bluuebunny/crossref_metadata_2025 huggingface dataset:
Analysis of Tying Under Article 82 EC: The European Commission's Microsoft Decision in Perspective
Authors: Graf Thomas , Dolmans Maurits
Published: April 2022

The European Commission's investigation of Microsoft's tying of Windows Media Player has generated new interest in the application of EC law to tying abuses. In the context of this case, some commentators have suggested that EC competition law is too rigid when dealing with tying practices by dominant companies. This article discusses the conditions that the Commission and the Court of Justice have applied for findings of abuse under Article 82 EC in tying cases.

An analysis of the case law of the Commission and the Court of Justice shows that a five pronged test applies to the assessment of tying abuses under EC law. To establish an infringement of Article 82 EC to following elements need to be met:

(i) dominance of the seller in the market for the ``tying product'';

(ii) existence of a ``tied product'' that is separate from the ``tying product'';

(iii) coercion, i.e. conduct forcing customers to buy the tied product together with the tying product;

(iv) a restrictive effect on competition for the ``tied product''; and

(v) absence of an objective and proportionate justification for the coercion.

The five-pronged test represents a well-balanced approach to identify those tying practices that warrant intervention under Article 82 EC. The different elements necessary for a finding of abuse all serve to distinguish harmful from innocuous practices. Applied properly, the five-pronged-test will lead to much more refined and economically reasonable results than any per se rule – be it per se illegality or per se legality – could hope to achieve. This approach is also consistent with the assessment of tying abuses under US law. The Commission's Microsoft decision is a good example for a thorough and comprehensive investigation of an abusive tying practice that has far reaching implications for competition and innovation.
International Competition Policy after Cancún: Placing a Singapore Issue on the WTO Development Agenda
Authors: Drexl Josef
Published: April 2022

Is there still a chance for Europe’s initiative on a WTO Multilateral Framework Agreement on competition policy after the failure of the 2003 Ministerial Conference of Cancún? Do developing countries that reject the initiative act against their own interests? Do we really need such an agreement in the light of alternative approaches to international competition law? This article tries to answer these questions and supports principles of a possible WTO competition law considerably different from those proposed by the European Community. These principles reject a concept of an international competition law as a market-access guaranteeing instrument of trade policy and would implement the protection of international competition in trans-border markets as the objective of WTO competition law. This kind of law reacts to today’s situation in which trade liberalisation and international protection of intellectual property rights enable undertakings to abuse their freedoms and their property rights in larger markets emerging as a consequence of WTO law after the Uruguay Round. In this sense the proposals of this article contribute to the solution of problems of globalisation.
Topics in Merger Control ? Experiences from a Recent Merger in the Danish Electricity Sector
Authors: Smidt Carsten , Pedersen Torben , Christiansen Peder
Published: April 2022

The Danish Competition Authority (DCA) recently approved a merger between Denmark’s two largest electricity companies?Elsam and NESA. This article focuses on some topics of general interest that this merger raises. One such issue is that the merger happened in a market where the product characteristics and the capacity constraints give a dominant producer the opportunity to make use of its position to increase both prices and profits. The merger also illustrates some difficulties in calculating the effect on competition when a merger makes the merged entity a minority owner of an important competitor. Furthermore, a longer time horizon than usual was used for the investigation of the competition effects of the merger.
Passing-on Damages and Community Antitrust Policy – An Economic Background
Authors: Hoseinian Foad
Published: April 2022

Basic economic tools of analysis imply that overcharges imposed by cartels or monopolists are not entirely, if at all, absorbed by their direct purchasers. The harm is instead inflicted upon actors in an indeterminable number of submarkets. The net effect varies depending on the time scope, the nature of competition in the downstream markets and on the proportion of demand-supply elasticity in those markets. Under EC antitrust law it is unclear whether this so-called passing-on reasoning should be accepted in private litigations. The eventual answer will constitute a major policy choice for EC antitrust law in general. Assuming that competition law ought to enhance overall social welfare, a theoretic model can be borrowed from relevant US literature to gain an understanding of how the damage remedy should be contemplated within the system of EC antitrust law and how the passing-on question should be dealt with.
How Economists Can Help Courts Design Competition Rules: An EU and US Perspective
Authors: Evans David S.
Published: April 2022

This article describes the use of practical tests for assessing whether particular business practices should be found anticompetitive. The courts have implemented such tests in many areas of competition policy including the recoupment test used in the United States for assessing aggressive pricing and the exceptional circumstances test used in the European Union for considering refusals to supply intellectual property. Economists can help the courts devise, refine, and reform such tests which, to be useful, must be capable of being implemented with available evidence and must minimise the cost of making mistaken inferences concerning competitive effects.
Merger Simulation: A Crystal Ball for Assessing Mergers
Authors: Kokkoris Ioannis
Published: April 2022

One of the most important trends in merger control in recent years has been a movement towards the use of empirical economic methods to study the likely anticompetitive effects of mergers. Unilateral effects simulation can predict price increases or decreases for a merger involving firms in the same market, depending on efficiencies and changes in market structure including repositioning and divestitures. Calibrated economic models provide concrete, quantitative analyses of the effects of mergers on competition. In order to be able to rely on merger simulation models for accurate predictions of the impact of the transaction in the post merger market, they must reflect critical features of the nature of competition in the market, such as whether the product is homogeneous or highly differentiated. The ability of a merger simulation model to explain the impact of mergers in the past in an industry may indicate its ability to accurately predict the impact of mergers in the future. The use of accurate demand specification models significantly enhances the focus, accuracy, and persuasiveness of merger simulation analysis. In this article we will address the importance of merger simulation models and the way that such models can be implemented in practice in the assessment of mergers.
Tetra Laval II: the Coming of Age of the Judicial Review of Merger Decisions
Authors: Calzado Javier Ruìz , Bay Matteo
Published: April 2022

The article examines the European Court of Justice’s (``ECJ’’) ruling in Commission v. Tetra Laval regarding the scope of judicial review by the Court of First Instance (``CFI’’) in the merger control area and the standard of proof incumbent on the European Commission (the ``Commission’’) to support its merger decisions. First, the article describes how the ECJ ruling confirms that the CFI must ensure a thorough judicial review and provides precise guidance on the tests to be applied by it. The authors suggest such guidance applies to all types of merger decisions, including those adopted under the new EC Merger Regulation. Additionally, the article acknowledges a perceptible convergence of the courts of several Member States on the need for meaningful judicial review, in line with the Community Courts’ case law. Then, the article examines the ECJ’s reasoning as regards the standard of proof, and how the Commission must carry out its prospective analysis and substantiate its decisions. Based on the ruling, the authors conclude that the standard of proof should be the same for all types of mergers and for both clearance and prohibition decisions. Finally, on the question of whether the ruling also applies to antitrust decisions, the authors suggest that the need to establish convincingly the merits of an argument is more significant than the type of decision. The Commission will have to be more convincing in complex cases, particularly where it relies on novel theories of competitive harm.
Powers of Investigation and Procedural Rights and Guarantees in EU Antitrust Enforcement: The Interplay between European and National Legislation and Case-law
Authors: Wils Wouter P. J.
Published: April 2022

This article deals with the powers of investigation of the European Commission and of the competition authorities of the Member States for the enforcement of Articles 81 and 82 EC, and with the procedural rights and guarantees that circumscribe or limit these powers. It focuses in particular on the question which law governs these matters (EC or EU law, national law, and the European Convention on Human Rights), and by whom or how the content of this law is determined (by European and national legislation, and case-law of the EC Court of Justice and Court of First Instance, national courts, and the European Court of Human Rights).
R&D Cooperation, Licensing and Marketing in the Biotechnology Field - EC Competition Law Aspects
Authors: Gerrits Rony , Norall Christopher
Published: April 2022

The year 2004 saw the replacement of the notification procedure with a system of competition law self-evaluation, and the completion, with the adoption of the new Technology Transfer Block Exemption Regulation and related guidelines, of the Commission’s revamping of much of the substantive law under Article 81. Analysing, under the new rules, collaboration agreements regarding the development, production and marketing of new pharmaceutical products, and the licensing of the related IPRs, provides a useful opportunity to test the new rules as applied to a world of fast-paced, complex and sophisticated agreements in a particular sector. The result of this exercise is to highlight some important competition law issues raised by some common contractual provisions, and the need for clarification by the Commission of certain obscurities and inconsistencies in the new regulations, in particular the related Notices and Guidelines.
Economic Analysis and Antitrust Damages
Authors: Fisher Franklin M.
Published: April 2022

This article considers several economics-related issues in the theory of damages -- especially in private antitrust cases, drawing possible lessons for Europe from US experience. It begins with an overview of different rationales for such damages and their implications. Such rationales include: making the plaintiff whole; preventing unjust enrichment; and incentives to private plaintiffs. Problems from US experience include whether to allow recovery by indirect purchasers (Illinois Brick), and the creation by treble damages of incentives to bring meritless cases that can then be settled for profit
Abuse of Protected Position? Minority Shareholdings and Restriction of Markets’ Competitiveness in the European Union
Authors: Russo Francesco
Published: April 2022

In corporate governance minority shareholders deserve particular protection in order to guarantee their rights in the companies’ management and to avoid their passive submission to the majority’s decisions. This article stresses that the protection granted to them could be used as an instrument to circumvent Competition Law. More generally it is argued that participation in companies’ equity, even when it does not grant control over the same companies, can in particular circumstances generate effects restrictive of competition. The article shows that there is a substantial lack of European Courts jurisprudence and that the Commission’s approach to the issue is inconsistent. The article calls for a substantive, systematic and economically based analysis of minority shareholdings by the Commission to guarantee legal certainty, uniformity of interpretation and the resolution of some unexplained structural questions. Furthermore the article calls for a legislative revision of the actual set of Competition rules. There is, in fact, a vacuum legis that needs to be filled because there are some circumstances in which market operations involving minority shareholdings, although outside of the scope of application of both Art.81 and Art.82 and of the Merger Regulation, can generate anticompetitive effects. In the absence of proper normative measures, these situations are ultimately undetectable by the European Competition authorities. These circumstances are described and a possible solution to the mentioned predicaments---in line with the United States approach to the question---is suggested. This article has been shortlisted for the 1st World Competition Young Writers Award.
The Dangers of Over-Regulation in the Electronic Communications Sector
Authors: Stoyanova Milena
Published: April 2022

Sector-specific regulation of the electronic communications sector is one of the policy tools aimed at

promotion of competition and correction of market failures resulting from the high levels of market power

possessed by former telecoms monopolists. While, in principle, academics and policy makers concur on the

value added of regulation for increasing social welfare and efficient allocation of resources, their analysis of

past regulatory experience shows that under a number of circumstances regulation can be flawed and lead to

welfare harm rather than benefit. Inappropriately designed sector-specific remedies and regulatory delays in

the introduction of new telecommunications services can hold up the development of the market towards

effective competition and instead might incur considerable welfare losses.1 This article has been shortlisted

for the 2nd World Competition Young Writer’s Award.
Guarding the Pass?The Forthcoming Chinese Competition Legislation
Authors: Lorenz Moritz
Published: April 2022

Competition legislation is soon to be enacted in the People’s Republic of China. It will cover the three

’’classic’’ pillars of competition law: prohibition of anti-competitive horizontal or vertical agreements,

prohibition of the abuse of a dominant market position and merger control. The new law will considerably

alter the legal landscape for the business operations of domestic and foreign undertakings in China. In

addition, it is another milestone on the way to the transformation of the structure of the Chinese economy

from a planned economy to a market economy. In the following article, the core areas of the new provisions

are discussed and comparisons drawn with EU competition law. This article has been shortlisted for the

2nd World Competition Young Writer’s Award.
State Action as a Defence Against 81 and 82 EC
Authors: Blomme Eric
Published: April 2022

The purpose of this article is to examine the question to what extent private undertakings can be immunized from European competition law responsibility by relying on influence exerted on them by regulatory or non-regulatory Member State actions. Hereafter, I will use the term “State action defence”. It is very important to distinguish this issue from the question of the Member State responsibility for the above actions. Such responsibility, based on Articles 3, 10 and 81/82 of the EC-Treaty, will only briefly be mentioned in this article in so far as necessary for the purposes of discussion.
Achieving Better Decision-making in Competition Enforcement Cases: A Public Law Perspective on the Role of the Executive and the Courts
Authors: Wilsher Daniel
Published: April 2022

This article seeks to examine from a public law perspective some of the problems of the executive-driven system of competition enforcement as it operates in the United Kingdom. The problems experienced in this jurisdiction provide lessons for other countries that employ executive enforcement. The author believes that the complexity of competition proceedings has a tendency to lead to the undermining of important constitutional and public law values. The practice of the Office of Fair Trading and the review of its competition decisions by the Competition Appeal Tribunal are assessed. The problems for litigants and courts caused by persistent and serious defects at the executive stage are emphasised. The current practice leads to too many poorly reasoned decisions. A comparison between US, EU and British practice demonstrates that models exist which better reconcile constitutional values with executive enforcement. The article proposes methods of improving the relationship between courts and executive agencies to improve practice. There are three main suggestions. First, that executive bodies must use internal referees, rather like the Administrative Law Judges at the Federal Trade Commission, to achieve higher standards of public administration in their decision-making. Second, that courts should move towards a speedy, cheap but searching judicial review of executive decisions to ensure they comply with good administrative law standards. Third, only where executive decisions satisfy these standards should courts then engage in detailed consideration of the economic merits of the case. Courts should not attempt to reconstruct executive decisions or processes that have failed because to do so merely perpetuates the problem and undermines the guarantee of good administration at the executive level.
An End to Parallel Imports of Medicines? Comments on the Judgment of the Court of First Instance in GlaxoWellcome
Authors: Junod Valérie
Published: April 2022

In September 2006, the Court of First Instance of the European Union (CFI) issued its judgment in the case opposing GlaxoSmithKline (GSK) to the European Commission. The Commission had found that the dual pricing system introduced by GSK violated the European antitrust rules (Article 81 of the EC Treaty), because it constituted an agreement with wholesalers whose object was to restrict competition by blocking parallel imports of pharmaceuticals. For the Commission, the agreement could not be exempted and was therefore to be prohibited.

The CFI disagreed with the Commission and found that the agreement could qualify for an exemption. More importantly, the CFI ruled that, at least in the pharmaceutical sector, an agreement whose object is to prevent parallel imports by imposing a dual pricing system is not automatically contrary to Article 81, as it cannot be automatically inferred that the end consumer is harmed. This holding is highly questionable in view of the prior EU case law, prohibiting per se agreements with anticompetitive objects. Therefore, the change brought about by the CFI’s judgment could have major ramifications on the innovative pharmaceutical industry which is vigorously opposed to the principle of parallel imports.
Joint Dominance: Mobile Telecommunications in the Ukraine
Authors: Stotyka Yevgeniy
Published: April 2022

Mobile communications has been the most dynamic sector in the Ukrainian telecommunications industry. The number of customers and revenues of operators have been growing rapidly. The market experienced the recent entry of a new firm and currently there are six active mobile operators. The mobile telecommunications market was once monopolistic, and its concentration is still rather high, since two main players, UMC and Kyivstar, cover most of the market.

The fact that these two major companies have been so far ahead of all other operators since 2000, has attracted the attention of the competition authorities. In September 2004, the Antimonopoly Committee of the Ukraine (AMC) announced it was ready to recognise UMC and Kyivstar as jointly dominant firms. These allegations, if proven, could have dramatic consequences for the two operators, including possible fines and price regulation. The analysis in this article shows the accusations to be groundless and proves there exists intense competition in the marketplace for mobile communications. However, there are competition concerns that should attract the attention of the AMC. After a series of public hearings, the AMC finally decided that the operators are not monopolists.
Remedies to Exclusionary Innovation in the High-Tech Sector: Is there a Lesson from the Microsoft Saga?
Authors: Montagnani Maria Lillà
Published: April 2022

In the high-tech sector innovative behaviour may have exclusionary effects: In both the Microsoft III and IV cases exclusionary practices centred on innovation were deemed generating both anti- and pro-competitive effects—with the latter overcoming the former—to the extent of requiring an antitrust law intervention. Such intervention presents two problems though. Firstly, the question arises as to when innovation becomes detrimental to competition thereby requiring antitrust remedies to be applied. Secondly, it is to assess how antitrust remedies should be designed in order not to stifle the pro-competitive effects that innovative behaviour, although exclusionary, still generate.

This article addresses both issues above mentioned. The potentially exclusive nature of innovation is the starting point to explore the interface between remedies on the one hand, and (incentives to) innovation on the other, in order to offer considerations on a sound remedies policy.
Competition and Efficiency in Payment Cards: Which Options for SEPA?
Authors: Heimler Alberto
Published: April 2022

Payment card networks face a challenge in convincing consumers, merchants and card issuers to use their networks. Overcoming this challenge requires networks to introduce complex rules and prices. However, certain rules and common practices reduce a merchant’s ability to communicate relative cost information of different networks to consumers, prevent steering towards low-cost payment mechanisms and reduce merchants’ bargaining options with card networks. Under these conditions, competition between networks can have the perverse effect of raising total cost to the users (jointly consumers and merchants) because consumers select high-cost systems over low-cost systems. The current initiative to create a Single Euro Payment Area (SEPA) by 2010 provides an excellent opportunity to eliminate unjustified restraints on merchant behaviour, promote alternative suppliers of retail payment services and enhance price transparency, potentially lowering payment costs to the users in many European countries. But there is a substantial risk that instead of improving efficiency, SEPA may promote payment systems with higher costs for users, notably if low-cost national systems are supplanted by high-cost international networks. Policymakers should not only ensure that payment systems comply with SEPA standards, but more importantly ensure the net effects of new regimes are beneficial.
“Publicly Distancing” Oneself from a Cartel
Authors: Bailey David
Published: April 2022

Article 81(1) EC prohibits a competitor from, directly or indirectly, disclosing information to another competitor that could influence its behaviour on the market. On a number of occasions, firms have argued that they publicly distanced themselves from such cartel activity. Such claims are rarely accepted however. This article first considers how the European Commission and the Community Courts have applied Article 81(1) to participation in cartel meetings: in essence, a firm’s presence at a meeting with a manifestly anti–competitive purpose implies, in the absence of explanation, participation in the cartel alleged. The article suggests that there are six requirements for a firm to publicly distance itself from a cartel, but argues that the law does not insist on a firm “blowing the whistle” to a competition authority. Finally, the article examines why the law sets the bar so high for proof of public distancing.
Criminalising Cartels: Australia’s Slow Conversion
Authors: Beaton–Wells Caron
Published: April 2022

Australia is set to become the latest in a growing number of countries to join the United States’ “coalition of the willing” with respect to the criminalisation of serious cartel conduct. However, there are emerging questions as to whether criminalisation has sufficient support amongst key stakeholders in countries outside of the United States so as to guarantee its effective implementation. This article argues that for any new criminal regime to be successful in deterring serious cartel conduct such support, from the regulator, government, business sector, general public, judiciary and academia, will be vital. It considers the extent to which cartel criminalisation enjoys the support of each of these groups currently in Australia and finds that with the exception of the regulator and the new government, it may be questionable, at best. The findings reported in the article provide insight into the impetus for, and process of, the criminalisation initiative in Australia and have important practical consequences for the effectiveness of the future regime. Of international concern, they also suggest the need for caution in assuming the successful exportation of the American model of anti–cartel law enforcement.
Driving Competition — The Impact of Regulation 1400/2002 on Motor Vehicle Distribution
Authors: Aleixo Gregório Rita
Published: April 2022

The purpose of this article is to analyse the effectiveness of the measures established at the distribution level by the Commission Regulation (EC) No. 1400/2002 of 31 of July 2002, on the application of Article 81(3) of the EC Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (Regulation 1400/2002)1 in order to (i) introduce innovation in motor vehicle distribution and (ii) reinforce the Single Market. Such an analysis is helpful in assessing whether the European Commission should maintain such measures or find different solutions when Regulation 1400/2002 expires.
Are Monetary Incentives Enough to Boost Actions for Damages in the European Union? On the Relevance of Incompleteness of Laws and Evidentiary Requirements
Authors: Sarra Alessandro , Marra Alessandro
Published: April 2022

In this article we intend to contribute to the public debate regarding the lack of private antitrust enforcement in the European Union. The European Commission suggests to concentrate on monetary incentives to boost actions for damages (among them, granting full compensation, promoting aggregate actions, reducing the costs associated with antitrust claims, and so on). We argue that monetary incentives are not sufficient to create an efficient regime of private enforcement of law. In particular, we develop the thesis that to increase the number of effective damages actions is useful to better contemplate the incompleteness of antitrust laws and the relevance of evidentiary requirements needed to initiate a successful lawsuit.
Constraining Drug Supply: Product Positioning, Patent Protection and Regulatory Standards
Authors: Boscheck Ralf
Published: April 2022

On both sides of the Atlantic, fast growing drug expenditures and an apparent slow–down in the introduction of new pharmaceutical compounds and generics had rekindled antitrust concerns. Yet while the EU Commission was entering largely uncharted territory, US authorities seemed guided by relevant legislation and case law that has no equivalent in Europe. Still, the US experience so far also shows that public outcries over high–profi le cases are no substitute for a dispassionate assessment of conflicting incentives, inconsistent regulatory standards and essential welfare trade–offs. In fact, it suggests the need to reconsider fundamental policy options and to establish efficient rules so as to ensure a competitive supply of innovative drugs. Contemplating the US experience, this article is organised in five parts. By way of introduction, Part I links US healthcare expenditures, drug research costs and elements of drug regulation and reimbursement to identify four corporate imperatives for product positioning and life–cycle management. Part II focuses on the economics of innovation and intellectual property rights and the need to challenge patents. Part III outlines the structure of the Hatch–Waxman Act, intended to speed up generic substitution, and discusses the evolution of US court decisions on patent settlements in the wake of it. Part IV offers some considerations for modifying the application of Hatch–Waxman rules as well as the processes for contesting patents and pharmaceutical product markets. Part V sums up and links back to the current EU initiative
Assessment of Mergers Inducing Coordinated Effects in the Presence of Explicit Collusion
Authors: Kokkoris Ioannis
Published: April 2022

This article will analyse the issue of the assessment of the likelihood of a merger in a cartelised market inducing or enhancing coordinated effects. Although there is decisional practice on the impact of past coordination on the assessment of a merger’s likelihood of inducing coordinated effects, such decisional guidance is very rare as regards the assessment of mergers in cartelised markets. Mergers in cartelised markets should be assessed on a case–by–case basis. A presumption of illegality for such mergers should be avoided. A case–by–case analysis focusing on the pre–merger and post–merger market structure as well as on the incentives for continuing the collusion in the post–merger market has significantly more merit. Mergers in cartelised industries are not the cause of the adverse impact on competition. What should be assessed is the harm of the merger itself in the already anticompetitive market. If the merger induces a significant impediment to the existing level of reduced competition, then the merger should not be cleared (at least not without remedies). The concept of “significant” assumes great importance in such circumstances, as the merger may lead to an impediment but such impediment is not always significant in a market where explicit collusion occurs.
‘Consumer Welfare’ and Article 82EC: Practice and Rhetoric
Authors: Akman Pinar
Published: April 2022

This article questions whether the objective of Article 82EC is indeed enhancing ‘consumer welfare’ as suggested by the EC Commission when one examines the application of the provision thus far. It critically analyses the case law of the EC Commission and Courts to show that there is great dissonance between the practice and the policy declarations on the provision. When one considers the practice alongside the rhetoric, Article 82EC appears as a provision enforced without a clear standard of harm leading to doubts about the legitimacy of enforcement. The article suggests that without a properly defined standard applied in actual decisions by the EC Commission and upheld by the EC Courts, the modernization of Article 82EC cannot succeed.
Game Theory and the Competition Act: Winners and Losers in Canadian Merger Review
Authors: Facey Brian A. , Finkelstein Neil , Finkelstein Jonathan
Published: April 2022

In 1986 Canada established new rules for the review of mergers which lessen competition. In doing so, it created a system whereby economic efficiency would be the paramount goal of merger review. Moreover, a specialized court called the Competition Tribunal would oversee the review of mergers in an adjudicative process. However, since that time Canada’s merger review process has evolved into an administrative, rather than adjudicative, process: one in which the Competition Tribunal plays virtually no role, and in which an administrative branch of government (the Competition Bureau), dominates merger review. The authors use a game theoretic approach to examine why this is. In doing so, they provide one possible explanation for the failure of Canada’s merger review process to achieve Parliament?s intent: the incentives and knowledge about the rules of the game as between the players who participate in the merger review process are misaligned. The authors do so in the context of very recent case law. This case law suggests a paradigm shift, and possibly opens the door to a greater role for adjudication in the attainment of Parliaments merger review goals.
Article 82 EC as Remedy to Patent System Imperfections: Fighting Fire with Fire?
Authors: Kjølbye Lars
Published: April 2022

It has been a well-established principle of EC competition law that there is no inherent conflict between competition laws and intellectual property laws. However, there are indications that this view is coming under pressure. The European Commission’s pharmaceutical sector inquiry has identified a toolbox of practices engaged in by originator firms, which allegedly aims at hindering or delaying generic entry or competition from other originators. A number of these practices involve the strategic use of patents. As sector inquiries aim at giving effect to Articles 81 and 82 EC, the Commission’s preliminary findings raise the question whether strategic patenting engaged in by dominant firms is caught by Article 82 EC and, if so, in what circumstances. This article discusses these questions in light of the existing case law on the application of Article 82 EC to refusals to license intellectual property rights, in particular the Microsoft case, which has extended this case law to patents. The article discusses in particular whether practices involving patent clustering, secondary patenting, and defensive patenting may be caught by Article 82 EC.
Liberalization of the EU Electricity Market: Enough to Power Real Progress? Analysis of Ownership Unbundling and the Project for Liberalization of the European Union Electricity Market
Authors: Manoussakis Savas
Published: April 2022

The recent initiative of the European Commission regarding the unbundling of the vertically integrated electricity sector throughout Europe, together with the controversy and resistance surrounding it, make the issue of ownership unbundling of particular interest.

This article discusses the prior attempts to liberalize electricity markets in California and the United Kingdom and the effects of ownership unbundling on consumer welfare, environmental protection, and energy security. Drawing from both the failure of liberalization in California and the relative success in the United Kingdom, this article concludes that, although necessary, ownership unbundling of vertically integrated electricity markets is not sufficient to foster competitive markets. Regulatory oversight, such as present in the United Kingdom and proposed in the third energy package, is also necessary. Ownership unbundling may also facilitate positive outcomes in the areas of consumer welfare, development of renewable energy, and energy security.

The article further examines the current proposal put forth by the European Commission in its third energy package. We conclude that the Independent Systems Operator (ISO) compromise, providing for two functionally different regimes, undermines the objectives of a unifi ed European electricity market and the benefits it would provide.
The New Anti-monopoly Law in China from a European Perspective
Authors: Di Federico Giacomo
Published: April 2022

The present paper addresses the recent Chinese Anti-monopoly law, in force since 1 August 2008. A brief overview of the events, which led to the adoption of this new discipline, is necessary to appreciate its groundbreaking nature. The normative framework will be analyzed with a view to single out its main goals, scope of application, positive outcomes, and shortcomings. In assessing the overall suitability of the envisaged control regime, reference will be made to EC antitrust law (and policy), highlighting similarities and differences between the two enforcement systems. This comparative approach is intended to act as an efficiency and effectiveness gauge from both an institutional and operational viewpoint.
The Article 82 Reform: Increasing the Incentives to Comply?
Authors: Finell Lisbe
Published: April 2022

Some general studies on the effects of competition law rules and enforcement show that regulators are least successful in deterring the breach of abuse of dominant position rules. The present article analyses some reasons for this phenomenon.

The article examines from companies’ perspective the transparency and the administrability of Article 82 of the EC Treaty after its reform. There are certain limitations on competition law having clear and simple rules: the assessment of embedded economic and legal concepts is often a matter of degree, depending on the circumstances of each case. A certain flexibility of the rules, from the enforcer’s side, is therefore important in order to guarantee the vast objective of consumer welfare. Recognizing these and other constraints, the results show that the Commission has correctly increased the transparency and the administrability of the legal standard in Article 82. Nevertheless, in several important respects, the main factors of the legal standard are left open or undefined after the Article 82 reform. This may discourage businesses from investing in internal compliance, and therefore, risk undermining the very purpose of the Guidance Paper.
From Formalism to Effects? The Commission’s Communication on Enforcement Priorities in Applying Article 82 EC
Authors: Petit Nicolas
Published: April 2022

The purpose of the present article is to offer thoughts on the ‘Guidance Communication on the Commission’s Enforcement Priorities in Applying Article 82 of the EC Treaty’ and, in particular, to review the requirements which the Commission must meet in Article 82 EC cases when it purports to apply the Communication’s economics-oriented, effects-based. In addition, this article seeks to assess whether the Communication’s effects-based approach really entails a paradigmatic shift toward increased competition economics, comparable to the (r)evolution that has taken place in other areas of EC antitrust enforcement since the early 2000. It comes to the conclusion that while the Communication marks a welcome economic sophistication of the Commission’s Article 82 EC enforcement policy, it nonetheless often fails to go beneath the surface of modern antitrust economics and thus provide only limited guidance to firms and their counsels.
Passing-on Defence and Indirect Purchaser Standing: Should the Passing-on Defence Be Rejected Now the Indirect Purchaser Has Standing after Manfredi and the White Paper of the European Comm
Authors: Parlak Süleyman
Published: April 2022

The European Court of Justice (ECJ) recognized in Courage v. Crehan and recalled in Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni SpA the right of ‘any’ individual to claim damages for infringements of Articles 81 and 82 EC. As a reaction to both judgments, the European Commission published, after the Ashurst report, a Green Paper and later a White Paper on damages actions for breach of EC antitrust rules. Two of the obstacles that private parties face in antitrust damages action are the indirect purchaser standing and the passing-on defence. This paper analyses both the indirect purchaser standing and the passing-on defence in a comparative law perspective, between the law of the United States and EC law. This paper finds, after analyzing the US case law and the current economic discussion around the passing-on issue, that it is too difficult for the judiciary to calculate the passing-on. This paper finds therefore that the choice to allow or reject both the passing-on defence and indirect purchaser standing is policy related. Finally, the passing-on defence and indirect purchaser standing in the EU and the European Commission’s White Paper is discussed. This paper finds that the European Commission’s choice to allow both the indirect purchaser standing and passing-on defence is justified from the perspective of policy considerations. Nevertheless, this paper concludes that the European Commission did not succeed in providing strong solutions to the problems that are associated with the indirect purchaser standing and the passing-on defence.
Competition Law Enforcement in the Television Broadcasting Sector in Hong Kong: Past Cases and Recent Controversies
Authors: Cheng Thomas K.
Published: April 2022

This article reviews the competition law regime in the television broadcasting sector in Hong Kong. This regime governs one of the only two sectors in Hong Kong subject to competition law enforcement until the government promulgates a cross-sector competition law. The article begins with an overview of the state of competition in the sector, highlighting trends in recent development that are relevant to competition law enforcement. This is followed by an examination of the two main competition provisions in the Broadcasting Ordinance and the guidelines issued by the Broadcasting Authority, the sectoral regulator. It argues that one of the greatest flaws in the provisions is their designation of the downstream market as the relevant market, hence exacerbating the limitations of a sectoral regime. This article continues with a critical review of the existing decisional practices, focusing on the regulator’s treatment of market definition, predatory pricing, and causation. It argues that the regulator has largely failed to apply rigorous analysis to these issues and has adopted an overly stringent standard for causation. It concludes with an analysis of a recent controversy in the sector – the dominant terrestrial broadcaster’s alleged imposition of exclusivity on artists, which prevent these artists from appearing on rival channels.
Sub-national Geographic Markets within the Electronic Communications Sector
Authors: Hou Liyang
Published: April 2022

Traditionally the geographic market definition in the electronic communications sector in the field of EU competition law was significantly relied on two factors: network reach and regulatory conditions. This method, after introduced into the electronic communications regulation, usually led to the definition of national markets. Nevertheless, the recent uneven investments in electronic communications infrastructures have results into regional variance in competitive conditions within some Member States. This fact makes the definition of national markets no longer appropriate. In order to demonstrate this trend in market definition, the national regulatory authorities, with the assistance of the European Commission, established a new approach to define geographic markets, in particular sub-national geographic markets. Nevertheless, this approach has not yet attracted much academic attention. The objective of this article is thus to provide a detailed description of this new approach. Based on a number of recent Commission decisions, it identifies two-step analysis: (1) to define geographic units and (2) to group geographic units with homogeneous conditions of competition. Subsequently, a discussion of the criteria used for each of the two steps and an evaluation of this approach are provided as well.
Competition Law and Policy in Developing Countries: A Critical Assessment of the Challenges to Establishing an Effective Competition Law Regime
Authors: Dabbah Maher M.
Published: April 2022

This article offers a critical assessment of the challenges facing developing countries in their efforts to establish effective competition law regimes domestically. In doing so, the article considers the unique circumstances and interests of developing countries and gives numerous examples from practice in order to analyse all of the crucial aspects of this topic. The article considers the challenges facing developing countries in a wider cultural, economic, legal and political context in order to give proper reflection of the true reality prevailing in developing countries and demonstrate how competition law and policy in these countries is a unique topic, which raises issues different from those specialists are usually familiar with from the experience of the developed world in the field.
Anti-monopoly, National Security and Industrial Policy: Merger Control in China
Authors: Li-fen Wu
Published: April 2022

China has attracted the world’s attention since it enacted its Anti-monopoly Law (AML) in August 2007. Discussion relating to merger control is frequently focused on the AML, without adequate observation to other legislation. This article argues that competition matters, which are embodied in the AML, are not the whole of the existing regime of Chinese merger control. A three ‘pillar structure’ of the regime in relation to foreign mergers, that is, anti-monopoly review, national security review, and entry review, may be seen to have been formed. Competition, national security, and industrial policy may all be considered in the assessment of foreign mergers. While it remains to be seen how industrial policy will precisely be advanced in both legislation and practice, the policy may occupy a major position in the current regime. This is understandable given the current stage of the China’s economic transition. Policy makers are however urged to establish a merger control regime that is clear-cut and transparent, from which legal certainty flows.
The Reform of European Distribution Law
Authors: Subiotto Romano , Dautricourt Camille
Published: April 2022

This article analyses the new European Union (EU) block exemption framework for vertical restrictions in distribution agreements. The modernization of EU distribution law addresses the need for enhanced legal certainty resulting from the entry into force of the decentralized system of competition law enforcement in 2004. It also seeks to adapt to two recent major economic developments, namely the increased power of large retailers and the growing importance of Internet sales and advertising. These evolutions are reflected in the two main innovations of the new regime: the extension of the market share threshold to the buyer and the more detailed regulation of Internet sales. Furthermore, the new framework emphasizes the possible efficiencies associated with some hard-core restrictions, which represents a welcome step towards the Commission's objective of incorporating a more economic approach into competition law. However, this constitutes only limited progress since the Commission maintains its formalistic approach of blacklisting clauses that are a priori considered to undermine consumer welfare.
A Tale of Two Mergers: Irish Merger Policy after the Heineken and Kerry Decisions
Authors: Massey Patrick
Published: April 2022

The present paper reviews two key merger decisions of the Irish Competition Authority (hereinafter 'Authority'). Unlike the majority of mergers notified to the Authority, both involved significant competition issues. Kerry/Breeo was the first case in which the Authority addressed the issue of efficiencies and was the first merger decision by the Authority to be appealed to the High Court, while Heineken/Scottish & Newcastle was the first case referred back to the Authority by the EU Commission. The paper argues that the Authority's economic analysis in both cases was highly unsatisfactory. The Authority appeared to place greater emphasis on qualitative rather than quantitative evidence, and several aspects of its analysis appear inconsistent with economic theory. The Authority's treatment of efficiencies in the Kerry case may discourage efficiency enhancing mergers. The paper concludes with a number of recommendations for improving the Authority's merger control procedures in light of these two cases. These include the introduction of more effective internal checks and balances, greater emphasis on quantitative methods, and clarification of the Authority's approach to efficiencies. It also suggests amending the legislation to provide a right for third parties to appeal merger decisions of the Authority.