bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Economic and Financial Crisis, Regulation and Competition
Authors: Jenny Frédéric 
Published: April 2022

The financial crisis and the economic crisis it sparked are raising legitimate questions about the market economy’s capacity to promote growth and well-being. Although the 1990s and the early 2000s saw competition law acquire growing power to shape our economic activity, it is government intervention and regulation – more intrusive than competition law – on which hopes for economic recovery and a return to prosperity are now pinned.
However, we need to qualify the arguments of those who proclaim the death of economic liberalism and the end of competition law as the pre-eminent tool for regulating the functioning of markets, by analysing closely the roots of the crisis, its symptoms and the remedies envisaged, and then looking at the role of competition authorities in a time of crisis and how the crisis will influence the application of competition law. The competition authorities of the Organization for Economic Cooperation and Development (OECD) member countries engaged in just such an exercise in mid-February 2009 at a meeting of the Organisation’s Competition Committee. The remarks that follow are not a summary of these discussions, but rather a commentary on the main themes that were addressed.
Group Liability for Antitrust Infringements: Responsibility and Accountability
Authors: Burnley Richard 
Published: April 2022

The principle of ‘group liability’ can have huge significance for corporate groups yet there has been considerable uncertainty about its nature and scope. The European Court of Justice’s (ECJ’s) ruling in Akzo answers some questions but raises others. Does the logic of the ‘wholly owned’ presumption apply to shareholdings of less than but near to100%? How can the presumption be rebutted in practice? What is the position with respect to part-owned subsidiaries? What is the standard of proof?
This article considers the current position on group liability for cartel infringements under EU competition law, setting out and explaining in detail the basis on which parent companies may be held accountable for antitrust offences carried out by their subsidiaries. It goes on to consider how the principle might best be applied to achieve the overall regulatory goals of maximum deterrent effect while ensuring the fairest outcome in every case. In conclusion, the article suggests the need for a specific set of Commission Guidelines laying down the broad parameters of the group liability in EU competition law.
Pharmacy Benefit Managers: Fixing Healthcare Market Failures or Straining Regulatory Logics!?
Authors: Boscheck Ralf 
Published: April 2022

US healthcare spending has made healthcare market reforms a critical and ongoing priority of regulatory policy. Healthcare markets are intrinsically fragile simply because providers deliver heterogeneous services to generally ill-informed patients who cover only a fraction of the costs. Intermediaries respond to the root causes of failing market coordination by injecting knowhow, aggregating demand and screening supplies. But they themselves are subject to regulatory concerns, as non-transparent practices could give rise to deceptive conduct and the scale of operations may eliminate actual, or foreclose potential, competition. Pharmacy benefit managers (PBMs) are a case in point. PBMs organize the sale and reimbursement of prescription drugs between producers, pharmacists and diverse sets of private and public health plans. They are also the focal point in the current ‘drug-price blame game’ with independent pharmacists and drug producers zeroing in on PBMs as the main culprits. At the same time, the Federal Trade Commission (FTC) itself is called upon to reconsider its allegedly ‘laissez-faire’ position on healthcare markets, if only to avoid that a growing number of US states are to enact new regulations and licensing rules to curtail presumably abusive PBM behaviour. Observing the situation, Moody’s warned that if any of the legislative proposals aimed at reining in PBMs took hold, the value of the PBM model would be lost. Given the contradictory atmosphere, how is one to know whether structural relief is needed or, on the contrary, if overregulation should be averted? This article addresses some of the key issues emerging from the current debate. By way of introduction, section 1 sketches ‘PBMs: Market contexts and benefits’. Section 2 assesses ‘Monopolization fears and fiduciary duties’. Section 3 discusses ‘Federal enforcement actions and local regulatory capture’. Section 4 sums up.
Revisiting the Imprisonment Sentence under the Egyptian Competition Regime
Authors: Momtaz Mahmoud A. 
Published: April 2022

This article addresses the Egyptian competition regime’s adoption of type II errors (under enforcement) in hardcore cartel cases. This article provides an analysis of the Egyptian Cement Cartel Case, and draws general conclusions drawn from it. This article explores the extent to which the fine imposed in the aforementioned case (the maximum fine at the time) was sufficient enough to recoup the cartel’s overcharges and to create the necessary deterrence effect for future anticompetitive practices in general and from creating cartels in particular. This article further explores an alternative approach to addressing concerns about the adequacy of a fine sentence in light of the applicability of an imprisonment sanction impeded within the Egyptian Penal Code. Moreover, this article examines the limits of this alternative approach, and how it could be practically enforced by Egyptian courts. Interviews with senior judicial figures in the Egyptian legal system were conducted to explore the applicability and limitations of the imprisonment approach. The assessment is not limited to qualitative data, however, but also encompasses quantitative data to further support the findings. As a result, it was found that imprisonment sanctions would eventually result in better enforcement policies. That is to say that fines were found not to be the optimal sanctioning mechanism since they are either extremely low or impossibly high.
Do Pay-for-Delay Agreements Promote Innovation?: The Effects Across Innovation Cycles
Authors: de Barsy Laureen 
Published: April 2022

Since the first EU case in 2013, pay-for-delay agreements have been considered a restriction of competition by object under Article 101 TFEU. However, according to parties to these agreements, the harm caused to consumers can be balanced out by efficiencies in terms of increased incentives to innovate. The aim of this thesis is to assess this efficiency argument by studying the effect of pay-fordelay agreements on innovation. It appears from the analysis that this effect partly depends on the innovation cycle it relates to: either first-generation innovation or subsequent innovation. The impact on first-generation innovation is studied sequentially, by reference to the literature, for three dimensions of innovation: returns on innovation, R&D investments and the innovative output. We conclude that first-generation innovation is either promoted or nonaffected. Subsequent innovation is then studied from both a theoretical and an empirical point of view. The theoretical analysis focuses on two distinct issues: the incentives for first-generation innovators to invest in an improved version of their patented invention, and the ability of follow-on innovators to use existing knowledge. Based on this theoretical analysis, we put forward the revocation of a patent as a proxy for pay-for-delay agreements. We further use this assumption to design an empirical model whose objective is to estimate these agreements’ effect on innovation. We conclude that second-generation innovation is either unaffected or hindered.
Bid Rigging Analysis and Relevant Provisions in the Serbian Legislation
Authors: Jokovic Slavica 
Published: April 2022

The article reviews the main characteristics of bid rigging in public procurement regarding some forms, objectives and consequences, as well as various features of the industry, products and services that tend to facilitate collusion in public tenders. This article also describes the most common indicators of bid rigging in order to detect and prevent anticompetitive collusion. For the purpose of this analysis, the common definition of bid rigging and some practical examples are included in order to elaborate effective measures for its detection and prevention. Taking into consideration that certain public procurement rules may support bid rigging by lessening competition, this article gives an overview of the Law on Public Procurement in Serbia. It outlines relevant provisions that should boost competition and stimulate participation of potential bidders in the public procurement process. Some incentives concerning participation of small and medium enterprises in public procurement are examined, as well as certain new provisions aimed at increasing transparency, promoting integrity and preventing corruption in public procurement. This article also emphasizes the role of the Commission for Protection of Competition in fighting against bid rigging in public procurement. It includes examination based on legislative framework and empirical data of the Commission for Protection of Competition, that performs the activities in accordance with the Law on Protection of Competition. Some examples of bid rigging cases in Serbia are examined, as well. Finally, concluding remarks and recommendations are included.
Competition Law and IP Rights: Not So Complementary: Time for Re-alignment of the Goals?
Authors: Schmidt Hedvig 
Published: April 2022

This article argues through a US/EU comparative assessment of the intellectual property (IP) law goals and competition law goals that whilst the overarching goals of competition law and IP rights to enhance overall economic welfare are still complementary, internal conflicts within the two legal spheres are jeopardizing the achievement of these goals.
Within the IP laws the private/public reward/incentive to innovate equilibrium is now being tilted in favour of private interests due to recent developments in terms of rapid innovation in digital economy markets and technologies coupled with an expansion of IP rights and increase in patents grants and their width.
This has a knock-on effect on the application of the competition rules as a second-tier regulator of IP rights. However, the competition rules also face its own battle in keeping up with the fast-developing digital economy, the concerns regarding Big Data and online platforms raising questions about the sustainability of the ‘consumer welfare’ framework as an optimal standard to ensure effective competition in these markets.
Consequently, there is a danger that the competition rules and the IP rights will be out of quilter, risking stifling of innovation and harm to consumer welfare, unless adjustment is made within the two legal spheres.
The Anti-Competitive Effect of Price Controls: Study of the Indian Pharmaceutical Industry
Authors: Reddy Lokesh Rhea 
Published: April 2022

The objective behind imposing price controls on essential medicines is to ensure that the masses have access to these essential goods and services without prejudice. However, the prices of these medicines have significantly increased under price controls, defeating the purpose of the ceilings’ implementation. In this article, the author examines the reasons behind these price increases. In particular, the article examines whether price ceilings facilitate collusion in the pharmaceutical market of India. The scope of examination considers the effect of the ceiling on prices both before and after it was implemented. This is important because prices become significantly higher in a cartelized market, thereby preventing the masses from being able to access essential, life-saving medicines.
After examining studies of individual drugs and common market tendencies, the author concluded that price ceilings do facilitate anti-competitive practices. This is due to the marketbased price ceilings providing a focal point for tacit collusion. This is especially true in pharmaceutical markets with market-based price ceilings due to the presence of strong intermediary association and monitoring, evidence of communication, and underutilization of capacity. Similar collusive behaviour has been observed in markets across China, the United States, and the United Kingdom. At the end of the article, suggestions to mitigate the effects of price ceilings and prevent the consumers from being harmed further have been enumerated.
Tacit Collusion, Signalling, Cartelization, Pharmaceutical, India, Focal Point, Price Control, Ceiling, Market-based, Price-fixing
Disclosure in European Competition Litigation Through the Lens of US Discovery
Authors: Ruster Andreas , Massow Sebastian Von 
Published: April 2022

The disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany’s implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany’s implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future.
Disclosure, Discovery, Damages Directive, Comparative Law, European Law, German Law, US Law, Litigation Hold, Legal Privilege, Principle of Effectiveness
Remedying The Mischief Created By E-Commerce Entities In India
Authors: Udhwani Mayank 
Published: April 2022

E-commerce entities like Flipkart and Amazon have been alleged to be in violation of the laws governing foreign direct investment [‘FDI’] in India. Additionally, the business model adopted by them appears to be in contravention of the Competition Act, 2002. On 26 December 2018, the Department for Promotion of Industry and Internal Trade [‘DPIIT’] had issued Press Note 2 (2018 Series) which introduced a series of changes in the FDI norms in the e-commerce sector. (These changes have been incorporated in the FDI Policy vide Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) (Fifth Amendment) Regulations, 2019, dated 31 January 2019, Notification No.FEMA.20(R) (6)/2019-RB, available at, https://rbi.org.in/Scripts/BS_FemaNotifications.aspx?Id=11496 [Last accessed on: 21 April 2020].) The Press Note was purportedly introduced to protect the interest of small and medium sized enterprises in India. In this article, the author argues that the changes which are introduced by the Press Note go against the very purpose of their introduction as it leaves every stakeholder in a worse off situation by allowing easy circumvention. After highlighting the issues arising from amendments introduced by the Press Note in Part I of this article, the author delineates the anti-competitive nature of the business model of the e-commerce entities in Part II of this article. The author proposes that the appropriate method to remedy the problem surrounding the e-commerce sector would have been to make the appropriate amendments under Competition Act, 2002 rather than to opt for the FDI route.
Foreign Direct Investment, Competition Law, Foreign Exchange Law, Amazon, Flipkart, e-commerce entities, private equity, anti-competitive practices, circumvention of FDI norms, India
EU Merger Control After CK Telecoms UK Investments v. Commission
Authors: Monti Giorgio 
Published: April 2022

The General Court’s judgment in CK Telecoms is of major importance. On matters of substance, the Court explains for the first time how to apply the substantial impediment of effective competition (SIEC) test to mergers which do not create or strengthen a dominant position. The judgment calls into question certain aspects of the Horizontal Merger Guidelines. On matters of procedure, the Court sets out the standard of proof in merger control and reveals itself willing to examine the Commission decision in depth. However, it is argued that the Court’s disagreement with the decision is not always expressed convincingly. This episode reveals the need for the Commission to explain its theory of harm more clearly and the need for the General Court to explain its conclusions more fully. The legislator may see this episode as an occasion to consider the suitability of assessing mergers based on the application of ever more complex economic analysis.
EU Merger Regulation, judicial review, SIEC test, close competitors, standard of proof, efficiency, telecommunications, more economic approach, UPP test, oligopoly.
Who Is the Dominant Actor Under the US Merger Regulation?
Authors: Truong Hieu Trong 
Published: April 2022

The US appears to lean towards the model of unconcentrated and distributed competition regulation agencies, instead of a single concentrated one. Aside from the states and private litigants, in practice, this model mainly runs through the Department of Justice (DOJ), via its Antitrust Division, and the Federal Trade Commission (FTC)’s enforcement. Traditionally, under developments of the regulatory approach, the ‘quasi-judicial’ FTC could be understood to be a cornerstone of US antitrust law, particularly in its practical enforcement. However, it appears that the DOJ contributes far more policies on the specific regulation of mergers as well as consumption of merger remedies. By analysing the US model of ‘inter-agency competition’ under perspectives of merger control, this writing leads to proof that the DOJ is a dominant actor to some extent. More significantly, the DOJ’s performances partially bring the FTC and others to the uniformity of stipulated mergers as well as approved remedy fashions.
Merger regulation, merger remedies, merger guidelines, DOJ, FTC, clearance process, Sherman Act, Clayton Act, HSR Act, US antitrust.
Predatory Pricing and Platform Competition in India
Authors: Agrawal Akanshha 
Published: April 2022

Predatory pricing has been a concern since the inception of competition policy. Scholars from different schools have large disagreements about it, with some arguing that predation does not exist to others considering it a legitimate threat to competition. As predatory pricing theory is largely concerned with price cost test, the issue is further complicated while looking at two sided platforms. Due to network effects, the value of the platform for the users changes with the number of users on the network. Therefore, the price of services is influenced by multiplicity of factors rather than just the cost of the service.The aim of the paper is to note such economic theory and apply this in the Indian jurisprudence on predatory pricing. Part I of the paper provides a non-technical introduction to the economics of two-sided platforms. It explains the rationale behind below cost pricing and critiques the usage of a price cost test for determining predation in case of two-sided platforms. Part II touches on the international regulation of predatory pricing and establishes the context for the Indian jurisprudence. Part III discusses the Indian jurisprudence surrounding predatory pricing. This elaborates on the legislative history and the judicial decisions concerning predatory pricing and platform competition in India. This part argues that the Indian jurisprudence has completely disregarded the economic theory of predation in case of two-sided platforms and the adjudications are merely based on a price cost test.
Predatory Pricing, India, CCI, Competition Law, Chicago School, Game Theory, Uber, Deep Discounting, Predatory Pricing Theory, Abuse of Dominance
Inability-to-Pay Fine Reductions in European Cartel Cases
Authors: Kokkoris Ioannis , Gabison Garry , Pahari Nandini 
Published: April 2022

The European Commission can consider ‘the economic and social context’ of cartel members when imposing fines. This article investigates the process behind the inability-to-pay fine reductions. These fine reductions are rare and its process opaque. This article looks at the European Commission opinions and the case law to shed some light on the process. This article also collects data on companies involved. We found that 18.3% of applicants were granted some reduction. Applicants behave as expected: companies that are more likely to become insolvent are more likely to apply for a fine reduction. But the European Commission does not grant fine reduction based on insolvency propensity. These results show the importance of transparency to avoid further waste of resources in applying and investigating fine reduction claims.
Inability to Pay, Fine Reduction, Cartel, European Commission
Innovation: An Antitrust Trojan Horse?
Authors: Aron Shaurya 
Published: April 2022

Innovation is regarded as the spearhead of consumer benefit in a competitive market. However, a strategy of predatory innovation presents the innovator with a shower of opportunities to close down the market and drive out competitors, thereby directly affecting consumer sovereignty. An inquiry into the relationship between innovation and market structures is not only important to assess the impact of such forms of the market on innovative activities, but also for a well-founded and evidenced framing of principles of antitrust laws in respect of Intellectual Property Rights (‘IPRs’). Therefore, this article makes a case for the legal recognition, across jurisdictions including India, of predatory innovation in the context of high-tech markets to uphold the objectives of the antitrust regime, i.e., consumer welfare. The article traces the progressive steps taken by developed jurisdiction in this context and highlights how a similar approach could be adopted by India, fitting its current framework.
This article, firstly, discusses the impact the market structure has on the motives and incentives for a manufacturer to innovate; secondly, brings forward the anti-competitive nature of predatory innovation in high tech markets; thirdly, advocates for the need for legal recognition of the conduct of Predatory Innovation while noting the counterarguments; lastly, concludes with identifying the effects of recognizing Predatory Innovation as anticompetitive conduct.
Innovation, Predatory, Market Structures, Monopoly, Intellectual Property Rights, India, High-tech Markets, Interoperability, Platforms, Network Effects
The Role of Regulation in EU Competition Law Assessment
Authors: Dunne Niamh 
Published: April 2022

The relationship between competition law and regulation is a perennial question in competition policy. This article considers what happens when we apply competition law within markets already subject to a degree of alternative regulatory intervention – and, more specifically, how the presence of regulation can inform the antitrust assessment exercise. First, it asks why we might need, but also be reluctant, to apply competition law to market problems arising in regulated sectors. It then examines the potential impact of regulation within the task of competition law assessment from three overlapping perspectives: (1) where regulation forms an integral part of the ‘legal and economic context’; (2) where a regulatory standard is applied to set the boundaries of competition on the merits; and (3) where competition intervention functions as a means of ‘course correction’ to the underlying regulatory regime.
EU competition law, regulation, State action, regulatory gaming, data protection