Competition Authorities Research Articles

Charting a way forward for the use of data science in competition enforcement and platform regulation

ABSTRACT Competition authorities and other regulators already rely on data science to monitor markets and check compliance with applicable rules. The Digital Markets Act and the Digital Services Act have made the use of data science by regulators even more relevant, given the scale and complexity of the oversight required. The existing use of data science shows that regulators are able to adapt their organizations and processes to realize the potential of using technology tools in their activities. At the same time, the use of data science poses challenges in terms of data reliability and individual privacy. Beyond involvement in specific investigations, data science also has the potential to reform the work of regulators by moving towards a more proactive form of enforcement. The sharing of data science expertise and tools between regulators deserves to be further facilitated to increase collaboration and share resources in monitoring the platform economy.

Spanish Competition Authority Fines Apple and Amazon for Restricting Competition in Amazon’s Marketplace

Spanish Competition Authority Fines Apple and Amazon for Restricting Competition in Amazon’s Marketplace

Price discrimination in merger review in South Africa: Implications of recent case precedent

ABSTRACT Mergers have the potential to give firms access to more data from which to draw insights about consumers. This may help firms to better discern which consumers are price insensitive or captive, or exhibit behavioural biases, that they can exploit by charging them higher prices or nudging them towards higher priced options. Based on recent case precedent, we believe that the transfer or sharing of data or techniques in mergers involving price-discriminating firms may be sufficient for meeting the requirement of merger-specificity without there needing to be an increase in market power. Recent local case precedent also provides insight into when mergers impacting on just a small group of consumers are likely to matter. It suggests that the competition authorities in the country should be more concerned where consumers are vulnerable and where access to the services/products is particularly important to this group.

Sustainability Goals vs. Competition Law: Global Trends and Challenges

The growing awareness of climate change has highlighted the need for competition law to adapt and promote sustainability. Recently, many competition authorities have been exploring ways to integrate environmental considerations into their frameworks. The significance of aligning sustainability with competition regulations has become increasingly evident. Achieving sustainability goals requires cooperation from both companies and regulators to establish and implement industry-wide objectives. The United Nations' sustainability goals and nations' commitments to sustainability will shape future development in line with the Paris Agreement. Integrating green antitrust policies with economic progress is now a key topic of global debate among regulators. The Competition Commission of India is at a critical junctureto develop a clear competition policy for sustainability and offer detailed guidance to companies to meet these goals. However, the path to a sustainable antitrust policy is fraught with challenges, including economic development, innovation, jurisdictional issues, and India’s international obligations.

Evaluating the effect of horizontal Integration strategy on performance of commercial State corporations in Kenya

This study aimed to evaluate the impact of horizontal integration on performance of Commercial State Corporations in Kenya. The study was based on positivist research philosophy. A cross-sectional correlational design was adopted as the study design. The target population was 1,026 senior managers of the Commercial State Corporations. The sample size was 99 senior managers in Commercial State Corporations. Primary data were gathered using a structured questionnaire. Collected data was analysed using descriptive data analysis techniques (Mean, Standard Deviation, Maximum and Minimum) and regression analysis. The findings of the study were presented using figures and tables. The study established a significant effect of horizontal integration strategy on financial, customers, internal business process and learning, growth and development performance of Commercial State Corporations in Kenya (? =0.536, p=0.000<0.05; ? =0.548, p=0.000<0.05;? =0.359,p=0.000<0.05;? =0.201,p=0.027<0.05). The study concluded that the horizontal integration strategy significantly improved the financial, customer, internal business process, and learning, growth, and development performance of Commercial State Corporations, supported by statistical evidence. The study recommends that Commercial State Corporations should streamline regulations to facilitate horizontal integration, ensure alignment with strategic objectives, prioritise sectors that enhance efficiency and service delivery, collaborate with competition authorities to comply with antitrust laws, and proactively address market concentration and anti-competitive concerns.

Fatigue behavior of additively manufactured 316L stainless steel: Competition between the effects of defects and microstructure

Laser Powder Bed Fusion (LPBF) process, is becoming more and more widespread in industry. The possibilities of microstructural control offered by this process are an opportunity to study the contribution of the different length scales of microstructure to the fatigue behavior. This paper is devoted to the understanding of this fatigue behavior resulting from the interactions between the process induced defects and the different polycrystal length scales. Two distinct defect − microstructure competition regimes have been identified. The first concerns microstructures containing large Lack of Fusion (LoF) defects. These LoFs drastically reduce the fatigue life, while microstructure has no influence on the fatigue strength. The second regime concerns microstructures containing small defects. A limited effect of the polycrystalline microstructure was revealed. Furthermore, this paper demonstrates that the ratio between damage initiation defect size and grain size, used in literature to describe the defect and microstructure sensitivity of fatigue strength, is not applicable over a wide range of defects and microstructures, such as obtained by additive manufacturing processes. Finally, the comparison between the fatigue behavior of different microstructure and defect features shows that producing a finer microstructure improves fatigue strength despite the presence of a significant defect population.

Cooperation between national courts and EU institutions in competition law cases

The article explores the interplay between national courts and European Union institutions in the context of competition law enforcement of rules enshrined in Articles 101 and 102 TFEU. Cooperation between national competition authorities and national courts on one hand and EU institutions on the other hand is crucial for ensuring the effective and consistent application of competition rules. The article deals with the mechanisms of this cooperation. It examines the role of the European Commission and the Court of Justice of the European Union (CJEU) in providing guidance to national competition authorities and national courts. The article underscores the importance of a cohesive approach to competition law enforcement that is applied by national institutions of the EU member states. The concept and meaning of legal security in criminal law is well defined by Professor Jadwiga Potrzeszcz who states that "legal security is a state achieved by law established in general, and in particular by means of criminal law, in which human life’s goods and interests are protected in the most comprehensive and effective possible manner (and) harmonizes properly with the most important functions of criminal law, namely with a protective function and a guarantee function." (Potrzeszcz, 2018, p. 301) In accordance with the aforementioned definition, the author aims to introduce Criminal Codes that were in effect in the territory of present-day Slovakia, shedding light on whether they were guarantees of legal security in the state or not, i.e., whether they protected "human life’s goods and interests in the most comprehensive and effective possible manner."

COVID-19 pandemic and competitive authoritarian regimes: Human rights and democracy in the Philippines and Nicaragua

How do competitive authoritarian regimes in the Global South respond to the COVID-19 pandemic? How do these policy responses facilitate human rights deterioration in societies that are already facing democratic regression during the pre-pandemic period? Examining evidence from the Philippines and Nicaragua during the COVID-19 pandemic, this article demonstrates that competitive authoritarian regimes have reinforced the deterioration of democratic processes and disregard for their human rights commitments amidst the global pandemic. First, such regimes weaponize the legal system to consolidate the powers of the chief executive and their allies. Second, such regimes systematically disregard transparency and accountability when executing state leaders’ public actions and responsibilities. Third, such regimes increasingly empower military personnel and intensify state violence at the expense of science-based approaches to crisis policies, thereby embracing militarism as an overarching orientation.

Protecting whose welfare? A document analysis of competition regulatory decisions in four jurisdictions across three harmful consumer product industries

Background and methodsCompetition regulation has a strong influence on the relative market power of firms. As such, competition regulation can complement industry-specific measures designed to address harms associated with excessive market power in harmful consumer product industries. This study aimed to examine, through a public health lens, assessments and decisions made by competition authorities in four jurisdictions (Australia, South Africa, the United States (US), and the European Union (EU)) involving three harmful consumer product industries (alcoholic beverages, soft drinks, tobacco). We analysed legal case documents, sourced from online public registers and dating back as far as the online records extended, using a narrative approach. Regulatory decisions and harms described by the authorities were inductively coded, focusing on the affected group(s) (e.g., consumers) and the nature of the harms (e.g., price increases) identified.ResultsWe identified 359 cases published by competition authorities in Australia (n = 202), South Africa (n = 44), the US (n = 27), and the EU (n = 86). Most cases (n = 239) related to mergers and acquisitions (M&As). Competition authorities in Australia, the US, and the EU were found to make many decisions oriented towards increasing the affordability and accessibility of alcohol beverages, soft drinks, and tobacco products. Such decisions were very often made despite the presence of consumption-reduction public health policies. In comparison, South Africa’s competition authorities routinely considered broader issues, including ‘Black Economic Empowerment’ and potential harms to workers.ConclusionMany of the competition regulatory decisions assessed likely facilitated the concentration of market power in the industries we explored. Nevertheless, there appears to be potential for competition regulatory frameworks to play a more prominent role in promoting and protecting the public’s health through tighter regulation of excessive market power in harmful consumer product industries.

Competition policy and agent discretion: transatlantic regulatory cooperation in the digital economy

ABSTRACT Despite a framework of bilateral agreements governing cooperation in competition policy since 1991, the European Union (EU) and United States of America (US) established a new Joint Technology Competition Policy Dialogue in 2021, which was different from previous cooperation and separate from the transatlantic Trade and Technology Council. Drawing from the principal-agent literature, this article argues that the choice to establish the new Joint Dialogue can be understood as an exercise of discretionary authority by agents in different jurisdictions with similar preferences who responded similarly to the common external factor of digitalisation. Facing new and shared challenges arising from the digital economy, the EU and US competition authorities undertook a new effort at cooperation – the Joint Dialogue – through which regulatory agents at various levels can interact, exchange information and improve enforcement in a rapidly changing business environment.

Structure, Conduct, Performance (SCP) Approach & Fairness Principle in Business Competition Law in The Era of Digital Platforms

The emergence of digital platforms has led to disruptions that affect not only technological and economic aspects, but also legal aspects, particularly business competition law. The discourse surrounding the development of digital platforms within the context of business competition has been influenced by two major schools of thought: the Chicago School, which adopts an effeiciency approach (also known as the consumer welfare approach) , and the Harvard School, which employs the structure, conduct, and performance (SCP) approach. This article aims to scrutinize the shortcomings of the efficiency approach advocated by the Chicago School in addressing the issues related to business competition in the digital platform market. Additionally, it seeks to demonstrate how the principle of fairness, based on the competitive process approach and market strcture, can serve as a more comprehensive analytical tool for evaluating the health of competition in the market. The results show that the efficiency approach is inadequate in addressing concerns of fairness in the digital market. Responding to the context, global business competition authorities have begun to promote a fairness approach to bolster SCP approach which serves as a moral underpinning for upholding the principles of healthy business competition in the digital platform era. This article applied normative legal research methods with a conceptual approach for analysis.

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

The role of economics and the quality of antitrust case assessment in China: an empirical investigation

This article empirically measures indicators capturing the role of economics in the antitrust decisions of the Competition Authorities of China from 2010 – 2021. The methodology allows that identification of the legal standards (LSs) adopted in assessing different conduct types and their evolution. The LSs are compared to their theoretically optimal level in order to deduce quality of enforcement. Comparative analysis is undertaken with published results on the role of economics for EC’s DGCOMP, UK’s CMA and Russia’s FAS. The Chinese Authorities’ enforcement record lags behind in quality that of DGCOMP and CMA in abuse of dominance cases though it is already well ahead of countries in which their modern Competition Law enforcement started at about the same time (2008), like Russia.

Perspectives to Mobile Cramming: Methods, Liability, and Potential Anti-cramming Measures

During the last few decades, the illegal practice of inserting unauthorized charges in mobile bills, “mobile cramming”, has emerged worldwide in the field of direct carrier billing. In the United States, civil and criminal aspects regarding mobile cramming have been addressed and prominently displayed in governmental investigations and notable legal cases. In Finland, the discussion on mobile cramming has focused solely on questions about the contractual liability of the parties involved. This article aims to bring clarity to the phenomenon by describing the potential cramming and anti-cramming methods, the chain of liability and the parties involved. The article also describes what courses of action have been taken by governmental officials when pursuing mobile cramming cases in Finland and the U.S. Due to the lack of case law in Finland, the issue is addressed from the perspective of the Competition and Consumer Authority. In conclusion, it is summarized that regardless of the preventive regulatory measures, the practice of mobile cramming still exists, and the crammers are finding new avenues for their operations through regulatory loopholes. Contractual liability for unauthorized charges has been acknowledged to be divided among the parties involved, but this alone is not sufficient to prevent mobile cramming in Finland. More attention needs to be paid to effective preventive measures.

Expanded powers in a market inquiry: is this power consistent with constitutional and natural justice guarantees?—‘The Case of the COMESA Competition Commission’

Abstract In the past few years, more and more competition authorities have expanded their powers in conducting market inquiries. Some competition laws have given the competition authorities the power to impose remedies after a market inquiry and to impose fines on undertakings that resist providing information during a market inquiry. Some competition authorities are in the process of amending their laws to mirror this development. The COMESA Competition Commission is an exemplary incident of a competition authority that is amending its law to cloth it with expansive powers in the conduct of market inquiries. This article explores whether or not such expanded powers in a market inquiry are overly intrusive and whether they are consistent with the constitutional and natural justice guarantees. An interrogation on whether there are safeguards to ensure that these powers are not unfettered and do not result in abuse of the rights of those that are subject to this power will also be conducted.

A Commentary on the Jurisdictional Challenges in the Rand- Dollar Exchange Manipulation "Cartel": Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company [2023] ZACT 26 (30 March 2023)

Cartels are the most egregious of competition law transgressions, because they entail a concerted effort on the part of cartel members to deliberately distort the market through price fixing, bid rigging, market allocation and constraining the supply of goods and services. Despite efforts by national competition authorities in various countries to combat cartelism, cartels have proved to have long tentacles, often extending beyond borders and morphing into "cross-border cartels". This contribution discusses one of the major challenges that cross-border cartels poses to competition authorities, that of prosecutorial and penal jurisdiction. The note focusses on the "banking cartel" that has been and still is the subject of contentious litigation. In March 2023 the Competition Tribunal (the Tribunal) handed down judgment in the matter of the Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company [2023] ZACT 26 (30 March 2023). There were several questions in the matter, including the jurisdiction of the South African competition authorities to investigate and prosecute firms not incorporated or operating in South Africa (pure peregrini). The Competition Commission (the Commission) had initiated proceedings in the Tribunal against a host of banks for alleged cartel conduct, and some of the respondent banks raised objections and exceptions relating to the jurisdiction of the South African competition authorities. The note observes that while national competition authorities may have prosecutorial jurisdiction against cross-border cartels, there is still a challenge in enforcing an order where cartels are non-resident in the country. The contribution also notes potential challenges to cartel enforcement on the African continent in light of the establishment of the African Continental Free Trade Area (AfCFTA). Due to the removal of various trade barriers, there is likely to be a rise in cross-border competition issues, including cross-border mergers and cross-border cartels. The note therefore discusses a pertinent issue, that of jurisdiction, which may well be a challenge within the AfCFTA.

‘What are they thinking of?’

This article explains the thinking underlying recent activism in digital markets by competition regulators – with reference to cases undertaken by the CMA, the European Commission and the US authorities, and to the new UK and EU regulatory regimes for competition in digital markets. It addresses some common misconceptions about competition authorities’ thinking on digital markets, and identifies strategies most likely to be effective for tech companies in dealing with competition authorities. It argues that: (i) the consumer and competition benefits brought by the tech industry are real and substantial; (ii) contrary to common belief, these benefits are recognized by competition authorities; (iii) recent competition regulatory activism should be understood in the context of a belief that it is necessary to preserve those benefits, by allowing new generations of tech disruptors to emerge; (iv) when tech companies face competition investigations or interventions, they should resist the temptation to kneejerk dismissal of all possible concerns, which is unlikely to be effective in advancing their business interests, because it misunderstands the authorities’ thinking; and (v) smarter strategies involve engaging with the specific facts of a particular case (economic, legal and technical) to challenge whether proposed interventions or remedies are, in reality, both effective and proportionate.

Rethinking the ‘as efficient competitor’ test: assessing the wider impact of the CJEU’s judgment in Unilever Italia and its implications in shaping the European Commission’s agenda to reform Article 102 TFEU

Recently, the European Commission published a communication indicating amendments to its Article 102 TFEU Guidance Paper in light of the latest EU Courts’ judgments on exclusionary abuses. In the Amended Guidance and the accompanying Policy Brief, the Commission provides some guidance related to changes in four main areas: the definition of anti-competitive foreclosure, the ‘as efficient competitor’ test, the assessment of loyalty rebates, and the treatment of refusals to supply and margin squeezes. The analysis in this article reflects on the evolution of the application of the ‘as efficient competitor’ test, focused on the most recent CJEU judgment in Unilever Italia. The article discusses the extent to which competition authorities must examine economic evidence submitted by the dominant company, and whether such evidence can be refuted without in-depth analysis. The article concludes that further clarification is imperative regarding outstanding ambiguities surrounding the appropriate role and use of the as efficient competitor price-cost test in assessing potentially abusive conduct under Article 102 TFEU.

Cloud services: market reflection and a growth story

In 2023, the CMA commenced a market investigation into the cloud services market following a market study by Ofcom that identified initial concerns. The UK cloud services market is growing as new customers enter the market, and existing customers increase workloads. In a growing market, competition concerns could either be resolved as the market grows, or become more entrenched. Intervention may only be required if new demand is not sufficiently contestable to drive competition. The question is therefore, how can a competition authority effectively address competition concerns within a growing market? From an economic and legal perspective, this article examines each of the CMA’s theories of harms through the lens of a nascent market; it highlights the difference in responses of companies and notes the CMA’s emerging findings. It concludes that the CMA’s market investigation, and any possible remedies, should consider the nascency of the market and inputs from market participants, to ensure that intervention, if required, does not stifle current competition for new demand.

Financial technocrats as competitive regime creators: The founding and design of the Network for Greening the Financial System

AbstractWhy did a group of eight central bankers and financial supervisors from across the globe create a Network for Greening the Financial System in 2017? Why did they design this network as they did? The founders were an uncommon coalition, led by French financial authorities working closely with their Dutch, British, and Chinese counterparts, and backed by others from Germany, Mexico, Singapore, and Sweden. They were engaged in an unusual act of competitive regime creation at a moment when the United States was abandoning global leadership vis‐a‐vis climate change. This purpose led them to create a financial transgovernmental network that was distinctive in its roles, membership, and governance. Addressing these questions not only improves understanding of a body that has emerged as a leading voice in global discussions about the environmental aspects of financial policy. It also contributes to wider scholarship on financial transgovernmental networks and the greening of central banks.