Antitrust Research Articles

Quantum Antitrust – A Unified Exclusionary Abuse Theory

Now that the judgments in Servizio Elettrico Nazionale and Unilever have made sense of previous case-law, a unified analytical framework can be predicated for all exclusionary abuses. It is made up of two limbs (artificiality/conduct deviating from competition on the merits and potential exclusionary effect/capability of foreclosing). The two limbs are two sides of the same coin, which consists of ascertaining whether the plausible rationale (in the sense of nature and economy) behind a dominant company’s conduct is to derive an advantage that equally efficient competitors cannot either derive by doing the same (first limb–artificiality) or offset by other means (second limb–potential effect). This exclusionary rationale, which is a cognitive state in the dominant company’s mind rather than an ontological reality, is objectivised by holistically judging the dominant company’s conduct against the backdrop of the relative efficiency of its competitors, which is the link between both limbs: if the inherent features of the company’s conduct and all the relevant circumstances surrounding it allow equally efficient competitors to either derive a similar advantage or to defeat its exclusionary effect by some other means, the conduct does not make anticompetitive sense (exclusion is not its plausible rationale). Owing to the very Darwinian nature of competition law, relative efficiency is the common “quantum” and, therefore, a useful yardstick for abuse from the historical, legal, teleological and practical perspectives, as well as from the points of view of causality and reality. Finally, plausibility would be the single standard of proof that could be rebutted by disproving either of the two limbs (in an Intel II-like fashion), either by providing an alternative non-exclusionary explanation that breaks the casual link or by putting forward an objective justification. All other tests and standards merely reflect the extent to which either the artificiality or the potential effects of the conduct can be presumed based on economic judgement or experience (as happened in merger control following CK Telecoms)–thus reconciling per se rules, consisting of an Art. 101-like cursory analysis, with a more economic approach.

Konsep Disruptive Marketing dalam Menanggulangi Praktik Jual Rugi oleh Perusahaan Penyedia Jasa Transportasi Online

The rapid development of app-based online transportation in Indonesia addresses the public's need for application-based transportation modes. However, intense competition among app-based transportation providers has led to the emergence of predatory pricing strategies. To investigate these practices and their implications for the relevant market and disruptive market from a legal perspective, a normative legal research was conducted. The results reveal regulatory ambiguities concerning promotional pricing concepts in online transportation companies, which have led to predatory pricing practices violating Article 20 of Law Number 5 of 1999. This discrepancy reflects legal frameworks lagging behind technological advancements, contrary to the concept of living law. Considering this, the urgent application of disruptive marketing by app-based transportation providers is essential to foster innovation without infringing upon the principles and laws of fair competition.

Role of Cartels in Market Manipulation: Case Studies and Impacts on Consumers

This article provides an overview of how cartels manipulates the market and what are the problems that are being faced by the consumers. Cartels are said to be formed when two or more business enterprises makes an agreement formally or informally to promote their own interest which distorts the free and fair competition in the market by controlling the prices of goods and services. When it comes to the enforcement of anti trust law in India there are certain core areas in the Competition Act, 2002. The Competition Act increases the possibility of dealing successfully with the cartels and any anti- competitive agreement. Although, Competition Commission of India needs further strengthening with the operational and functional guidelines for its activities. The paper begins with an introduction to a cartel after that the authors explores about the origin of the cartels and types of cartels. It is also very important for us to understand a cartel so a chapter is being dedicated to it. The study also highlights the affects of cartelization in the market and an analysis of Competition Act, 2002. Furthermore, we’ve attached few renowned case studies. In conclusion to this paper we have understood that cartel is a very dangerous phenomenon in the business alliance and how CCI has brought a drastic change in last few years in the market

A era digital e o direito da concorrência: uma análise dos desafios da regulamentação

This article addresses the impact of the Digital Era in the field of Competition Law and the protection of consumer rights. In a globalized and technologically dynamic world, the lack of solid regulation has led to violations of both consumer rights and competitive equity in the electronic market. In particular, the focus is on restrictive practices such as test pricing, exclusivity agreements, price discrimination, anti-competitive agreements between companies and the misuse of privileged information, in addition to the controversies associated with Competition Law in the digital context. For this reason, the question arises whether digital platforms should be restricted due to their unfair practices in the market, or if, instead, they should be allowed in harmony with economic development. The main objective of this article is to provide a critical reflection and harmonization of ideas on how the Digital Age has influenced Competition Law. Various points of view are analyzed in order to offer a comprehensive vision of the need to establish a legal system adapted to the digital era that guarantees both the protection of consumer rights and fairness in competition

Obavezno osiguranje vlasnika motornih vozila od odgovornosti između slobode ugovaranja i prinudne kartelizacije

The European Union enacted directives on motor vehicle liability insurance to accomplish the goals of free movement of persons and equal protection of third parties against damages caused by using motor vehicles. Serbia has been harmonising its legislation with the EU insurance acquis for several decades. Regarding motor vehicle liability insurance, market liberalisation has been prevented by the Law on Compulsory Insurance in Transport – LCIT 2009. LCIT authorised the Association of Insurers of Serbia to determine minimal premium prices with the consent of the National Bank of Serbia – NBS and stipulated mandatory Bonus-Malus System – BMS. Effectively, the NBS laid down minimal premium prices applicable within the BMS grades and conditions for the application of bonuses and maluses. The author analyses EU legislation and the case law of the Court of Justice related to fixing insurance premiums, mandatory BMS and competition law issues in the motor vehicle liability insurance market. The BMS in several EU member states has been compared with the BMS in Serbia. Competition in the motor vehicle liability insurance market in Serbia has been prevented as a consequence of the fixed premium prices and mandatory BMS. The author has also analysed the negative effects of the current legal framework on the motor vehicle liability insurance market structure, pointing out the static market concentration level and the substantial share of motor vehicle liability insurance premiums in the total insurers’ income. It is essential to amend LCIT without delay to liberalise the Serbian motor vehicle liability insurance market.

Digital market and its adequacy of merger assessment in Indonesian business competition law

PurposeThis study aims to analyze the development of digital market characteristics particularly focusing on how the strategic choices of platforms are not fully reflected in pricing. In addition, the implications for the development of theories of harm are investigated to explore the necessity of a relevant market definition in assessing infringement and evaluating the adequacy of Indonesian competition law.Design/methodology/approachThis study is a legal analysis that uses statutory approaches, cases, comparative law and the development of theories of harm in digital mergers. The case approach is conducted by analyzing three cases decided by the Indonesia Business Competition Supervisory Commission. This approach provides insight into the response of Komisi Pengawas Persaingan Usaha concerning the merger and acquisition cases in the digital era as well as the provision of different analyses in conventional markets. However, competition can be potentially damaged in digital markets and a comparative law approach is taken by analyzing digital merger cases decided by authorities in other countries.FindingsResults reveal that the digital market has created a “relevant market” that is challenging and blurred due to multi-sided network effects and consumer data usage characteristics. Platform-based enterprises’ prices fluctuate due to the digital market’s network effect and consumer data statistics. Smartphone prices depend on the number of apps and consumer data. Neoclassical theory focusing on product markets and location applied in Indonesia must be revised to establish a relevant digital economy market. To evaluate digital mergers, new harm theories are needed. The merger should also protect consumer data. Law Number 27 of 2022 on Personal Data Protection and Government Regulation on the Implementation of Electronic Systems and Transactions protects online consumers, a basic step in due diligence for digital mergers. The Indonesian Government should promptly strengthen the notion of “relevant markets” in the digital economy, which could lead to fair business competition violations like big data control. Notify partners or digital merger participants of the accessibility of sensitive data like transaction history and user location.Originality/valueThe development of digital market characteristics has implications for developing theories of harm in digital markets. Indonesian competition law needs to develop such theories of harm to analyze the potential for anticompetitive digital mergers in the digital economy era.

Protection of Rights of Undertakings and the Criminal Nature of Proceedings of the Antimonopoly Committee of Ukraine: Practice of the Constitutional Court of Ukraine and the Supreme Court

The article is devoted to examination of the practice of the Constitutional Court of Ukraine (the "CCU") and the Supreme Court (the "SC") regarding their perception and application of the practice of the European Court of Human Rights (the "ECHR") on autonomous interpretation of the term "criminal charge" for the purpose of protecting human rights under the Convention for the Protection of Human Rightsand Fundamental Freedoms (the "Convention"), to which Ukraine is a party, and equating the decisions of competition authorities to "criminal charges", in part of equating administrative proceedings of the Antimonopoly Committee of Ukraine (the "AMCU") on holding undertakings liable for infringements of Ukrainian antimonopoly legislation to criminal proceedings in part of requirements for protection of rights of undertakings.
 Analysis of the CCU's practice shows that it generally accepts and applies the ECHR's practice on equating certain administrative proceedings to "criminal" ones within the meaning of the Convention and extending criminal law guarantees to these proceedings. The CCU has not yet formed a position specifically with respect to criminal character of the AMCU's proceedings. At the same time, the CCU's positions developed considering the ECHR's practice, stating that criminal law principles and guarantees should apply to administrative proceedings concerning violations of customs rules, and the references made by the CCU to one of the most well-known ECHR's decisions on extending "criminal charge" to a decision of competition authority on imposition of a fine for violation of competition laws - A. Menarini Diagnostics S.R.L. v. Italy, when substantiating these positions, allow to assert the likelihood of the CCU equating the AMCU's administrative proceedings to criminal ones in part of requirements for protection of rights of undertakings, when this issue arises before it.
 As for the Supreme Court, questions about application of the Engel criteria to the AMCU's proceedings on enforcement of antimonopoly legislation increasingly arise before it. Undertakings seek the SC's conclusions on application of these criteria to the AMCU's proceedings. The SC has been reluctant to form such conclusions and has denied their formation thus far. The SC's practice, where it recognized the AMCU's proceedings as criminal ones for the purpose of protecting rights of undertakings, is currently absent. Therefore, one can only wait to see how the SC's practice on this issue will develop in the future.

Unfair competition – an attack on the patrimonial rights of natural and legal persons

The subjects of the economic activity, whether they are natural persons or legal entities, are obliged to exercise their activity in good faith, according to honest usages, respecting the interests of consumers and the requirements of fair competition.
 Based on the principles of freedom of trade and freedom of competition, any merchant has the right to attract the clientele of his competitors. Thus, the act of competition, even if it causes damage to some economic agents, is not illegal by itself, but only if the means, acts or facts used to attract customers are unfair.
 A basic principle/inherent condition of the market economy is the competition between the companies carrying out economic activity on the respective market, of course when this competition is by the customs and provisions governing the rivalry of competitors.
 The present study is intended to analyze the phenomenon of competition through the legislation of the Republic of Moldova that regulates competitive relations, including, addressing issues related to the identification and responsibility of the actors/ subjects of competitive relations, the types of legal liability, and the impact of unfair competition on the competitive environment in general and, on the rights and interests of natural and legal persons, but also of the society in particular.
 The authors analyzed the provisions of competition legislation to identify the regulatory framework's quality and its deficiencies. For this purpose, the authors analyzed the provisions of the competition law no. 183/2012 and the Republic of Moldova's administrative, contraventional, and criminal Code.
 The conclusions reached by the authors revealed a series of legislative loopholes, but also new research directions that would constitute the basis for certain recommendations and proposals for improving the analyzed normative framework.

Оrganization of the initial training process for athletes in bodybuilding

The article examines generalized data on approaches to the construction of sports training during the year. The systematization of the data of special scientific and methodical literature on the construction of the training process of athletes in bodybuilding is presented. The article discusses the key components of methodical methods of building the educational and training process of athletes. The training of highly qualified athletes is characterized by a clearly expressed cycle. Unsolved issues of building the training process of highly qualified bodybuilders in the annual macrocycle have been identified. The purpose of the study is to systematize the data of special scientific and methodological literature on the issues of building an education. To achieve this goal, modern methods were developed: theoretical analysis and data processing, descriptive method, classification, systematization and referenced scientific and methodological literature, sociological research methods. The expansion of the number of competitions, periodic changes in the programs and rules of competitions significantly affect the training system, including its periodization. However, the analysis of numerous innovations in the field of building sports training during the year only shows that they do not in any way contradict the main provisions of the periodization system, but only complement and develop its individual parts, taking into account the features of the modern stage of bodybuilding development.
 Summing up, it should be noted that in the scientific and methodological literature, the specifics of the training process of athletes engaged in bodybuilding have been studied in depth, but the issue of developing training programs taking into account the body structure of athletes remains unresolved. Therefore, research in this direction is relevant for the theory and practice of bodybuilding.

A new agenda for antitrust: human rights violations as anti-competitive conduct

Abstract This study aims to establish a connection between human rights violations and unlawful conduct as defined by antitrust laws. To this end, it proposes a systematic teleological interpretation of the Brazilian legal system regarding human rights and competition laws to demonstrate that the Administrative Council for Economic Defence (CADE) has the authority to address human rights violations when enforcing antitrust provisions.

Industrial technology progress, digital finance development and corporate risk-taking: Evidence from China's listed firms.

Industrial technological progress, as an essential industrial-technological and institutional phenomenon, brings with it the possibility of high profits for firms but also implies new norms and rules of competition, which affect the willingness and propensity of firms to bear the costs of undertaking venture capital projects. This study empirically investigates the causal impact of industrial-technological progress on corporate risk-taking and the mechanism of digital financial growth on the relationship between the two, based on data from China's A-share listed businesses from 2011 to 2020. This paper finds that (1) industrial technological progress improves enterprise risk-taking levels. Moreover, digital financial development has an incentive effect on industrial technological progress and enterprise risk-taking levels. (2) Industrial technological progress under digital financial development generates financing constraint relaxation effects, input capital return enhancement effects, and innovation performance incentive effects, increasing enterprise risk-taking. (3) The positive moderating effect of digital financial development on the relationship between industrial technological progress and the risk-taking level of enterprises in the eastern regions and enterprises in the high-tech industry is more prominent. The study's findings provide a theoretical foundation and policy insights on the crucial elements of industrial-technological progress and enterprises' increased ability to take risks throughout the development of digital finance.

Does Higher Institutional Quality Result in Environmental Sustainability? A Comparative Study of India and China

There is a lack of comprehensive research comparing India and China in terms of institutional quality and environmental degradation. This special issue aims to make threefold distinct contributions. By comparing India and China, we can learn from each other's experiences and gain insight into the shared difficulties both nations face when trying to achieve environmental sustainability in the face of high-quality institutional frameworks. The impact of corruption, economic development, ecological risk, and renewable energy sources on carbon dioxide emissions in China and India is investigated in this study. For this reason, we also employ the ARDL model and pairwise Granger causality to prove that something caused another. Applying the ARDL long-run bound test, the empirical results reveal a long-run connection between variables in both China and India. In the case of China and India, the estimated results also reveal a negative correlation between carbon emissions and the usage of renewable energy sources, but a positive correlation between carbon emissions and economic growth, corruption, and environmental risk. Improving institutional quality is the goal, and the present theoretical and applied discourse on comparative environmental sustainability is a good place to start. As a result, policymakers in China and India should oppose unfair practices that undermine competition laws and policies by instituting stringent anti-corruption measures and environmental rules. Energy efficiency measures that reduce carbon emissions without slowing economic growth should also be the government's primary focus.

Актуальные вопросы применения антимонопольного комплаенса в сфере недропользования

The market economy, which gives a certain freedom for entrepreneurial activity, at the same time dictates compliance with the established rules of competition, which are fraught with the risk of competition restrictions associated with antimonopoly violations, first of all, we are talking about the monopolization of the market, the creation of discriminatory conditions, etc. in the field of subsoil use. Antimonopoly risks mostly arise due to subjective reasons (human factor), less often under the influence of external factors (emergency situations). The adoption of preventive measures in the activities of companies is an effective measure in the control, regulation, and elimination of risks. Such an institution of preventive measures is the antimonopoly compliance system. The purpose of the study is to develop proposals for the application of antimonopoly compliance procedures in the field of subsoil use. The authors analyzed the regulatory legal acts in the field of antimonopoly legislation and the practice of their application, concluded that it is advisable to apply compliance procedures in the field of subsoil use.

Unlocking the mergers and acquisitions puzzle in the United Arab Emirates: Investigating the impact of corporate leverage on target selection and payment methods.

Following a long stream of literature on the drivers of Mergers and Acquisition (M&A) activities, this study examines the effect of corporate leverage on several decisions of M&A deals in the context of the United Arab Emirates (UAE). Using M&A data from the Thomson One database for the period between 2005 and 2022, we find that corporate leverage significantly influences the type of M&A target. This study further adds to the prior literature on the contradictory behaviours of high and low leverage firms by examining whether acquisition decisions differ amongst them in M&A deals in the UAE context. Results indicate that high (low) leverage firms are less (more) likely to acquire private targets and more (less) inclined to acquire a target from a different (same) industry. Furthermore, our results show that the relationship between the method of payment used in M&A deals and corporate leverage is insignificant. We control for endogeneity using Heckman's two-stage method. In brief, this paper extends the literature with conclusive evidence that considerations of capital structure can significantly anticipate and explain firms' behaviour toward M&A choices. The implication of findings may include a call to reform some aspects of the Competition Law in the UAE by requiring private firms to enhance their disclosure practices similar to their public counterparts.

Analysis of the Impact of Monopoly Practices in the Entertainment Sector

This study aims to investigate the practice of monopoly in the entertainment sector in Indonesia. Specifically, it focuses on the alleged conspiracy between venue owners and sound system equipment rental vendors. This study investigates the extent to which exclusive cooperation can be categorized as a monopoly according to Law No. 5/1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition, using the Normative-Dogmatic Juridical method. The text also mentions the prohibition of monopolistic practices and unfair business competition. The focus is on analyzing analysis of existing legal norms, through a deductive approach to identify violations of the law that occur without connecting directly with the social context of society. Research Results: The study indicates that conspiracies in the entertainment industry reflect monopolistic practices that violate legal norms. These practices eliminate market diversity, limit consumer choice, and result in uncompetitive prices and reduced service quality. These findings contribute to the competition law literature by providing a new interpretation of monopolistic practices at a smaller scale and in a more contextualized manner. They also offer input for stakeholders in designing effective regulations to prevent monopolization, support innovation, and protect consumers.

The refusal to license intellectual property as an antitrust violation in China: how should the current approach be improved?

The holder of intellectual property is entitled to exploit its intellectual property in principle. However, China’s Anti-monopoly Law prohibits the anti-competitive refusal to deal, including the refusal to license intellectual property, which might constitute an abuse of market dominance. Existing anti-monopoly rules related to the refusal to license intellectual property in China are rather general and lack a definite test for the assessment, leaving too much discretion for Chinese competition authorities to interpret the law. As the two main antitrust jurisdictions globally, the US and the EU have different approaches to the refusal to license intellectual property. By reviewing comparative experience, the EU approach is more appropriate for China. It is suggested that China should establish a clear-up test to analyse the refusal to license intellectual property cases under the Anti-monopoly Law, considering the indispensability of intellectual property and its influences on innovation. Meanwhile, Chinese law should include provisions on the remedy of a refusal to license. In this regard, China can make its anti-monopoly enforcement as to the refusal to license more transparent and build up a stable expectation for both domestic and foreign high-tech undertakings.

SEPs infringement and competition law defence in German case law

Within the debate on the role of competition law in standard essential patents (SEPs) litigation, German case law has taken centre stage because of the number of decisions handed down and its traditional patent-owner-friendly approach. As the framework handed down by the European Court of Justice (CJEU) in Huawei is usually interpreted as being opposed to the approach adopted by the German Federal Court in the Orange Book Standard decision, it is worth investigating how German courts have tackled the competition law defence in the post-Huawei scenario. The article maintains that the Federal Court’s rulings in Einwand have aligned German case law with the Huawei framework and that the attention devoted in German case law to the implementer’s obligations is consistent with the principles set out by the CJEU. Nonetheless, recent lower courts’ decisions confirm that the case-by-case detection of the licensee’s willingness is still a challenging issue.

A New Mode of MSME Empowerment Creating a Strong Indonesian Economy (Perspective on Business Competition Law)

Indonesia is included in the category of world economic power in terms of increasing micro, small and medium enterprises (MSMEs), which amount to 19 million. The business competition law in Indonesia in Law No. 5 of 1999 and the Business Competition Supervisory Commission (KPPU) can make MSMEs an important sector in the Indonesian economy through this institution. MSMEs that carry out business or partner with investors or large businesses reduce unfair business competition that can benefit both parties. However, along with the development of technology and people's habits, business actors, especially the MSME sector, are doing various activities to increase turnover by carrying out various business strategies so that their business can continue. Law No. 20 of 2008 concerning Micro, Small, and Medium Enterprises regulates MSMEs' activities, hoping that MSMEs can realize Indonesia as a world economic power with an empowerment model from upstream to downstream and can be easily recognized and accessed quickly. The research method used is descriptive normative legal research. As a result, the new model of the compass network in empowering MSMEs by accelerating the network, roadmap mode, and images can increase MSME production and be free from the influence of an uncertain economic situation.

On the interplay between competition law and privacy: the impact of Meta Platforms case

ABSTRACT In July 2023, the Court of Justice of the European Union (CJEU) issued a landmark judgment at the intersection of competition law and data privacy law. This article delves into two pivotal aspects: firstly, the recognition of privacy-related harms as factors within the realm of competition law considerations; and secondly, an examination of the role of competition law authorities in addressing infringements related to data protection. The analysis emphasizes the practical significance of the CJEU decision, asserting its importance rather than controversy. The judgment provides clarity on how regulatory rules can influence competition assessments and highlights the potential for competition authorities to consider the broader market and regulatory landscape without exceeding their mandate.The Facebook case, while not exhaustive, marks a crucial step in elucidating how regulatory rules influence competition assessments and how competition authorities can navigate broader market and regulatory considerations within their mandate. .

Comparison of Merger Regulations in the Perspective of Competition Law in Indonesia and Malaysia

The business activities conducted by a business entity demand innovation to have market value, added value, and differentiation from its competitors. One form of innovation is through mergers, which is related to cross-border business activities, involving regulations in the country where the business entity operates. This research aims to compare merger regulations from the perspective of competition law in Indonesia and Malaysia. An example of a business entity involved in a merger is Grab and Uber. To address this issue, the research employs a normative juridical research method. The findings conclude that merger regulations in Indonesia are stipulated in the Company Law, alongside the Competition Law and Government Regulation No. 57 of 2010 regarding mergers, acquisitions, and consolidations. In contrast, Malaysia does not yet have specific regulations concerning mergers in competition law, making the merger between Grab and Uber a non-issue in Malaysia.