EU Competition Research Articles

Smart City Data Commons and EU Competition Law – A Conflict in the Making?

Smart City Data Commons and EU Competition Law – A Conflict in the Making?

Predatory pricing in platform markets: a modified test for firms within the scope of Article 3 of the DMA and super-dominant platform firms under Article 102 TFEU

ABSTRACT The paper examines predatory pricing in the context of two-sided digital platforms, arguing that traditional tests based on Average Variable Cost (AVC) may be inadequate for these markets. While predatory pricing by dominant firms is prohibited in both EU and US competition law, the current standards may not effectively capture predatory behavior in platform markets characterized by strong network effects and low marginal costs. The paper analyses cases where cross-subsidization between platform sides had predatory elements and resulted in findings of abuse of dominant position. Given platforms' unique characteristics, it proposes a modified test under Article 102 TFEU for super-dominant platforms and those within the scope of Article 3 of Digital Markets Act's scope. The proposal extends the Akzo test by presuming prices below Average Total Cost (ATC) to be abusive, rather than using AVC, with LRAIC as a proxy for ATC. This addresses the current test's limitations for low marginal cost businesses while allowing for objective justification.

TUPE’s public–private divide: Bicknell (1) The British Medical Association (2) v NHS Nottingham and Nottinghamshire Integrated Commissioning Board

Abstract This note reviews the decision of the Employment Appeal Tribunal in Bicknell (1) The British Medical Association (2) v NHS Nottingham and Nottinghamshire Integrated Commissioning Board and its consideration of the limitation of the scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006 to ‘economic activity’. This limitation, when combined with the exclusion from the application of the transfer of undertakings legislation of ‘public administrative’ reorganisations, creates a public–private divide—a ‘public sector exclusion zone’—in the application of the transfer of undertakings regime. This note argues that the doubts expressed by the EAT in Bicknell about the decision in Nicholls & Anor v London Borough of Croydon & Ors—in which it was held that the purchasing and commission of goods and services do not constitute an economic activity for the purposes of the transfer legislation—are well founded. The approach adopted in Nicholls, which was based on EU competition law authorities addressing the entirely different context of the regulation of competition, should therefore be revisited. Applying a purposive TUPE-specific approach, the purchasing and commission of goods and services should, depending on the factual matrix, be treated as capable of constituting an economic activity for the purposes of TUPE. This approach would, consistent with the objectives of the transfer legislation, enable the (better) protection of the employment of those engaged in purchasing and commissioning activities, whether or not conducted under the broad umbrella of the public sector, who are affected by reorganisations and similar exercises otherwise satisfying the requirements of a TUPE transfer.

EU digital law and the digital platform economy—an inquiry into the co-evolution of law and technology

AbstractEU digital policy is currently one of the most ambitious and far-reaching endeavors to regulate the digital economy. Online platforms in multisided markets with digital ecosystems lie at the heart of digital technologies and business models. Among others, they pose new challenges with regard to the abuse of a dominant market position, thus ultimately reducing competition and innovation. This paper outlines an evolutionary approach to the co-evolution of law and technology with collective cognitive constructs and wealth effects as essential drivers (Eckardt (2001, 2008). It is then applied to the evolution of EU law in this field. After an overview of the evolution from telecommunication monopolies to the current digital platform economy, a case study presents firstly the Google Search (Shopping) case (2010–2024). Based on traditional EU competition law, it resulted in gradual judge-made legal innovation. It also generated new knowledge about the shortcomings of the ex post approach of EU competition law when applying it to the digital platform economy. As a consequence, secondly, the introduction of the Digital Markets Act (DMA) (2020 onwards) as a radical statutory innovation is discussed. The DMA introduced a novel ex ante regulation for large online platforms to overcome the problems of traditional EU competition law. Finally, the paper reflects on the impact of wealth effects and the (co-evolving) cognitive constructs of the relevant players as drivers in this current example of the co-evolution of law and technology. The paper concludes with an outlook on further areas of empirical and conceptual research that can provide a better understanding of the co-evolution of law and technology and allow for better policies in regard to disruptive technological innovation.

The Interplay between EU Competition Law and Professional Sports: Recent Developments and Their Potential Impact on Small States

In its December 2023 judgements delivered in the European Superleague Company and International Skating Union v Commission cases, the Court of Justice of the European Union concluded that the rules established by such sports governing bodies as FIFA, UEFA, and the International Skating Union with regard to prior authorisation of alternative competitions falling outside their jurisdiction were restrictive ‘by object’ under the union’s competition law, thus forming a pathway to creating such alternative competitions in one respect. Analysing these rulings’ potential impact on professional sports, the article discusses possible harmful effects that certain alternative competitions could have on sports in small states in particular. The author advocates taking the potential for such effects into account when national courts direct their attention to further assessing the governing bodies’ pre-authorisation rules and their specific refusals to authorise certain alternative competitions.

Sustainability And Eu Competition Law: Green Regulations

Environmental considerations in the enforcement of competition regulations have recently become one of the most controversial debate topics in the European Union after the adoption of the new Horizontal Guidelines. There are serious competition law concerns that are deemed to surface with the relaxation of the competition enforcement and any amendment of the enforcement of competition regulations shall be made with prudence. Environmental considerations in the enforcement of competition regulations shall be necessary to some extent for creating more room for particular sustainability agreements where there is no way of doing so by other means. The amendments made to the European Horizontal Guidelines show prudence while satisfying the need for environmental considerations for particular sustainability agreements, however some amendments shall be revised to relieve serious competition law concerns.

FIFA’s Football Agent Regulations and European Competition Law

Abstract We assess the relationship between professional sport and European Union competition law using the example of the FIFA Football Agent Regulations (FFAR), a set of rules enacted by FIFA, the world football governing body, to regulate the activities of football agents. The FFAR have been challenged under competition law before national courts and in arbitration proceedings before the Court of Arbitration for Sport. The European Court of Justice has been asked to rule on the matter. The FFAR are the result of an anti-competitive decision by an association of undertakings. In particular, there is no exception for such agreements under the so-called Meca-Medina test. This analysis is supported by the European Court of Justice’s 2023 rulings in sports cases, in particular the European Superleague.

The complex relationship between geo-blocking and territorial licences viewed through the two prisms of copyright law and competition law

ABSTRACT The article critically evaluates the controversial technology i.e. geo-blocking, through two related prisms, digital copyright (in particular, audio-visual services) and, EU Competition Law. Two EU Regulations are key to this analysis: the Portability Regulation and the Geo-blocking Regulation. Compellingly, there are both contradictions and tensions between these two Regulations when it comes to copyright-protected services. The discordant legislative provisions are not the sole quandary; the General Court’s ruling in the Groupe Canal + case is generally anti-geoblocking in tone. By ruling against absolute territorial protection in the context of pay-TV licences, the General Court indirectly challenges the geo-blocking clauses in the aforementioned licences. While the CJEU annulled the General Court’s decision on grounds of proportionality, concerns relating to the fate of geo-blocking clauses in licensing agreements still prevail. An analysis of the two contradictory Regulations and the Groupe Canal + judgment suggests an apparent diminishing role for geo-blocking technology in the context of copyright-protected audio-visual services. However, vigorous lobbying efforts by the audio-visual sector introduce an element of uncertainty, meaning that the rescission of the copyright carve-out in the Geo-blocking Regulation is not a foregone conclusion by any means.

Fundamental procedural rights and ECB banking supervision: An ECB Hearing Officer?P. Chirulli

This article explores the possibility of establishing a position at the European Central Bank (ECB) along the lines of the Hearing Officer (HO) provided for in European competition law; a position whose task would be to safeguard the effective exercise of procedural rights throughout the supervisory proceedings carried out by the ECB. To this end, after identifying the reasons that might justify such a regulatory intervention, the article outlines the legislation on the HO laid down in European competition law. It then illustrates some functions that could be entrusted to the HO of the ECB and the regulatory instruments that could concretely be used to establish the HO position. In the conclusions, the article suggests that the introduction of this position within the framework of the ECB should be undertaken gradually.

Abuse of Platform Power – Leveraging Conduct in Digital Markets under EU Competition Law and Beyond by Friso Bostoen (Paris: Concurrences, 2023)

Abuse of Platform Power – Leveraging Conduct in Digital Markets under EU Competition Law and Beyond by Friso Bostoen (Paris: Concurrences, 2023)

A systematic content analysis of innovation in European competition law

Innovation plays a crucial role in defining competitive dynamics. Given this fact, one might expect ‘innovation’ to play a consistent role in antitrust law. The present article conducts a systematic content analysis of the case law of the Court of Justice of the European Union to test this hypothesis. The findings suggest that EU courts treat innovation inconsistently in competition law cases, often assigning different weight to innovation in similar contexts and neglecting central parameters agreed upon in the literature. To address this inconsistency, the article proposes measures to maintain the predictability of competition law analysis while giving innovation a more central role in the definition of relevant markets, evaluation of market power, and assessment of practices.

The New EU Competition Law, Pablo Ibáñez Colomo. 1st Edition. Oxford, U.K.:Bloomsbury Publishing. 2023

The New EU Competition Law, Pablo Ibáñez Colomo. 1st Edition. Oxford, U.K.:Bloomsbury Publishing. 2023

Data Driven Dominance in Digital Markets: Assessing Indonesian Competition Law in the Digital Age

Digital markets and multi-sided platforms are created by the internet, that are characterized by the use of big data as new market power. Big data enabled dominant and digital-based key players such as Instagram and Facebook/Meta to record and forecast their users’ personal data and spending capacity to increase their economies of scale by tailoring updates to the users’ demand. Therefore, big data becomes an essential market share, and its scarcity determines newer entrants’ ability to enter the market and the existing incumbents’ ability to survive by grappling with fast-paced digital changes. This legal morphology benefits data-driven undertakings to elevate their position in the market and achieve enough independence to influence market behavior. On the other hand, multi-sided platforms refer to where a single undertaking sells different products to different types of consumers on different sides of the platforms that affect each other’s demand due to the cross-group network effect. Undertakings often sell zero-price products to one side while imposing the monetary burden and gaining revenue from the other. This situation triggered legal challenges to the calculation of market share necessary to determine a dominant position that is essentially mathematical based. Furthermore, big data and multi-sided platforms stimulate the rise of novel abusive practices in the digital market. This paper will analyze the Indonesian 1999 competition law’s flexibility to deal with these changes by comparing the existing framework on consumer data protection, big data, and multi-sided platforms management to the European Union competition law.

General-Purpose AI Models as Essential Inputs in Downstream Markets: The Need for a Strict Standard Regarding Mandatory Access

Abstract General-purpose AI models have emerged as a disruptive technology with paramount spillover economic effects across industries. The owners of such models, namely big tech enterprises, can leverage their dominance in general-purpose AI models to expand into existing or new downstream markets. However, competition law is poised to constrain this expansion effectively. Nevertheless, there is uncertainty about the legal standard when assessing a refusal to deal in the case of access to general-purpose AI models. While EU competition law judicial practice reveals an adversary tendency against big tech enterprises leveraging in downstream markets, there is a case for adopting a narrower standard regarding access to general-purpose AI models.

Does DMA interoperability promote innovation: a comparative study from EU competition law to the DMA

ABSTRACT The paper explores the balance between interoperability and innovation within the context of the Digital Markets Act (DMA) and competition law. It discerns vertical interoperability obligations (Article 6(4) and 6(7)) from the horizontal interoperability obligation (Article 7) and highlights the following. First, the EU competition law is more experienced in dealing with vertical interoperability which favours innovation incentives for SMEs and new entrants over those for established incumbents (the incentive-balance test). This approach may encourage sustaining innovation at the downstream level by fostering competition and could eventually lead to disruptive innovations as new entrants gain experience and resources. Secondly, EU competition law is not well-versed in horizontal interoperability obligations. While Article 7 may boost innovation through increased competition, considerations related to privacy and standardization make its (potentially benign and adverse) effects on innovation uncertain.

Has the European Union (tacitly) adopted a Trinko doctrine, giving priority to sector regulation?

In U.S. antitrust, a level of implied immunity is afforded to matters governed by sector regulation, often referred to as the “Trinko-doctrine.” In contrast, no such immunity is assumed in European Union competition law, where by contrast, there is only a very narrow regulatory defence if laws mandate a specific (anti-competitive) course of action. As always, matters are more nuanced in practice. Not only did the Court of Justice of the European Union, the European Union’s highest legal authority, recently suggest an obligation to halt competition law investigation if sector regulations are available, this has tacitly been practiced for years, indicating a more complex relationship and a possible European Union Trinko-doctrine. Following the adoption of the EU’s Digital Market Act, this has relevance beyond the traditional regulated sector, warranting some considerations.

Designing (restorative) remedies for abuses of dominance by online platforms

Abstract The debate surrounding the application of European Union competition law to online platforms so far has predominantly focused on identifying anti-competitive practices. The design of corresponding remedies has been far less explored, although it is of equal importance to practice. In the absence of effective remedies, the mere identification of anti-competitive practices can do little to protect competition. Given the difficulties associated with identifying competition law infringements by online platforms, there is no reason to assume that the design of remedies intended to tackle the effects of such infringements will be straightforward. Therefore, this article aims to show the intricacies of designing effective remedies for Article 102 TFEU infringements by online platforms based on the case study of tying and bundling practices. In this process, the article clarifies the importance of incorporating restorative measures in competition law remedies that may require opting for structural interventions, which are difficult to impose under the scope of Regulation 1/2003. The article offers three potential options to overcome such difficulties within the ambit of this regulation, namely through the strategic use of interim measures, the introduction of flexible remedies, and the incorporation of the regulatory restraints of the Digital Markets Act.

Protection of intellectual property rights against unfair trade practices in the European Union

It is indicated that each state must ensure fair competition in its market in order to support economic growth. This provision is also relevant for the European Union, within which the primary importance is to ensure free competition for the further development of a single system of circulation of goods, works and services, promotion of innovation and creativity, job creation and increased competitiveness, as all this is necessary for the EU to compete in global economy. This article provides a general analysis of the correlation and interaction between the provisions of intellectual property law and the provisions of competition law in the European Union (EU). In particular, the author examines the peculiarities of legal regulation of economic competition and intellectual property protection at the EU level, the state of compliance with EU competition law in the process of exercising and protecting intellectual property rights, and the role of court decisions in determining the balance between intellectual property protection and competition law requirements. The author emphasises that despite different objectives, competition law and intellectual property law have a common basis and therefore actively interact, i.e. these two systems are synergistic. The author analyses possible options for the relationship between protection against unfair competition and intellectual property laws, including the means that would reduce the often existing «tension» between them. Due to the need for a common regulatory framework to ensure that laws are in line with dynamic trade practices, the EU’s unfair competition laws are mostly flexible and general in nature. The author identifies the measures currently being taken by the EU to optimise the rules in this area. The author concludes that intellectual property protection, as well as effective antitrust regulation, are the most important legal mechanisms created to ensure economic growth based on the development and expanded use of innovations. The author also examines the measures currently being taken by the EU to optimize the rules in this area. It is concluded that the general trend of further development and improvement of interaction between antitrust and intellectual property legislation in the EU should be, first of all, overcoming regulatory and institutional dispersion.

Antitrust restriction on football governance: the case of European Super League

ABSTRACT The European Super League case has been widely discussed by EU regulators, football associations, clubs, players, supporters and legal practitioners. This article intends to explore the legal reasoning of the Court of Justice regarding the intervention of EU competition law in football governance in this case. This article accordingly analyses the interpretation of the rules and exemptions stipulated in Articles 101 (1) and 102 of the Treaty on the Functioning of the European Union, and gives comments on the antitrust assessment by the Court of Justice regarding the common rules of prior approval and sanctions. It follows that the Court of Justice stressed the importance of transparent, objective and non-discriminatory procedures in the rule-making of football associations and saw this as a significant condition for the enforcement of EU competition law and antitrust exemption.

EU Competition Law, Fundamental Rights and the Principle of Transparency – An Evolving Relationship

Faced with the challenges posed by gatekeepers, EU competition law is undergoing a period of significant change. I attempt to show in this article that one can understand this change as a shift in the relationship between EU competition law and fundamental rights. More precisely, I show that the initial relationship between these two factors has been operational, in the sense that fundamental rights have been relied upon to operationalize the substance of competition law. In the operational relationship, the right to a fair trial has been deployed by the European Commission to create and expand its quasi-judicial arm. This long-standing operational relationship has recently evolved into an informative one, where the rights to privacy and data protection have informed the European Commission’s merger assessments involving gatekeepers. Finally, I argue that, in light of the Meta/Facebook case and recent EU legislation, the relationship between EU competition law and fundamental rights can be called foundational. Indeed, it appears that both the CJEU and EU legislators intend to inject fundamental rights into the foundations of EU competition law. I also highlight how the principle of transparency has played an important role in these developments as an enabler and magnifier. These changes are significant and will impact the work of competition authorities, data protection authorities and other public bodies in the EU.