Competition Advocacy Research Articles

The Concept of the Mechanism of Competitive State Policy at the Regional Level

The mechanism of formation and implementation of competitive state policy at the regional level has been improved based on the generalization of a set of elements, namely: subject (public administration bodies); goal (effective protection of competition and development of a competitive environment to ensure sustainable economic development of the regional economy); means (system of antimonopoly legislation (AMZ), program documents, finances (benefits and preferences, etc.), information on the competitive environment); form (protective - mainly direct regulation; active - mainly indirect influence); methods (protective, active, indirect); tools (legal and economic regulation); model (hard, soft); object (competitive environment, market structure, competitive relations, market subjects, activities of public administration bodies). It was determined that competitive policy at the regional level is interdependent with other elements of the national economic policy system of the state. At the same time, modern competitive policy at the regional level can rightfully be considered an independent area of activity of state authorities. Value goals of competitive policy at the regional level are considered. Achieving the goal of competitive policy at the regional level involves solving the following tasks: effective implementation of control functions to identify and stop anti-competitive activities of business entities and public administration bodies; formation of a competitive environment and improvement of its condition due to the reduction of unjustified barriers to entry and doing business in the market, as well as the development of infrastructure to ensure access to it by interested market participants; creation of conditions for the development of competitive business entities; implementation of competition development measures in regions and individual areas. It was concluded that competitive policy at the regional level in a general sense includes two key directions in its structure: protection of competition (defensive competitive policy) and development of competition (active competitive policy). In modern conditions, competition advocacy is understood as a complex of actions of the subjects of competition policy, aimed at strengthening the competitive environment by using mechanisms that are not exclusively elements of the system of coercion to comply with the established rules for the application of sanctions based on administrative procedures and court decisions. It was revealed that the state policy in the field of competition protection and development is interdependent and interconnected with other elements of the country's national economic policy system. Based on the generalization of the set of elements of competitive state policy at the regional level, the mechanism of its formation and implementation is disclosed.

ADVOCACY OF COMPETITION IN THE WORLD AND UKRAINE: COMPARATIVE CHARACTERISTICS

Background: The advocacy of competition is a modern civilisational mechanism of cooperation, which balances private and public interests in economic activity and realises the functions of state management and control of economic activity, ensuring reasonable distribution of public goods. Competition is a fundamental driving force that determines the course of economic processes and contributes to the growth of economic prosperity and innovation in society. Its provision, protection, and development are among the main priorities of state economic policy in general and competition policy in particular. The purpose of this article is a comparative legal analysis of the advocacy of competition in different countries. This study will also identify the peculiarities of the use of advocacy tools in these places. Methods: In studying the proposed problem, the following methods were used: general philosophical and general scientific (dialectical, systemic, formal-logical, etc.); universal (induction, deduction); special-scientific (formal-legal, comparative law); interpretation of the rules, etc. One of the main methods used is the comparative method for researching the common and distinctive features of the advocacy of competition in the EU, USA, Mexico, the Republic of South Africa, and Ukraine. Results and Conclusions: The results show that countries with advanced economies have approached advocacy of competition gradually after more than a century of anti-monopoly competition legislation. In post-transformational economies, we see the formation of competitive policy principles activated after independence and the transition to market-based business practices. The globalisation of international trade relations leads to the need to implement complex competition advocacy programs and unify norms at the level of individual states and unions. Advocacy of competition remains important as a tool of self-regulation of economic activity. The European vector of Ukraine’s development caused the emergence of new mechanisms of interaction between the state, the individual, and society. Having chosen to strive for European integration, Ukraine began to build a new model of cooperation between all market participants, the introduction of which was based on the provisions of the Association Agreement between Ukraine, on the one hand, and the EU, the European Atomic Energy Community and their member states, on the other hand, using implementation mechanisms of both individual norms and entire institutions of public-private partnership. The implementation of competition advocacy mechanisms in Ukraine is applied using the mechanisms of the analogy of individual norms and tools of competition policy. The formation of new good competitive practices is connected with russia’s war.

On the road and on the rails: regulation and competition in UK public transport

The provision of public transport services, whether by bus, train, taxi or private hire vehicle has been subject to changing regulation over the years and further regulatory changes are foreseen. This article examines how regulation of these services has affected competition between providers, the CMA’s competition advocacy in these markets.

The post-scarcity world and the post-pandemic office.

We are not yet in the post-scarcity world that John Maynard Keynes famously envisioned, and vaccines have only recently allowed us to hope that a post-COVID-19 future may arrive soon. However, it is not too early to consider the impact of both on the traditional office, and on attempts to bring it back for reasons that may be socially harmful. One lesson of the pandemic is that many workers can be as—or even more—productive working from home, thanks chiefly to software such as Zoom, Microsoft Teams, and Slack, among others, which enable better collaboration across distances than was previously possible. At the turn of the century, we moved toward an economy in which important products were increasingly characterized by low marginal costs of production, such as pharmaceuticals and software. Over the past decade, we have seen fixed costs reduced in some situations—consider how Uber greatly eliminates the need for a central taxi dispatcher, and makes use of idle capital invested in personal vehicles. The traditional office represents a massive fixed cost for many industries; tech-driven work-from-home greatly reduces the need for this fixed cost. While software, Internet connectivity and the cloud are not free, preliminary estimates suggest that replacing traditional offices with work-from-home greatly lowers costs, creates economic efficiencies and, relatedly, reduces environmental harm. That said, the story of work-from-home is not one of unbridled optimism. Real estate firms and local governments are already trying to use law as a tool to return workers to the pre-pandemic traditional office. Various levels of government seek to return workers to physical offices, often motivated by declines in tax receipts. Attempts to bolster a return to the traditional office may raise fixed costs for firms and generate substantial avoidable environmental damage. This Chapter recommends competition advocacy to counterbalance state and local attempts to prevent the efficient disruption of the traditional office's fixed costs. Work-from-home represents an important step toward the post-scarcity world; but without a focus on what amounts to state-and-local protectionism in this sphere, we could wind up taking another step backwards.

China’s Fair Competition Review System: A Single Case Study

The case study methodology has proved to be a useful empirical tool for competition policy evaluation. However, as far as China’s Fair Competition Review System (FCRS) is concerned, empirical studies are scarce. This article aims to partly fill this gap by thoroughly studying the first litigation case in light of three questions: (1) does China’s FCRS contribute to a competitive market?; (2) does it face challenges regarding implementation, including judicial proceedings?; and (3) how to tackle these challenges? We find that China’s FCRS promotes a competitive market to some extent, but diverse issues need to be tackled in the coming years. Some policymakers still lack understanding of the system. Public antitrust enforcement also faces understanding and capability problems to fully implement the FCRS. The review standards are not specific enough. Regarding judicial scrutiny of the FCRS, we note that also judges lack knowledge of the FCRS, especially in primary courts. Court jurisdictions for filing administrative monopoly litigation are not of high enough rank. In addition, the nature of the FCRS brings up doubts when entering into litigation as the case has to be connected with the Anti-Monopoly Law (AML). Consequently, we formulate several suggestions for improvement: First, strengthening competition advocacy and FCRS training for policymakers, antitrust enforcement officials, and judges. Second, establishing disciplinary and incentive mechanisms. Third, increasing enforcement capacity. Fourth, specifying industry-specific review standards. In terms of judicial scrutiny, in addition to the training for judges, we also propose to reform the administrative proceeding system, adding corresponding clauses connected to Chapter V of the AML and the FCRS into the Administrative Procedure Law. Abstract administrative actions should also have the possibility to initiate litigation in the near future, and administrative monopoly cases should be filed at least to an intermediate court or intellectual property court, rather than to a primary court. The establishment of a dedicated competition court could also add value. Last, we recommend upgrading the FCRS to proper law. China, Fair Competition Review System, Evaluation, Case study, Administrative monopoly

Конкурентна політика держави: проблеми реалізації та рекомендації щодо удосконалення

Обґрунтовано суть, принципи і особливості конкурентної політики. На основі аналізу звітності Західного Міжобласного територіального відділення Антимонопольного комітету України визначено головні проблеми реалізації конкурентної політики в умовах сучасних соціально-економічних викликів. Визначено головні напрямки удосконалення конкурентної політики, спрямовані на розвиток конкуренції, демонополізацію потенційно конкурентних та монопольних ринків.

The legal nature of antitrust compliance as a mechanism for respect of national and in- ternational legal regulation of protection of economic competition

The article considers the legal nature of antitrust compliance as a mechanism of respect for national and international legal regulation of protection of economic and commercial competition. The author researched the influence of antitrust compliance on the quality of competition advocacy, on the prevention of violations of legislative norms in the field of protection of economic competition and on reducing the overall workload on the state antitrust authorities. The article analyzes the legal concept of antitrust compliance in narrow and broad interpretations. It is proposed to examine the legal nature of antitrust compliance through a functional approach, which includes the vectors of antitrust compliance that constitute its essence, as well as through the normative provisions of antitrust compliance at the legislative level.The article describes in detail such vectors of antitrust compliance as assessment of market specifics, assessment of own market share, assessment of risk zones in connection with information exchange, assessment of the level of employees’ awareness of compliance with corporate antitrust compliance rules, assessment of potentially high-risk forms of legal activities (in particular the dominant position, the risk of unfair competition, horizontal and vertical agreements, mergers and acquisitions agreements, not providing information to the state antitrust authorities. The article describes in detail such vectors of antitrust compliance as assessment of market specifics, assessment of own market share, assessment of risk zones in connection with information exchange, assessment of the level of employees’ awareness of compliance with corporate antitrust compliance rules, assessment of potentially high-risk forms of legal activities (in particular the dominant position, the risk of unfair competition, horizontal and vertical agreements, mergers and acquisitions agreements, not providing information to the state antitrust authorities).Special attention is paid to the influence of antitrust compliance mechanism in M&A transactions. The author links the provision on antitrust compliance at the legislative level with the overall effectiveness of legal regulation of protection of economic competition.The article extensively examines the forms of legislative provisions on antitrust compliance, in particular in the form of recommendations, standards and norms of laws. The author analyzes the experience of foreign state antitrust authorities regarding the normative provisions of the antitrust compliance mechanism. The article reviews approaches of the European Commission, the Competition Bureau of Canada, the French Competition Authority, the UK Office of Fair Trading, the Antitrust Division of the U.S. Department of Justice and others. In addition, the author highlights ways to encourage the implementation of antitrust compliance in companies by recognizing the existence of antitrust compliance programs as a mitigating circumstance in the case of punishment, including by reducing the relevant sanctions. The author focuses on the relevant foreign jurisprudence. The legislative provisions of separate vectors of antitrust compliance in the Ukrainian legislation were found, in particular, a review of the leniency program was made. The implementation of a comprehensive regulatory and legal establishment of the mechanism of antitrust compliance in Ukraine is proposed.

Competition policy’s role in the economic recovery process from the Covid-19 pandemic crisis—insight from UNCTAD

The COVID-19 pandemic outbreak disrupted markets and had a serious negative impact in economies across the world. Competition Authorities were at the forefront of initial public response measures through strong law enforcement and active market monitoring actions, temporary exemptions from competition provisions, merger control procedural adjustments and advocacy, an increasingly important function vis-à-vis Governments and all relevant stakeholders. Competition law and policy have therefore remained highly relevant during this period in both developed and developing countries. Current common challenges faced are raised by the increased digitalization of the economy and the dominance of digital platforms, especially considering the number and market share of micro and Small and Medium Sized enterprises (SMEs), the most seriously affected by the pandemic lockdown measures. Several jurisdictions and international organizations are equipping themselves with new legislation and instruments to address these challenges, namely supporting SMEs fair access to digital markets and promoting competitive public procurement, but less experienced and resource-constrained authorities of developing countries must prioritize otherwise. Competition advocacy is now more than ever a priority for them so that the economic recovery packages preserver open, fair, and equitable markets. International cooperation, bringing together developed and developing countries authorities, provides a crucial framework of support especially at this time. UNCTAD is particularly well placed to support developing countries’ Competition Authorities contributions to “building back better” in times of crisis.

АДВОКАТУВАННЯ КОНКУРЕНЦІЇ: СУТНІСТЬ ТА ОСОБЛИВОСТІ МОТИВАЦІЇ

The article describes advocating competition as a component of competition policy, implemented antitrust agencies. Investigated the subjective and object composition advocacy. It is established that there is a need to expand the subject composition of competition advocacy, the coordination of which should be carried out by the main subject of competition advocacy – the Antimonopoly Committee of Ukraine. Thus, the Ministry of Education and Science of Ukraine, the Ministry of Culture and Information Policy of Ukraine, local governments, and the Ministry of Economy of Ukraine have been singled out as secondary subjects of competition advocacy. The effectiveness of competition advocacy will be enhanced in the case of reaching the majority of society, which is possible due to the introduction into the educational process of adapted academic disciplines, in particular – for technical specialties – "Fundamentals of Competitive Culture"; for economic specialties (for example, management and administration, social and behavioral sciences) – "Management of competitive relations"; for specialties in law, journalism, public administration and administration, international relations – "Competition and Competition Policy". It is established that in Lviv and Volyn regions for 2016–2019, the consequences of the implementation of competition advocacy in terms of appeals of legal entities/individuals on violations of competition law may indicate a decrease in the number of violations and a decrease in the activity of individuals and legal entities to apply to antitrust. Also found that the Antimonopoly Committee of Ukraine for 2016–2020 years as methods of competition advocacy permanently used provide comments and suggestions to amend the regulations and cooperation with the media. Determined that it is appropriate to motivate the participants to the competitive relationship competitive behavior based on the positive effects of competition for each category of market relations – consumers, business, and government circles. Society is the an essential element that could promote competition.

A Pro-Competitive Strategy for EU Sustainable Growth

The Green Deal and competitive sustainability are at the very heart of the EU political agenda. Against this background, the debate on the role of competition policy often focuses on how to interpret or adapt competition law to meet sustainability goals. However, this is only part of the problem. The current policy challenges can also be addressed from a slightly different viewpoint: how can we develop a pro-competitive strategy for sustainability in the EU, i.e. make the most of the benefits of the competition process in pursuing environmental goals? This paper contains some ideas on how to combine the two policy areas within a pro-competitive strategy. It first looks at how undertakings in the EU are already pursuing sustainability objectives in their individual competitive strategies and how these strategies may include cooperative initiatives. Then it discusses the challenges raised by the application of Article 101 to sustainability agreements and how they can be addressed without unduly weakening competition protection. Finally, it considers the role of State aid control in supporting environmental policies and how competition advocacy can promote a pro-competitive design of other policy initiatives aimed at pursuing the goals of the Green Deal.

Before the Federal Ministry of Economic Affairs and Energy “GWB Digitalization Act” Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University

This comment is submitted by the Global Antitrust Institute (GAI) at Scalia Law School, George Mason University to the Federal Ministry of Economic Affairs and Energy (Bundesministeriums fur Wirtschaft und Energie, hereinafter “BMWi”) for consideration in relation to its proposed amendment to German competition law, the GWB Digitalization Act. The GAI Competition Advocacy Program provides recommendations to facilitate adoption of economically sound competition rules and policies. This comment identifies a number of elements contained in the proposed legislation that have the potential to introduce departures from sound economic analysis into German competition-law enforcement. These include novel provisions affecting the definition of “dominance” and “abuse of dominance,” as well as provisions promoting the use of so-called mandatory access remedies in cases involving digital platforms.

Attitudes Toward Collusion in Chile

ABSTRACT In the last two decades, competition agencies around the world have increasingly directed their attention to enforcement against cartels. With the encouragement of the antitrust authorities of the United States, and the Organization of Economic Cooperation and Development, various countries have introduced leniency programs, and sanctions for individuals found guilty of colluding. Critics are concerned, however, that these measures are not backed by broad public support, which could jeopardize their enforcement. This paper explores public attitudes toward cartels in Chile, an emerging economy that introduced a leniency program in 2009 and criminal sanctions in 2016, by presenting the results of a public opinion survey conducted in this country in August–September 2019. The results of the survey show high awareness of cartels and the harm they cause, and high public disapproval of cartel conduct among the Chilean respondents. In particular, up to 70 percent of the respondents support prison sentences against individuals found guilty of colluding. Such strong public support for anti-cartel measures could be considered positive from the perspective of enforcement. The results also emphasize the importance of continued competition advocacy directed at the society to explain and gain public support for the anti-cartel agenda.

Antitrust House Judiciary Committee Antitrust Subcommittee Testimony

Much of the competition policy discussion today centers around goals of antitrust. Until recently, the only antitrust goals discussed in the US were economic ones. Anyone who thought otherwise was on the fringe and often discounted both academically and within policy circles. Yet today, the goals of antitrust once again have become the subject of debate due to a concatenation of events. Growing populism on both the left and right in the United States and globally; a number of studies showing increased income inequality and increased concentration; digital transformations across industries that disrupt traditional ways of organizing economic activity and life more generally; trends towards protectionism and economic sovereignty; and the lingering effects of the Great Recession in some countries all have caused people in policy settings, some antitrust authorities, and some scholars to question whether an economics-based goal focused on effects to consumer and competition (which for shorthand I call the “consumer welfare” standard) is relevant and whether competition can be used to achieve particular results. This testimony before the House Judiciary Committee Antitrust Subcommittee covers the following topics: The Importance of Economic Analysis and Antitrust Common Law Fairness in Antitrust Antitrust instrumentalization Antitrust and “Tech” Bipartisan support for economic analysis in antitrust Courts have expressly embraced economic analysis Antitrust Non-Price Enforcement Antitrust history offers an example of what political antitrust can do (badly) Merger thresholds are adequate Agencies, guided by economic analysis, do a good job given the overall uncertainty of addressing mergers Are tech acquisitions different for start ups? How should we think about vertical mergers? Agencies should not be duplicative of investigations into the same companies Agencies should invest in more tech knowledge Agencies need to better understand the value of different types of platforms More money invested in competition advocacy

DOJ/FTC Draft 2020 Vertical Merger Guidelines Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University

This comment is submitted by the Global Antitrust Institute (GAI) at the Antonin Scalia Law School, George Mason University to the Federal Trade Commission and Department of Justice regarding the draft 2020 Vertical Merger Guidelines. The GAI Competition Advocacy Program provides a wide range of recommendations to facilitate adoption of economically sound competition policies.

The Role of Competition Policy in Promoting Economic Recovery

This paper explores the interaction between the governmental policies adopted to face the COVID-19 emergency and competition policy. As the COVID-19 crisis develops and moves through different stages, governments, policymakers and regulators, including competition authorities, face different challenges in order to support a swift and robust recovery. In most jurisdictions, the state has been playing a role in minimising the direct hit from the crisis and can be expected to continue to play a role in the shaping of the economic recovery. In this context, the question therefore arises: how can competition policy and competition authorities contribute to a faster and more sustained economic recovery? The paper concludes that competition policy and competition authorities have a very relevant role to play to ensure a robust economic bounce-back and recovery in the long-term. Competition advocacy by competition authorities can be expected to play a more relevant role in the near future, helping policy makers make full and well-informed policy choices, accounting for competition distortions from state interventions, and designing support measures. Strong competition enforcement will also be important, and competition authorities will have to carefully prioritise in order to help ensure the drive for economic recovery.

Competition advocacy and modern information technologies

Competition advocacy and modern information technologies

Swedish Competition Authority's Proposed Market Study of Digital Platforms, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University

This comment is submitted by the Global Antitrust Institute (GAI) at the Antonin Scalia Law School, George Mason University to the Swedish Competition Authority regarding its proposed market study of digital platforms. The GAI Competition Advocacy Program provides a wide range of recommendations to facilitate adoption of economically sound competition policies.

The Impact of the International Competition Network on Competition Advocacy and Global Competition Collaboration

The International Competition Network (ICN) is an informal, virtual network that seeks to facilitate cooperation between competition law authorities globally. This study attempts to determine the impact of the ICN on competition advocacy and global competition collaboration. It does so by examining the impact of the ICN’s Advocacy Working Group’s activities on ICN members’ domestic legislation and analyzing whether the ICN can help domestic competition authorities cooperate in international matters in two principal ways. First, the article assesses the impact of ICN efforts on legislation and international collaboration with respect to competition policy as well as working methods to deal with multinational cases. Second, the article identifies the strengths and weaknesses of ICN strategies and provides recommendations on how to enhance ICN’s operations. These two methods of analysis help to determine if the ICN could serve as the basis for a new approach to address competition issues globally.

"Competition Law Limits on Ride Sharing Enterprises – Taking into Account the Experience in India"

New economy competition policy is on the forefront of enforcers’ minds across the globe, with numerous competition agencies engaged in competition advocacy efforts regarding the sharing economy generally or ride sharing specifically. In a sharing economy firm, extra-firm contracting may be as efficient as that occurring intra-firm. By reducing search and transaction costs, the sharing economy enables transactions that could not occur in a pre-internet economy. The sharing economy grew strongly in developed economies, all of which were burdened with legacy permitting systems such as taxicab medallions or zoning regulations and other oversight limiting public lodging. The promise in economies with substantial development ahead of them is much greater. However, with highly diffuse suppliers and consumers contracting through enterprises with substantial market presence, areas of competition policy concern include conspiracies, exercises of bargaining power, and productive agreements that may nonetheless limit competition and thereby require careful analysis of overall competitive effects. Finally, there is the possibility of an agreement creating both efficiencies and threatening competitive consequences, which must be evaluated holistically to appreciate its overall impacts. No clear competition law violation will exist in all cases. However, continual attention to areas of concern will be warranted for the foreseeable future.

GOVERNING CHINA’S ADMINISTRATIVE MONOPOLIES UNDER THE ANTI-MONOPOLY LAW: A TEN-YEAR REVIEW (2008–2018) AND BEYOND

ABSTRACT An important focus of China’s Anti-Monopoly Law (AML) is “administrative monopolies”—government-imposed restraints on competition. Since adopting the AML in 2008, China gradually has strengthened its efforts to curb administrative monopolies. Despite notable reforms such as the creation of the Fair Competition Review System (FCRS), government restrictions remain a major obstacle to competition in China’s economy. The 2008 legislation narrowly defined what constitutes improper government intervention, adopted a permissive standard for determining when public restraints were legitimate, and relied heavily on internal administrative controls to correct infringements. This paper draws upon experience in China and abroad to enhance the ability of China’s competition authorities to challenge administrative monopolies. Suggested upgrades include augmenting the robustness of FCRS, introducing new tools to improve competition advocacy, bolstering the ability of competition authorities to initiate or join litigation to attack administrative monopolies, and narrowing the range of justifications that can immunize public restraints.