The role of economics and the quality of antitrust enforcement: an empirical analysis of the CMA/OFT antitrust cases and comparison with DGCOMP

This article reviews the creation of the Competition and Markets Authority (CMA), to be formed from merging the Office of Fair Trading and Competition Commission (CC). It examines the benefits claimed by the government for the CMA but finds these ‘soft’ and not all merger-specific. Much complexity is needed to preserve good parts of the present system. The issues in antitrust, merger control, regulation, and market investigations are reviewed and the CMA’s structure and governance discussed; CMA ‘panel’ members may play a role in antitrust cases after all. The overall assessment is not wholly unfavourable. Much will depend on how those running the new CMA exercise their considerable discretion. A major concern is to retain existing OFT and CC staff and CC members. Various measures of success are offered (necessarily ‘soft’ like the targets); the article concludes that the CMA will be judged (stringently in view of the great benefits claimed by the government) by whether it: operates the market investigation regime, including remedies, well; improves antitrust decision-making; justifies itself on appeal; keeps the current high international reputation enjoyed by the CC/OFT; and retains the existing high-quality staff.

This chapter discusses the application of competition law to mergers, focusing on the UK system. Where a relevant merger situation is created, the Competition and Markets Authority (CMA) has the power to review the merger. Unlike in the EU, notification is not compulsory. The CMA may clear the merger, clear it subject to conditions, or refer it for further consideration to an independent Inquiry Group made up of members of the CMA Panel. The Inquiry Group may clear the merger, clear it subject to conditions, or block it. The test of a merger’s acceptance is that of whether it substantially lessens competition. UK merger decisions may be appealed to the Competition Appeals Tribunal.

This chapter examines issues of burden and standard of proof that arise in competition proceedings. It first provides an overview of relevant terminology such as burden, legal burden, evidential burden, and standard of proof before discussing the burden of proof, presumption, and standard of proof with regard to civil claims and criminal cases. It also considers the burden of proof, standard of proof, and presumption of innocence in appeals made to the Competition Appeal Tribunal (CAT) against infringement decisions. In particular, it explains the criminal nature of the appeal proceedings and shows that the legal burden of proving the infringement remains on the Competition and Markets Authority (CMA). The CAT decisions in Napp Pharmaceutical Holdings v DGFT, Claymore Dairies v OFT, and Flynn Pharma Ltd & Pfizer CMA with respect to standard of proof and presumption of innocence are cited.

The need for better legislation for generic drug manufacturers

Integrate or Separate - Institutional Design for the Enforcement of Competition Law and Consumer Law

The drug company Aspen may have to pay the NHS £8m (€8.7m; $9.7m) after an investigation by the Competition and Markets Authority (CMA) into an arrangement it made with two...

Arguably, the most famous line ever uttered on the decision by British voters of 23 June 2016 to exit from the European Union (EU), is, and always will remain, ‘Brexit means Brexit’. These were the words of the serving British Prime Minister at the time. The triggering of Article 50 of the Treaty on European Union (TEU) – marking the start of the two-year negotiations/ detachment process – eventually occurred on 29 March 2017. That process drew to its end on 29 March 2019. The UK however continues to be an EU Member State. At the time of writing, the UK’s exit from the EU was expected on 31 October 2019, though it is highly uncertain whether this indeed will happen. This article addresses the competition law related challenges, opportunities and implications of the UK becoming a non-EU Member State from an international perspective. The article analyses in particular the future place and role of the UK competition law regime internationally. The article considers the future international agenda of the UK Competition and Markets Authority (CMA) and the international orientation and standing of the UK competition law regime as a fully independent regime, which is both completely UK and European in orientation.

The file associated with this record is under a 24-month embargo from publication in accordance with the publisher's self-archiving policy, available at http://www.oxfordjournals.org/en/access-purchase/rights-and-permissions/self-archiving-policyf.html. The full text may be available through the publisher links provided above.

Competition Law is Limiting Economic Growth Globally: What Governments need to do about It. And The UK Government's Strategic Steer To the UK Competition and Markets Authority (CMA)

By making a distinction between companies that gain dominance via fair competition and those that abuse it to suppress market rivalry and take advantage of customers, India's Competition Act, 2002 seeks to prohibit the abuse of dominant market positions. Unfair pricing and discriminatory conditions that harm competitors and restrict consumer options are examples of behaviors that are addressed by the Act. In order to uphold the Act and encourage competitive market conditions that benefit customers and the expansion of the sector as a whole, the Competition Commission of India (CCI) was founded. But it might be difficult to tell the difference between abuse and legitimate authority. Key terminology like "enterprise" and "group" are defined throughout the Act to make its scope more clear. An "enterprise" is any organization that produces, distributes, or controls goods and services, whereas a "group" is made up of several businesses that have substantial voting rights or managerial authority over one another. Abuse of a dominating market position is prohibited by Section 4 of the Act, which lists actions such as restricting market access, unfair pricing, and barring rivals. Two primary viewpoints are used to assess dominance: structural (market share) and behavioral (capacity to function independently of rivals). When evaluating market power, the behavioral definition is used since it is more thorough. Prior to the Act, market share was the main determinant of dominance; however, the SVS Raghavan Committee placed a strong emphasis on analyzing a company's effect on competition. Comparably, in accordance with EU legislation, Section 18 of the UK's Competition Act 1998 forbids the misuse of market dominance. It draws attention to actions such as discriminatory terminology, restricting policies, and unfair pricing. By addressing matters such as merger control and market investigations, the Enterprise Act of 2002 promotes competition even more. In the UK, competition laws are enforced by the Competition and Markets Authority (CMA). Although the competition rules of the UK and India are similar, the UK Act more closely resembles EU law, particularly with regard to market dominance, albeit with minor jurisdictional distinctions.

Merger notifications to the European Commission (Commission) under the EU Merger Regulation (EUMR)1 form a central part of the workload of most competition lawyers in private practice, in particular those working in the large commercial firms in Brussels and elsewhere in the European Union. Pre-Brexit, this would have been the case for their colleagues working in London and other legal centres in the UK, although many cross-border transactions that they work on will still be reviewed by the Commission, as well as by the Competition and Markets Authority (CMA).2 Following a slight drop in notifications in 2020

Competition Infringements and Procurement Blacklisting

We extend the dataset, revise, and improve the methodology applied in empirically measuring the role of economics in antitrust enforcement by European Commission’s DG for Competition (EC’s DGCOMP), first examined in Katsoulacos and Makri (2021, this journal). Infringement decisions from 1992 to 2021 are now examined, including a number of important digital and hi-tech market decisions from 2018 to 2021. The revised methodology significantly clarifies the role of potential assessment screens in identifying eight (rather than five) potential Legal Standards, also taking into account the Quick Look standards. Additionally, we now distinguish evidence presented depending on the burden of proof. Thus, we capture the role of economic analysis and evidence applied by DGCOMP, in proving that conduct is anti-competitive, through the new Cumulative Economic Analysis Indicator, as distinguished from the role of efficiency analysis presented by defendants and then assessed by DGCOMP, which is now independently measured; combined, these define a new indicator of the Total Economic Evidence presented during assessment. The quality of enforcement by DGCOMP, measured by the closeness of the weighted average Cumulative Economic Analysis Indicator empirically identified for different conduct types to its theoretically optimal (decision error minimizing) level, is captured and its evolution is considered and compared to other Competition Authorities.

ANTITRUST AND INEQUALITY

The context for this book is the increasingly complex relationship between economic theory and competition law which gives rise to lively political and academic debate on the direction competition law should take in a more global and innovation-oriented market place.