Application Of Competition Law Research Articles

Greener Competition Law via New Guidelines on Horizontal Agreements (?)

The protection of environment is mentioned already in the preamble of the Treaty on European Union, in the Maastricht Treaty version. The omnipresent climate change reminds us of the importance of this protection. Is it possible to take into account the protection of environment also during the application of competition law? If so, to what extent is this desirable? In order to answer these questions, the article focuses on horizontal agreements, namely the new Guidelines on Horizontal Agreements. After presenting the view on green horizontal agreements on the EU level, the article focuses on application of competition law in the Slovak Republic. The main finding of the article is that, first, the protection of environment may be taken into account when applying competition law. This is very desirable from the perspective of protection of environment. However, the devil is in the detail and it may prove to be a particularly difficult job for a competition authority such as the Antimonopoly Office of the Slovak Republic to enforce Article 101 TFEU with respect to a green agreement. At the same time, it is a tricky job for undertakings to stay in line with Article 101 TFEU when they conclude a horizontal green agreement.

Abuse of Dominant Position in the Realm of the Professional Sports Industry

The abuse of dominant position by sports regulators is a concerning issue that can significantly impact the integrity and fairness of sports competitions. Sports regulators, who are entrusted with maintaining the balance and promoting fair play within the industry, may sometimes exploit their authority to gain an unfair advantage or control over certain aspects of the sports landscape. When sports regulators abuse their dominant position, several detrimental consequences may arise.Competition law plays a crucial role in ensuring a fair and open market, free from anti-competitive practices. In recent years, there has been increasing attention towards applying competition law principles to oversee the actions of sports regulating bodies. This article aims to explore the potential of competition law in preventing sports governing organizations from abusing their monopoly power. It is imperative that the sports industry and the sports regulator function in an anti-competitive manner and avoid abuse of the powers instilled in them. It delves into suitable legal frameworks, examines relevant cases, and discusses the impact of enforcing competition law within the sports industry. The results highlight the significance of competition laws in fostering equitable competition, safeguarding athletes’ rights, and sustaining a dynamic and competitive sports landscape.

Back to the Treaties: Towards a 'Sustainable' Competition Law

Competition law, especially after the advent of the so-called Chicago School, has often been viewed as a policy interested in the pursuit of economic efficiency only, and sometimes it has also been enforced accordingly. However, the call to improve – if not save – the conditions of the environment in which we live has become urgent for our economic, social and legal systems. Therefore, every policy, competition law included, must play its part, as the protection of the environment represents a core value of our societies’ constitutional foundations. In the context of competition law, this means allowing sustainability agreements aimed at pursuing environmentally friendly objectives, such as new products or productive processes. This can be reached through various means, especially by means of the exemption provided by Article 101, paragraph 3, TFEU. This article will analyse the various approaches that can lead to an innovative and environmentally friendly application of competition law, bearing in mind that the inclusion of these concerns in the assessment of competition law cases is rooted in the ‘multi-value’ approach to competition required by the EU Treaties.

Platform Governance: The Antitrust Option

Background: This policy review unpacks the complexities of applying competition law to platforms. These complexities arise from competing schools of thought, multisided market environments, and a limited capacity to address broader questions of platform governance. Analysis: A comparative analysis of a selection of cases and legislation is used to illuminate the diversity of approaches within competition and antitrust laws. Conclusions and implications: Reform-minded scholars, activists, and policymakers should engage the antitrust option with realistic expectations and simultaneously continue to seek policy alternatives to this framework.

Freedom of the media, pluralism, and transparency. European media policy on new paths?

Although the European Union has been pursuing media policy for decades, its legal competence for the media sector remains limited. Since its inception in the 1980s, the EU had to base its media policy on its responsibility to enforce the internal market and the direct application of competition law, which has led to a one-sided economic perspective on the media. With references to the EU Charter of Fundamental Rights, the enshrinement of European values in the EU Treaty, the rule of law mechanism, and driven by the European Parliament, the EU Commission has recently shown a new direction in its media-related activities, which acknowledge the important role of the media in democracy and increasingly place media freedom and media pluralism at the center of its media policy. The draft European Media Freedom Act presented by the Commission in autumn 2022 brings together the numerous activities aimed at protecting the freedom of the media and their independence, and at the same time seems to test the limits of the scope for its media policy.

Competition Law and Sustainability in the EU: Modelling the Perspectives of National Competition Authorities

AbstractDebates have surged in the European Union (EU) on how EU competition policy can best support the European Green Deal. In the theoretical and practical aspects, non‐economic factors in competition law analysis are problematic due to the difficulty in measuring the concrete benefits of trade‐offs. The National Competition Authorities (NCAs) rather than the European Commission (EC) are leading the ‘sustainability in competition law’ debates, which is the focus of this article. Therefore, this study reviews the current status quo of all NCAs' positions concerning sustainability‐related matters by classifying them into four typologies in terms of their willingness to incorporate sustainability in their assessments. It further identifies four emerging NCAs models, which seem to divert from the EC's view. This can be problematic in ensuring the uniform application of competition law.

The Application of Competition Law to Labour Markets: Some Unresolved Issues

Abstract In recent years, many have wondered about the application of antitrust law in labour markets. This article analyses both the theoretical premises that justify such intervention and the ways in which it should occur. In this respect, the article takes steps from the economic literature on monopsony in the attempt to ensure that the logic that antitrust scholars customarily carry out in relation output markets applies in relation to labour markets as well.

플랫폼 시대에 언론산업의 변화와 경쟁법 적용을 통한 개선 가능성 검토

The dominance of the platform is gradually expanding around the world, and this phenomenon is no exception in Korea. This phenomenon is particularly noticeable in the media industry, and the expansion of the platform's dominance is a factor that further intensifies the media crisis that has already been underway. Currently, online articles are provided through platforms, and as a result, media companies' dependence on the platform is increasing. In this situation, the self-sustaining foundation of the media company will weaken, and the core function of the media based on diversity will inevitably shrink. To solve this problem, measures have been proposed to increase the responsiveness of media companies to the platform or to regulate the relationship between the platform and media by a third party that guarantees fairness. The former is embodied in a way that grants neighboring rights to media companies under the Copyright Act to enhance the bargaining power of media companies that provide articles through the platform. The latter is typical of the operation of the "News Alliance Evaluation Commission" in Korea, which is based on the perception that arbitrary exercise of control of the platform can be suppressed by the committee deciding whether to maintain transaction relations between the platform and media companies in an independent position. Such attempts are expected to contribute to solving problems to some extent, but certain limitations are also being revealed. To supplement this, it is necessary to actively consider the application of competition laws. The media provides the basis for democracy, the principle of political order, and competition is a key factor in maintaining media diversity. This internal connection between the media and competition will not only support the validity of the application of the competition law to the media sector, but also serve as a basis for expecting the effectiveness of regulations under the competition law.

The Application of Competition Law to the Pharmaceutical Sector in the European Union and United Kingdom

This survey article discusses European competition law developments in the pharmaceutical sector from January 2021 through December 2021. Section II reviews developments that continue in the wake of the COVID-19 pandemic. Section III covers cases involving competition from generics and biosimilar suppliers. Section IV deals with recent judgments and cases on excessive pricing. Section V addresses developments on the ongoing issue of parallel trade and distribution. Section VI looks at investigations and recent national enforcement regarding cartels and information exchange. Finally, Section VII provides an overview of the scrutiny of mergers by competition authorities. In response to the COVID crisis, the European Commission (Commission) published a Temporary Framework in April 2020 indicating that certain forms of business cooperation among competitors might exceptionally be allowable in order to address the shortage of essential products and services triggered by the ‘rapid and exponential growth of demand’ engendered by the crisis.1 At the same time, the Commission issued its first comfort letter addressed to ‘Medicines for Europe’ (MfE), a trade association of generic and biosimilar suppliers, supporting MfE’s collective response to address medicine shortages caused by a surging demand for treatment of COVID-19 in hospitals.2

Digital Platforms and Journalism in Australia: Analysing the Role of Competition Law

News media businesses compete with search engines and social media networks for advertising revenue but at the same time depend on the latter to reach and interact with audiences. The Digital Platforms Inquiry (DPI) completed by the Australian Competition and Consumer Commission (ACCC) found that media businesses’ dependency on digital platforms gives companies like Google and Facebook substantial bargaining power over Australian news media businesses. This development over the past decade has caused negative repercussions for the choice and quality of news available to Australians. In response to thegse findings, Australia’s News Media and Digital Platforms Mandatory Bargaining Code 2021 extends the application of competition law into digital news and advertising markets. The reform is intended to address the impact of digital platforms on the commercial viability of Australian news companies. In this article, we assess the application of competition law to the relationship between news media and digital platforms, including the strength of the DPI findings and the appropriateness of the resulting reforms. We argue that after decades of deregulation of the media sector in Australia the News Media Bargaining Code is a hybrid legislation, which introduces news media industry regulations under the guise of competition law. While we see a continued role for competition law in digital platform markets, this article indicates the challenges posed by digital platforms on media pluralism and the limitations of a market-driven approach to news media policy. news media businesses, digital platforms, advertising, regulation, media policy, Australian competition law, market power, media pluralism, Digital Platforms Inquiry, News Media Bargaining Code

Features of Corporate Liability for Violation of Competition Law

The relevance of the study is determined by the need to establish corporate responsibility for breach of legislation. In this regard, this paper is aimed at identifying features of competition and corporate responsibility for breach of competition law. Particular attention is drawn to the case when corporations become monopolists and, in fact, dictate market rules. Consideration of the development aspect of competition law suggests that it largely limits the growth of corporate business and forces corporations to formulate strategies for splitting the business, thereby determining the conduct of business. In the modern world, where business is in many respects globalised, such measures can lead to a decrease in market indicators and form a dependence on the operations of certain corporations in the local market. The leading method to the study of this issue is the modelling method, which allows to consider this problem as a targeted and organised procedure related to the improvement and application of competition law, as well as the protection and development of competition. The novelty of the study lies in the possibility of limiting the activities of a corporation in a market that is occupied by it and where there is no practical competition. The authors consider the mechanism of self-regulation as a source of domestic competition law. The paper determines that self-regulation processes are also subject to state supervision and thus corporate self-regulation becomes an aspect of the regulation of competition enforcement by the state at large. The practical significance of the study is determined by the structural feature of the corporation as a quasi-state mechanism and the regulation of external relations between the state and corporations as tax residents on this basis.

Administrative sanctions for anti-trust violations: interpretation issues

The legal definition of anti-competitive offenses and the size of fines imposed for their commission are fully consistent with the best international standards and foreign practices. However, in order to further increase the effec-tiveness of application of competition law through its proper interpretation, it should be assumed that the provisions of competition law on sanctions for its violation are inextricably linked with the objectives of competition law, which means that each sanction should be aimed at supporting and protection of economic competition, restriction of monopoly in economic activity to ensure the effective functioning of the economy of Ukraine on the basis of the development of unrestrained competition, which excludes taking into account when deciding on the guilt of the business entity for anticompetitive actions, protection of the national producer and interests of consumers if it is out of connection with fairness of competition. Also, to improve the interpretation of the rule of law in context of the 
 requirement of proportionality of sanctions for anti-trust violations, we note that in exceptional circumstances, the application of competition law, businesses should not lose the opportunity to conduct business and compete prop-erly on fair terms, which determines the need to interpret competition law in context of fines for anticompetitive offenses so that the impact of fines on the financial condition and solvency of economic entities does not irreversibly undermine their business activities with their actual withdrawal from the market. For instance, structural remedies, such as a forced separation of business entity holding a dominant position in the market, are subject to a stricter pro-portionality requirement as they can only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy.

Even employees are undertakings in the labour market, but granting social rights is not antitrust’s job

Abstract 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.

Nenajavljeni uviđaj i (ne)srazmera između ovlašćenja i obaveza Komisije za zaštitu konkurencije

If there is a reasonable suspicion that evidence of competition law infringement may be destroyed or altered, the Commission for Protection of Competition (CPC) is authorized to inspect market participants' premises, without prior notice or any court order or even an effective ex-post court control. Such an investigation may disrupt the market participants' activities and reduce their competitiveness, which is contrary to the key goals of the competition law. This paper analyzes sources of law for the unannounced investigation in the European Union (EU) competition law and Serbian law, as well as the practice of conducting unannounced investigations in EU member states and Serbia. Based on the findings, the conclusion is that Serbia should adopt, among others, amendments to the Law on Protection of Competition, and regulation defining CPC's powers and obligations, so that any differences in CPC's conduct in the same or similar cases are decreased through uniform application of competition law, competition is effectively protected and legal uncertainty for market participants, which is currently significantly higher than in the EU member states, is reduced.

The Application of Competition Law to Labour Markets: Some Unresolved Issues

The Application of Competition Law to Labour Markets: Some Unresolved Issues

Potential competition

The concept of potential competition has had an increasing importance in the application of competition law, in both the analysis of the effects of mergers and in assessing the competitive effects of agreements and unilateral conduct under the Competition Act 1998. Potential competition is the constraint that undertakings currently outside of a market are able to exert through the prospect that they will enter that market. This concept is not hypothetical: it has real-world implications as undertakings already on the market, or considering entering, can be expected to take into account the prospect of other undertakings entering, and to adapt their behaviour accordingly. This article sets out the approach of the Competition and Markets Authority when considering potential competition issues in merger and antitrust cases, with reference to its mergers and antitrust guidance and experience.

SOEs, Foreign Investments & Competition: A View from the Gulf States

State-Owned Enterprises (SOEs) directly compete with private companies, including foreign investors. The scope of applicability of competition law towards SOEs constitutes one of the key features of national competition protection regimes. Two approaches (models) can be identified in this area: the equality approach (competition law applied in the same manner towards the public and the private sector; the model is based on the neutrality principle); and the differentiation approach (excluding fully the application of competition law on SOEs). The second model is usually justified by important social and economic goals, mainly by a necessity to provide highquality public services. However, the differentiation model may negatively affect both domestic competition and the investment atmosphere. The Gulf Cooperation Council (GCC) countries adopted competition laws that generally put SOEs and the public sector in a broader sense out of scrutiny of competition law regime. The paper aims to check what reasons lie behind a rejection of the neutrality principle in GCC’s competition laws, specifically if competition protection regimes are patterned on antitrust laws from liberal economies. By identifying how the differentiation approach to addressees of competition laws is reflected at a legislative or practical level in most GCC’s countries, the article tends to assess the impact of national competition laws on Foreign Direct Investments (FDI) in the Gulf region. competition law, Gulf States, neutrality principle, State-owned enterprises, foreign investments, national champions

Use of economic research in cases of violations of antitrust law by digital platforms

The article is devoted to the influence of the economic features of the digital platform market on the application of competition law. Purpose – to identify the features of economic research, including economic expertise, in cases of violation of antimonopoly legislation by the owners of digital platforms. Thus, the economic features of the digital platform market and the use of economic research and expertise in cases of violations of competition law by digital platforms are investigated. Results. The types of economic research conducted in cases of violations of antimonopoly legislation by the owners of digital platforms and the features of economic research, including economic examinations, carried out in such cases, are highlighted. These features are determined, first of all, by the specifics of the platform economy and they consist in the use of special methods for qualifying economic phenomena.

Between Microeconomics and Geopolitics: On the Reasonable Application of Competition Law

AbstractFor decades competition law was interpreted and applied through the prism of the economic analysis of law. This approach has advantages, enabling one to master both the methodological and normative features of the field. The use of economic rationality helps one to understand the motivation of market agents. The use of advanced mathematics allows robust modelling of the wide variety of empirical and theoretical factors. The use of efficiency and consumer welfare helps one to calibrate the goals of competition law. Such a ‘standard’ perception of the discipline, however, is in a deep crisis, and – as this article explains – chiefly for the right reasons. The conceptual divide between the representatives of Law and Economics and those adhering to a more societal account of competition law has many levels and dimensions. This article investigates the foundational aspect of the divide: the divergence in epistemic perception of legal and economic expertise.

Economic analysis of the firm’s boundaries and the limits of competition: The case of Nord Stream 2 AG

Using publicly available information, the article examines the economic concepts, which underlie the arguments of the decision of Polish competition authority UOKiK in relation to the participants of the Nord Stream 2. It explains the interrelation between economic and legal concepts, which are to be applied to interpret the competitive impact of joint venture and probable theory of harm for infrastructure investments under competition law of European Union, including in comparison with Russian competition law. It has been demonstrated that the resolution of a consortium case should be based on the proof of two statements. The first statement implies that the joint venture is a firm (and therefore the creation of a joint venture is a deal leading to economic concentration). The second statement means that despite Gazprom adopted the commitments about decision of the European Commission and trends in the development of the European gas market, the possibility of price discrimination is retained. Discussion and contestation of the decision against PJSC Gazprom testify in favor of maintaining the relevance of institutional studies and studies of industry markets for resolving legal disputes arising from the application of competition law.