EU Competition Research Articles

RETRACTED: Digital Markets in EU Competition law

Abstract Online marketplaces’ expansion has completely transformed the way in which products and services are traded, benefiting both consumers and companies in a variety of ways. However, the decentralized nature of online markets, the problem of market domination, and the growing use of big data in digital marketplaces, has brought many difficulties related to competition law. Further complicating matters is the growth of platform-to-business (P2B) partnerships. This manuscript discusses recent competition cases involving online platforms and offers an outline of the difficulties faced by competition authorities in dealing with competition concerns in digital markets. The specific applicability of Articles 101 and 102 of the Treaty on the Functioning of the European Union to concerns involving digital platforms will be thoroughly examined. There will also be discussion of potential fixes for the concerns mentioned. The study outlines the raised concerns and offers potential solutions. Thus, it will provide a glimpse into a potential future strategy that the European Union competition authorities, including the Commission and National Competition Authorities, may adopt about online platforms.

The role of third parties in the enforcement of the Foreign Subsidies Regulation: complaints, participation, judicial review and private enforcement

This article analyses the role of third parties in the enforcement of the Foreign Subsidy Regulation (FSR). It focuses on competitors, customers, and suppliers – market participants directly affected by distortive foreign subsidies – as a special form of third parties. Third parties might have a vested interest in the enforcement of the FSR against subsidy beneficiaries because they could be affected by the distortive effects of foreign subsidies. Third parties may also be of value in the FSR enforcement through detection, involvement in Commission procedures, or through private enforcement measures. Consequently, the article investigates complaints, participation in Commission FSR proceedings, judicial review, and private enforcement in national courts. It draws some conclusions and comparisons with third party enforcement in other areas of EU law, notably EU State aid, competition, merger control and trade law, but it works out the unique approach for third party enforcement of the FSR. Despite the FSR’s gap-filling function, it deviates significantly from third party enforcement in other areas of EU law, as it only provides limited options for such third-party enforcement.

The legal aspects of hotel rate parity

This research note delineates the conflict of hotel rate parity and key clauses of competition laws in both Europe and the U.S. We trace the origin of hotel rate parity to the principle of most favored nation (MFN) in international trade agreements. We show that rate parity challenges two pillars of competition law. Under rate parity agreements, it is travel intermediaries—not hotels—that demand rate parity, which comes down to the dominance of travel intermediaries over small and independent hotels. The courts view MFN status as a hindrance to competition and therefore in violation of competition law. The trend and message in Europe are clear: the clause is most likely to be judged as not complying with EU competition law and its national equivalents. In the U.S. though, a lack of case decisions precludes us from reaching any conclusion about the fate of the MFN clause.

Book Review: The Law and Economics of WTO Law: A Comparison with EU Competition Law’s ‘More Economic Approach’, by Marios C. Iacovides. (Cheltenham: Edward Elgar, 2021)

Book Review: <i>The Law and Economics of WTO Law: A Comparison with EU Competition Law’s ‘More Economic Approach’</i>, by Marios C. Iacovides. (Cheltenham: Edward Elgar, 2021)

Enforcement of Competition Law on Digital Platforms – Responsive Modelling for Digitization Challenges under the EU Law

The law of the European Union (hereinafter the “EU") is a complex legal system that builds supranational law on the basis of comparative studies.[1] For the EU the harmonization of law is one of the instruments that ensures the proper functioning of the EU internal market and achieves the idea of perfecting European integration, which has long gone beyond its current geographical boundaries to include the "Third World".[2] Accordingly, the harmonization of competition law is not only an endeavor for EU member states to develop a unified system to ensure effective competition, but it is also a basic tool for countries on the path to EU membership.&#x0D; This particular paper is focused on these important issues. It by directing its attention on the root of harmonization of EU competition law enforcement, presents the possibilities of competition enforcement mechanisms legal transfer for digital platforms from one jurisdiction to another based on a comparative method. Therefore, the first research object of the article is the normative and case law trends of the European Union, that ensure the enforcement of fair competition for digital platforms in the continuous process of digitization. On the other hand, the focus is shifted towards the prospects of harmonization of competition law enforcement tools for digital platforms in Georgia.&#x0D; &#x0D; [1] Vranken M., Fundamentals of European civil law. Blackstone Press, London, 1997, 14.&#x0D; [2] The term is used to refer to a country that is not a member of the European Union. Citizens do not enjoy free movement within the EU according to Article 2(5) of EU Regulation 2016/399 (Schengen Code).

The Liability of Corporate Groups for Violation of EU Competition Law

The Liability of Corporate Groups for Violation of EU Competition Law

Article 3 of Regulation 1/2003: a historical and empirical account of an unworkable compromise

Abstract Combining historical, conceptual, and empirical approaches, this article studies one of the most fundamental, yet underexplored, questions surrounding Regulation 1/2003: What limits European Union (EU) competition law places on the adoption and application of national competition and other laws? The relationship between EU competition and national laws was supposedly settled with the adoption of Regulation 1/2003. There are two exceptions to the rule in Article 3(1), under which national competition authorities and courts must apply EU competition law when applying their national competition laws, with primacy for EU provisions: Article 3(2) leaves room for ‘stricter’ national competition rules on unilateral conduct, and Article 3(3) for national rules pursuing a ‘predominantly different objective’. The solution offered by Article 3 is not workable. Through a historical study of the political discussions preceding Article 3’s adoption, a conceptual analysis of potential interpretations, and a systematic content analysis of French and German practice, this article reveals the lack of a dividing line between the notions of national competition laws and other laws. It calls for reform of Article 3 to ensure that conduct that should be governed by EU law is not assessed under national rules and standards that differ from one Member State to another.

(Dis)Respect for Fundamental Rights in EU Competition Law Enforcement Proceedings Before National Authorities: In What Way Does Article 3 of the ECN+ Directive Prove To Be too Open-Ended?

The ECN+ Directive gives national competition authorities more power in order to make them more effective enforcers of EU competition law. However, Art. 3 of the ECN+ Directive counterbalances this by requiring that appropriate safeguards are in place to ensure that undertakings’ fundamental rights are respected in EU competition law enforcement proceedings. The aim of this article is to critically reflect on the requirements of the ECN+ Directive with respect to safeguards for the fundamental rights that fall within the ambit of Art. 3 of the ECN+ Directive and the implementation of those requirements by EU Member States. To this end, the article first provides an overview of this provision. Second, by means of an overview of national laws, it analyses whether the very general Art. 3 is capable of harmonising the safeguards in question. A set of comparative examples from EU Member States, including in particular examples Poland and the Czech Republic, shows how the wording of Art. 3 invites national legislatures to misuse the potential of this provision. This results in undertakings continuing to face disparity in the extent to which their fundamental rights are protected in competition law enforcement proceedings before the various national competition authorities.

Ordoliberalism goes China? A comparison of recent developments in EU and chinese competition law considering the digital economy

AbstractThe rapidly advancing digitalisation of the global economy, particularly the emergence of quasi-monopolists with the ability to define the rules of the game, poses numerous challenges to competition law as it is now practised worldwide. The European Union and China, in particular, have recently taken up these challenges with far-reaching reforms of their respective competition law regimes. This paper analyses these reforms and trends from a critical perspective informed by ordoliberalism, one of the arguably most influential schools of competition thought. First, the core ideas of the early Freiburg School on competition are distilled. The subsequent sections compare this ideal type with current developments in EU and Chinese competition law. The discussion of similarities and differences shows that both reform agendas suffer from similar problems connected to the rule of law and suggests that a modernised ordoliberal competition law approach must be guided not only by substantive but also by procedural aspects.

Efficiencies under the Digital Markets Act – Is There Space for the Rule of Reason?

The aim of this paper is to evaluate, if competition-like efficiencies of European-style rule of reason shall apply also in the context of the ex-ante regulation by the DMA. The rationale of such consideration lies in the concept of proportionality of the EU regulation and the assumption that EU law cannot proscribe behaviour with beneficial outcomes and effects that does not have negative consequences on the internal market outweighing the positive effects. The analysis is divided into three parts in this paper: position of the rule of law and the per se prohibition in the legal development of the EU competition law, the relationship between the DMA and competition law, including competition-based efficiencies brought in digital market cases and finally the per se prohibition included in the DMA. The analysis of the development of the case law showed that in the EU competition law the principle of per se prohibitions was never accepted and the CJEU accepted justifications outside the text of the statutory exemptions. Even though the aim of the DMA may be the introduction of a per se prohibition in order to facilitate the Commission’s enforcement, it cannot be surprising if the CJ EU will, in some case in the future, follow the path of the EU-style rule of reason in the framework of the DMA as well on the basis of proportionality principle. The lesson learned from application of rule of reason in the context of agreements restricting competition or as a specific form of objective justification in the context of abuse of dominant position does not undermine effectiveness of competition law. The quasi per se concept can satisfy both: it shows that it is not probable that such a behaviour will be allowed and at the same time it dodges proportionality objections because the prohibition is not, at least theoretically, absolutely, per se.

EU Cartel Policy and Enforcement: Challenges and Responses

Journal Article EU Cartel Policy and Enforcement: Challenges and Responses Get access Maria Jaspers, Maria Jaspers Search for other works by this author on: Oxford Academic Google Scholar Oliver Jany Oliver Jany Search for other works by this author on: Oxford Academic Google Scholar Journal of European Competition Law & Practice, lpad021, https://doi.org/10.1093/jeclap/lpad021 Published: 06 June 2023 Article history Received: 02 May 2023 Revision requested: 05 May 2023 Published: 06 June 2023

Analysing Exclusive Dealing in Two-Sided Markets: Marketplaces for Video Games

Competition law in the EU has a rich history dealing with exclusive dealing (ED). Past economic analysis has informed the view that ED is not by its nature a tool of exclusion and can serve other goals and purposes. Yet, sometimes exclusive dealing may require economic analysis.1 This is particularly true when we look at entry into adjacent markets by large firms that are under greater scrutiny to begin with and whose business practices are sometimes generally under suspicion of having anticompetitive effects.2 This article proposes a theoretical framework and an empirical analysis for analysing ED in a two-sided market. I analyse Epic Games Store, an entrant into online computer game distribution which included ED as a cornerstone of its entry strategy. The purpose of the article is not to provide evidence of anticompetitive conduct in this special case. The conduct in our example is likely not in violation of European competition law as it is the entrant that uses ED to take on an incumbent with a very high market share. Instead, I demonstrate the trade-off between efficiency and consumer choice in a marketplace that can be analysed in the framework of two-sided markets. The economic theory of two-sided markets has gained increasing prominence in antitrust.3 However, analysis rarely moves beyond the assertion that traditional tests and tools are inappropriate and sometimes misleading.

A new regime for below threshold mergers in EU competition law? The Illumina/Grail and Towercast judgments

Abstract The Illumina/Grail and Towercast rulings of July 2022 and March 2023 create new avenues for the control of concentrations below the European Union (EU) and national turnover thresholds. These new avenues concern (i) a referral to the European Commission by a national competition authority (NCA) and (ii) a review under the EU provision on abuse of dominance by an NCA. In both cases, the rationale seems predominantly based on the need to have effective competition law oversight on the so-called killer acquisitions of emerging competitors and undertakings that aim to extend their dominance by acquiring existing (small but) effective or particularly innovative competitors. The obvious drawback of increasing possibilities of the ex-post merger control is that this comes at a cost to legal certainty and the one-stop-shop principle that has characterized the EU merger control so far. Especially the Towercast judgment calls into question the structure, purpose, and merits of merger control in the EU over the past 35 years. Looking forward, much will depend on how the NCAs and the European Commission will use their new-found powers; some reorganization of merger vetting procedures at the national level may be required. However, it appears likely that the system of merger control in the EU will come to focus more sharply on mergers that raise serious competitive concerns and less on providing a system of comprehensive administrative review, based mainly on size. This may also provide opportunities to rationalize the application of public enforcement capacity.

Modelling the Diffusion of the Deterrent Effects of Competition Policy

Abstract Through its competition policy interventions, the European Commission not only addresses infringements of EU competition law by the firms directly involved but also deters possible future anticompetitive behaviour by these firms and other market players. The present paper associates deterrence with the diffusion of information about the competition authority’s interventions to market players. In the mixed-influence diffusion model developed below, competition policy interventions act as an external signal sent to market players. Interactions between market players, in particular through legal counsels and law firms, further propagate the interventions’ deterrent effects. The focus of the model simulations is on interventions by the European Commission. The parameters of the mixed-influence diffusion model are calibrated using survey-based information on the order of magnitude of the deterrent effects of competition policy interventions and an assessment of the reputation of the European Commission as an enforcer of EU competition rules. On this basis, estimates of the deterrent effect of each individual intervention by the European Commission can be obtained. In addition, the sensitivity of the deterrent effects of competition policy interventions to the reputation of the competition authority and to the importance of interactions between market participants is analysed.

Hacia unos mercados disputables y equitativos más allá del derecho de la competencia en la Unión Europea

After a period of many expert reports on competition policy in digital markets, we are witnessing a global race to regulate the activity of large online companies, which the European Union has joined with the Regulation (EU) 2022/1925 of the European Parliament and Council of 14 September 2022 on contestable and fair markets in the digital sector known as Digital Markets Act. This is the subject of this study, a Regulation that is based solely on the Union’s harmonisation competence, and therefore does not form part of EU competition law, and which has been adopted with the aim of correcting the market failures characteristic of the digital economy and of contributing to the proper functioning of the internal market, seeking to guarantee the fairness and contestability of these markets throughout the European Union.

Technology Company Merger and Acquisition: a Study of Indonesian and European Union Competition Law

Technology has become an essential part of human activities, people's needs and demands for it are significantly increased. People have become dependent on technology because they use it to travel, communicate, learn, do business and simplify human life. Currently, technology-based companies are growing rapidly all over the world, as we can see how Google, Facebook, Twitter, Microsoft, Apple, and various other companies dominate the market. Likewise in Indonesia, people's activities cannot be separated from various products from technology-based companies, such as Gojek, Tokopedia, Shopee, Grab, Traveloka, etc. Recently, Gojek and Tokopedia officially merged to become the GoTo Group and are claimed to be the largest technology group in Indonesia. This merger is usually carried out by business actors to seek more profit and to become a company that wins the market both on a national and international scale and in fact has a significant impact on changes in structure and control over the market so that there is a potential for abuse of dominant position to occur by limiting the choice of both products, quality, and price. Based on this case, this normative research using the case approach and statute approach aims to analyze how Indonesian competition law regulates technology company mergers, by comparing it with European Union competition law. The conclusion of this research is, lesson learn from European Union, Indonesian Competition Law needs to adapt the Data Protection Law in reviewing tehcnology company mergers in Indonesia.

Reform of Kosovo Competition Law: Closer to EU Competition Law

After the 1999 war, Kosovo’s economic model transformed from being a state-controlled economy, as it was under former Yugoslavia, towards a market economy.1 As the market economy emerged, a competition law and a responsible institution to enforce competition law were needed. In this context, in 2004, the first Law on Competition was adopted and entered into force on 11 July 2007.2 As stated in Article 1, the purpose was to ensure development of economy by prohibiting all undertakings, engaged in economic activity within or having economic impact within the territory of Kosovo, that restrict or distort competition. Albeit the Law on Competition aimed to ensure the development of a sound market economy, it faced several setbacks to its implementation due to (i) lack of administrative capacity,3 (ii) a delay in establishing the competition authority,4 (iii) politicization regarding the method of appointing the members of the competition authority,5 and (iv) a failure in the implementation of its provisions.6

Auto cartels and the challenges they pose in private enforcement: scania cartel case

ABSTRACT So far, there have been several studies conducted on the subject of automotive cartels, and the majority of the studies you see focus exclusively on cartels. Collusion in the automotive industry was relatively uncommon in the past. However, due to the increasing level of competition in this industry, auto manufacturers are increasingly colluding in a number of areas to survive. The Scania cartel case provided us with a clearer understanding of the phenomenon of automotive cartels, as well as how EU competition law is applied to cartel member's violations and how the European Commission approaches complex infringements. Due to this case, it becomes apparent that there are many legal loopholes within the private enforcement sector, and that victims also face a number of challenges when seeking damages from auto manufacturers.

Addressing data access problems in the emerging digital agriculture sector: potential of the refusal to deal case law to complement ex-ante regulation

ABSTRACT Tailored data-driven “Digital Agriculture” solutions bring about many benefits. However, there are also challenges related to complicated data access needs in the farm-to-fork chain. Farm-specific data are mostly locked in by the first-mover companies. This prevents farmers from switching to a better or cheaper alternative. This also hinders agricultural data-driven innovation due to unanswered access seekers. Moreover, already powerful players build exclusive data exchange clusters that further exclude small rivals and other access seekers. Also, upstream input producers have exclusive control over their products’ performance data, which generates critical advantages for their downstream data-driven services. These conditions endanger the digital agriculture sector and bring about the risk of reflection of the oligopolistic upstream players in this new sector. This paper explores the adequacy of EU competition law enforcement to address the ag-data access-related concerns – hoping to contribute to the sectoral literature that is currently dominated by regulation-centred discussions.

SEP-Based Injunctions: How Much Has the Huawei v ZTE Judgment Achieved in Practice?

Competition law has played a significant role in the area of standardisation for many years. This article focuses on the use of injunctions based on Standard Essential Patents (SEPs). The landmark 2015 Huawei v ZTE judgment of the European Court of Justice (CJEU) established certain core principles with regard to both the general applicability of EU competition law to standardisation and to the specific issue of SEP-based injunctions. The aim of this article is to examine to what extent those principles are being lived up to in the EU jurisdiction where most SEP-related litigation takes place—Germany. In order to do so effectively, it is first necessary to outline the competition context of standardisation and examine both the European Commission’s general policy approach and its case enforcement practice in relation to SEP-based injunctions. This article is therefore structured as follows: section B begins by analysing the relevance of competition law in the standardisation arena. Section C then describes the European Commission’s approach to SEPs and competition law, both in terms of general policy and as regard the specific issue of SEP-based injunctions, with Section D outlining the approach taken by the CJEU in Huawei v ZTE. Section E then describes how various German courts have examined SEP-based injunctions after Huawei v ZTE, with Section F concluding by assessing to what extent the judgments in question are consistent with Huawei v ZTE and the consequences of that assessment.