The EU, Competition Law and Workers Rights

The paper delves into the ways in which EU competition law affects the right of workers to combine with each other and act, collectively, in the furtherance of their rights and interests at work, in particular by means of collective agreements concluded with one or more employers. It begins by opposing the limited ‘labour exemption’ contained in the recent competition caselaw and contrasts that with a more traditional ‘labour law’ approach, that would typically see collective bargaining as a fundamental, and universal, labour rights to be enjoyed by all workers, or in the alternative will have to integrate the asymmetry of bargaining power between labour and digital monopsonies. We put forward a more nuanced and balanced approach, by reference to the concept of ‘predominantly personal work’, that could act as the new watershed concept around which labour rights and competition law could define their respective fields of operation and which may already inspire the recent Commission’s proposals enabling self-employed without employees (“solo self-employed”) to access the right to bargain collectively on a number of issues with digital platforms.

The lively debate about the right of gig workers to bargain collectively stems from the idea that European Union (EU) competition law treats this group of workers worse than it treats employees. Namely, it is common to argue that employees, unlike gig workers, are permitted to conclude collective agreements because they are not undertakings and, therefore, not subject to EU competition law. In sharp contrast, by analysing the EU notion of undertaking, this article demonstrates—and this is the first of its theses—that in the labour market, which is the market that should matter in relation to the effects of collective agreements, employees are as much undertakings as any other worker, such as gig workers or other self-employed workers. The article further maintains that the reason employees are currently allowed to bargain collectively, while other workers are not, is to be found not within competition law, but outside it. At present, employees’ collective agreements are exempt from the application of EU competition law because employees enjoy the right to bargain collectively, among other social rights, and because the Court of Justice of the European Union has (rightly) recognized that the protection of these rights must trump the protection of competition. Consequently, this article argues, as its second thesis, that if Articles 151–161 TFEU were interpreted so as to grant social rights to workers other than employees, the collective agreements of gig workers and other under-protected self-employed workers would be exempt from EU competition law, as are those of employees. At the same time, however, this paper recognizes that, in the absence of such an interpretative turn, antitrust legislators and policy makers could aid gig workers and other under-protected self-employed workers by excluding them and their collective agreements from the scope of application of competition law. This—and here is the third thesis of the article—would not force the interpretation of antitrust notions and rules and would thus not require antitrust authorities and courts to use competition law to pursue goals different from the protection of efficiency and innovation.

While Australia is still heavily reliant on 'old economy' industries, such as primary production and manufacturing, there is now general recognition of the importance of high-value 'new economy' industries. The term 'new economy' refers to industries such as computer software and hardware, the internet, mobile telephony, biotechnology and others that are primarily based on intellectual property rights (IP rights) and that are undergoing rapid technological change. The appropriate relationship between competition law and IP rights has been the subject of review both in Australia and in the United States of America. In Australia, the application of the Trade Practices Act 1974 (Cth) (TPA) to IP rights has been the subject of an independent inquiry and the Government has announced that it proposes to amend the TPA to take account of the recommendations of the Review Committee. In Washington D.C., the Federal Trade Commission and the Department of Justice have, since February 2002 been conducting lengthy public hearings on Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy. In the past, the reward/incentive function for IP rights has been subordinated to the policy objective of competition law; however, the stringent application of competition law may result in a loss of consumer welfare. Developments in the 'new economy' industries are throwing up new problems for competition lawyers. The purpose of this paper is to consider one such problem, namely, the tying or bundling of two or more products into one integrated product. Increasingly, firms within the computer industry are bundling one or more separate products through technological integration. Bundling is also occurring across different sectors in 'new economy' industries. The courts in Australia have very little experience of the complex issues that arise when allegations are made about anti-competitive bundling or tying in relation to the supply of computer products. The paper falls broadly into two parts. The first part considers some special characteristics of computer based markets, and the elements that need to be established in order to make out a contravention of s 46 of the TPA.The second part of the paper considers two different types of technological tying: first, the tying of two separate products through the creation of one integrated product; and secondly, tying the sale of a product with its repair or servicing in such a way that independent service organizations (ISOs) are foreclosed from the market. Both types of technological tying are open to a claim that they are anti-competitive and constitute a form of leveraging contrary to s 46 of the TPA.

This article uses the issue of compulsory licensing of copyright to explore the relationship between intellectual property law (specifically copyright law) and competition law in the EU. It takes as its starting position the proposition that competition law is the ultimate restraint on the monopoly potential of intellectual property with intellectual property rights (IPR) located in competition law. However, it argues that it is too simplistic to cast the approach of the European Court of Justice (ECJ) in theIMScase purely as one of competition law being allowed to trump copyright. Instead, it sees the judgment as an example of doctrinal compromise for both legal subsystems with competition law placing limits on the invocation of copyright as the basis for a refusal to deal, while suggesting a remedy in the form of compulsory licensing which runs contrary to its conceptual roots in private law and notions of freedom of contract.

This article uses the issue of compulsory licensing of copyright to explore the relationship between intellectual property law (specifically copyright law) and competition law in the EU. It takes as its starting position the proposition that competition law is the ultimate restraint on the monopoly potential of intellectual property with intellectual property rights (IPR) located in competition law. However, it argues that it is too simplistic to cast the approach of the European Court of Justice (ECJ) in the IMS case purely as one of competition law being allowed to trump copyright. Instead, it sees the judgment as an example of doctrinal compromise for both legal subsystems with competition law placing limits on the invocation of copyright as the basis for a refusal to deal, while suggesting a remedy in the form of compulsory licensing which runs contrary to its conceptual roots in private law and notions of freedom of contract.

It is generally viewed that Intellectual property protection and competition law are odds with each other. Is there really any tussle between intellectual property protection and competition law? Intellectual property law creates and protects monopoly power and the other seeks to exclude it. IP exclusion provisions are included in the Indian Competition Act, 2002 in Section 3(5). This is to provide enforcement to intellectual property rights. But protection of intellectual property rights are not per se violates any competition provisions. The objective of competition law is to prohibit anti-competitive practices and the objective of both the stream is wealth maximization in any economy. Intellectual property protection is necessary to foster innovation and choices of products in the market. It infuses efficiency in the market and increases consumer welfare. India is in the nascent state of its administration of competition laws. There are sizable number of cases came before the Indian competition authorities (CCI) and Indian courts. Cases against Microsoft India and abuse of dominant case against Ericsson filed by an Indian company named Micromax is only the beginning of the interface cases on intellectual property and competition law. There is no sufficient case laws and jurisprudence is available in India in guiding the Indian authorities and courts on the interface between intellectual property and competition. It is necessary to make an analysis of the jurisprudence in the US and EU. First part of this paper deals with the US Antitrust Act, 1890 and analysis of a number of cases dealt by the US courts. The EU Regulations and cases are clearer on issues of intellectual property and competition law. Indian jurisprudence is not clear so far and few cases are dealt by the CCI and Indian courts. The study concludes that Indian authorities should learn from other jurisdictions and the jurisprudence will act as guideline for Indian authorities.

This article investigates the United Kingdom’s membership of the European Union (EU). This examination considers how the EU has provided greater protective employment rights for workers, through provisions in the Treaty and various Directives, than had been achieved through the UK’s own legislative programme. However, these rights are often inaccessible due to governmental intransigence and a lack of awareness by workers of many employment rights. An empirical study was conducted from the perspective of workers and their not-for-profit advisers to consider the consequences of these barriers and to offer potential solutions to the problems.

The paper, through a comparative approach, aims to analyze the applicability of competition law to the collective bargaining between trade unions and associations of entrepreneurs. In the perspective of the protection of workers rights, we propose, through a balacing of interests, to leave out some matters - i.e. wages, work hours and conditions - from the application of competition law. By contrast, we apply the principles of antitrust law to the restrictive effects on the relevant markets of goods and services, defining, at the same time, a taxonomy of possible anticompetitive effects on those markets.

In the gig economy, workers could be subject to exploitative and coercive practices by platforms and their stringent labour algorithms. Since gig workers are not defined as typical employees, the Chinese labour law system fails to adequately protect gig workers. Furthermore, the limited scope of labour law protection is also another reason for the ineffectiveness of the Chinese labour law system. Even if gig workers can be identified as employees, the regulation of labour algorithms is uncovered by the existing labour laws. Additionally, collective bargaining rights of gig workers may help but as explained in Section 4, they are still immature and collective barging practices are likely to violate the Chinese Anti-Monopoly Law. This article claims that the enforcement of the Anti-Monopoly Law can be an alternative approach to protecting gig workers as the gig platforms may constitute a labour monopsony. Therefore, anti-trust enforcement can step in and punish exploitative and coercive practices harming gig workers. However, there are limitations of the Anti-Monopoly Law in dealing with these practices and thereby the advantages of the Chinese labour law system regarding the protection of gig workers should still be taken seriously.

This article examines the intricate relationship between competition law and collective rights in EU regulations, critically assessing whether and to what extent self-employed workers can exercise collective rights based on the Court of Justice of the European Union (CJEU) case law. Additionally, it considers the European Commission’s recent initiative to acknowledge and expand the collective dimension of self-employed workers. To address the specific collective rights of genuine self-employed workers, the Commission, acting in its capacity as the EU’s competition authority, has taken steps in the Guidelines on the Application of Union Competition Law to Collective Agreements to steer towards a renewed interpretation of the scope of application of Article 101 of the Treaty on the Functioning of the European Union (TFEU), with the aim of excluding collective bargaining agreements concluded by or on behalf of certain categories of soloself-employed workers from its scope. In light of this move, the article provides a critical analysis of the Guidelines and evaluates the degree to which the current EU legal framework aligns with fundamental collective rights. while attempting to offer renewed hermeneutical solutions to alter the consolidated line of systematic construction of the relationship between collective rights and competition law.

Chapter 7 Intellectual Property Rights and Competition Policy

The intersection between competition law and intellectual property has been a contentious issue since the very beginnings of European Communities (EC) competition law. Both intellectual property and competition law pursue the aim of enhancing economic welfare and innovation, but their direct objectives seem to be in conflict. Whereas intellectual property focuses on the reward of inventive effort and the inventor’s incentives to innovate by conferring an exclusive right on the use of the invention, competition law emphasises the dissemination of innovation by ensuring diffusion and access.

Approximately two billion people in the world lack regular access to essential medicine. Worse, in parts of Africa and Asia, about 50% of the population lack access to essential medicine. Thus, more than seven years after the adoption of the Doha Declaration on TRIPS and Public Health, Acquired Immunodeficiency Syndrome ('AIDS'), together with malaria and tuberculosis, are still wrecking havoc in the world and millions still lack access to essential medicine. This paper examines how competition law can be and is being used to address the problem of excessive pricing in some developing countries. In countries like South Africa, India and Thailand, competition law is proving useful in addressing the access problem. The author argues that because competition law aims to protect competition and the competitive process and also protect consumers from deceptive, unfair or anticompetitive conduct, it can be an effective mechanism in addressing the problem of drug availability and affordability.

ABUSE OF DOMINANT POSITION IN RELATION TO INTELLECTUAL PROPERTY RIGHTS IN EU COMPETITION LAWThe exercise of intellectual property rights may be contrary to the competition law. The role of first mentioned law is to protect the interests of their owners from unauthorized use by competitors, which naturally leads to the creation form of monopoly. Competition law is aimed at countering monopolies and thereby responding to the restriction of competition, which may also be a result of exercise of intellectual property rights. The publication analyses in what way such rights can abuse dominant position. In particular it will focus on such practices as refusing to grant a license, denying access to a key device or abusing collective management of intellectual property rights. The publication will try to determine conditions which qualify exercise of intellectual property rights as abuse of dominant position.

This study aims to evaluate the implementation of the balance of protecting the rights of employers and workers in Law Number 6 of 2023 concerning the Stipulation of Government Regulation instead of Law Number 2 of 2022 concerning Job Creation into Law or the Job Creation Law (hereinafter referred to as Law 6/2023) post-the Constitutional Court or Mahkamah Konstusi (MK) Decision No. 168/PUU-XXI/2023: a socio-legal study. Literature studies were conducted as a basis for answering various problems in this study. Then, data processing was carried out qualitatively. The results of this study indicate that Law 6/2023, after the Constitutional Court Decision, underlines the importance of normative workers' rights, which have an impact on legal certainty and benefits for workers. Law 6/2023) after the Constitutional Court Decision tends not to affect entrepreneurs. The evaluation results of the implementation of the Job Creation Law after the Constitutional Court Decision indicate that the issue of protecting employers' rights is crucial. Therefore, Law 6/2023, after the Constitutional Court Decision, is expected to be amended not only to address the imbalance in workers' rights but also the rights of employers. Thus, the results of this study are expected to be used by the government and the legislature to form employment laws and ensure fair implementation of the balance between protecting entrepreneurs.' and workers' rights in Law 6/2023 after the Constitutional Court Decision by the constitution, Article 27 paragraph (2), Article 28D paragraph (2), and Article 33 of the 1945 Constitution.