Development Of Competition Law Research Articles

Antitrust Legislation in the Context of Constitutional Control: Novelties of Law Enforcement Practice

In December 2023, 30 years have passed since the adoption of the Constitution of the Russian Federation. The positions of the constitutional control bodies have always played and continue to play an important role in the development of antimonopoly legislation and law enforcement practice in cases of protection of competition. In the practice of the Constitutional Court of the Russian Federation (CC of Russia) and a number of other law enforcement officers, competition is considered in the context of the constitutional value that all law enforcement officers, including antimonopoly authorities and courts, are obliged to protect. In the constitutions of a number of foreign countries, there is often no direct indication of the need to protect competition, which increases the role of the highest courts in creating a legal mechanism for its protection. The authors analyze the law enforcement practice of the Constitutional Court of the Russian Federation established after 2018 on the application of antimonopoly legislation and the influence of the positions of the supreme constitutional control body on the development of Russian competition law.

EU Competition Law Developments in the Aviation and Space Sectors from 1 August 2023 to 29 February 2024

EU Competition Law Developments in the Aviation and Space Sectors from 1 August 2023 to 29 February 2024

Indonesian Business Competition Law post the enactment Government Regulation in Lieu of Law on Job Creation Regulation into Law

This study aims to find out the development of business competition law in Indonesia as stipulated in Law Number 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition and its impact on the dynamics of business competition in Indonesia after the enactment of Law Number 6 of 2023 on Stipulation of Government Regulation in Lieu of Law (Government Regulation in Lieu of Law) Number 2 of 2022 concerning Job Creation into Law. This study uses a normative method with a statute approach and a library research approach. The formulation of the problem in this study is the development of business competition law in Indonesia after the enactment of the Government Regulation in Lieu of Law on Job Creation into Law and the impact of the enactment of Law Number 6 of 2023 on the dynamics of business competition in Indonesia. The results showed that the Business Competition Law in Indonesia experienced the first change in terms of substance after the enactment of Law Number 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation into Law. These changes then led to a shift in the dynamics of the Competition Procedure Law, which was considered regressed. Keywords : Business Competition Law, Business Actors, and Unfair Competition

The stunted development of unfair competition law in the United States and Canada

Abstract Both the United States and Canada present unfair competition law in a way that is complex and indicative of their kindred beginnings. Sharing a closely paralleled history in the development of unfair competition law, these countries exhibit unique similarities in both substance and approach, likely not found in any other jurisdiction. Born out of English common law, the early trajectory of unfair competition was inextricably linked to trade mark law. Both countries’ legislatures passed ambitious trade mark statutes that created federal regulation of certain areas of unfair competition, while also reserving large areas for the state or provincial legislatures to regulate. Claimants therefore navigate substantial variety in unfair competition protections depending on the cause of action. Even so, obligations under international agreements such as the Paris Convention and interaction with other bodies of law further extend the unfair competition legal landscape. Despite its complexity, the United States and Canada share remarkably similar paths to unfair competition protection. Understanding their history, limited national legislative powers, policy rationales, obligations under international agreements and the interplay between federal and state or provincial law create a rich and multifaceted unfair competition landscape.

EU Competition Law Developments in the Aviation and Space Sectors from 1 January to 31 July 2023

From 1 January to 31 July 2023, there have been several developments in the aviation and space sectors. The European Commission is currently reviewing the Korean Air/Asiana merger. Meanwhile, it approved the Fortress Investment Group/Air Investment/JV and Inmarsat/ Viasat mergers. A considerable number of cases were brought against the Commission to challenge its decisions in the field of state aid, in large part by Ryanair. The ECJ rejected the appeal by American Airlines in American Airlines/Commission & Delta. Lastly, the UK CMA and CAA published a joint open letter to airport operators. competition, developments, aviation sector, space sector, European Commission, mergers, aviation law, space law

Two Decades of Business Competition Law: How has Indonesian Competition Law Transformed?

This research focuses on the development of competition law in Indonesia, specifically examining the role and impact of Law No. 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition, also known as the Business Competition Law. The objective of this research is to provide an overview of the various changes in business competition law in Indonesia, particularly the establishment of the Business Competition Supervisory Commission (KPPU), responsible for enforcing the law against business competition violations committed by companies or individuals. Additionally, this article will compare Indonesian competition law with that of other countries, such as Australia and Singapore. The research adopts two main methods: a statute approach and a comparative approach. The statute approach involves analyzing three statutory regulations: Law No. 5 of 1999 (Indonesia), Australia Competition and Consumer Amendment Act 2013 (Australia), and Singapore Competition Act 2004 (Singapore). The findings of this study reveal two key weaknesses in Indonesia's Business Competition Law. First, there are deficiencies in both the material and formal aspects of determining prohibitions per se or employing the rule of reason theory. Secondly, there are concerns related to the definition of dominant market positions, necessitating a review of the Business Competition Law to align it with best practices. Additionally, there are issues regarding the neutrality of KPPU as a Quasi-Judicial institution, and the need to safeguard the rights of the reported parties during the judicial process at KPPU. Furthermore, a legal comparison with Australia and Singapore highlights that Indonesia's Business Competition Law lags behind in several areas, resulting in a legal vacuum concerning Mergers and Acquisitions Regulations, Horizontal and Vertical Agreements, Dispute Resolution, and Consumer Protection. In conclusion, this research emphasizes the significance of robust competition laws in promoting fair business competition, economic growth, and foreign investment. It sheds light on the weaknesses of Indonesia's current Business Competition Law and suggests potential areas for improvement based on a comparison with competition laws in Australia and Singapore. Addressing these issues would strengthen Indonesia's competitive landscape and foster a more conducive business environment.

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

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

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.

Hungary ∙ Competition Law Developments in Hungary from Mid-2022 to Mid-2023

Hungary ∙ Competition Law Developments in Hungary from Mid-2022 to Mid-2023

Is There Room for Food Sovereignty Considerations in EU Competition Policy? A Theoretical Framework

So far, the notion of food sovereignty has not claimed a place at the table of competition law. Although competition law developments in the last four decades have promoted the exclusive dominance of efficiency considerations, the next few years may bring a turning point through the recognition that in the long term economic efficiency also requires social and environmental sustainability, especially in a sector like agriculture. Although family farming has always been dominant in Europe, recent trends of concentration and consolidation in the agricultural and food supply chain as well as globalisation itself have shaken European agricultural producers who face several competition-related problems. This article aims to shed light on whether the theoretical framework of EU competition law and policy are appropriate for the notion of food sovereignty to join the discourse. In order to do so, the article presents the main tenets of ordoliberalism, the prevailing school of thought in EU competition policy, in particular the findings of those ordoliberal scholars who deal with the issues of agriculture. Moreover, the article aims to theorise sovereignty in food sovereignty, in parallel with bringing it into line with ordoliberalism, in order to explore whether the concept of social market economy, one of the key concepts of ordoliberalism explicitly followed by the EU, and in particular ordoliberal competition policy to be realised within the framework of the social market economy, is suitable to take into account food sovereignty’s core elements at least at a theoretical level. If it is, it may bring to the fore a viewpoint of EU competition policy which ensures appropriate protection for the agricultural sector to overcome the newly emerging anomalies faced by European agricultural producers as a consequence of globalising markets. Keywords: food sovereignty, competition law, competition policy, ordoliberalism, agriculture, United States of America, European Union. DOI: https://doi.org/10.3935/cyelp.18.2022.468 This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: MM Csirszki, ‘Is There Room for Food Sovereignty Considerations in EU Competition Policy? A Theoretical Framework’ (2022) 18 CYELP 83.

Regulating Competition in the Digital Platform Economy: Russia and China Compared

ABSTRACT In many countries, the rapid evolution of digital platform technology has triggered significant shifts in competition law. Many have interpreted China’s recent moves as signaling a broader crackdown on private entrepreneurship. In Russia, even before the invasion of Ukraine, government policy became increasingly restrictive toward foreign internet platforms. This paper analyzes the development and enforcement of competition law in Russia and China. We show that both technologically driven changes in the ability of digital platform firms to exercise market power and changes in the external political environment affect the relative strength and coalitions of interested bureaucratic actors and influence policy outcomes.

European Union and United Kingdom Competition Law Developments in the Aviation Sector: January to June 2022

It goes without saying that the effects of the COVID-19 pandemic continue to be acutely felt by the aviation industry. This can be readily seen from the competition law developments in the first half of 2022 which continues to be dominated by State aid cases – not only Commission decisions approving State aid to carriers and arports, but also appeals against previous Commission decisions. This article summarizes the main developments over the past six months and provides the reader with an overview of the details of each of these developments. The first six months of 2022 continue to be dominated by State aid cases, be it decisions by the European Commission (‘Commission’) to approve State aid applications, appeals of those or previously decided State aid cases, or the handing down of judgments from the General Court (GC). As mentioned previously, this is to be expected for years to come. Taking a quick look at the State aid applications submitted to the Commission, most of the applications were submitted under Article 107(2)(b) of the Treaty on the Functioning of the European Union (‘TFEU’), which enables the Commission to approve State aid granted to compensate specific companies or specific sectors for the damages directly caused by ‘exceptional occurrences’. While COVID-19 restrictions continued to be eased in early 2022, operators continued to count the cost of the pandemic, and Member States continued to support operators for the damages directly linked to the COVID-19 pandemic. The Commission is also empowered to assess State aid measures under Article 107(3)(b) TFEU, which enables it to approve State aid granted to promote important projects of common European interest or to remedy a serious disturbance in the economy of a Member State and few would dispute that the COVID-19 pandemic caused serious disturbances in the economies of EU Member States. The final main mechanism to consider State aid is the Temporary Framework specifically set up by the Commission to enable the quick approval of State aid providing that the measures fell within defined parameters. The author is not aware of any merger notifications to EU/UK authorities – indeed, following the abandonment of some previous mergers, and challenges faced by the industry as it attempts to ramp up operations following the pandemic, it is perhaps unsurprising that mergers have not been a priority matter in the aviation sector.

The Application of Competition Law to the Pharmaceutical Sector in the European Union and United Kingdom

This survey article discusses European competition law developments in the pharmaceutical sector from January 2021 through December 2021. Section II reviews developments that continue in the wake of the COVID-19 pandemic. Section III covers cases involving competition from generics and biosimilar suppliers. Section IV deals with recent judgments and cases on excessive pricing. Section V addresses developments on the ongoing issue of parallel trade and distribution. Section VI looks at investigations and recent national enforcement regarding cartels and information exchange. Finally, Section VII provides an overview of the scrutiny of mergers by competition authorities. In response to the COVID crisis, the European Commission (Commission) published a Temporary Framework in April 2020 indicating that certain forms of business cooperation among competitors might exceptionally be allowable in order to address the shortage of essential products and services triggered by the ‘rapid and exponential growth of demand’ engendered by the crisis.1 At the same time, the Commission issued its first comfort letter addressed to ‘Medicines for Europe’ (MfE), a trade association of generic and biosimilar suppliers, supporting MfE’s collective response to address medicine shortages caused by a surging demand for treatment of COVID-19 in hospitals.2

The concept and place of competition law in the legal system of the EU

In the framework of modern reform of competition laws in the European countries, that has arisen due to increasing attention to markets in the field of IT services, in particular software and IT-solutions for business, the nature of competition law and its place in the legal system of each separate state became as one of the most topical issues. Such features are revealed through several characteristics, including the peculiarities of historical development, the level of market concentration, the development of individual industries etc.
 Even though the fact that basic principles of the competition regulation in the European Union are stipulated at the supranational level, their historical basis is the process of development of competition law in individual Member States. The existence of two models of competition regulation at the theoretical level, i.e. European and American, allows, in turn, to distinguish such concepts as "competition", "antimonopoly", "antitrust" and "cartel" law. By the way of definition of the range of legal relations, the question arises as to the affiliation of competition law to the public or private sphere. Due to the specifics of the subject of regulation, the issue of the place of competition law in the general legal system remains open, which leads to a large number of problems, both on the theoretical and practical levels. As for the example, we can indicate, inter alia, the definition of the status and scope of powers of authorities, the nature of sanctions imposed in a result of violation of competition laws and the nature of such liability. In addition, there is a question regarding the nature of the processes carried out within consideration of cases of violation of the legislation on protection of economic competition or review the applications for granting approval on concentration or concerted practices, participants’ rights and obligations in such processes, etc.

The Incursion of Antitrust into China’s Platform Economy

This article adopts a holistic approach to China’s antitrust strategy toward the platform economy. As enforcers everywhere come to terms with the unique challenges posed by the market power amassed by digital gatekeepers, China’s sudden, fierce attack on its own tech giants has been as effective as it has been baffling to observers, and has helped antitrust policy progress by leaps and bounds. However, antitrust is only one of several battlefields of the war on platforms. This article first dissects the competition law developments that have taken place in the first year of China’s “Big Tech crackdown,” focusing on enforcement, policymaking, and law and institutional reform. Thereafter, this article joins the dots and assesses the results of the (partly) Big Tech-motivated refurbishment of the Chinese antitrust law and policy landscape. It identifies certain risks stemming from the new reinforced system, and proposes ways circumvent these and reap the benefits of the improved legal framework.

European Union Competition Law Developments in the Aviation Sector: July to December 2021

The second half of 2021 has seen the aviation industry continue to grapple with the impact of the on-going Coronavirus (COVID-19) pandemic, as travel restrictions and similar adjustments have been required in a number of jurisdictions. Key developments included in this article include: – A number of addressees of the European Commission’s (the ‘Commission’) air cargo cartel case, which imposed significant fines on participating airlines, have lodged claims against the Commission seeking compensation as a result of the latter’s refusal to pay interest on fines imposed which the Commission repaid to airlines following the EU court’s annulment of the original cartel decision. – The Commission has closed its investigation into Amadeus and Sabre over their contractual terms governing the distribution of airline tickets in agreements between airlines and travel agents, citing insufficient evidence that the arrangement had restricted competition; and – The seismic impact of the on-going pandemic continues to give rise to a great number of State Aid notifications to various beneficiaries in the aviation sector, with a commensurate uptick in the number of legal challenges before EU courts. As with 2020, Ryanair has continued to be particularly active in challenging these measures. This article summarizes the main developments over the past 6 months and aims to provide the reader with an overview of each of these developments. aviation, airline, regulation, competition and anti-trust

Main Developments in Competition Law and Policy 2022 – Korea

Main Developments in Competition Law and Policy 2022 – Korea

Main Developments in Competition Law and Policy 2021 – Korea

Main Developments in Competition Law and Policy 2021 – Korea

From Divergence to Convergence: The Role of Intermediaries in Developing Competition Laws in ASEAN

Abstract Despite the diversity of contexts and circumstances in which competition laws are developed and exist, many countries have enacted competition laws that are broadly similar. To learn more about the dynamics shaping the development of competition law at the national, regional, and international levels, this article investigates the development of competition law in the Association of Southeast Asian Nations (ASEAN) region, a region whose competition laws remain underexplored. This article undertakes a case study on the drafting of competition law in the ASEAN member states with the most recently drafted and/or enacted new comprehensive competition laws, that being Brunei Darussalam, Cambodia, Lao PDR, Myanmar, and the Philippines. It finds that, while there were differences in the processes of drafting and enacting competition law in these countries as well as in their local contexts, their competition laws are similar in many respects. The case study also finds that intermediaries facilitated the processes of translation and adaptation that occurred in developing competition law in these ASEAN member states. This article argues that the important role that intermediaries played in developing competition laws was a key reason for the broad convergence of these competition laws across their diverse local settings.

European Union and United Kingdom Competition Law Developments in the Aviation Sector: January to June 2021

As a direct result of the Coronavirus disease 2019 (COVID-19) pandemic, and the support measures initiated by EU Member States to compensate airlines for lost revenues, a review of the EU competition law developments the first half of 2021 continues to be dominated by State aid cases. This article summarizes the main developments over the past six months and provides the reader with an overview of the details of each of these developments. The first six months of 2020 have continued to be dominated by State aid cases, be it decisions by the European Commission (‘Commission’) to approve State aid applications, appeals of those or previously decided State aid cases, or the handing down of judgments from the General court. It is to be expected that for years to come, State aid decisions will form a significantly greater part of the competition law diet. In the six-month period, looking only at COVID-19 pandemic related cases/decision: at least sixteen Commission State aid decisions related to compensating undertakings for the direct or indirect effects of the COVID-19 pandemic; twelve Commission State aid decisions were appealed to the General court (mostly by Ryanair); and we are now seeing a significant number of judgments from the General Court relating to some of the Commission’s COVID-19 State aid decisions. In this period, Ryanair scored equal numbers of successful and unsuccessful appeals. Taking a quick look at the State aid applications submitted to the Commission State, a number of measures were submitted under Article 107(2)(b) of the Treaty on the Functioning of the European Union (‘TFEU’), which enables the Commission to approve State aid granted to compensate specific companies or specific sectors for the damages directly caused by ‘exceptional occurrences’. Few could ever contest that the COVID-19 pandemic would not qualify as an ‘exceptional occurrence’ it was an extraordinary, unforeseeable event having a significant economic impact globally. As a result, the interventions by the Member States to compensate for the damages directly linked to the COVID- 19 pandemic were considered justified. The Commission is also empowered to assess State aid measures requested by Member States under Article 107(3)(b) TFEU, which enables it to approve State aid granted to promote the execution of an important project of common European interest or to remedy a serious disturbance in the economy of a Member State. Again, few would dispute that the COVID-19 pandemic caused serious disturbances in the economies of EU Member States. The final main mechanism to consider State aid is the Temporary Framework specifically set up by the Commission to enable the quick approval of State aid providing that the measures fell within defined parameters. In relation to mergers, there are only five mergers mentioned, of which one reference the abandonment out of the Air Canada/Air Transat transaction after an in-depth investigation lasting more than eleven months. It should be noted that as a direct result of commitments regularly imposed by the Commission in State aid decisions under the Temporary Framework, recipients of State aid (like Air France, TUI, Finavia, Riga Airport etc.) are in principle prohibited from acquiring shares in competing or related markets, and this may have a dampening effect on merger activities in the aviation sector.