Competition Law Infringements Research Articles

Use of economic research in cases of violations of antitrust law by digital platforms

The article is devoted to the influence of the economic features of the digital platform market on the application of competition law. Purpose – to identify the features of economic research, including economic expertise, in cases of violation of antimonopoly legislation by the owners of digital platforms. Thus, the economic features of the digital platform market and the use of economic research and expertise in cases of violations of competition law by digital platforms are investigated. Results. The types of economic research conducted in cases of violations of antimonopoly legislation by the owners of digital platforms and the features of economic research, including economic examinations, carried out in such cases, are highlighted. These features are determined, first of all, by the specifics of the platform economy and they consist in the use of special methods for qualifying economic phenomena.

Excessive Pharmaceutical Pricing as an Abuse of Dominant Position – The Case of CD Pharma (Denmark)

Abstract On 31 January 2018, the Danish Competition and Consumer Authority adopted a decision1 finding the Swedish company generic distributor CD Pharma in breach of Art. 102(a) Treaty on the Functioning of the European Union (TFEU) by abusing its dominant position and having imposed excessive and unfair prices for the drug Syntocinon. The company increased the price of the drug by 2000% in the period April-October 2014 in the Danish pharmaceutical market. CD Pharma appealed to the Danish Competition Appeals Board,2 which on 29 November 2018 upheld the decision by the Authority. On subsequent appeal to the Danish Maritime and Commercial Court,3 the judgment by the previous court was upheld in a 3-2 decision on 2 March 2020, thus finding CD Pharma liable for infringement of Danish competition law as well as Art. 102(a) TFEU. The decision is final and not subject to further appeal. The case raises outstanding legal-economic issues regarding excessive pricing such as relevant market definition in pharmaceutical cases, the length of abuse, competitive price benchmarks, definition of economic value and the matter of dominance in public procurement and tenders. The case is rather unusual in that the alleged abusive period amounted to a six-month period, CD Pharma was the ‘losing’ party in the bidding process for the supply of the medicine in question, and CD Pharma subsequently had reduced prices through negotiations with the Danish central medicine procurer, Amgros. Similar to the Aspen Pharma decision4 by the Italian Competition Authority, where the Italian Medicine Agency (AIFA) reported the case to the Competition Authority, it was the Danish medicine procurer Amgros who had notified the Danish Competition and Consumer Authority about allegedly abusive practices. This subsequently led to an investigation and the adoption of the Decision. Following an introduction describing the Danish pharmaceutical market and specifics of the case, section two of this contribution details the proceedings at Danish Competition Authority. Section three depicts the proceedings at Competition Appeals Tribunal, and section four deals with the proceedings at the Maritime and Commercial Court. Section five concludes.

SHOULD ASEAN ANTITRUST LAWS EMULATE EUROPEAN COMPETITION POLICY?

Recent years have seen the Association of Southeast Asian Nations (ASEAN) members embark upon various initiatives that seek to harmonize their competition regimes. These ongoing efforts to modernize and harmonize ASEAN competition laws take place amid a longstanding effort by both the European Union (EU) and the United States (US) to export their respective competition laws throughout the world. This raises a critical question: Should the ASEAN countries attempt to mimic the competition regimes of other developed nations, notably those that are in force in the EU and the US? And, if so, which one of these regimes should they draw more inspiration from? This paper seeks to dispel the myth that the European model of competition enforcement would necessarily provide a superior blueprint. To the contrary, it shows that the evolutionary, common-law-like regime that has emerged in the US has many strengths that are often overlooked by contemporary competition policy scholarship, and which might provide a particularly good fit for the economic and political realities of the ASEAN member states. The paper proceeds as follows. Section 2 analyzes the high-level differences between the American and European approaches to competition policy. Section 3 shows that the US and Europe also differ substantially in terms of the conduct that may constitute an infringement of competition law — the EU system being significantly more restrictive. Section 4 turns to the thorny problem of digital platforms, in particular, and argues that while the European model might more readily facilitate intervention against digital platforms, the resulting cases may be detrimental to consumers and the economy more broadly. Section 5 posits that reducing economic concentration — sometimes cited as a byproduct of European-style competition enforcement — should not be a self-standing goal of antitrust policy. Finally, Section 6 argues that many of the economic and political characteristics of the ASEAN economy cut in favor of using the US model of competition enforcement as a blueprint for further development and harmonization of ASEAN competition law.

Data Processing as an Abuse of Market Power in Multi-Sided Markets – The More Competition-Oriented Approach in the German Federal Supreme Court’s Interim Decision KVR 69/19 – Facebook

Abstract The relationship between competition law and data protection law has been a highly controversial issue following the German Competition Authority’s (Bundeskartellamt, hereinafter ‘Competition Authority’) decision with regard to Facebook’s data processing policy. The Competition Authority’s theory of harm was centered around an exploitative abuse of market power through the imposition of a data processing policy which is in conflict with the data protection rules. In the interim court proceedings, the OLG Düsseldorf criticized the Competition Authority’s decision. The German Federal Supreme Court (Bundesgerichtshof, hereinafter ‘Federal Supreme Court’) upheld the Competition Authority’s decision. However, the Federal Supreme Court did not derive the exploitative abuse primarily from a mere violation of data protection law. Instead, the Court referred to the users’ lack of freedom of choice. The Court developed a modified theory of harm by identifying elements of an exploitative abuse but also of an exclusionary abuse. The Court’s line of argument is more competition-oriented and accounts for the particular economic features of multi-sided markets. In this line of reasoning, an actual violation of the data protection rules is not a necessary prerequisite for finding a violation of competition law.

The Use of Blockchain Technology in the Implementation of Monopolistic Activities

The paper analyzes the possibility of using blockchain technology by economic entities in order to violate the norms of competition law, in particular the implementation of monopolistic activities. The author classifies blockchain systems into 4 main groups—public systems, limited access systems, private systems, and consolidated systems. The author considers the main types of monopolistic activity: the abuse of dominant position, coordinated actions of economic entities and anti-competitive agreements. The paper proposes a mechanism for assessing competition in commodity markets to identify the participant occupying a dominant position with due regard to the peculiarities of blockchain technology. The author evaluates some types of abuse of dominant position by using the blockchain technology. It is proposed to divide anti-competitive agreements and coordinated actions into two groups: actions undertaken against blockchain networks and actions undertaken using blockchain networks. The author concludes that the use of the public blockchain system to exchange information by competing business entities under the general rule will not constitute a violation of competition law.

The Issue of Compensation for Damage Caused by Violations of Competition Law in Vietnam

In Viet nam, current legal provisions related to the compensation for damages caused by the violation of competition law, are limited and have some irrelevant issues.This fact has greatly influenced on settlement of disputes raised from competition relations - A type of dispute is forseen to occur in the near future. The following article contributes to outline a legal framework on compensation for damages caused by violations of competition law, at the same time, analyzes and evaluates some shortcomings of the current regulations on the basis of comparision to practical demand for the purpose of providing some orientations and solutions to perfect these regulations.

Should ASEAN Antitrust Laws Emulate European Competition Policy?

Recent years have seen the ASEAN members embark upon various initiatives that seek to harmonize their competition regimes. These ongoing efforts to modernize and harmonize ASEAN competition laws take place amid a longstanding effort by both the European Union and the United States to export their respective competition laws throughout the world. This raises a critical question: should the ASEAN countries attempt to mimic the competition re-gimes of other developed nations, notably those that are in force in the EU and the US? And, if so, which one of these regimes should they draw more inspiration from? This paper seeks to dispel the myth that the European model of competition enforcement would necessarily provide a superior blueprint. To the contrary, it shows that the evolutionary, common-law-like regime that has emerged in the US has many strengths that are often overlooked by con-temporary competition policy scholarship, and which might provide a particularly good fit for the economic and political realities of the ASEAN member states. The paper proceeds as follows. Section I analyzes the high-level differences between the American and European approaches to competition policy. Section II shows that the US and Europe also differ substantially in terms of the conduct that may constitute an infringement of competition law — the EU system being significantly more restrictive. Section III turns to the thorny problem of digital platforms, in particular, and argues that while the European model might more readily facilitate intervention against digital platforms, the resulting cases may be detrimental to consumers and the economy more broadly. Section IV posits that reducing economic concentration — sometimes cited as a byproduct of European-style competition enforcement — should not be a self-standing goal of antitrust policy. Finally, Section V argues that many of the economic and political characteristics of the ASEAN economy cut in favor of using the US model of competition enforcement as a blueprint for further development and harmonization of ASEAN competition law.

Antitrust Damages, Consumer Harm, and Consumer Collective Redress

The European Union (EU) Antitrust Damages Directive (Directive) was enacted in December 2014 after nearly a decade of consultations—its implementation was due by 27 December 2016.1 The Directive entails a number of requirements reforming the Member States’ substantive and procedural law, thereby specifying the European damages regime. It seeks to boost private enforcement and, in particular, to enable each purchaser that suffers damage due to infringements of competition law to claim compensation. The main objective of the Directive is the attainment of ‘full compensation’, with ‘deterrence’ being stipulated as an important secondary goal.2 ... This paper brings into focus the harm borne by final consumers. Any infringement which raises prices to final consumers, either directly or indirectly through the supply chain, may harm such consumers in two different ways. First, final consumers who made some purchases during the infringement period (e.g. at the time a cartel was in place) may have done so at inflated prices. We refer to this as the ‘overcharge effect’. Second, final consumers who refrained from purchasing (or reduced their purchase volume) during the infringement period only because of the inflated prices, but who would have purchased (more) absent the infringement, suffered from a so-called ‘lost consumption effect’. This damage component, equivalent, in economic terms, to the deadweight loss generated by the infringement, captures the benefits (the utility) that consumers would have derived from all the purchases which did not effectively take place because of the infringement. No matter how straightforward the existence of the ‘lost consumption effect’ may be from an economic point of view, it is very difficult, from a legal perspective, for individual consumers to prove that they would have made a purchase if the prices were lower but refrained from doing so due to the infringement. Hence, we argue that all necessary actions—in particular enabling consumer collective redress mechanisms—should be taken to facilitate compensation for the harm resulting from the ‘overcharge effect’ in order to guarantee that the final consumers benefit, at least, from viable enforcement mechanisms related to that share of their overall harm. In this paper, we present the economic and legal arguments supporting our views.

Trading Off Stakeholder Interests: Evidence from Antitrust Investigations

We investigate how firms trade off the interests of different stakeholders when their industry comes under antitrust scrutiny. Using cartel cases opened by the European Commission between 1994 and 2019 in a difference-in-difference setup, we find that cartel investigations adversely affect the performance of firms in the affected industry, as compared to adjacent industries. In response to the shock, firms resort to restructuring strategies by increasing mass layoffs and (to a smaller extent) large-scale asset sales within three years after the investigation is opened. The increase in mass layoffs is partly mitigated for firms operating in countries with stronger employment protection regulations. We find no evidence that firms pass the burden of the shock onto shareholders through lower payouts. Our paper suggests that providers of labor, rather than capital, are paying the price for increased antitrust scrutiny after infringements of competition law.

Enhancements of ’Competition Culture’ in Pharmaceutical Sector: Anti-Competitive Infringements and Consumer Welfare

Indeed, it is the economic regulation that shaped present ‘competitive market structure’ in Malaysia. This market structure hence generated the ‘competition culture’ in many industries. The structural changes contributed to transition of a regulated market-based to open market- based economy. The transition saw competitive market structure illustrated by the involvement of private and public enterprise as market players in the main and sub sectors. The first sectors were telecommunication and energy. These sectors have shown stable and robust competitiveness in the market whereby private entities and independents telecommunication companies compete in the Malaysian tele-communication market. The competitive culture saw a liberalised and deregulated market based that brought about efficiencies in services, prices and innovations. Secure and continuous pharmaceutical supplies are structural responsibilities shared by all stakeholders in the market. Pharmaceutical industry generated and garnered extensive intellectual rights in terms of drugs, services and medical supplies. Manufacturers in pharmaceutical sectors invests massive funding to develop new creations, this is evident by the COVID-19 vaccines, patent and trademarks rights are thus awarded to the creators of the innovation.The ‘competition culture’ illustrated through stable and extensive electricity, internet coverage, lower prices, choices of products and services for customers. Amidst the post pandemic crisis, pharmaceutical supply chain has become one of the important sector that require attention in sustainability and accessibility. Documentary examination shows, to date, present pharmaceutical market structure divided between levels 1, 2 and 3 represent monopolistic and oligopolistic structural framework. Summative assessments revealed there are ant –competitive behaviour’s concerns in the sector. Instituting ‘competition culture’ and enhance competition regulatory measures are pivotal in advocating a level playing fields in all three levels. Comparative method examination from other jurisdiction experiences and lessons are the parameters of this article. This studies hope to examine and discuss existing constraints in structural framework and competitive culture in pharmaceutical drugs market.The structure of this Article is the following. In Part 1, explain the relationship of patents rights and competition policy and law, industry market structure, market players and relationship between intellectual property patent laws and competition laws. Part 2, explain anti-competitive behaviours from patent holders and challenges and implications on the violations of competition law. Part 3 recapitulates the constraints, issues and structural suggestions for workable ‘competitive culture’ in the pharmaceutical market. We hope this studies will provide further research gap for future research.

АДВОКАТУВАННЯ КОНКУРЕНЦІЇ: СУТНІСТЬ ТА ОСОБЛИВОСТІ МОТИВАЦІЇ

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

Policy Report: Priority Setting in EU and National Competition Law Enforcement

Effective enforcement of competition law is vital for the functioning of competitive markets. As competition authorities are constrained by scarce financial and human resources, it is neither possible, nor desirable, to enforce every possible competition law infringement. Hence, the power to set priorities – that is the competition authorities’ legal competence and de facto ability to choose which cases to pursue and which to disregard - is a precondition for preserving society’s resources to tackle the most harmful infringements. Credible enforcement priorities build independent and accountable competition authorities. A degree of discretion to set enforcement priorities, therefore, serves a double purpose of effective allocation of scarce resources and the concretisation of the open-ended and broadly formulated competition law norms. At the same time, the exercise of such discretion is subject to external and internal constraints and influenced by substantive, procedural, and institutional rules guiding the authorities’ course of action. Despite its importance, the theoretical foundations and practices underlying the setting of enforcement priorities in competition law are vastly unexplored in Europe: they remain largely overlooked by policy and decision-makers; there is no clear set of definitions or criteria to guide prioritisation; and effective accountability mechanisms to evaluate and reform prioritisation choices remain underdeveloped or are completely absent. In particular, the question of priority setting had limited relevance in the enforcement of EU competition law for many years. Under the pre-2004 notification based and centralised regime, the Commission had devoted much of its resources to respond to notifications, leaving only limited room to devise its enforcement strategy. Even after the shift to the decentralised enforcement regime, which enabled the Commission and national competition authorities to set their priorities, there are few EU law provisions to guide the priority setting principles and practices of the competition authorities. This remains valid even after the implementation period of the ECN+ Directive has ended. This Policy Report fills this gap by offering four main contributions: first, it introduces a new theoretical framework, developed by the authors to establish a common typology to guide the analysis of priority setting rules and practices. More specifically, the Report identifies seven different legal, economic, and political aspects of setting priorities for competition law enforcement, each of which may be subject to external or internal control. Those seven aspects include: (i) setting an enforcement agenda; (ii) legal (de jure) competence to prioritise; (iii) (de facto) ability to prioritise; (iv) procedural rules framing the prioritisation decision; (v) substantive criteria that determine which cases are priority and which are not; (vi) alternative enforcement mechanisms: instrument and outcome discretion; and (vii) impact assessment. Second, the Report provides a systematic and comprehensive mapping of the procedural and substantive priority setting rules and practices guiding the competition authorities of the 27 EU Member States, the United Kingdom, and the EU Commission according to the proposed typology. Pointing to a great divergence in this regard, it demonstrates that each competition authority’s priority setting powers and practices are deeply embedded in, and directly shaped by its respective administrative law systems and constitutional and political order. Accordingly, the Report classifies the competition authorities into four representative models on the basis of their specific rules and practices to set their enforcement priorities. Third, the priority setting rules and practices are evaluated against a set of administrative law principles of good governance, including effectiveness, efficiency, independence, transparency, and accountability. The Report demonstrates that each of the four representative models entail a different trade-off between those administrative law principles. Fourth, based on the above, the Report provides policy options (a “checklist”) on how legislators and CAs could review and if necessary, reform their existing practices or design new priority setting rules and practices to meet the administrative law principles of good governance. Notably, the Report does not intend to provide a single best model for priority setting. Rather, it offers competition authorities legal and practical solutions on how to design and apply priority setting in a way that fits their respective legal framework and mandate, thereby offering country-specific trade-offs.

Significant Reduction of a Dutch Cartel Fine due to Exceptional Circumstances, Including the Duration of the Procedure, the Appealing Party’s Financial Situation and the Covid-19 Crisis

Judgments on a party’s inability to pay a cartel fine are relatively rare. If such a judgment is issued, it often raises many questions, in part because the actual assessment of the undertaking’s inability to pay request is generally marked as confidential. That is true of this Dutch case, in which the Dutch Trade and Industry Appeals Tribunal (CBb) significantly reduced a cartel fine imposed on an unknown entity (the Appealing Party) that lodged a higher appeal before the CBb based on the exceptional circumstances of the case, including the Covid-19 crisis.1 This article describes the case (Section 2) and briefly reiterates the legal framework for an inability to pay request under EU and Dutch law (Section 3). Section 4 discusses the cautious approach of the competition authorities to undertakings’ inability to pay requests, including the aim of a fine cap to prevent the imposition of excessive fines. The last three sections discuss questions that the CBb’s judgment raises: why was the Appealing Party’s inability to pay request rejected (Section 5)? why was the Appealing Party granted a significant reduction of the fine, despite the rejection of its inability to pay claim (Section 6)? what options do undertakings have when they have been fined, but are also confronted with financial difficulties due to the Covid-19 crisis (Section 7)? II. Description of the case In its decision of 17 February 2017, the Netherlands Authority for Consumers and Markets (ACM) (the Dutch competition authority) established that several undertakings infringed Article 101(1) TFEU and Article 6(1) of the Dutch Competition Act (Mededingingswet).2 The ACM imposed a total fine of €2,798,000 on the Appealing Party’s group. The ACM held the Appealing Party jointly and severally liable for €2,060,000 of the fine and the Appealing Party’s parent company (the Parent Company) liable for the total amount of the fine. In its decision on an objection, the ACM reduced the fine for the Appealing Party to €1,935,000 and renounced the fine imposed on the Parent Company due to its inability to pay.3 The Parent Company and the Appealing Party each separately lodged an appeal before the Rotterdam District Court. Key Points The Dutch Trade and Industry Appeals Tribunal (CBb) significantly reduced the cartel fine of an appealing party based on the exceptional circumstances of the case, including the duration of the procedure, the appealing party’s financial situation and the Covid-19 crisis. Even though the appealing party’s inability to pay request was rejected, the fine was nevertheless significantly reduced based on the principle of proportionality. The reason for rejecting the appealing party’s inability to pay request was that it did not meet the required causality condition: It was the Covid-19 crisis that would likely result in the bankruptcy of an economically viable undertaking, rather than the fine. The Rotterdam District Court confirmed the Appealing Party’s participation in the competition law infringement but decided that the fine imposed by the ACM was not proportionate. The Rotterdam District Court therefore reduced the Appealing Party’s fine from €1,935,000 to €1,000,000.4 On higher appeal before the CBb, the Appealing Party argued that its current financial capacity was limited to such an extent that a fine of €1,000,000 was no longer proportionate and could lead to imminent bankruptcy. The ACM did not agree with the interpretation and assessment of the Appealing Party’s inability to pay. The ACM nevertheless found a fine of €10,000 more proportionate considering the exceptional circumstances, in particular: the duration of the procedure: in view of the Parent Company’s ongoing proceedings before the Rotterdam District Court, there was no possibility of expediting the Parent Company’s proceedings thereby causing uncertainty about the Appealing Party’s fine for too long; the Appealing Party’s current financial situation and the stated urgency; and the Covid-19 crisis and its alleged consequences for the Appealing Party. In the view of these current circumstances, the CBb concluded that a fine of €10,000 was proportionate and appropriate and annulled the €1,000,000 fine imposed by the Rotterdam District Court.

Judicial Review of the NCA’s Decisions: Some Problematic Aspects of the EU Damages Directive in the Context of Italian Law

In the Italian legal system, the transposition of Directive 2014/104/EU into Legislative Decree No. 3 of 2017, with a view to improving the efficacy of both ‘follow-on’ and ‘stand-alone’ legal actions in private and public antitrust enforcement, has highlighted the problem of the judicial review of National Competition Authority (NCA) decisions. The Directive established its own ‘binding effect’ designed by the European Union order to increase the effectiveness and procedural efficiency of actions for damages in the Member States. According to the logic of the European Union, the binding effect seeks to ensure that an infringement of competition law, established by a final decision of the NCA or a court of judicial review, is deemed to be irrefutably acknowledged for the purpose of bringing an action for damages before the national courts under Article 101 or 102 Treaty on the Functioning of the European Union (TFEU) or under national competition law. However, in terms of accomplishing this objective, the prevision introduced into Italian law by Article 9(1) of the Directive becomes problematic when set against the current system of judicial review of NCA decisions in Italy, potentially undermining the effectiveness of the legal protection of the individual. The focus of the article is that the Italian system does not – in its current form – allow adequate judicial review of NCA decisions. Taking the interpretation of Articles 6(1) European Convention on Human Rights (ECHR) and 24 of the Italian Constitution as fundamental norms establishing the ‘right to a fair trial’ and the ‘right to a defence’ as its starting point, the article seeks to offer a solution to the problem arising in relation to full judicial review of NCA decisions within the Italian legal context based on the thesis that if there is no full revision of the facts and no full revision of the discretionary powers there can be no full judicial review. EU Damages Directive, Private and public antitrust enforcement systems, The binding effect of the NCA’s decisions, Administrative and technical discretion, Judicial review of the NCA’s fact findings and technical assessments; European Court of Human Rights (ECtHR) case law, Articles 6(1) ECHR and 24 of the Italian Constitution, Intensity of review in Italy, Full jurisdiction of the Italian administrative courts

Collective Actions for Infringement of Competition Law

Summary This article deals with the legal instrument of collective actions for competition law infringements. The text touches upon the pros but also cons of this concept interpreted usually as the boost needed for private enforcement of competition law, yet bringing also risks of selective protection of competition and even bullying competitors. The article provides illustration of the struggle between the effort to make collective actions and thus the private enforcement of competition law in general more attractive in the light of the blooming U.S. model and the concurrent legislators´ will to refrain from the most negative features of the model mentioned. An insight into the hitherto soft and hard law initiatives in the area of collective actions in the EU and the Czech Republic and their interplay with competition law is offered.

Private Damages Actions in EU Competition Law and Restorative Justice: Towards a New Streamlined Institutional Framework?

The transposition of Directive 2014/104 on private damages actions marks an important development in the setting up of a harmonised private competition law enforcement regime across different EU Member States. Coupled with deterrence-focused public enforcement, the European Union has taken a necessary and welcomed step towards enhancing justice for all those individuals and competitors damaged by competition law infringements. This article argues, however, that the current emphasis on balancing public and private enforcement of the European Commission focuses too little on the need and healing effects of restoration. At the same time, the Directive contains a promising restorative justice opening by virtue of its Article 18. Starting from that opening, the article will propose a more developed way forward, taking the form of the setup and development of so-called antitrust “trust funds”. Exploring the legal possibilities and limits of such funds, the article questions to what extent this approach could be a useful complementary way to overcome the limits identified. It will be submitted that, although it is legally possible to set up those trust funds under EU law, important practical questions have to be addressed prior to doing so. Having outlined the potential features and limits of this approach, the article additionally calls for more and comparative research to be performed in this area.

Vicarious Liability in Groups of Companies and in Supply Chains - Is Competition Law Leading the Way?

The article discusses the concept of vicarious liability in the area of competition law. It argues that this concept is to some extent embedded in the concept of the undertaking under competition law with the consequence that parent companies – under certain conditions – can be held liable for competition law infringements committed by subsidiaries. The liability can be termed “vicarious” because it is imposed regardless of whether the parent company was involved in or ought to have had any knowledge of the competition law infringements committed by the subsidiary. Whereas such liability has until recently only been imposed for administrative fines, the Skanska decision changes this. Following this decision it must be assumed that parent companies can also be held vicariously liable for civil liability incurred by a subsidiary. It is pointed out that it is a separate question whether the Akzo-presumption rule, established with regard to the imposition of fines for competition law infringements, can also be applied in a pure civil liability case concerning parental liability. Next, the article discusses whether the results reached in the area of competition law can be transferred to other areas of the law. In this regard, the article analyses recent case law with regard to parental liability for workers’ injuries and environmental damage and compares these areas of the law to competition law. Finally, the article discusses whether the concept of the undertaking can be extended to apply also in situations where companies are not tied by ownership but by contract. In this regard the article focuses on the (possibly) emerging concept of supply chain liability.

Harmonization of Competition Law: Research on The Transplantability of eu’s Law into ASEAN

ASEAN has agreed to run a single market through the ASEAN Economic Community (AEC). The consequence of this free flow of goods and services is the emergence of new business competition, new relevant markets and potential contact amongst business actor of ASEAN member and it is possible to create unfair business competition. The implementation of the AEC also has consequences in the field of regulation, specifically the need for harmonization of regulations on competition law in ASEAN member to overcome the problems of cross-border transactions and the absence of competition law in several ASEAN member. This study uses a normative juridical method and aims to examine harmonization of competition law, a research on the transplantability of EU’s law into ASEAN. Results of this research shows that ASEAN can only adopt the European Union's supranationalism system only for cases of violations of cross border competition law, whereas for cases of violations of national competition laws, each country is given sovereignty to apply its own law. This is because the economic characteristics and legal characteristics of business competition vary between ASEAN member countries.

‘Responsive’ Remodelling of Competition Law Enforcement

Abstract Over the years, regulators have sought to improve the effectiveness of both private and public competition law enforcement. In EU competition law, recent debates have concerned damages actions for competition law violations and the empowerment of national competition authorities. These debates are often premised on a clear dichotomy between public and private competition law enforcement, each pursuing a distinct set of aims. This article employs a novel holistic approach, which is informed by the theories of responsive regulation and restorative justice, and argues in favour of a ‘responsive’ remodelling of competition law enforcement. Such a ‘responsive’ remodelling advocates flexibility in enforcement mechanisms, with the consensual participation of the affected stakeholders and the adoption of remedies to restore the inflicted harm. The article discusses the current system and its respective aims and problems, and highlights an emerging hybridisation of remedies. Building on this emerging practice, it then constructs the ‘responsive’ remodelling benchmark for effective compliance. It discusses how this benchmark can inform competition law enforcement and it considers its potential to increase compliance, countenance various legitimacy and accountability concerns, increase consumers’ access to markets and bring benefits to the affected parties.

Interim Measures in EU Competition Cases: Origins, Evolution, and Implications for Digital Markets

Key Points: 1. Interim measures are among the most powerful and intrusive enforcement tools that are available to competition authorities in the EU because, pending the outcome of investigations, they can be used to ensure that effective competition is maintained and irreparable damage averted. 2. The revival of interim measures in Broadcom may ultimately displace the Commission’s increased reliance on Article 9, Regulation 1/2003 commitment decisions for a supposedly swift resolution of complex cases. 3. Interim measures may be more suitable than commitment decisions in digital markets with network effects, where there is a serious risk that a competition law infringement will have an irreversible impact on competition and the market structure, but their use may be hampered by the significant constraints imposed by EU Courts on the ability of the Commission to adopt interim relief.