fundamental Rights of the European Union, which the Commission and the European Courts are now legally bound to respect, following the entry into force of the Lisbon Treaty.
From Mobile Phones to Cattle: How the Court of Justice Is Reframing the Approach to Article 101 (Formerly 81 EC Treaty) of the EU Treaty
Authors: Andreangeli Arianna
Published: April 2022

This paper considers the implications of the preliminary ruling in the case of Competition Authority v. Beef Industry Development Society and Barry Brothers Meats for the legal standards applicable to restrictions of competition 'by object' and analyse its wider impact on the interpretation of Article 101 TFEU (formerly Article 81 EC Treaty). Its first part will examine whether this preliminary ruling is consistent with the existing principles governing the application of Article 101(1) EU Treaty to 'restructuring deals'. The second will briefly consider the principles governing the application of section 1 of the US Sherman Act and in the light of this examination will try to gauge the wider ramifications of Barry Brothers for the interpretation of Article 101 TFEU. It will be argued that the Court of Justice of the EU, responsive to the call for a 'modernized' interpretation of this provision, applied some of the elements characterizing the more flexible and 'economics-principled' approach hitherto relevant for 'by effect' cases to the assessment of a prima facie restrictions by object. The paper will conclude that the Court of Justice, in a manner which displays some similarities with the US Supreme Court's interpretation of section 1 of the US Sherman Act, seems now to adopt an interpretation of the prohibition clause inspired more by an idea of 'continuum' between more and less serious infringements than by a relatively stark alternative between 'by object' and 'by effect' restrictions of competition.
European Competition Enforcement Policy: Integrating Restitution and Behaviour Control
Authors: Hodges Christopher
Published: April 2022

This paper takes a fresh look at the problem of penalties and damages for breach of competition law. It argues that current European Union (EU) policy, in trying to add private mechanisms on to existing public sanctions, is bound to produce major complications. Instead, a fresh look at the goals and available mechanisms is needed. First, the fundamental responsibility of an enforcement agency should be maintaining a balanced market. Second, there should be an integrated approach to public and private consequences and enforcement policy. Third, a just solution can only be reached if restitution of market balance (damages) is achieved before imposition of public penalties. Fourth, a public enforcement policy that incentivizes restitution can avoid the delay, cost, complexity and many undesirable consequences of private enforcement.

This paper begins by stating the primary policy objectives for enforcement in competition infringements. It then summarizes the historical approach to enforcement, in which the influential system of private enforcement in the United States is contrasted with the public enforcement regime of the EU. That analysis leads to identification of the current conundrum for policy makers of how to 'add on' private damages, hence private enforcement procedures, to the EU public enforcement regime. Since that approach has met with considerable objections and political resistance, the paper attempts to take a step back and proposes a different approach.
Energy Liberalization in Antitrust Straitjacket: A Plant Too Far?
Authors: Sadowska Malgorzata
Published: April 2022

The European Commission (EC) has launched a number of antitrust investigations against the major energy incumbents in the aftermath of the energy sector inquiry. Most of them have already been settled under Article 9 of the EC Regulation 1/2003 and the undertakings offered far-reaching, sometimes structural, commitments. This article studies the 2008 investigation into price manipulation in the German electricity wholesale market. In spite of no convincing evidence and flaws in the assessment, the Commission was able to negotiate from E.ON substantial capacity divestments.

The Commission is straightforward about using antitrust rules to open up energy markets. Sector inquiries, commitment procedure, and structural remedies allow for a quick intervention and flexible problem-solving and bring about decisive changes in the energy market setting. However, harnessing antitrust for the purpose of energy liberalization policy has an adverse impact on competition enforcement itself. First, it leads to a number of 'weak' cases, based on far-fetched arguments. Second, it results in remedies that are not tailored to the abuse at issue but are in line with a wider objective of energy market liberalization and, as an outcome of negotiations, further swayed by the firm's own interest in the ultimate shape of the commitment package.
An Assessment of the Reform of the Spanish Competition Framework
Authors: Mora-Sanguinetti Juan S. , De Cos Pablo Hernández
Published: April 2022

The aim of this article is to provide an assessment of the main changes resulting from the new competition framework passed in Spain with Law 15/2007, thus abrogating the whole competition framework in force under Law 16/1989. In order to do that, the characteristics of the new and the old competition authority and the new and the old legal framework applying to restrictive practices, merger control, exemptions, and executions are confronted to the practices in the rest of the Organization for Economic Co-operation and Development (OECD) countries. The article concludes that significant improvements both in the independence of the competition authority and in the general efficiency of the legal framework have been achieved. However, in the case of the control of business concentrations, some constraints to the independence of the authority still apply.
The Costs and Benefits of Antitrust Enforcement: Identification and Measurement
Authors: Hüschelrath Kai
Published: April 2022

The article assesses the costs and benefits of antitrust enforcement. The analysis commences with an investigation of why competition is typically worth protecting, followed by a collection of empirical evidence, which shows that competition actually needs protection by antitrust policy in order to hinder firms to permanently abuse market power to the detriment of consumers. In a complementary third step, it is assessed whether the benefits of antitrust enforcement likely exceed its costs. In this respect, the article provides guidance to the identification and measurement of the various cost and benefits components that need to be taken into account. A particular focus lies on an assessment of two identified options to measure the benefits of antitrust enforcement: An intervention-based approach, which tries to quantify the benefits created by interventions of the competition authority, and a deterrence-based approach, which tries to quantify the extent to which the threat of antitrust interventions alone forecloses the use of anticompetitive strategies by firms.
Hong Kong Competition Bill: One Step Forward, Two Steps Back
Authors: Fung Ching-yi
Published: April 2022

Hong Kong is in the process of adopting a competition law. This article will critically evaluate the Competition Bill, highlighting a number of substantive and institutional shortcomings. In particular, it will be argued that the Merger Rule's exclusive application to the telecommunications sector is intended, without logical or convincing reasons, to maintain the status quo. With regard to the institutional framework, it will be shown that the misalignment of roles and expertise, the proposed two-tier commitment mechanism, and the opacity of decided cases in the absence of a formal case reporting channel risk negatively impacting the level of judicial enforcement. The outcome will likely be a shift from adjudication to negotiated settlement. Finally, the article will argue that the Bill's limited application, as well as its broad exclusions and exemptions, almost certainly reflect the government's wariness of competition law, its sector-specific mindset, and its resistance to change. Absent a change in its ambivalence towards promoting economic efficiency across different sectors, there is little chance of a robust competition law being introduced.
The Lawfulness and Acceptability of Enforcement of European Cartel Law
Authors: Wesseling Rein , Van Der Woude Marc
Published: April 2022

In 2011, the European Court of Human Rights and the Court of Justice of the European Union rendered two important judgments about the compatibility of an administrative system for the enforcement of competition rules with Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union (Menarini and KME/Chalkor). Both jurisdictions consider that these systems meet the requirements imposed by these provisions, provided that the decisions taken by the administrative enforcement body are subject to independent judicial review. In a judgment issued in 2012, the EFTA Court provided further clarifications on the nature of the judicial review (Posten Norge). The present article concerns the intensity of this review. It is argued that the review should focus on the specific facts of the case and that the reviewing courts should be cautious when applying abstract concepts and presumptions.
The Quest for Appropriate Jurisdiction: Clash between Indian Patent and Competition Law
Authors: Bindal Saurabh
Published: April 2022

The Indian Patent Act, 1970 and the Indian Competition Act, 2002, both provide measures to curb anti-competitive practices.1 The Competition Act, 2002, provides a forum, which is quite dissimilar to that provided by the Indian Patent Act for the redressal of grievances pertaining to anti-competitive practices involved in exploitation of patents. Harmonious interpretation of different legislations is a fundamental tenet of the principle of interpretation of statutes. It has now been fairly established that the Laws dealing with intellectual property deal with establishment of rights whereas the competition law deals with the existence of rights. The leitmotif of this article is not to regurgitate the scholarly writings on the intersection between Intellectual Property Rights and the Competition law. This article aspires to provide a facet of the clash between the Patent Act and the Competition Act in searching the appropriate forum having jurisdiction to address issues pertaining to both the domains. It ends with a picture in which the author has endeavoured to provide possible solutions for untying the Gordian knot. Interpretation of statutes has served as a useful tool for the authors foray into unchartered territories defined under the article. Since, the Indian jurisprudence on the subject at issue has not yet been fully developed, this article, quotes some possible interpretations which might assist in building a legal jurisprudence.
Clouds behind the Clouds
Authors: Ortiz Aitor
Published: April 2022

Cloud computing is revolutionizing the way that companies use IT services. The advantages of cloud computing for companies are numerous, from substantial cost reductions to global access to data. However, this new channel of communication brings a new antitrust risk, exchange of sensitive information among competitors in the cloud. The features of cloud computing (i.e., data location) together with some IT techniques (i.e., encryption of information) may facilitate the creation of sophisticated systems to share information illegally. These new systems may even prevent antitrust authorities from finding evidence of the illicit conduct. This article shows how companies engaged in cartel activities may remain undetected by competition authorities if they use sophisticated techniques. This article further discusses the tools available to competition authorities to detect and to prevent this behaviour, arguing that some authorities are a priori better prepared than others to combat these 'cloud cartels'. The final section of this article suggests new policies to deter the illegal use of cloud computing services.
Pay-for-Delay Settlements: In Search of the Right Standard
Authors: de Margerie Stanislas
Published: April 2022

In its 2009 pharmaceutical sector inquiry, the European Commission observed that patent settlements involving a value transfer from the originator to the generic manufacturer (reverse payment) could fall under the prohibition of anticompetitive agreements. In 2012, it issued its first two statements of objections in reverse payment cases. In the US, where competition authorities have dealt with this issue for more than a decade, courts remain split on the applicable competition standard. Condone reverse payments as long as the settlement does not exceed the potential exclusionary scope of the patent? Or, conversely, consider them as prima facie evidence of an agreement to keep generics off the market ('pay for delay')? One reason for this indecision is that many courts are reluctant to interfere with the complex dynamics of patent settlements: while reverse payments could be indicative of anticompetitive intent, they could also be seen as a necessary mechanism to help parties reach a settlement. Blindly condemning all reverse payments thus seems excessive, but determining which payments are legitimate and which are not poses serious difficulties. In light of these difficulties, the more lenient approach to reverse payments that is currently adopted by the majority of US courts at least has the merit of pragmatism.
Presumptions, Market Dominance and Oligopoly in Europe and China: A Comparison
Authors: Mezzanotte Félix E.
Published: April 2022

The China Telecom and China Unicom case in China has shown that the Chinese competition authorities have, in the presumptions of market dominance under Article 19 of China's Antimonopoly Law (AML), a powerful weapon to combat anticompetitive conduct in oligopolistic markets. However, little is known about these presumptions. More particularly, how these presumptions shape the legal test of market dominance for multiple firms in China has not been evident. This article addresses this question using a comparative approach. It compares Articles 19(2) and 19(3) AML with their corresponding laws in Europe, namely the law of collective dominance in Article 102 TFEU. Findings show that these two sets of rules function very differently. A powerful distinction comes from the Article 102 TFEU's requirement of collective entity, which has thus far not been pursued by the law of market dominance in China. The result is that, unlike the European Commission, the Chinese competition authorities are more able to restrict the unilateral conduct of firms operating in a non-collusive oligopoly.
Innovation Markets, Future Markets, or Potential Competition: How Should Competition Authorities Account for Innovation Competition in Merger Reviews?
Authors: Kern Benjamin R.
Published: April 2022

The relevant competitors in regard to innovation might, but not necessarily do, correspond to the identified competitors on actual product markets. Hence, the conventional analysis of product markets, in order to assess the potential anticompetitive effects of mergers, is insufficient to capture innovation competition in its full extent. As a consequence, the aim of this article is to introduce and compare the existing alternative approaches that can, in principle, be used for the assessment of anticompetitive innovation effects in merger review. By focusing on the applied US Antitrust, it turns out that none of the existing approaches appears to be sufficient to fully account for innovation competition. However, the 'Innovation Market Analysis', the first framework especially designed for the assessment of innovation aspects, still might serve as a good starting point for the development of a revised assessment framework.
Proportionality of EU Competition Fines: Proposal for a Principled Discussion
Authors: Gilliams Hans
Published: April 2022

The Treaty on the Functioning of the European Union ("TFEU") and Regulation 1/2003 mandate the Commission to seek compliance with the competition rules through the imposition of fines that have deterrent effect. Deterrence is to be pursued subject to Article 49(3) of the Charter, which prohibits fines that are disproportionate to the gravity of the infringement. This contribution attempts to articulate a principled test for assessing compliance with Article 49(3). The current case law of the European Courts makes it difficult to fully apply that provision: the Courts have identified the relevant factors for the assessment of gravity but have not clarified the respective weight of these factors, and neither have the Courts indicated which fine level corresponds to a given degree of gravity. Pending such clarifications, the proportionality principle as expressed in the Charter would seem to prohibit the imposition of fines of an amount that the offender is unable to pay. I also conclude that the Commission's Fining Guidelines may not be compatible with the Charter to the extent they allow for increases of the basic fine amount for undertakings with a large turnover beyond the cartelized sales, and for improper gains.
Arguments for the EU-US Convergence and against a Global Merger Control Regime
Authors: Kampouridi Ioulia
Published: April 2022

The internationalization of markets, i.e., globalization, has resulted in a number of transnational mergers during the past few years, which require ex ante notification filings in multiple jurisdictions. This requirement is costly for both the merging companies and regulators and creates uncertainty. Responding to this phenomenon, commentators have argued for the establishment of a global merger control policy administered by a global agency. I argue against this proposal for two reasons. First, I evaluate procedural concerns that include the requirement to give reasons and the third parties' and the merging parties' right to appeal the national regulators' decision. Second, I explore the debate as to what the goals of antitrust law should be and examine their biased application to particular facts. I illustrate my argument against the adoption of a global merger law applied by a single agency using the three recent mergers between US Airways and American Airlines, between Universal and EMI and between Microsoft and Skype. Lastly, I examine different solutions offered by commentators and propose a modest solution which would mitigate the problem of duplicative review of transnational mergers by the EU and the US To conclude, I advocate the desirability of EU-US convergence in merger control.
Merger Control in India: Is There A Long Road Ahead?
Authors: Chhabra Gauri , Nathani Suhail
Published: April 2022

The merger control regime in India came into force on 1 June 2011. While the Competition Commission of India (CCI), the principal regulator, has made significant inroads in streamlining and simplifying the merger control process in India, there remain considerable uncertainties and complexities in relation to the application of merger control provisions in India. The purpose of this article is to highlight the progression of the merger control regime in India in the last one year and highlight some of the important legal issues, which continue to raise concerns for the industry and competition law practitioners alike.
Drivers of International Cooperation in Competition Law Enforcement
Authors: Both G. Deniz
Published: April 2022

This article examines the key drivers of international cooperation in competition law enforcement. It aims to demonstrate the factors that determine the likelihood and effectiveness of enforcement cooperation between independent jurisdictions. The findings of the article explain why some jurisdictions are able to use currently available legal mechanisms for international competition law enforcement cooperation more effectively than others. Such understanding enables us to draw up a more realistic account of the level of enforcement cooperation any given two or more jurisdictions can reasonably achieve. The analysis of this article may also help towards identifying potential areas for improvement in international enforcement cooperation.
Defining Markets for Multi-Sided Platforms: The Case of Search Engines
Authors: Hoppner Thomas
Published: April 2022

Despite the rise of two- or multi-sided platforms in the digital sector, there is not yet an established antitrust policy for defining relevant markets that involve such platforms. Difficulties arise in particular where services are granted for free to some users. This article explains which platform user groups form separate (sub-)markets and with which quantitative and qualitative methods substitution relationships can be assessed for each sub-market. Considering the need to take account of the interactions between all user groups of a multi-sided platform, it is suggested that separate relevant markets should be recognized for each user group with differing demands that individually interacts with the platform in order to procure a service. Such interaction requires direct contact and an exchange between user and platform. It does not, however, pre-suppose any payment stream as users may also ‘pay’ with personal data, their attention or the granting of usage rights. Consequently, search engines, for instance, form a three-sided market consisting of i) a market for online search advertising existing between search providers and advertisers, ii) a market for web search services existing between search providers and Internet users, and iii) a market for indexing content existing between search providers and website operators.
From Mono to Stereo: Fine-Tuning Leniency and Settlement Policies
Authors: Guttuso Laura
Published: April 2022

The article brings out the ambivalent role played by leniency and settlement policies in today’s cartel enforcement. Both occupy a prime position in the prosecution of cartels, whilst nevertheless having the potential, if not carefully managed, to undermine deterrence. The article first discusses leniency and settlements within the context of economic theories on deterrence and optimal sanctions.

The key practical challenges in the operation of leniency and settlement policies are then outlined, providing examples from recent European Commission and United Kingdom practice, as well as from experiences further afield. There is a risk that over-reliance on leniency and settlements compromises fairness, particularly in the context of the often one-dimensional manner in which these tools are deployed.

In the second part, the article argues that beyond a purely economics-driven paradigm, the effective administration of leniency and settlement policies requires fairness and due process to be accommodated in equal measure. Due process within penalty-setting has multiple facets, such as respecting the principles of transparency and equality of treatment, to name but a few.

The message in the final part is that competition agencies need to consider ways in which to administer remedies more effectively, addressing the goals of deterrence, restoration and behaviour control in a more coherent manner.
Cover Pricing and the Overreach of Object Liability under Article 101 TFEU
Authors: Hviid Morten , Stephan Andreas
Published: April 2022

This article uses the example of cover pricing to show a possible overreach of liability under Article 101 TFEU, in relation to arrangements deemed to have the ‘object’ of restricting competition. Cover pricing is where a bidder seeks a non-winning bid from a competitor so that he can participate in a tender process without securing the contract. The wide meaning of ‘concerted practice’ means that a potential breach of Article 101 may arise even where the party receiving the request refuses to provide a cover bid. It is important that a restriction by object (which leads to the finding of an infringement regardless of whether the practice was implemented or had any harmful effect) applies only to the most serious arrangements between undertakings. It is shown that cover pricing very rarely has any anti-competitive effect and indeed the alternative (lawful) behaviour, of openly announcing a non-intention to win the contract, is more likely to reduce competition. It is nevertheless treated as an object restriction, mainly because it involves direct communication between competitors of pricing intentions. Article 101 may therefore be unable to distinguish some arrangements with ambivalent effects from the most serious cartel practices. It is argued that a greater effects analysis is needed (either in applying the law or calculating penalties), to ensure fairness and proportionality.
Bridging the Gap in the Shifting Sands of Non-controlling Financial Holdings?
Authors: Corradi Marco Claudio
Published: April 2022

Hawk and Huser, who started the legal debate on EU competition law relating to minority shareholdings, compared the evolving legal situation in the 1990s to shifting sands. More than two decades after their demand for a clearer approach, the situation has not substantially changed. The legal framework emerging from the recent Commission White Paper, entitled ‘Towards a More Effective Merger Control’, looks to be struggling in the midst of two kinds of shifting sands, that is, on the one hand, those pertaining to the uncertainty of current EU competition law on this matter and, on the other hand, those represented by evolving European corporate law and practice, among which are the increasing introduction of stronger minority shareholder rights, the diffusion of new forms of equity ownership, for instance the so-called morphable ownership, and the emergence of hybrid finance, especially in the banking sector. Such uncertainties at the corporate law level may suggest the opportunity to improve the proposed reform framework, redesigning thresholds, including the assessment of the anticompetitive effects of debt and hybrid financial instruments and eventually the decentralization of part or all of the application of the new rules at a national level.
Resolving Conflicts in International Merger Reviews through Merger Remedies
Authors: Pham Duy D.
Published: April 2022

More and more National Competition Agencies (NCAs) around the world are incorporating merger review into their competition law arsenal. Furthermore, globalization has increased the amount of mergers with an international dimension. These two trends suggest that the potential for NCAs to come into conflict regarding whether to approve an international merger will only increase. As a result, this article suggests that merger remedies should be used by NCAs in order to resolve such conflicts. The article begins by addressing why NCAs may reach conflicting decisions in their review of international mergers. The article then addresses in which situations merger remedies can be used to address conflicts in international merger reviews and the costs and benefits involved.
Canadas International Cartel Enforcement: Keeping Score
Authors: Connor John M.
Published: April 2022

Canada’s Competition Bureau has been a well-rated competition-law enforcer. Previously published assessments of its anti-cartel efforts tend to heap praise on the authority. Yet its antitrust performance in the past decade or so has flagged. A quantitative assessment of several dimensions of outcomes made of the Bureau’s anti-cartel enforcement activities shows an agency unable to live up to its earlier promise.
Neoclassical Price Theory, Effects, or Judicial Narrowing in US Predation Law
Authors: Strader Jay Matthew
Published: April 2022

Predation claims have become progressively more difficult for US plaintiffs to establish. I examine whether Neoclassical Price Theory (NPT) has caused this result. To identify the concept in the case law, I explain how market power, cost tests, and recoupment analysis derive from the NPT concepts of rationality, competition, and efficiency. Competition and efficiency refer to the state of the market in perfect competition relative to monopoly, and thus explicate how predation can harm consumers. Rationality refers to profitability, consumer harm, and the incentive to predate. The concepts create a conceptual framework through which the legal elements assist in predicting the effects of predation. I reviewed all published US federal appellate decisions considering predation from 1950 to 2014.

I also examine on what effects judges have focused, whether such effects depart from NPT, and the relationship between effects and plaintiffs’ success rate. Brooke Group defined effects as recoupment, and plaintiffs subsequently have won a single published case. Because the Supreme Court viewed predation as rarely successful and the claim itself as systemically inhibiting pricecuts, lower courts have interpreted cost and market power evidence within the confines of NPT, but strictly. Only the Court can alter this spin on the claim.
Private Labels: Challenges for Competition Law and Economics
Authors: Van den Bergh Roger , Nevo Hila
Published: April 2022

This article deals with the competition concerns that arise from the continuing growth of private labels. It provides an overview of the existing knowledge in economics and discusses how competition authorities may profit from this knowledge in assessing potential anticompetitive effects in retailing markets. Private labels increase retailers’ power by strengthening their gatekeeper’s role. On upstream markets, private labels may enable large retailers to obtain more favourable contract terms from manufacturers that may put at risk the financial viability of the latter. On downstream markets, the popularity of private labels may allow powerful retailers to increase their market shares. Even though empirical research is still inconclusive in establishing a link between the growth of private labels and abusive buyer power, recent trends observed in groceries markets justify an analysis of likely anticompetitive effects. Insights from transaction cost analysis may help in clarifying the impact of buyer power as bargaining strength and improve the competitive assessment of private labels. The article suggests an inverse Small but Significant and Non-Transitory Increase in Price (SSNIP) test to define relevant markets and proposes a framework to balance pro- and anticompetitive effects of private labels, which could be used by competition authorities.
An Economic Assessment of Antitrust Fines in Spain
Authors: García-Verdugo Javier , Troncoso Carlos Merino
Published: April 2022

Fines remain an essential mechanism of competition enforcement and should deter anticompetitive practices. This article quantifies the deterrent power of fines imposed by the Spanish competition authority from 2011 to 2015. First, we compare the evolution of fines over three sub-periods: From January 2011 to the creation of the CNMC on October 2013, since then until the Supreme Court’s judgment on fines on January 2015, and for the rest of 2015. The average fine per firm is similar in the first two periods but significantly lower in the third period, and now fines are more concentrated around the mean than before. Second, we define three scenarios – according to low, average or high values of the relevant parameters – for which we compute deterrence ratios to compare actual and optimal deterrent fines. The results show that most of the fines were under deterrent – a deterrence ratio lower than one – even when using the lower optimal fines of the lower scenario. More specifically, 80% of the actual fines are under deterrent in that scenario (close to 100% in the other two scenarios), and the average value of the fines imposed to these companies was on average 64% below the optimal deterrent fine, with slight changes across subperiods. We conclude that the fining policy of the Spanish competition authority between 2011 and 2015 should be considered significantly under deterrent.
Antitrust Price Remedies May Facilitate Collusion in Global Commodity Markets
Authors: Radchenko Tatiana , Avdasheva Svetlana , Korneeva Dina
Published: April 2022

Difficulties of competition policy at the global level are widely debated by academics and policy-makers. However, recent discussions do not pay enough attention to those instruments of antitrust enforcement that target local companies in domestic markets. This type of antitrust price remedies becomes popular in Russian competition law enforcement towards large exporters that dominate in home markets. In this article we explain the circumstances under which antitrust price remedies imposed by national competition authorities on one exporter in a determined country may limit competition in global commodity markets. In particular, antitrust price remedies, which impose the cap on domestic prices using export or global prices of the commodity as a benchmark, increase the sustainability of collusion, either explicit or tacit. Being primarily designed to support domestic buyers, antitrust price remedies may also increase domestic welfare by facilitating collusion abroad and creating additional profits for large national producers.
Effective Public Enforcement of Cartels: Rates of Challenged and Annulled Cartel Fines in Ten European Member States
Authors: Outhuijse Annalies
Published: April 2022

A substantial number of cartels in the European Union are detected and enforced by the national competition authorities (NCAs). The effectiveness of the domestic enforcement has been subject to extensive review and debates, which have recently culminated and resulted in the proposal for the ECN Directive. The current discussions are mostly limited to the number of enforcement activities, the quantity of imposed fines and their height and deterrence. An empirical assessment of the court procedures in which those fines were challenged and the consequences thereof received minimal attention, despite its importance. The Dutch example, more in particular the difference between the fines as issued by the NCA and those remaining after court review, shows that the mere reference to the number of cases sanctioned paints a distorted picture and an analysis of the rates of litigation and successful litigation is indispensable for veraciously assessing the NCA’s effectiveness. In light thereof, this article analyses the frequency of (successful) litigation and the reasons for annulments in cases of cartel fines in ten Member States (Belgium, Bulgaria, Croatia, Finland, France, Germany, Italy, the Netherlands, Sweden and the United Kingdom). Public policy makers, such as the European Commission, could benefit from this data gathered in order to analyse the effectiveness of the NCAs. Moreover, the analysis is valuable for future research, since the depiction of the trends and differences can form the basis for further research to explain the percentages, trends and developments – as the author is doing for the Netherlands.
Law & Ordo: Exploring What Lessons Ordoliberalism Holds for African Competition Law Regimes
Authors: van der Vijver Tjarda
Published: April 2022

For many years, it was believed that trade liberalization would address the lack of competition that many African economies suffer from. Recent insights seem to have falsified that belief. Many of those economies still suffer from a lack of competition and a prevalence of monopoly behaviour, often (enabled) by the State. So if trade liberalization did not do the trick, what other recipes are available? This article focuses on the added value that more rigorous competition law enforcement could bring, and seeks to derive insights from Ordoliberalism. Although often overlooked in recent years, it is submitted that the comprehensive conceptual framework of Ordoliberalism could provide tangible suggestions to strengthen competition in African economies. It provides a theoretical basis for introducing vigorous competition law enforcement, putting the competition rules in the centre of economic policy-making. It affords great weight to the consistency of economic policies and strongly cautions against any undue government influence, both through the enactment an ‘economic constitution’. It also provides scope provides analytical tools how to deal with the interaction between market power and vested interests. This article concludes that Ordoliberalism does in fact have various insights that could be helpful for spurring competition in Africa.
Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network
Authors: Wils Wouter P. J.
Published: April 2022

This article deals with the fundamental procedural rights of companies that are targeted in the enforcement of Articles 101 and 102 Treaty on the Functioning of the European Union (TFEU) by the European Commission or the competition authorities of the EU Member States. The paper first provides a (non-exhaustive) list of such rights as applicable to the enforcement of Articles 101 and 102 TFEU by the European Commission, and explains the source of these fundamental rights in the EU legal order. The paper then examines the relationship between fundamental procedural rights and effective enforcement of Articles 101 and 102 TFEU. It argues that procedural rights often contribute to effective enforcement, but not always. The interplay between fundamental rights of legal persons and competition enforcement remains a balancing exercise, and this balancing exercise is not the same as in traditional criminal law. Finally, the paper examines the question whether or to what extent EU Member States can, for the enforcement of Articles 101 and 102 TFEU by their national competition authorities (NCAs), provide for a lower or a higher level of procedural rights than the level of fundamental procedural rights applicable to the enforcement of Articles 101 and 102 TFEU by the European Commission.
Brexit and Competition Law: Future Directions of Domestic Enforcement
Authors: Dabbah Maher M.
Published: April 2022

Brexit – the UK’s exit from the European Union – brings unprecedented challenges and opportunities of historic magnitude across a raft of legal and policy fields. One of these fields is competition law. These challenges and opportunities deserve careful assessment – whatever shape the outcome of the detachment process might eventually take – in order to prepare for an increasingly uncertain future ahead.

This article considers and analyses the future directions for UK domestic competition law enforcement in light of Brexit. The article addresses a range of issues, including: the likelihood of significant post-Brexit reform; the government’s commitment to competition in local markets; the relevance of industrial policy; the issue of regulation; and aspects of institutional structure of the UK competition law regime. The article will also consider changes to UK competition law which currently appear on the horizon.

Brexit, UK competition law, Domestic enforcement, Competition and Markets Authority
Happily Ever After?: Vertical and Horizontal Mergers in the US Media Industry
Authors: Budzinski Oliver , Stöhr Annika , Noskova Victoriia , Kunz-Kaltenhäuser Philipp , Gaenssle Sophia
Published: April 2022

This article provides an economic analysis of recent vertical and horizontal mergers in the US industry for audio-visual media content, including the AT&T–Time Warner and the Disney– Fox mergers. Using a theory-driven approach, we examine economic effects of these types of mergers on market competition, focusing on digital media content distribution.

In doing so, we address three research questions: (1) Is the current development of the industry with its recent merger activity concerning? (2) Would vertical or horizontal integration be more preferable for overall welfare and competition in this industry? (3) What are implications for antitrust policy?

We conclude from our analysis that in the already highly horizontally concentrated US market for audio-visual content the process of further vertical integration creates concerns from a competition policy perspective. Moreover, even though horizontal concentration on some of the market stages may be anticompetitive as well, vertical integration is likely to be more harmful. As a consequence, we recommend a stricter approach to vertical merger control in this industry, as well as a more active abuse control against already vertically integrated media companies.

competition policy, antitrust, industrial economics, digitization, media economics, institutional economics, industrial organization, mergers, vertical integration, horizontal integration
Hybrid Restraints and Hybrid Tests Under US Antitrust and EU Competition Law
Authors: Balasingham Baskaran
Published: April 2022

The distinction between horizontal and vertical agreements is not always as obvious as suggested in case law. In particular, under US antitrust law, the current case law on section 1 of the Sherman Act sets out a dichotomy between horizontal and vertical restraints. Yet, the commercial reality, as seen for instance in the e-commerce sector, is that the line between those two types of restraints is sometimes blurred. As more recent cases have shown, the legal assessment of vertical restraints that have horizontal effect is more difficult compared to purely vertical or horizontal restraints. Under US antitrust and EU competition law the assessment of those ‘hybrid restraints’ is further obfuscated due to the emergence of intermediate approaches to the rule of reason/per se rule in section 1 of the Sherman Act and arguably the restriction by object/restriction by effect categories in Article 101 Treaty on the Functioning of the European Union (TFEU) respectively. This article explores whether those intermediate approaches are suitable for the legal assessment of vertical restraints with horizontal effect and how the analyses could be conducted in order to be more administrable.

vertical restraints, horizontal restraints, hybrid restraints, Most-Favoured Nation clauses, resale price maintenance, rule of reason, per se rule, restriction by object, restriction by effect, Article 101 TFEU