Competition Law Analysis Research Articles

A systematic content analysis of innovation in European competition law

Innovation plays a crucial role in defining competitive dynamics. Given this fact, one might expect ‘innovation’ to play a consistent role in antitrust law. The present article conducts a systematic content analysis of the case law of the Court of Justice of the European Union to test this hypothesis. The findings suggest that EU courts treat innovation inconsistently in competition law cases, often assigning different weight to innovation in similar contexts and neglecting central parameters agreed upon in the literature. To address this inconsistency, the article proposes measures to maintain the predictability of competition law analysis while giving innovation a more central role in the definition of relevant markets, evaluation of market power, and assessment of practices.

Competition Law, Market Dynamics, And Human Rights in The Pharmaceutical Sector: An Integrative Analysis

The pharmaceutical industry is widely recognized as a crucial sector that contributes significantly to the country's economic growth, and the importance of Competition Law in this industry is widely acknowledged. However, this market is also susceptible to various unlawful transactions and monopolistic competition, given that medicine is an essential item that every consumer needs, and market players often take advantage of this to trade their products and achieve monopolies or control product prices. To address these issues, the Competition Act, 2002 was instituted, and various regulations were implemented to regulate market competition across different sectors.
 The importance of public health is a major consideration in the pharmaceutical industry, and it is crucial to understand how competition law is applied in this sector. This article aims to shed light on the interplay between IP rights and competition law in the pharmaceutical sector and provide insight into how the development of the industry has spurred competition in the market. Additionally, the article will offer some suggestions.
 The integrative analysis of competition law, market dynamics, and human rights in the pharmaceutical sector underscores the need for a holistic approach to address the complex challenges. By considering the interplay between competition law, market dynamics, and human rights, policymakers, regulators, and stakeholders can develop strategies that foster fair competition, ensure access to affordable medicines, and protect human rights. Collaborative efforts and evidence-based policies are vital to achieve a balance that promotes innovation, fosters competition, and fulfills human rights obligations in the pharmaceutical sector.

Analysis of Malaysian Competition Law and Policies in the E-Commerce Platforms Market

The current competition law framework in Malaysia is found in the Competition Act 2010 and Competition Commission Act 2010, supplemented by various Malaysia Competition Commission Guidelines. An analysis of the e-commerce platforms market would demonstrate the creation of complex conglomerate ecosystems surrounding a few incumbent platforms that are resistant to conventional monocentric competition laws and policies focusing on price. Consumer complaints suggest the presence of unfair, exclusionary, and exploitative practices that affect various parties in the multi-sided e-commerce platforms that depend on the platform's infrastructure. This research seeks to identify the e-commerce platforms market ecosystem in Malaysia and analyse the regulatory framework governing market competition and safeguarding consumer protection in the e-commerce platforms market in Malaysia with references to notable competition cases and trending consumer complaints. Crucially, it aims to compare the Malaysian competition laws and policies against the Digital Markets Act and the Digital Services Act of the European Union in the context of the digital market, and employs doctrinal research, wherein the primary data is obtained through systematic content analysis of relevant reports and articles. Malaysian competition laws and policies have potential weaknesses that can be strengthened to safeguard consumer protection in the e-commerce platforms market. Article Details How to Cite

The race towards a more sustainable future: is current State aid policy fit for purpose?

Sustainability continues to gain traction as an important principle to be factored into competition law analysis, across antitrust, merger control and State aid. This article provides an overview of the mechanisms that are currently being introduced (and those already in place), to pursue sustainability objectives in the EU State aid framework. While the article focuses on the different aspects of the EU State aid rulebook, the analysis takes place against a broader international backdrop, with the US Inflation Reduction Act’s subsidies being a prime example of non-EU funding in the race to the ‘green transition’. As times have changed, so has the EU’s approach to State aid policy, and what comes out of the analysis of the constantly developing framework for sustainable State aid, is a gradual but clear convergence towards the incorporation of sustainability considerations into subsidies regulation, at the level of both legislative initiatives and judicial interpretation by the Court of Justice of the EU. While this is a development broadly in the right direction, the article points out the geopolitical risks associated with an inadvertent green subsidies war, as well as the risk – within the EU itself – of amplifying existing economic inequalities, due to the playing field being tilted in favour of Member States with deeper pockets.

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.

Comparative Analysis of US, EU, and India's Competition Law: Study of Per Se Rule and Rule of Reason

Comparative Analysis of US, EU, and India's Competition Law: Study of Per Se Rule and Rule of Reason

Premiership Rugby’s Response to COVID-19: A Competition Law Analysis

Professional sport has undoubtedly been hit hard by COVID-19. Clubs and governing bodies have had to adapt rapidly to the public health emergency and have come under great financial and regulatory strain. Some sports have weathered the storm better than others, though, and professional rugby union experienced significant off-field turbulence, with wages reductions seen across the English Premiership. This article will examine the conduct of Premiership Rugby and its clubs during the COVID-19 crisis from a competition law perspective and will argue that, by acting in concert, Premiership and the clubs may have breached UK competition law.

Competition Law in Pakistan and China: A Comparative Study

The present study aims to make comparative analysis of competition law in Pakistan and China by analyzing the leniency programs that whether or not they are in accordance with market structure or not, and investigating the mechanism to evidences while applying leniency policies and its value in competition law. The study adopts qualitative data analysis in order to analyze the respective aims and objective. It is found out by this research that progressive and unconventional are very important to be taken by both countries in order to ingeniously enforce competition law. Although competition law is supposed to prevent anti competition rituals and practices by nurturing free and fair competition in the market. It promotes a greater competition in the market by safeguarding customers against inaccurate means, which are adopted by firms. Therefore, competition law can be regarded as highly essential for regulating businesses by ensuring producer and consumer welfare. It ultimately promotes healthy growth of the economy and social justice. While on the other hand, a huge budget is entailed by investigation procedures which have been regarded as a huge financial resources’ loss by experts. In addition to this, there is also a greater risk of surcharges of violation, punishment and legal costs, which sometimes lead to harm corporate image. Moreover, the leniency programs in both Pakistan and China cover administrative liability only. Therefore, it is important to voluntarily comply with competition rules, regulations and laws, which would play an immensely significant role in minimizing the social costs which occur due to this law enforcement. Qualitative research methodology has been applied to the following article.

The Goals of EU Competition Law - A Comprehensive Empirical Investigation

Competition law and enforcement are experiencing something of an awaking in the last decade. Central to the renewed interest in the role of competition law was the question of what objective it was designed to achieve. It is impossible to decide if competition law is the appropriate tool to correct the various perceived faults and imperfections of markets if it is not first known what this tool was meant to accomplish. While this question has always existed in the background of competition law scholarship and enforcement, it started moving centre stage more recently with the rise of what is collectively becoming known as the neo-brandeisian antitrust wave, which sees an expanded role for antitrust law, free from the shackles of the welfare-maximalist and efficiency-obsessed Chicago School. A broader movement built around the awareness of increasing inequality and economic concentration has also contributed to popularizing the idea that competition law and policy may have a role to play, and that therefore we should re-open the debate of its goals and purposes. In this context, we set out to undertake an empirical investigation into the goals and purposes of competition law as manifested through Court of Justice of the European Union caselaw, European Commission decisions, opinions of Advocates General and official speeches and statements delivered by the Commissioners for Competition. In this first of a kind investigation, we analyse almost 4,000 sources covering articles 101 and 102 TFEU as well as concentrations, to distil seven broad goals of competition law—efficiency, welfare, economic freedom and protection of competitors, competition structure, fairness, single market integration, and competition process—as expressed through 74 keywords, and then analyse them to extract quantitative results and qualitative patterns and insights. We also make available the datasets we compiled for further use and enhancement by competition law scholars and authorities. The datasets and results paint a comprehensive picture of what the EU courts and authorities consider the goals and purposes of competition law to be. They show the evolution and distribution of all major goals and purposes of competition law throughout its history, they highlight similarities and differences among the Court, AGs, the Commission, and the Commissioners for Competition, and they highlight patterns in different types of cases (abuse of dominance, agreements, concentrations). In doing so, the study helps scholars and authorities ground competition law analysis on its proper goals, dispenses with the myth of single-themed competition law, demonstrates the some times contradictory and other times consistent choices of EU institutions, provides national competition authorities with a benchmark to compare their own practice with that of EU-level competition law to enhance harmonisation, and ultimately underscores how the goals and purposes of competition law shape its development and evolution.

Cutting Into Diamonds: Competition Law, IPR, Trade Secrets and the Case of ‘Big Data’

Big Data analyses make it possible to harvest valuable information from troves of data. EU competition law opens the door to a compulsory license in exceptional cases when access to resources controlled by a third party is indispensable. Opening the doors with force requires careful considerations and balancing of the interests not just of the ‘door keeper’ and the party seeking entry but also of the overall interests in stimulating innovation. Focusing on data which are protected either under the EU Database Directive or Trade secret Directive, the contribution first appraises their scope of protection in Big Data cases. It then analyses and discusses to what extent these protected interests should be accounted for in competition law analysis. It concludes that the mere fact of this protection should not cut off the competition law intervention. Rather, the “quality” of the protected interests might be internalized for more calibrated competition enforcement.

Developing without a Competition Legislation: An Analysis of Competition Law in Ghana and Its Impact on Competition and Development

This thesis draws a picture of how an effective competition law regime in Ghana should look like by making proposals on the competition law and policy best suited for the Ghanaian market. It has become commonplace among relevant scholarly circles that indeed one size does not fit all and that a competition law regime tailor-made to address the peculiar needs of a particular jurisdiction is a sure way to benefit from the advantages that competition law and policy has to offer. The proliferation of competition laws across developing jurisdictions over the past decade and the enhancement of competition law enforcement measures, has put competition law on the map as a market regulation tool. This thesis assesses both the political and socio-economic characteristics of the Ghanaian market, highlights some potential anticompetitive practices that prevail on the Ghanaian market and advocates for why Ghana ought to adopt a competition law and policy. By researching into the various goals and objectives that informed the promulgation of competition laws and policies across jurisdictions and reviewing the legal and enforcement structures of select developed and developing jurisdictions, I explain the relationship between how the market circumstances of a given jurisdiction informs their choice of competition law and policy and draw from that understanding to make suggestions on the goals and objectives a competition law and policy in Ghana should aim at.

Adam Smith, the Competitive Process, and the Flawed Consumer Welfare Standard

Abstract Scottish economist Adam Smith wrote in 1776 that the collective buying and selling of individuals would result in the preferred allocation of society’s resources. That insight has endured and is the basis for the competition law goal of fostering and protecting the competitive process. That goal, with venerable roots on both sides of the Atlantic, has been sidetracked by emergence of the consumer welfare standard, which is now preeminent in competition law analysis. The narrow focus of the consumer welfare standard has led to confusion and misdirected decisions that do not adequately protect the competitive process. I point to confusion about who is the buyer and who is the seller in many transactions, and describe why that classification should, in any event, be irrelevant in applying competition law. When competition is distorted, the central goal of protecting the process and ensuring a preferred allocation of resources is undermined, regardless of the impact on the consumer. The proper welfare standard is unconcerned with where the harm occurs. The standard focuses on anticompetitive conduct at any level of the distribution chain and regardless of whether the anticompetitive effects are directed upstream at sellers or downstream at buyers. The symmetric standard is rooted in competition law decisions on both sides of the Atlantic; it is sound in theory and, compared to the consumer welfare standard, is easier to explain and apply. It more comfortably honors the broader goals of competition, including promoting entry, innovation, and choices for both entrepreneurs and consumers. I assess how this symmetric welfare standard would apply to mergers and classic predatory or exclusionary conduct. The standard offers hope of simplifying analysis and better serving ancillary goals of competition. Fostering and preserving efficiency, enhancing output, and maintaining low consumer prices are among the highly valued benefits of the competitive process, but they are not determinative. The focus must remain on the central goal of preserving the competitive process.

Monopsony, powerful buyers and small sellers: analysis of Malaysian competition law and lessons learnt from Indonesia

Monopsony, powerful buyers and small sellers: analysis of Malaysian competition law and lessons learnt from Indonesia

Monopsony, powerful buyers and small sellers: analysis of Malaysian competition law and lessons learnt from Indonesia

Powerful buyers have become a problem stifling the market presence of micro, small and medium businesses. Their power in both upstream and downstream markets may allow them to manipulate prices or output. The authors look at whether competition law can address such problem particularly in Malaysia. They use monopsony as the theoretical framework and find that the Malaysian Competition Act 2010 can only be used indirectly against the conduct of powerful buyers due to the lack of express reference to the term monopsony. The existing rules are more often operationalised on the supply side rather than the demand side, making proving the anti-competitive conduct of those buyers difficult. In Indonesia, the main competition legislation i.e. the Law No. 5 of 1999 can be directly used but proving legal violation is also difficult. However, Indonesia has a specific law that protects small sellers from powerful buyers' use of their market power.

Adam Smith, the Competitive Process, and the Flawed Consumer Welfare Standard

Scottish economist Adam Smith wrote in 1776 that the collective buying and selling of individuals would result in the preferred allocation of society’s resources. That insight has endured and is the basis for the competition law goal of fostering and protecting the competitive process. That goal, with venerable roots on both sides of the Atlantic, has been sidetracked by emergence of the consumer welfare standard, which is now preeminent in competition law analysis. The narrow focus of the consumer welfare standard has led to confusion and misdirected decisions that do not adequately protect the competitive process. I point to confusion about who is the buyer and who is the seller in many transactions, and describe why that classification should, in any event, be irrelevant in applying competition law. When competition is distorted, the central goal of protecting the process and ensuring a preferred allocation of resources is undermined, regardless of the impact on the consumer. The proper welfare standard is unconcerned with where the harm occurs. The standard focuses on anticompetitive conduct at any level of the distribution chain and regardless of whether the anticompetitive effects are directed upstream at sellers or downstream at buyers. The symmetric standard is rooted in competition law decisions on both sides of the Atlantic; it is sound in theory and, compared to the consumer welfare standard, is easier to explain and apply. It more comfortably honors the broader goals of competition, including promoting entry, innovation, and choices for both entrepreneurs and consumers. I assess how this symmetric welfare standard would apply to mergers and classic predatory or exclusionary conduct. The standard offers hope of simplifying analysis and better serving ancillary goals of competition. Fostering and preserving efficiency, enhancing output, and maintaining low consumer prices are among the highly valued benefits of the competitive process, but they are not determinative. The focus must remain on the central goal of preserving the competitive process.

Pre-formulated Declarations of Data Subject Consent—Citizen-Consumer Empowerment and the Alignment of Data, Consumer and Competition Law Protections

AbstractOne of the novelties brought about by the new General Data Protection Regulation (GDPR) is a strengthening of the concept of consent. For instance, although the freely given stipulation existed in the old framework—the Data Protection Directive 95/46/EC—the changes introduced by the GDPR arguably imply that access to services may no longer depend on data subject consent. In reality however, data subjects often find themselves confronted with standard privacy policies and take-it-or-leave-it offers. Against this background, this Article aims to examine the alignment of the respective data protection and privacy, consumer protection, and competition law policy agendas through the lens of pre-formulated declarations of consent. The Article aims to delineate the role of each area with specific reference to the GDPR and ePrivacy Directive, the Unfair Terms Directive, the Consumer Rights Directive, and the Digital Content Directive (Compromise), in addition to market dominance. Competition law analysis is explored vis-à-vis whether it could offer indicators of when a clear imbalance in controller-data subject relations may occur in the context of the requirement for consent to be freely given, as per its definition in the GDPR. This complements the data protection and consumer protection analysis which focuses on the specific reference to the Unfair Terms Directive in Recital 42 GDPR, stating that pre-formulated declarations of consent should not contain unfair terms.

Economic and Legal Features of Digital Markets

Abstract Digitization has changed economic activity in many ways. While digitization has contributed to a very dynamic development of markets and competition, concerns are also being expressed about powerful positions of some companies. The digital transformation poses new challenges for companies, consumers, politics and society. Competition policy is also required to address these developments and to adapt existing competition law, if necessary. The following analysis of digital markets showed that it is not possible, in general, to make concrete competition policy statements or even to give detailed recommendations for the antitrust analysis. The aspects are to be considered separately and in detail when examining search engines, social networks, trading platforms and other business models. On the other hand, data (and data analysis) should stand in the centre of competition law analysis due to their importance for the economic success of digital market companies.

An EU competition law analysis of online display advertising in the programmatic age

ABSTRACTOnline display advertising represents a large source of revenues for online publishers. Because of its vital importance for publishers and advertisers, competition in the advertising ecosystem is desirable. Yet, in the “programmatic” era, the sector is characterized by a high degree of opacity and some of its segments seem to be dominated by Google, with concerns being expressed that it may engage in anti-competitive strategies. Against this background, the purpose of this paper is to explore the display advertising ecosystem and discuss relevant competition law issues. It first discusses market definitions and shows that Google may be dominant on several ad tech markets and then describes how programmatic advertising functions in practice. Finally, the paper identifies several practices which may amount to abuse of a dominant position in breach of Article 102 TFEU.

An EU Competition law Analysis of Online Display Advertising in the Programmatic Age

Online display advertising, whereby publishers display visual-based advertisements (e.g. texts, images or videos) on their website against remuneration, represents a large source of revenues for publishers, large and small, offering valuable content to Internet users. But for online display advertising, many such publishers would not subsist, and the Internet would be impoverished. Display advertising is also critical to advertisers, in particular when they seek to raise “brand awareness” among consumers. Because of its vital importance to advertisers and publishers, healthy competition in the advertising ecosystem is desirable. Yet, despite the spectacular growth of online display advertising, the picture is not entirely rosy. In the “programmatic” era, where ad inventory is sold through computerized decision-making processes managed by “ad tech” intermediaries, the online display advertising sector is characterized by a high degree of opacity, and publishers and advertisers have expressed concerns about the so-called “ad tech tax”, i.e. the large and opaque fees applied by various intermediaries. Moreover, while the ad tech sector comprises a wide variety of intermediaries, its main segments are dominated by Google, with concerns being expressed that it may engage in both exploitative and exclusionary strategies. It is thus not surprising that several national competition authorities are looking closely at the competitive dynamics in online advertising, and in November 2018 the French Competition Authority has announced that it would open proceedings in this area. Even so, at this stage, there is little information in the public domain regarding the competition issues that may arise in the display advertising sector and there is no scholarly paper devoted to this subject. Against this background, the purpose of this paper is to explore the display advertising ecosystem and discuss the competition law issues that may arise in this sector as a result of Google’s control of the ad tech value chain. The paper describes the display advertising ecosystem with a focus on the technologies and tools comprising the ad tech market. It then identifies the competition law issues that may arise in the ad tech markets. It first discusses market definitions and shows that Google may be dominant on several ad tech markets, and then describes the way in which programmatic display advertising functions in practice. Finally, the paper identifies several Google conducts which may amount to abuse of a dominant position in breach of Article 102 TFEU.

Joint Venture Agreements and EU Competition Law: The Case of the Construction Industry in Particular

The first and significant hurdle in joint venture competition law analysis has to do with its rigorous definition. No consensual definition of the concept of joint venture in the field of competition law (including EU competition law) has ever been provided. On the contrary, multiple definitions have been proposed, but despite such widespread discussion ambiguity reins in this area.