Antitrust Proceedings Research Articles

The Privacy/Antitrust Curse: Insights from GDPR Application in Competition Law Proceedings

In response to the emergence of large online platforms whose business model revolves around the collection and processing of personal data, it is usually suggested that competition and data protection are synergistic, hence requiring an integrated approach. In this respect, Europe represents the testing ground for evaluating how privacy breaches may inform antitrust investigations. Indeed, the General Data Protection Regulation (GDPR) on the one side and the German Facebook antitrust decision on the other side are considered the benchmarks of this new stance aimed at linking market power and data power. This paper tests the concrete viability of such an approach, analyzing how data protection rules and principles have been applied in antitrust proceedings by the European Commission and national competition authorities. Notably, the paper aims at demonstrating the fallacy of the narrative which describes the relationship between privacy and antitrust in terms of synergy and complementarity. Furthermore, the paper maintains that the principles recently affirmed by the European Court of Justice in Meta do not appear conclusive in addressing the issue. The strategic use of privacy as a business justification to pursue anticompetitive advantages currently addressed in the numerous Apple ATT investigations indeed shows the tension between these areas of law. Therefore, rather than strengthening the antitrust enforcement against gatekeepers and their data strategies, the inclusion of privacy harms in antitrust proceedings turns out to be a potential curse for competition authorities, providing players with an opportunity for regulatory gaming to undermine the antitrust enforcement. JEL Codes: D83, K21, L12, L4

Defining a Relevant Market for Digitals Platforms: Theory and Regulatory Practice

On many markets digital platforms hold a dominant position, which requires an assessment of their actions from an antitrust point of view. To do this, it is necessary to assess the boundaries of the relevant market, which is associated with a number of methodological problems. Firstly, due to the presence of the phenomenon of zero prices, traditional methodology can produce incorrect results. Secondly, digital platforms function on multisided markets and thus it is required to define market boundaries for each group of agents.In this article theoretical approaches to assessing market boundaries for digital platforms and antitrust practice are considered. The paper dwells on the theoretical and methodological aspects of the definition of market boundaries for digital platforms and how these definitions turn into antitrust practices and influence the decisions made by regulatory authorities. The author argues that it's the market boundaries' definition that was the key influence on many antitrust proceedings against digital platforms. In addition, methodological approaches to determining market boundaries of Russian and foreign antimonopoly regulators are compared. Based on this analysis, an approach to determining market boundaries for digital platforms is proposed.

Learning‐by‐doing and contract choice

AbstractThis study examines vertical agreements that occur when suppliers experience learning‐by‐doing, which makes them more productive over time and poses a competitive threat to their rivals. Consequently, a dominant supplier arranges payments that reference the rival good. This study contributes to the existing literature by showing that the dominant supplier chooses specific contracts to reap optimal benefit from its rival's efficiency gains. These contracts restrict the rival, harm consumers, and reduce welfare when the rival is exceptionally efficient or expects significant improvements through learning‐by‐doing. Therefore, this study emphasizes the significance of foreseeable innovations and their implications in antitrust proceedings.

Big data as a source of market power of digital platforms

Big data is widely used by digital platforms in multi-sided markets, which are often considered monopolistic. Big data is analyzed as a potential source of market power of digital platforms, and its characteristics as an economic resource are considered. Arguments for classifying certain categories of big data (for example, historical data) as club goods are specified. The use of big data by digital platforms has already become the object of antitrust proceedings. Based on the analysis of those cases, as well as the review of scientific literature, the relationship between the market power of digital platforms and their use of big data is examined. Firstly, big data can be used by platforms while implementing the strategy of price discrimination. Secondly, the usage of big data creates barriers to entry for new platforms, which are caused by the lack of access to data and increased spending on hardware, software and hiring personnel. Finally, big data can be used by digital platforms to exert market power on adjacent markets and create discriminatory conditions. Based on this research, recommendations for antimonopoly regulation of digital platforms in Russia are provided. Several structural alternatives to antimonopoly regulation of big data are considered: the requirements for anonymized big data disclosure; the creation of a big data market; the partial restrictions on generating and using big data in certain ways (similar to the new regulation in the EU).

The media coverage of antitrust enforcement: Evidence from Italy

This paper studies the media coverage of the antitrust proceedings completed by the Italian Antitrust Authority between 1994 and 2019. The empirical analysis considers the news on antitrust investigations published in the top Italian newspapers by circulation. The data reveal that the newspapers favor the conclusion (against the start) of proceedings, antitrust cases regarding immaterial services and investigations that establish a violation of antitrust law. In addition, the probability of media coverage increases if foreign firms are involved in cartel proceedings. While the press equally covers cartels and abuses, the imposition of unfair conditions is the most mentioned antitrust offense. These results are important for the public dimension of antitrust law and antitrust enforcement. An unbiased media coverage of antitrust enforcement can in fact foster the crucial collaboration of third parties in reporting alleged antitrust infringements. In addition, policymakers can draw crucial information from completed antitrust investigations and consider the possible regulation, deregulation or re-regulation of industries and companies frequently involved in the antitrust cases.

Rights of Complainants Before the European Commission—a Critical Analysis

Third-party complainants play a crucial role in the enforcement of competition rules.1 As the European Commission itself noted, ‘[t]he complainant can help the Commission in supplying evidence of the anticompetitive practice and thus in establishing the infringement’.2 Given the authority’s limited resources, which result in a limited ability to conduct an ongoing screening of several markets, complaints are the most important source of information for the Commission. Unsurprisingly, the landmark decisions issued in recent years, e.g. Google Shopping, were driven by complaints filed by several market participants.3 ... Against this background, one should expect the legal position of complainants during antitrust proceedings before the Commission to be effectively protected. A lack of such protection can result in reduced incentive to file a complaint. This is even more relevant for less affluent victims for whom it is sometimes difficult to obtain specialised legal support or to make successful private enforcement claims and who are therefore even more dependent on the enforcement by the Commission. On the other hand, there are arguments for limiting the procedural rights of complainants, which are focused on the efficiency of proceedings and good management of resources.4 In theory, a balance is struck between incentivising complaints and the usage of the Commission’s resources through prioritising cases or choosing criteria to reject specific complaints.5 We would like to take a critical view of this balance through the lens of effective judicial protection of complainants’ rights.6

Is Data-Monopoly Banned by Antitrust Law? Antitrust and Digital Economy in the US: Ideas, Institutions, Decisions and Impacts, 1998-2023

This study employs case studies and historical research method to scrutinize the causes, processes, and outcomes of antitrust litigation against major internet platforms spanning the past quarter-century, commencing with the inaugural U.S. Internet antitrust case in 1998. Due to their intricacy, some antitrust proceedings remain ongoing, involving protracted timeframes and substantial financial resources. Nonetheless, the impetus and consequences of these cases are already affecting prevailing and forthcoming antitrust laws and policies. Given the significant role of major internet enterprises in the digital economy era, their adherence to equitable competition principles will engender an indelible impact on global economic development. Drawing on retrospective analysis, this study aims to elucidate the laws and trends undergirding antitrust regulations and practices within the digital economy milieu and to explore prospective transformations, pointing out the lack of regulation on data-monopoly and corresponding threats to the fair competition, thereby affording enlightenment for the realm of antitrust law, public policy-makers, and large technology enterprises.

Does judicial effort matter for quality? Evidence from antitrust proceedings in Russian commercial courts

Does judicial effort matter for quality? Evidence from antitrust proceedings in Russian commercial courts

On the Virginia school of antitrust: Competition policy, law & economics and public choice

Competition policy (antitrust policy in the United States) engages the subfields of microeconomics (price theory), industrial organization, law and economics, and public choice. The last was a latecomer to the list because of the persistence of naïve “public interest” explanations for competition policy’s origins, purposes, and effects. Even after a half-century of policy analyses in general and of public regulation of prices and conditions of entry into myriad industries around the world—showing that such interventions almost always benefit politically powerful special interests rather than society at large—most scholars still carelessly and mistakenly assume that private plaintiffs, attorneys called to the antitrust bar, the public law enforcement agencies, prosecutors, judges and other parties involved in antitrust proceedings have no motivations beyond preserving competitive marketplaces. My aim here is to bring antitrust policy more firmly within the ambit of public choice reasoning, which helps explain why antitrust intervention often either is ineffective or perverse. Competition law enforcement is a first cousin of economic regulation and, hence, should be evaluated as such.

Procedural Rights and Obligations of Third Parties in Antitrust Investigations and Proceedings by the European Commission

This Article provides a systematic overview of the procedural rights and obligations of third parties in investigations and proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 TFEU. Third parties are all natural or legal persons, undertakings and associations of undertakings other than those under investigation. This article examines the possibilities for third parties to inform the European Commission about a suspected infringement and to trigger an investigation by the European Commission; the obligations and rights of third parties when responding to requests for information sent to them by the European Commission, when participating in interviews, and when submitting to inspections conducted by the European Commission; the possibilities for third parties to obtain information about pending proceedings and to express their views in them; the rules on the use of languages; and the protection of business secrets and other confidential information, and the restrictions on the use of information obtained by third parties through their participation in the European Commission’s proceedings. Procedural rights and obligations, Third parties, Antitrust proceedings and investigations, European Commission, Enforcement of Articles 101 and 102 TFEU, Informants, Requests for information, Inspections, Use of languages, Protection of confidential information

The Proposed EU Digital Markets Act: A New Era for the Digital Economy in Europe

The analysis presented in this article suggests that the Digital Markets Act (DMA) would be a game-changer for the digital economy. From a legal perspective, the DMA should be regarded as a sector-specific, ‘ex ante’ regulation, i.e., a ‘lex specialis’ in relation to the general EU competition law, which relies on ‘ex post’ enforcement. The DMA restricts self-interested behaviour by ‘big tech’ and grants smaller competitors affirmative competitive rights, even where there is no anticompetitive behaviour by big tech under general EU competition law. By its terms, the DMA is aimed at ensuring ‘contestable and fair digital markets’, irrespective of consumer welfare. To achieve this objective, it will impose generic obligations on big tech that resemble remedies previously employed by the Commission in specific antitrust enforcement measures or that address antitrust complaints that the Commission is currently investigating. Unlike conventional EU competition law, despite the DMA’s stated purpose, its main effect is not protection of European internet users (although they may benefit indirectly), but the protection of smaller European competitors against US ‘big tech’. These smaller competitors would no longer need to resort to the current system of ex post enforcement against abuse of monopoly power, which is believed to be insufficiently equipped to deal with digital monopoly power. Antitrust proceedings take a long time (five years or more is no exception), and in the meantime the competitive harm can increase. In many cases, the DMAwould make reliance on this slow, ex post enforcement program unnecessary. Instead, it would enable ‘ex ante’ enforcement actions to ensure competitive markets under the threat of very large fines. Due to its far-reaching terms, the DMA would likely require changes to the business models of big tech. The DMA restates Adam Smith’s famous quip ‘[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest’. For the digital economy, the saying would be rewritten as: ‘It is not from the regard for their own interest of the gatekeepers that we expect our dinner, but from their benevolence’. Mandatory ‘big tech benevolence’ may well benefit ‘business users’, i.e., people or companies that use platforms to provide goods or services to internet users. Changes in big tech’s business models prompted by the DMA, however, might also affect free internet services. In any event, the DMAwould give rise to significant changes and friction in the operation of the digital economy, which may result in frequent disputes and enforcement actions.

Cartel criminalisation and due process: the challenge of imposing criminal sanctions alongside administrative sanctions within the EU

There is increasing debate within the European Union (EU) concerning the imposition of criminal sanctions upon those individuals who engage in cartel activity. For it to be legitimate, such cartel criminalisation must respect the due process guarantees contained in the European Convention on Human Rights (ECHR). Unfortunately the literature on this issue is deficient and the specifics of this legal challenge are not fully understood. In particular, a comprehensive analysis of the due process-related challenge presented when personal criminal antitrust sanctions are employed alongside administrative sanctions for a given cartel is conspicuously absent from the literature. This article rectifies this deficiency by examining this particular legal challenge and its relevance to information exchange, double jeopardy and concurrent antitrust proceedings. In doing so, it identifies practical techniques designed to meet the challenge of due process in this context, as well as the inherent tensions between due process and the objectives of European antitrust criminalisation.

Anticompetitive Patent Settlements – Where Are We Ten Years After the European Commission’s Pharmaceutical Inquiry?

In 2009, the European Commission published a final report on its market inquiry into the pharmaceutical sector. The report revealed the authority’s concerns regarding market practices of pharmaceutical originator companies aimed at delaying the market entry of cheaper generic pharmaceutical products. One of the delaying practices identified by the European Commission were patent settlements between an originator and a generic company including: (i) a value transfer from the originator to a generic company, and (ii) an obligation of a generic company not to enter the market. These patent settlements were called pay-for-delay agreements since the payment was allegedly made in exchange for the non-market entry obligation. The European Commission continued the investigation of patent settlements by its continuous monitoring. It also initiated antitrust proceedings that terminated with huge fines imposed on pharmaceutical companies. The appeals are now pending before the EU courts. Ten years after the publication of the final report on the market inquiry, this article aims to summarise the development of the case law and provide its critical analysis. The article focuses on the analysis of pay-for-delay agreements as infringements of Article 101 TFEU only and does not consider the conclusion of these agreements as an abuse of a dominant position.

Access to the File in Competition Proceedings Before the European Commission

This article deals with access to the file in competition proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) (antitrust proceedings) and merger control proceedings under the EU Merger Regulation.

Access to the File in Competition Proceedings before the European Commission

This paper deals with access to the file in competition proceedings conducted by the European Commission for the enforcement of Article 101 TFEU and Article 102 TFEU (antitrust proceedings) and under the EU Merger Regulation (merger control proceedings).

Ochrona poufności komunikacji z prawnikiem w świetle europejskiego i krajowego prawa ochrony konkurencji

Legal Professional Privilege is a material procedural safeguard that ensures protection of communication between undertaking and its legal counsel in the competition law. It is essential to differentiate the rules governing European and Polish antitrust proceedings in order to guarantee undertakings the widest possible protection against the search of premises. In each case when the primary aim of administrative regulations is to penalize the entrepreneurs for illegal conduct, it should be assured that at least similar safeguards to these adopted in criminal proceedings are secured.

The Legal Effects of Commitment Decisions under Article 9(1) of Regulation 1/2003 on Antitrust Proceedings before National Courts

Case C-547/16 Gasorba and others v Repsol Comercial de Productos Petroliferos SA, Judgement of the Court of Justice of the European Union of the 23rd November 2017 Article 101 TFEU — Agreements between undertakings — Business relationships between service station operators and oil companies — Long-term exclusive supply agreement for fuel — European Commission decision making an undertaking’s commitments binding — Extent to which national courts are bound by a commitment decision adopted by the Commission — Articles 9(1) and 16(1) of Regulation (EC) No 1/2003

Delimitation of the Respective Competences of the Commission and National Competition Authorities with Regard to the Application of Competition Law. Case Comment to the Preliminary Ruling of the Court of Justice of the European Union of 14 February 2012 Toshiba Corporation and Others V ad Pro Ochranu Hospodddskk Souttte (Case C-17/10)

The analysed judgment was delivered by the Court of Justice (CJ) on 14 February 2012 in case C-17/10 Toshiba Corporation and Others. It concerns the interpretation of Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty 1 (hereafter: Regulation 1/2003), with regard to the competences of National Competition Authorities (hereafter: NCAs) to apply Article 81 and Article 82 TEC (now Article 101 and Article 102 TFEU) once the Commission has instituted antitrust proceedings. The investigated case referred to an international cartel which took place in part before, and in part after the date of the Czech Republic’s entry into the European Union. The Czech Regional Court in Brno asked for a preliminary ruling whether Article 81 TEC (now Art. 101 TFEU) and Article 3(1) of Regulation 1/2003 must be interpreted as meaning that these provisions must be applied in proceedings brought after 1 May 2004 against the said cartel, which had given rise to anti-competitive consequences on the territory of the Member State before that date. Since the proceedings against the cartel were conducted at European and national levels, it became necessary to make reference to the ne bis in idem principle applicable in antitrust law.

Key Legislative and Jurisprudential Developments of Polish Antitrust Law in 2012

This article has two objectives. First, it presents the most important developments of Polish antitrust legislation of 2012. These include recent amendments to legal provisions on judicial antitrust proceedings contained in the Code of Civil Procedure, and some novel issues in the area of non-binding guidelines of the Polish NCA, the UOKiK President. Second, the article introduces key developments in Polish competition law jurisprudence of 2012. It characterises selected rulings delivered by the Polish Supreme Court, the Court of Appeals in Warsaw and the Court of Competition and Consumer Protection. Judgments are divided according to their subject matter.

DOES DEREGULATION ENCOURAGE ANTICOMPETITIVE BEHAVIOR?

This article aims to find empirical evidence of the connection between industrial deregulation and the appearance of anticompetitive practices. We test our hypothesis using data on antitrust proceedings in Spain from 1990 to 2003, when the Spanish government undertook intense reforms in several industries. We construct a database of proceedings brought by the Court (Tribunal de Defensa de la Competencia) during that period. Our results show an increase in collusion and trust practices in deregulated industries during that period, which required the government to dedicate additional resources to antitrust policy. We also find that certain regulatory elements and industrial deregulation have positive effects on the number of antitrust proceedings. We also observe that sanctions may induce a learning effect in industries that causes industry participants to modify their behavior. Finally, we find that the existence of a regulatory agency in an industry has no significant effect on antitrust proceedings in that industry.