Competition Law Enforcement Research Articles

Cartel Practices in Indonesian Tyre Industry: Assessing the Role of the Indonesian Tyre Business Association

This study examines the legal standing of the Indonesian Tyre Business Association (APBI) in light of the KPPU Decision Number 08/Pdt.G/KPPU-I-2014 concerning tire cartel violations in the Indonesian automotive industry. Utilizing normative legal research methods focusing on positive legal norms, the study identifies and systematizes violations of business competition rules by six major APBI member companies between 2008 and 2012, and critically analyzes and interprets the evidentiary basis of these findings. The companies allegedly colluded on tire pricing, manipulating the market for Passenger Car Radial (PCR) tires and inducing unfair business competition. The study asserts that, while the APBI's role in facilitating this collusion was apparent, its legal liability remains unclear due to the association's ability to influence member practices without a binding enforcement mechanism. These findings raise critical implications for market competition and cartel law enforcement, necessitating a re-evaluation of the legal provisions surrounding business associations, especially in the context of Indonesia's anti-monopoly and unfair competition laws.Highlights:
 
 APBI's facilitation of cartel behavior among its members.
 Unclear legal liability of business associations in anti-competitive practices.
 Need for re-evaluation of legal provisions surrounding business associations.
 
 Keywords: Cartel, Indonesian Tyre Business Association (APBI), Unfair Business Competition, Competition Law, Indonesian Tyre Industry

(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.

The Human Right to a Fair Trial in Competition Law Enforcement Procedures: A Rising Issue in Indonesian Experiences

The Indonesian Competition Supervisory Commission (ICSC) has the authority to investigate, prosecute, adjudicate, decide, and impose sanctions on business actors for violating Indonesian competition law. It also has the authority to establish procedural laws for the competition law enforcement procedures within its institution. This single role raises various issues in the current context, including the right to a fair trial and checks and balances. This article seeks to define the position of human rights, particularly the right to a fair trial, in competition law enforcement procedures. The result is that competition law enforcement procedures are subordinate to human rights, so they must be exercised in compliance with human rights standards, particularly the right to a fair trial. Based on the experience in Indonesia, this study finds that the ICSC’s single role is incompatible with human rights commitments in fair competition law enforcement procedures. As an alternative solution, this article encourages a modification and adjustment based on human rights commitments and checks and balances mechanism by limiting one of the ICSC’s authorities and broadening the interference of the Supreme Court in enforcing Indonesian competition law at the ICSC level.

Antitrust Fines and Limitation Periods After the Implementation of Directive (EU) 2019/1 Throughout Member States: Focus on French and Polish Perspectives

The article focuses on the issue of implementation of Directive 2019/1 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market. It discusses recent developments in competition law with a special focus on fining powers of the national competition authorities (NCAs). The article compares different approaches adopted by EU Members States, with a special focus on Poland and France, to implement provisions of the ECN+ Directive referring to antitrust fines and limitation periods. The article sheds light on the process of implementation and problems encountered by national legislators. This article analyses steps taken towards uniformity in this area of law within the EU. It contributes to the research on how NCAs approach the enforcement of competition law and ensure the deterrent effect of antitrust fines. The conclusions cast doubt on the effectiveness of raising the level of fines as a means of enhancing enforcement if it is not supported by other measures such as a coherent fining policy or sanctions ensuring compliance. The methodology used in the article includes descriptive research based on an analysis of relevant provisions of national law and EU law relating to fining powers of NCAs.

Competition Law Enforcement vs. The Policy Goal of an International Aviation Hub: Case Studies in East Asia

To what extent does the policy goal of an international aviation hub affect the enforcement of competition law? This article examines the dynamics between competition law enforcement and the policy goal of an international aviation hub in three East Asian competition jurisdictions: Singapore, Korea, and Hong Kong. Broadly speaking, industrial policy is one of the goals identified by some competition jurisdictions and plays an important role in enforcing competition law both explicitly and implicitly. While making an international aviation hub is a legitimate policy goal that competition law agencies can consider in their enforcement, competition law enforcers should be aware of the difference between making an international aviation hub and making a national champion airline. Although there is overlap between the two (i.e., having a competitive airline with a good network is helpful for making an aviation hub), the two are not identical and not always complementary. In keeping with the principle of competitive neutrality, this article argues that competition law enforcers should not selectively favour flag carriers when pursuing the policy goal of an international aviation hub. aviation hub, competition law, industrial policy, competitive neutrality, national champion airline, state-owned airline

EU Orphan Drug Cases and Tackling Excessive Drug Pricing by the Enforcement of Competition Law

EU Orphan Drug Cases and Tackling Excessive Drug Pricing by the Enforcement of Competition Law

Exploring the nexus between competition and the sustainable development goals in OECD countries

AbstractIn recent years, the OECD has been embroiled in discussions on the role of competition law in achieving the sustainable development goals (SDGs). However, it is crucial to understand whether the SDGs and competition work in harmony or are at odds before devising the best strategies for tackling sustainability challenges in competition laws and policies. For this purpose, this paper aims to empirically explore the interplay between sustainability and competition to fill the gap between economic theory and observed data through a study of a panel of 18 OECD countries from 2000 to 2019. The non‐declining inclusive wealth approach serves as the foundation for our model to evaluate sustainability. The SDG Index, which incorporates the socio‐economic and environmental aspects of sustainability, is used as a gauge of the SDGs' achievement, while the Index of Economic Freedom is used as a proxy for competition. The results of the feasible generalized least squares and panel‐corrected standard errors (PCSE) methods reveal that competition has no effect on the SDGs. Our empirical findings also show that the achievement of the SDGs is positively impacted by per capita gross national income and negatively impacted by population growth. The PCSE method's results indicate that the SDGs are not significantly affected by natural capital depletion, as measured by natural resource rents. Besides, the panel causality analysis confirms the existence of a causal relationship between the SDGs and competition. Our empirical results have two implications. First, they show that competition laws are still far from being an effective tool capable of achieving the SDGs. Second, they drive the competition authorities of OECD countries to devote greater efforts to sustainability‐related issues in the enforcement of competition law.

Responsive Competition Law Enforcement: Lessons from the Greek Competition Authority

According to the conventional view competition law differs from regulation in that it is applied ex post, through proscriptions, and in a ‘crime-tort’ fashion. From this angle, when competition enforcers intervene ex ante, in a prophylactic manner, and employ prescriptive tools, they inappropriately transform competition law into ‘regulatory antitrust’. The present study challenges this view arguing that modern competition law intervention has moved beyond the crime-tort enforcement model and aspires to be ‘responsive’. This means that modern enforcers intervene ex ante and ex post, use prescriptive and proscriptive tools, and impose restorative and prophylactic remedies to ensure that the law is applied effectively. The works of the Greek Competition Authority offer a case study to illustrate this point. This authority has been utilizing a plurality of tools and enforcement strategies to enhance compliance and deterrence, and apply the law responsively. However, enforcement that aspires to be responsive may create problems of over-enforcement or under-enforcement, be vulnerable to regulatory failures or undermine Rule-of-Law principles. For this reason, this study draws on responsive regulation theory to make fourteen recommendations on how to address these challenges and ensure truly responsive enforcement. competition law, enforcement, remedies, regulation, regulatory theory, competition policy

Moderating Globalization: Is There a Role for Antitrust Law? A Comparison of the Relevance of Entry, Expansion and Imports in US and EU Merger Proceedings

This paper attempts to locate the issue of innovation and foreign entry, in particular new entrants from China, in recent US and EU merger decisions. In the first part, the paper examines to what extend US and EU authorities considered foreign entry in recent major merger decisions such as Bayer/Monsanto, Dow/DuPont and ChemChina/Syngenta. The outcome of this short analysis shows that the EU Commission has in recent years begun to accept the argument of foreign entry, in particular from China, as long as the market shares of the merging parties are not too high. The US has not explicitly discussed the question of foreign entry in the above-named decisions. However, in the case Whirlpool/Maytag the US authorities accepted, despite high market shares of the parties, the argument of foreign entry and approved the merger. With regards to innovation, entry into future product markets is not considered favourable to the merging parties by the EU Commission. ‘Innovation competition’ or early ‘pipeline products’ is rather used as an argument to demonstrate that the merging parties hold market power in product markets in the future. Based on the selected case law, the US authorities, by contrast, did recognize entry into future product markets as an argument in favour of the merging parties. In its second part, the paper looks at the pros and cons of forming ‘national champions’ and discusses competition law enforcement in light of the numerous and politically powerful Chinese state-owned enterprises (SOEs). Global competition/antitrust law and policy, foreign entry in merger decisions and China, innovation competition, entry criteria in US/EU mergers, climate change

CROSS-BORDER COMPETITION FRAMEWORK: IMPLEMENTATION OF THE EXTRATERRITORIALITY PRINCIPLE IN THE APPLICATION OF COMPETITION LAW IN INDONESIA UNDER LAW NUMBER 5 OF 1999

Abstract
 In the context of the application of business competition law in Indonesia, Law Number 5 Year 1999 has a scope that applies in the territory of Indonesia. This law regulates the prohibition of monopolistic practices and unfair business competition in the country to protect consumers, promote fair competition, and encourage economic efficiency. This research uses the normative juridical method to analyze legal norms and principles. The approaches used include the statutory approach, comparative law approach, and case approach. The analysis shows that Law No. 5/1999 on Competition Law does not regulate extraterritorial jurisdiction for foreign companies. Supreme Court Regulation Number 03 of 2005 and KPPU Regulation Number 2 of 2023 also do not contain extraterritoriality clauses in competition law. This lack of legal certainty will affect the implementation of the decision, even though there is a legally binding decision declaring violations by foreign companies. KPPU cannot execute without a strong legal basis. Indonesian court decisions are only valid in the Indonesian jurisdiction. To carry out competition law enforcement efficiently and effectively, bilateral or multilateral cooperation with other countries is required.

Prosecuting Excessive Pricing of Pharmaceuticals Under Competition Law

Prosecution of pharmaceutical companies for excessive pricing of products under competition law is now a reality. As recently as a decade ago, such prosecutions were virtually nonexistent. That situation has changed dramatically as competition authorities in Europe and South Africa have pursued a significant number of such prosecutions and have levied substantial fines against the
 investigated parties. While the United States has traditionally led in policing the pharmaceutical market against anticompetitive misconduct, in this specific arena it has fallen behind, principally because federal courts so far have refused to acknowledge excessive pricing as a cause of action under Section 2 of the Sherman Act.
 
 In a succession of cases European competition authorities have demonstrated concretely the way in which excessive pricing prosecutions may be pursued. This article examines those cases in some detail showing the challenges that competition authorities have faced, and how they have gone about addressing them. The successes in Europe should help put to rest arguments regarding the difficulties in ascertaining how pharmaceutical products are priced, particularly for products no longer covered by patents or regulatory market exclusivity. The South African competition authority is undertaking its second major prosecution of excessive pricing of originator products. The ongoing case involves an essential anticancer medicine the pricing of which has deprived individuals in South Africa of life-saving treatment.
 
 Methodologies for investigating and analyzing abusive pricing are being regularized. This is important because competition authorities around the world should be able to rely on generally accepted standards for pursuing misconduct. This article suggests doctrinal improvements in the form of per se baseline rules for establishing excess with respect to generics, and rule of reason balancing tests for assessing the fairness of pricing practices for originator products and generics not encompassed by per se rules. The continued evolution of excessive pricing doctrine does not depend on these improvements. More important is continuing legal, financial, and political support for the efforts of competition authorities in this area.
 
 Patents, regulatory market exclusivity and other structural features insulate the pharmaceutical market from economic pressures that ordinarily create and recreate an equilibrium that protects consumers. For the pharmaceutical market, there must be a means to redress excessive prices in themselves. Competition law enforcement is an important tool for achieving that redress.
 

The Existence of Digital Platforms and the Challenges in Enforcement of Indonesian Competition Law

The existence of digital platforms has created a revolutionary change in the competition law system. Its existence as a multisided platform that is conceptually different from conventional economic platforms requires special understanding. The business competition law enforcement authorities see that the multisided character causes the efficiency and consumer welfare approach to be insufficiently applied to business competition law cases involving digital platforms. So, an alternative approach is needed, namely the principle of fairness, to answer challenges in enforcing business competition law.

CURING THE NATION IN THE AGE OF COVID-19: RELIANCE ON PROCUREMENT EXEMPTION POLICY IN INDONESIA?

This paper analyzes Indonesia's health sector procurement exemption policy during the Covid-19 pandemic.To respond to the current COVID-19 pandemic, it has been recognized that collaboration between competitors is necessary. However, it is also known that some collaborations will infringe on competition law if it is not handled with care. In Indonesia, the Government takes a further step by identifying necessary cooperation and excluding such cooperation from competition law enforcement based on public interest, in one instance for those within the health sector supply chain. Applying a procurement exemption policy means to line aside competition law for competitors, others within the supply chain, and various consumer groups. However, the immunity policy does not mean it will not create risks.

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

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.

Implementation of Competition Law In Cooking Oil Price Trading For Public Interest

This study discusses the implementation of competition law in the trading system of cooking oil prices for the public interest in Indonesia. Business competition law aims to encourage healthy competition between business actors in the market, including in the cooking oil sector. However, the implementation of this law still faces various challenges, especially related to suboptimal law enforcement and lack of public understanding of consumer rights in the market. Through a literature study approach, this study discusses the concept of business competition law and its role in encouraging healthy competition in cooking oil price trading. The results showed that the implementation of competition law in cooking oil price trading can provide benefits for the public, such as more affordable prices and better product quality. However, this can only be achieved if the government, business actors, and the community work together to improve understanding and enforcement of business competition law. In conclusion, the implementation of business competition law in cooking oil price trading can have a positive impact on the public interest if carried out properly and optimally. Therefore, an active role from all relevant parties is needed to ensure the successful implementation of this law.

History оf Telecommunication Law in Nigeria

The telecommunications sector is a significant contributor to the global economy and is vital to the competitiveness of the economy. Market liberalization’s goal and objective encompasses both general economic growth and the advantages to consumers of lower pricing, more service options, higher service quality, and a wider selection of products. As a means of enacting regulatory changes in the telecommunications sector, telecommunications regulation is of the utmost importance. In the telecommunications sector, regulatory reform has become a crucial area. For regulatory reforms to be successful, regulatory regimes must be transparent, consistent, and all-encompassing, encompassing everything from setting up the right institutional framework to liberalizing network industries, promoting and enforcing competition law and policy, and opening both internal and external markets to trade. This article examines the historical background of telecommunications in Nigeria is traced. It examines several developments that have taken place in the Nigerian telecommunications industry. It further examines several regulatory regimes in the Nigerian telecommunications industry prior to Nigeria’s independence in 1960 and post-independence till 2003.

China and EU’s wisdom in choosing competition soft law or hard law in the digital era: a perfect match?

The development of digital technologies has led to the emergence of new business models benefiting consumers in their searching, shopping and communicating activities. However, it also challenges the applicable competition law framework and enforcement. Although there seems to be a global consensus on the need to update competition law, the EU and China have chosen different regulatory tools—hard law and soft law, respectively—to address the new and complex challenges facing the competition governance of digital markets. This paper aims to explore why the EU opted for hard law while China opted for soft law, and to further examine whether the selected regulatory tool is the most appropriate in the specific context. By analyzing and comparing characteristics of the digital market and competition institutions’ powers in the EU and China, the paper concludes firstly, that, through the use of hard law, the EU is able protect the Internal Market and at the same time overcome the inflexibility of hard law by adding review articles. Secondly, the paper concludes that, through the use of soft law, China is able to take advantage of soft law to rapidly respond to public attention in the digital market and, at the same time, overcome the non-legally binding force of soft law by strengthening the power of its competition authority.

Digital Dominance and Social Media Platforms: Are Competition Authorities Up to the Task?

Social media platforms, as a particular species of digital platforms offering multiple online services and electronic commerce opportunities, have been under increasing scrutiny by competition enforcement agencies in recent years for engaging in allegedly anticompetitive practices. These technology giants have also come under fire for their role in facilitating various anti-social practices that have sowed societal discord and conflict in many different jurisdictions. In this paper, we examine the reasons why undertakings operating in this particular sector of the digital economy have managed to acquire such an exceptional species of "digital dominance" that makes them particularly challenging targets for competition authorities to rein in using conventional competition law frameworks. We then argue that, in light of the conceptual and practical difficulties of relying on competition law enforcement as the primary mechanism to address the problems associated with the behaviour of social media platforms, policymakers should focus their attention instead on tailor-making sector-specific ex ante regulatory frameworks that are better equipped to address the different public and private interests that need to be balanced against each other when evaluating the conduct of these particular digital ecosystems.

Survey—Competition Law Enforcement in the Fashion and Luxury Sector

Following the technological development and the increase of online sales triggered by the Covid-19 pandemic, the fashion and luxury industry has grown enormously, becoming the fourth largest sector of the global economy.1 With this development, the relevance of competition law and the awareness thereof has also increased significantly. The fashion and luxury industry has been facing increased exposure to competition law enforcement over the past years with significant impact on the sector’s business models.2 This survey sets out the European Commission’s (Commission) and national competition authorities’ (NCAs) enforcement practices of Article 101 of the Treaty of the Functioning of the European Union (TFEU) with a focus on 2020–2022 and under consideration of the latest legislative changes (Section II). Article 101 TFEU prohibits anticompetitive agreements between competitors, referred to as horizontal agreements, as well as between companies operating at different levels of the distribution chain, referred to as vertical agreements. The focus is particularly on vertical agreements between brand owners and their distributors and resellers, as those agreements play a key role in the fashion and luxury industry. An overview of the recent decisional practice over the past 3 years is also provided with regard to Article 102 TFEU which prohibits the abuse of dominant position but which played so far no major role in the fashion and luxury industry (Section III). Section IV addresses the recent developments with regard to transactions subject to merger control rules in the fashion and luxury sector.