EU Antitrust Law Research Articles

Will the football agents’ service fee cap survive the current legal attacks?

The Fédération Internationale de Football Association (FIFA) has set a service fee cap for football agents in its new FIFA Football Agent Regulations (FFAR). The respective regulations came into force on 1 October 2023. The article examines the question—in the negative—of whether this service fee cap is compatible with EU antitrust law. Following an overview of the relevant case law of various German state courts and the Court of Arbitration for Sport (CAS), the legal issues associated with the initial problem are analysed in detail.

Sustainability and Net Zero climate agreements – a transatlantic antitrust perspective

The climate crisis requires a transition to a Net Zero economy. Such a transition is possible only through concerted public and private action. While a number of financial institutions and insurance companies had agreed to align their activities with Net Zero targets, reconsidering support for new coal and fossil fuel projects, these initiatives have come under attack from political groups in the US, who have labelled such agreements ‘collective boycotts’. Such accusations feed a collective action problem, and thus hinder private sector cooperation. This article discusses the background to Net Zero Agreements, and the recent antitrust criticisms, under US, EU and UK antitrust law and precedent. Net Zero Agreements can alleviate market failures, resolve collective action problems, and improve consumer welfare by lowering the potentially huge costs to consumers of an unmitigated climate crisis. Under a rule of reason, antitrust authorities and courts in the US, EU, and UK can and should give room for private sector cooperation between companies pursuing an effective transition to a clean economy, where these agreements correct market failures and resolve collective action problems.

Assessing Antitrust Damages in Follow-On Actions Against Cartels

AbstractAssessing damages in follow-on actions against cartels that have infringed EU or domestic antitrust law is still in its infancy in Europe. This Article highlights the reasons why this issue has only recently started reaching the courts and analyses the pitfalls and problems courts face when calculating or estimating the amount of loss caused by a cartel to individual plaintiffs. As this endeavour raises complex economic questions, the Article outlines the basic economic approaches to measure antitrust harm and derives general principles from EU law on how courts should deal with economic evidence in follow-on actions to ensure an effective enforcement of competition law.

The role of the national judge for the enforcement of EU antitrust law twenty years since the entry into force of Regulation No 1/2003

The role of the national judge for the enforcement of EU antitrust law twenty years since the entry into force of Regulation No 1/2003

Developing Artificial Intelligence-Based Content Creation: Are EU Copyright and Antitrust Law Fit for Purpose?

Artificial intelligence offers promising applications for content production. However, their development faces significant copyright issues because it involves reproduction of protected subject matter and requires datasets so large that obtaining licences from all rightholders is unfeasible. These issues potentially hinder technological development and content production. On the other hand, some AI applications can threaten the interests and incentives of those who create works and subject matter that are protected by related rights. This article examines whether EU copyright and antitrust law are capable of addressing these challenges. It identifies possibilities and obstacles in applying exceptions for text and data mining (TDM) and temporary copying to the development of artificial creativity (AC) applications. The article also examines mechanisms by which EU antitrust law facilitates access to copyright-protected training materials and licences – an important complement to the copyright exceptions. While copyright and antitrust law enable the development of AC in certain situations, their tools are limited to particular types of AI applications, certain categories of subject matter and specific market conditions, and are subject to requirements concerning the development process as well as considerable legal uncertainty. Copyright and antitrust law also remain largely toothless against contractual and technological restraints, while recent EU initiatives dealing with data access also provide little relief in this regard.

The role of fundamental rights in antitrust law – a special responsibility for undertakings with regulatory power under Art. 102 TFEU?

ABSTRACT This paper investigates what role fundamental rights can play in the interpretation of EU antitrust law, in particular Art. 102 TFEU. It spells out the difficulties that derive from the fact that antitrust law and fundamental rights are of equal ranking in the EU legal order. It concludes that nevertheless as a matter of systemic and teleological interpretation, EU antitrust law is open for fundamental rights considerations. However, recourse to fundamental rights should be taken only when companies possess regulatory power. This approach sheds light on social media platforms’ recent increased engagement in content moderation. It suggests that for dominant platforms with regulatory power, any discrimination based on political beliefs is prima facie abusive behaviour under Art. 102 TFEU. However, such conduct may be justified by the pursuit of legitimate goals and companies should be granted a wide margin of appreciation in that regard.

Product design and business models in EU antitrust law

The design of products and firms' business models are subject to increased scrutiny by competition authorities (including the European Commission) within the EU. This trend is the consequence of the focus on agencies' efforts on digital markets. Product design and business model cases differ from traditional ones in fundamental ways. The differences relate to the nature of intervention (necessarily more intrusive and far-reaching), to the pro-competitive gains that may result from them and the way in which such gains are intertwined with any possible restrictions. This paper shows that the case law takes into account the specificities of product design and business model cases, and this, in a variety of ways. First, where intervention results in forcing a firm to deal with third parties with which it had chosen not to deal, it is necessary to show, inter alia, that access to the relevant input or platform is indispensable. Second, the anticompetitive effects can never be established in the abstract, which means, in particular, that an authority or claimant would need to identify the relevant counterfactual. There is some tension between the case law and the most recent administrative practice. It is not clear, at the time of writing, how this tension will be resolved (and, by extension, what the relationship of EU antitrust law with sector-specific regimes will be).

Abuse Without Dominance and Monopolisation Without Monopoly

The EU and US antitrust law provisions on unilateral conduct are often understood as remedying the competitive harm resulting from the exercise of significant market power. They only apply when firms hold dominance or monopoly positions. Nonetheless, this chapter explores existing laws and planned legislative proposals diverging from this premise. It highlights the different degrees and types of economic power embedded in the EU and US rules that limit the conduct of firms holding lower thresholds of market power, relative power (e.g., economic dependence, and unfair practices), or gatekeeper powers. The chapter exposes a gap between the notions of power and the theory of harm, challenging the dividing line between protection against harm to effective competition and harm to competitors. Accordingly, the chapter calls upon legislators and enforcers to align the notions of power with the harm and interests covered by the laws.

EU Competition Law and the Rule of Reason Revisited

In 1987, Richard Whish and Brenda Sufrin published an important comparison of EU and US antitrust law as applied to restrictive practices. They concluded that it would be unhelpful for the EU to borrow the language and the analytical framework developed in the US: the rule of reason is a phrase and a method suitable for the US only. This paper reviews the developments in EU and US antitrust law since then and, while sharing the same reluctance to describe EU competition law using US-based terminology, suggests that there are parallels between the two systems in that both have had to contend with similar challenges in calibrating antitrust enforcement. Comparing the two approaches to this problem allows us to view these efforts more clearly. In particular, it helps understand the significance of the paradigm shift found in Cartes Bancaires, Intel and Generics. While both systems have developed a comparable analytical framework, they continue to diverge when it comes to the interests protected by the two legal orders.

Potential Legal Challenges for Blockchain Technology in Competition Law

Abstract Since decentralized organizations such as blockchain are not recognized as legal persons, questions arise regarding the ability to detect anti-competitive practices and their perpetrators. Under certain circumstances, if a competitor is unreasonably refused in access to technology, it may well be interpreted as creating an obstacle to his/her entry into the market, which may constitute a violation of the legislation of a country on the protection of economic competition. The exchange of information between players of the same market can present antitrust risks if it helps to fix prices for their products/services or to establish other forms of coordination between such players. The purpose of this study is to provide a description of current EU anticompetitive practices in the field of blockchain-technologies application, as well as to identify challenges in the EU antitrust law related to the emergence of blockchain. This article highlights the challenges blockchain poses for analyzing unilateral anti-competitive practices. This study suggests that EU competition law has a lack of operational and measurement tools to map competitive interactions taking place outside the relevant market, which could lead to rather short-sighted competition law enforcement focusing only on horizontal competition restrictions on relevant markets. The relevance of the topic is associated with the fact that the increased popularity of the use of blockchain technology requires an answer to the question of its legal nature and inclusion in the legal field in order to balance the interests of all parties to economic and legal relations.

Mutual trust as a backbone of EU Antitrust Law

The article is an attempt to analyse to what extent a close cooperation between competition authorities belonging to the European Competition Network is based on the mutual trust principle. The fundamental importance of the principle of mutual trust was underscored in Opinion 2/13 on the Accession of the EU to the European Convention of Human Rights (ECHR), where the Court of Justice found that: “it should be noted that the principle of mutual trust between the Member States is of fundamental importance in EU law”. However, as it was emphasised by the CJEU. mutual trust does not amount to a blind trust, as it is illustrated in the case law of the CJEU in cases concerning the European Arrest Warrant. The CJEU imposes more and more obligations on executing Member States in verifying whether there are no irregularities issuing the European Arrest Warrant (EAW) in comparison to the early days of its functioning, leading towards a regulated or conditioned trust. This development mutatis mutandis is particularly interesting to analyse while referring to the functioning of cooperation of competition authorities within the EU. The research statement of this article is that based on the outcome of CJEU case law in cases concerning EAW such as e.g. Aranyosi and Caldararu the trust in institutional cooperation such as provided by Regulation 1/2003 and Directive 2019/1 should not be blind so as not to allow the non-noticing of irregularities occurred in other Member States or before the European Commission. We will begin by framing what the concept of trust englobes and showing how it is normatively framed in EU law. Then, the analysis concentrates on where there are boundaries to mutual trust in the decentralised application of art. 101 and 102 TFEU. Subsequently, the questions of how this trust works in practice and what the boundaries are that limit its application are addressed. As the concept of mutual trust is complex itself, this article does not aim to propose detailed solutions de lege ferenda. Its ultimate objective is rather to provide a conceptual framework of de lege lata analysis of mutual trust in the application of EU competition law.

The Evolution of EU Antitrust Policy: 1966–2017

AbstractThis article describes, and puts in context, the evolution of the enforcement practice of the European Commission in the area of EU antitrust law (Articles 101 and 102 TFEU). It considers all formal decisions adopted in the period between 1966 – when the European Court of Justice delivered the two seminal rulings that marked the discipline – and the end of 2017. The article classifies Commission decisions in accordance with four enforcement paradigms. The descriptive statistics show that the cases that the Commission chooses to prioritise have changed over the years. First, enforcement has progressively moved towards the core and the outer boundaries of the system. Second, it has become policy‐driven rather than law‐driven. Third, the nature of the cases chosen by the Commission is consistent with its commitment to a ‘more economics‐based approach’ to enforcement. Finally, these cases signal a move towards a more ambitious stage in the process of the integration of Member States’ economies.

Public Enforcement of EU Antitrust Law: A Circle of Trust?

The concept of trust is key to effectively enforcing the EU antitrust prohibitions in the ECN multi-level administration context. The manifestation of this concept is identified at different stages of the public enforcement system, where the Commission and the NCAs share the enforcement workload and assist each other's actions. Various EU legislative, soft-law and case-law landmarks have progressively contributed to developing this idea of trust, culminating with the adoption of Directive 2019/1, which aims to render NCAs as more effective enforcers of Articles 101 and 102 TFEU. In this paper, we intend to determine whether the Directive furthers the trust already established in the last fifteen years of enforcement experience. We first track the development of the trust in the NCAs' EU antitrust enforcement work and assesses the building-blocks on which trust is shaped. Next, we evaluate the Directive's core elements (dealing with institutional design, enforcement and sanctioning powers, leniency, mutual assistance, etc.), in order to gauge their trust-enhancing potential, and to test whether the Directive correctly follows through the EU hard-, soft-, and case-law. We also look into any remaining enforcement gaps, which may undermine the trust between the European antitrust enforcers, and consequently the Directive's core objectives.

The Obligation for the Competition Authorities of the EU Member States to Apply EU Antitrust Law and the Facebook Decision of the Bundeskartellamt

L'article 3 du reglement n° 1/2003 oblige les autorites de concurrence des Etats membres de l'Union europeenne (autorites nationales de concurrence) d'appliquer les articles 101 et 102 TFUE (le droit…

Legal Professional Privilege in EU Antitrust Enforcement: Law, Policy & Procedure

This article discusses the law, policy and procedure of legal professional privilege in EU antitrust enforcement. It focuses primarily on the enforcement of Articles 101 and 102 TFEU [Treaty on the Functioning of the European Union] by the European Commission, but also touches briefly on the enforcement of EU antitrust law by the competition authorities of the EU Member States (addressing in particular the question whether those EU Member States that extend legal professional privilege to in-house lawyers are in breach of EU law), as well as on private enforcement.

General Principles of Law in EU Antitrust Law

This paper examines the extent of the use and content of unwritten general principles of EU law in EU antitrust law. In particular, three unwritten general principles will be explored in more detail: effectiveness, proportionality and non-discrimination. The contribution will start by examining the explicit use of the general principle of effectiveness in antitrust law proceedings and rules related to its enforcement. The second part will explore the role of proportionality, both within the EU antitrust procedural law and the substantive assessment of an antitrust case. Finally, it will focus on the role of non-discrimination within the substantive assessment of EU antitrust cases. The paper shows that these principles are affirmed, expressly or implicitly, not only in procedural but equally in substantive antitrust law. Yet, their role and actual use varies significantly between antitrust procedure and the substantive assessment of a case. While these principles have a more explicit role in antitrust procedure, their role is less pronounced in the substantive assessment of antitrust cases. The assessment of these principles in the substantive case might also be different as the principles can be applied in a way that is open to economic reasoning and the EU Courts afford a high margin of discretion to the Commission in making complex economic assessments.

Private Enforcement of EU Antitrust Law and Its Relationship with Public Enforcement: Past, Present and Future

This article provides a short history of private enforcement of EU antitrust law and its relationship with public enforcement, from the 1957 EEC Treaty over Regulation 17 and Regulation 1/2003 until Directive 2014/104 and the current outlook.

Sharing Powers Within Exclusive Competences: Rethinking EU Antitrust Law Enforcement

Although the establishment of competition rules forms part of the EU’s exclusive competences, the application and enforcement of those rules has always been shared consistently between the EU and its Member States.The sharing of enforcement powers is conceptualised traditionally as a delegation of the exercise of exclusively conferred competences. The Court of Justice of the European Union’s case law in the context of EU antitrust law enforcement nevertheless raises profound questions as to the overall tenability of this delegation framework in this particular field of EU exclusive competence.This contribution argues the traditional exclusive competences narrative indeed fails to grasp the system of shared enforcement powers underlying EU antitrust law. Seeking to make sense of the realities of that system in light of EU competence doctrines, it explores the constitutionality of legal policy strategies enabling a more explicit recognition of shared competences principles as an inherent part of this EU exclusive competence domain.

Exploring If US & EU Antitrust Law Differences Are Substantive or Superficial by Re-Trying US Cases in the EU

This article canvases several types of antitrust violations. It discusses the legal standards in both the U.S. and EU, explains an illustrative case from each jurisdiction, discusses the differences in the law by comparing and contrasting the cases, and then retries the U.S. case under EU law to see how those differences shape the outcome, if at all.

A dose of competition: EU antitrust law in the pharmaceuticals sector

In the pharmaceuticals sector there is an inherent tension between intellectual property rights and antitrust. This paper examines this tension over the past 10 years since modernisation of EU competition law. It looks at three types of problems: (i) restrictions on parallel imports; (ii) abuse of administrative procedure; and (iii) pay for delay cases. This overview shows that the European Commission is now especially active in areas (ii) and (iii) and generally relies on a more formalistic approach of finding restrictions by object instead of using economic arguments to demonstrate restrictions by effect. The by object approach is supported by the EU Courts. Also, the molecule (active ingredient) is often regarded as the relevant product market, facilitating a finding of dominance. Some national competition authorities have followed in the footsteps of the Commission but on the whole they are less active, for instance on pay for delay. This may be because the EU Courts have yet to rule on this type of case. For pharmaceutical companies the net result is that they cannot assume their intellectual property rights will stand in the way of a finding of antitrust infringement and their behaviour will be scrutinised closely.