Competition Law Enforcement Research Articles

Cooperation between national courts and EU institutions in competition law cases

The article explores the interplay between national courts and European Union institutions in the context of competition law enforcement of rules enshrined in Articles 101 and 102 TFEU. Cooperation between national competition authorities and national courts on one hand and EU institutions on the other hand is crucial for ensuring the effective and consistent application of competition rules. The article deals with the mechanisms of this cooperation. It examines the role of the European Commission and the Court of Justice of the European Union (CJEU) in providing guidance to national competition authorities and national courts. The article underscores the importance of a cohesive approach to competition law enforcement that is applied by national institutions of the EU member states. The concept and meaning of legal security in criminal law is well defined by Professor Jadwiga Potrzeszcz who states that "legal security is a state achieved by law established in general, and in particular by means of criminal law, in which human life’s goods and interests are protected in the most comprehensive and effective possible manner (and) harmonizes properly with the most important functions of criminal law, namely with a protective function and a guarantee function." (Potrzeszcz, 2018, p. 301) In accordance with the aforementioned definition, the author aims to introduce Criminal Codes that were in effect in the territory of present-day Slovakia, shedding light on whether they were guarantees of legal security in the state or not, i.e., whether they protected "human life’s goods and interests in the most comprehensive and effective possible manner."

Effectiveness of Law No. 5 of 1999 in Handling Cross-Border Business Competition

This paper examines the issues of business competition in an extraterritorial context and its implications for the authority of the Indonesian Business Competition Supervisory Commission (KPPU). The research focuses on the extent to which the KPPU can enforce its duties beyond the borders of Indonesia, particularly concerning the effective application of Law No. 5 of 1999. Analysis of KPPU's decisions in extraterritorial cases, especially those involving share acquisitions, provides insights into the approaches and solutions adopted. The study aims to foster discussion on the role of KPPU in addressing extraterritorial challenges, along with the application of international cooperation and principles of international law in enforcing competition law. The research findings are expected to offer recommendations to enhance the effectiveness of KPPU's enforcement of competition law in a global context.

Has competition law enforcement been effective in South Africa?

ABSTRACT The South African Competition Act was crafted on the basis that it could be used to address distortions and inequalities in the market through enforcing competition. A question which has arisen is whether competition enforcement has been effective given that many economic sectors are still largely dominated by monopolies, duopolies or oligopolies. In this study, I assess whether competition enforcement has reduced inequality in South Africa by studying the link between market power and inequality, following a competition intervention in selected product markets. Using the nonlinear autoregressive distributed lag model, I assess whether competition enforcement in the market for bread, maize meal, and sunflower oil, has been effective in increasing consumer welfare, by lowering income inequality through lower prices. The findings of this study suggest that firms in these markets abuse their market power even post-intervention, such that they can raise prices and reduce consumer welfare, increasing inequality indirectly.

The role of economics and the quality of antitrust case assessment in China: an empirical investigation

This article empirically measures indicators capturing the role of economics in the antitrust decisions of the Competition Authorities of China from 2010 – 2021. The methodology allows that identification of the legal standards (LSs) adopted in assessing different conduct types and their evolution. The LSs are compared to their theoretically optimal level in order to deduce quality of enforcement. Comparative analysis is undertaken with published results on the role of economics for EC’s DGCOMP, UK’s CMA and Russia’s FAS. The Chinese Authorities’ enforcement record lags behind in quality that of DGCOMP and CMA in abuse of dominance cases though it is already well ahead of countries in which their modern Competition Law enforcement started at about the same time (2008), like Russia.

Korean Competition Law Enforcement: Recent Developments

This article explains recent developments in Korean competition law enforcement from three perspectives. First, the Korea Fair Trade Commission (‘KFTC’) has recently improved its public enforcement procedures, focusing on preventing the collection of irrelevant materials during its on-site investigations, ensuring confidentiality in the KFTC’s investigations against the legal departments of investigated companies, and enabling more active participation from respondents in expressing their opinions. Second, the most significant progress in the enforcement of Korea’s Monopoly Regulation and Fair-Trade Act (‘MRFTA’) is evident in criminal enforcement. The KFTC and various other national institutions are actively employing criminal penalties, compelling companies to consider criminal procedures early in their response to investigations. Third, advancements have also been made in private enforcement, including (1) increased damage suits by parties injured by MRFTA violations, (2) derivative suits initiated by shareholders to recover company losses, and (3) recent legislative efforts to promote private enforcement through injunctions that prevent and prohibit violations and assist the injured parties in proving damage.

Double-checking mergers: Ex-ante and ex-post competition law enforcement and its implications for third parties

Double-checking mergers: <i>Ex-ante</i> and <i>ex-post</i> competition law enforcement and its implications for third parties

Is the Korea Fair Trade Commission Abusing the Provision for Abuse of Superior Trading Position?: A Critical Analysis of the Act on Fair Intermediary Trade of Online Platforms

Abstract This paper examines the economic impact of the abuse of superior trading position (ASTP) provision within Korea’s draft Act on Fair Intermediary Trade of Online Platforms (AFITOP). The AFITOP, proposed as part of competition law reform in the digital era, applies to large online platform operators providing intermediary services. While derived from the Monopoly Regulation and Fair Trade Act (MRFTA), the ASTP provision’s goal to protect the economically weak is secondary to the MRFTA’s primary goal of efficiency. Furthermore, the provision’s interpretative uncertainties burden enterprises, especially large ones and those exploring new business models. Including this provision in the AFITOP is likely to reduce innovation incentives among large online platform operators, and to foster enforcement bias toward the ASTP provision by the Korea Fair Trade Commission, thereby increasing inefficiency in competition law enforcement. Therefore, the ASTP provision in the AFITOP should not be introduced.

The evolution of EU competition law and policy in the pharmaceutical sector: long-lasting impacts of a pandemic

Abstract This article investigates the evolution of the European Union (EU) competition law and policy enforcement in the pharmaceuticals sector, focusing on the impact of the coronavirus disease 2019 (COVID-19) crisis as a turning point. Before COVID-19, EU competition authorities’ goals and priorities focused on pay-for-delay agreements between originators and generic pharmaceutical undertakings. During COVID-19, the European Commission developed soft laws (such as temporary frameworks and comfort letters) enabling undertakings to cooperate to increase access to essential health products and COVID-19 vaccines. In the post-pandemic era, initiatives like the Pharmaceutical Strategy for Europe, the Single Market Emergency Instrument (SMEI), the Health Emergency Response Authority (HERA), the compulsory licensing proposal and the upcoming changes in the pharmaceutical regulations reflect a patient-centred approach and diverse agenda. This article underscores the move towards a more inclusive EU competition law and policy framework in the pharmaceutical sector as part of this evolution.

GEORGIAN COMPETITION LAW IN THE DIGITAL AGE – GEORGIAN PRACTICE AND EXISTING CHALLENGES

The article identifies, systematizes the decisions taken by the Georgian Competition and Consumer Agency regarding digital markets/competition and reviews the practices established by the Agency based on the said decisions. The introduction of the article highlights the significant challenge of modern competition law, which implies that competition law does not exist independently of era and context, and it is important that competition law and its enforcement mechanisms function effectively in the conditions of the modern digital economy. The article then defines the digital economy and describes two of its key features, (big) data and digital platforms. A number of theoretical problems are then mentioned which may hinder the effective enforcement of competition law in relation to similar economic agents/markets. The main part of the article will concern the review of the decisions made by the Competition Agency in relation to online markets and digital platforms. Since there are currently no special legislative or by-law norms necessary for the effective enforcement of competition law in the digital age, the Competition Agency is guided by the general legislative framework regulating competition law to resolve similar issues. The analysis of the decisions revealed that the practice of the Agency develops in the direction of only two: (I) unfair competition (II) agreements restricting competition, and currently there is no, for example, a decision of the Competition Agency regarding the abuse of a dominant position by digital platforms.

Role of Settlements and Commitments in Competition Law Enforcement

Role of Settlements and Commitments in Competition Law Enforcement

Competition law enforcement and digital platforms non-price competition

PurposeExplore the effects of competition policy on an important competitive dimension of digital platforms, namely quality.Design/methodology/approachThe deterrence effect of competition policy should induce firms to compete on merits, with lower prices and higher quality for consumers. Deterrence, or the inducement not to infringe competition law, may depend on the harshness of penalties and/or the likelihood of conviction. We use competition policy indicators that are associated with these deterrence dimensions, allowing for non-linearities and interactions of the indicators. We use a unique data survey of digital gig platform users, that covers at least two dozen platforms and more than 50 countries. Quality is measured using multidimensional indicators of the level of satisfaction of platform users with different platform services. We control for platform user and country characteristics, including other regulatory indicators such as labor laws, to recover different effects.FindingsResults suggest that competition policy is relevant for differences in product quality across platforms and countries. Important non-linearities are uncovered, where substantive rules of competition policy interact with competition authority power. The effects depend on either level of the indicators, suggesting that deterrence effects depend upon a combination of both law in the books and competition policy practice.Practical implicationsThe estimates suggest a need to balance both dimension of deterrence, namely, strictness and effectiveness to expand the effects of competition policy on competition.Originality/valueThis is the first paper that explores the effect of competition policy on non-price or non-margin competition dimension. It is the first to study the effect on a sample of digital platforms. It contributes to the literature of deterrence effects of competition policy.

Computational Antitrust and the Future of Competition Law Enforcement

Computational Antitrust and the Future of Competition Law Enforcement

Addressing the Abuse of Dominance in India Under the Competition Act, 2002

The regulation of abuse of dominance within India's competition law framework is pivotal for ensuring equitable competition, market efficacy, and consumer well-being. This research paper delves into the intricate dimensions of addressing abuse of dominance within the Indian context, shedding light on the legal framework, enforcement mechanisms, case precedents, and emerging hurdles. Commencing with an exhaustive overview, the paper meticulously examines the legal framework dictating abuse of dominance, elucidating the provisions enshrined in the Competition Act, 2002, and pertinent regulations. Through a thorough analysis of statutory clauses and judicial interpretations, it delineates the criteria and benchmarks utilized for discerning and adjudicating instances of abuse of dominance, thereby providing insights into the evolving jurisprudence in this sphere. Drawing from a diverse array of case laws and precedents, the paper traverses through seminal judgments and enforcement actions undertaken by the Competition Commission of India (CCI) to address abuse of dominance. Through meticulous case analyses, readers are furnished with a deeper comprehension of the enforcement mechanisms deployed by the CCI, encompassing investigative processes, adjudicatory proceedings, and the imposition of remedies and sanctions. Moreover, the paper delves into emerging challenges and discourse surrounding abuse of dominance, encompassing its intersection with digital markets, burgeoning technologies, and the phenomenon of globalization. By scrutinizing contemporary issues such as platform hegemony, apprehensions regarding data privacy, and ramifications of cross-border transactions, the paper furnishes insights into the intricate facets of regulating abuse of dominance within India's dynamic market milieu. In conclusion, this research paper furnishes a comprehensive exploration of the strategies, mechanisms, and impediments entailed in addressing abuse of dominance under competition law in India. By amalgamating legal tenets, case dissections, and contemporary developments, the paper seeks to enrich the scholarly dialogue on competition law enforcement and proffer pragmatic insights for policymakers, practitioners, and stakeholders navigating the convolutions of India's competitive landscape.

Big Data Analytics Algorithms for Dynamic Pricing: The Legal Analysis of the Indonesia Competitions Law readiness in Digital Era

This article analyzes the readiness of Indonesian competition law regarding the utilization of big data and reinforcement learning as tools to improve retailers' pricing strategies, ultimately leading to increased profitability and higher customer engagement and loyalty. It conducts a comprehensive review of scholarly literature pertaining to adaptive algorithmic pricing, with a specific focus on analyzing trends and the impacts of algorithmic pricing strategies. The literature review spans the years 2018 to 2022 and adheres to PRISMA criteria, with academic journals from Scopus serving as the primary source of research papers. The findings of this review indicate that it is evident that the most frequently utilized type of algorithm is RL, that shares a resemblance to human learning processes. Competition law enforcement should consider the possibility of illicit agreements between these artificial agents of colluding companies. In light of the capacity of EAs to facilitate the coordination of illicit agreement, it is imperative to consider the reformulation of Article 5 of Law Number 5 of 1999 and Regulation of KPPU Number 4 of 2011, particularly regarding the classification of price-fixing, to be adjusted to the latest developments, particularly regarding "EAs". ITE Law also should not be limited to EAs merely acting as “tools”. Instead, it should acknowledge their capacity to function as “AI Agents” capable of autonomous action.

Divisional patents: a system prone to abuse

Abstract Divisional patents are derivatives to an already active patent or pending application used to separate part of the parent-patent’s subject-matter and create a new autonomous patent. They are extensively used in the pharmaceuticals sector to protect blockbuster medicines with multiple overarching patent rights, thus creating complex patent portfolios. These strategies have attracted the attention of competition enforcers and judicial bodies as potential abuses of dominant position because they aim to prevent and delay generic market entry for the patent holder to maintain their monopolistic prices. However, scrutinizing these strategies has proven challenging because the current rules are prone to exploitation, there is no unified approach to evaluating them, and the core of the issue is the much-debated interplay between IP and competition law. It will be shown that European case law varies across jurisdictions, with none of the current solutions fully addressing the issues. In the search for a functional, effective system, it is essential to understand the rationale behind patent rights, the unique features of the pharmaceuticals sector, and the arguments for and against the use of competition law to scrutinize patent strategies. On this basis, the article proposes a system which combines competition law enforcement with patent law amendments.

A Call to Arms: Proposing the Use of Social Science Methods in Transnational Competition Law

Competition law enforcement is one of the cornerstones of sound business regulation; yet it faces a problem in the transnational context. Whereas transnational commerce seamlessly transcends borders, competition law has jurisdictional roots, lacking a true transnational response. Global frictions due to the enforcement of divergent domestic laws and policies seem inevitable yet are surprisingly rare. We argue this phenomenon cannot be fully explained by a doctrinal analysis of the global efforts towards policy or legal convergence. Instead, the focus should be on the competition law officials who operationalise the law in a transnational context. This ‘human element’ of the inquiry must embrace qualitative research methods, such as ethnographic studies commonly used in legal anthropology, to develop a comprehensive legal analysis in this context.

Indirect Evidence in Disclosing Cartel Violations Under Business Competition Law in Indonesia

Cartels, or secret deals among competitors to set prices, limit production, or divide markets, pose a significant challenge to healthy competition and market integrity around the world, including in Indonesia. This study examines the use of indirect evidence, such as economic data and communication patterns, in uncovering such covert operations under the Indonesian Competition Law (Law No. 5 of 1999), using the normative juridical approach. The study uses statutory analysis to understand the legal framework, case analysis to explore the use of indirect evidence in law enforcement, and conceptual analysis to enhance theoretical understanding. This study analyzes the decisions of the KPPU and District Courts, KPPU regulations, and relevant legal frameworks to understand the applicability and challenges of using circumstantial evidence in legal proceedings. The results of the study make it clear that, despite its important role, the study identifies legal uncertainty and the need for corroborating evidence as the main obstacles to the effectiveness of indirect evidence. It reveals a significant gap in the acceptance and interpretation of indirect evidence between the KPPU and the judiciary, highlighting the need for clarity and consistency in the law. This review recommends the revision of Law No. 5 of 1999 and related procedural laws to include provisions for the acceptance and utilization of circumstantial evidence, improving the adjudication process of both the KPPU and the courts. This research contributes to Indonesia's understanding of competition law enforcement and promoting fair business practices.

Assessing media mergers and acquisitions: The power pyramids of regulatory cooperation

Due to the media goods’ dual economic and cultural role, merger and acquisition (M&amp;A) assessments are complex and differ from M&amp;As in other sectors. An additional layer of complexity is added to the assessment when various authorities are involved. An even more complicated matter is when the authorities have different remits. These authorities mostly comprise National Competition Authorities that enforce competition law, focused on economic considerations, and National Regulatory Authorities that enforce and oversee the application of media law, focused not only on setting rules and limitations on the media market but also on considering non-economic elements such as plurality. In certain countries, ministries and government authorities can intervene in these assessments. There have been discussions on the need for cooperation between authorities, however, mostly at the international level. Thus, little is known about the current cooperation procedures at the national level. The article proposes a typology of cooperation at the EU member states level and the United Kingdom and introduces the concept of the ‘power pyramid’ to represent the hierarchical relationships between authorities. Cooperation proves that competition policy and media-specific regulation are intertwined and are complementary. Furthermore, the article shows that having more than one authority assessing media M&amp;As leads to media pluralism being more often explicitly one of the criteria used in the assessments, and thus providing a more holistic approach.

PROVING ANTITRUST DAMAGES IN CIVIL PROCEEDINGS – The Compatibility of Serbian Law with Directive 2014/104 –

Private competition law enforcement has been a recent phenomenon in the European Union. In the past, the EU law and member states’ national laws lacked elements that contributed to the preponderance of private enforcement in the United States, such as treble and punitive damages, the procedural right of a damaged party to request discovery of evidence, collective actions, etc. The interest in private enforcement of competition law has gradually increased after Regulation 1/2003 authorised national courts to implement Articles 101 and 102 TFEU, the EU courts established private enforcement principles, and Directive 2014/104 (Antitrust Damages Directive - ADD) laid down rules to facilitate proving competition law violations and damage resulting from them. The US model evidently inspired the EU legislator. At the same time, ADD attempted to balance the private interests of injured parties and the public interest for effective public enforcement. Specific ADD provisions instigated a public debate concerning their reach and alleged confrontation with general legal principles. Even though member states have taken comprehensive measures to implement ADD, national courts need to search for an equilibrium between private and public interests. Therefore, the full effect of Directive 2014/104 is yet to be seen. Private enforcement of competition law in Serbia is still in its initiation phase. The Serbian Competition Protection Act 2009 proclaimed the right of damaged persons to bring actions for damages, even though this right has already existed under the general rules of civil law. The Competition Protection Act failed to stipulate material conditions and procedural rules that would facilitate private enforcement. The Serbian legislator has not yet taken steps to transpose ADD into national law. This paper first analyses the development and principal features of the US and EU private enforcement models. After that it focuses on the ADD provisions expediting evidence collection and damage assessment. The second part of the paper analyses Serbian tort and civil procedure rules relevant to bringing actions for antitrust damages and case law on antitrust damages. The author concludes with proposals for Serbian legislators to harmonise national law with ADD.

Innovation against change

Abstract There is presently an increased enthusiasm for competition law enforcement around the world, driven primarily by concerns about the power of digital platform companies. Against this background, this article identifies the emergence of a ‘techno-conservatism’ that invokes a ‘rhetoric of innovation’ to stymy the field’s ongoing shift towards a more interventionist paradigm. Drawing parallels between techno-conservatism and twentieth-century Chicago school conservatism, the article holds that appeals to innovation are a means of deterring enforcement against dominant companies in dynamic markets. This article contests the rhetoric of innovation, maintaining that it is possible to reconcile strong enforcement with care for innovation. It does so by raising three points. First, innovation often arises from smaller companies and deconcentrated markets. Secondly, many of the innovations associated with technology companies often have their origins in the public sector. Thirdly, innovation is not innately beneficial. It is not enough to defend dominance simply by pointing to ‘more innovation’; thought must also be given to the qualitative nature of that innovation. Taken together, these three ideas represent a useful framework with which to counter the rhetoric of innovation and defend the momentum building in competition law.