EU Competition Research Articles

Digitalisation in EU Competition Law and the Swedish Principle of Transparency

The procedural and institutional rights granted by the EU Charter of Fundamental Rights have an important impact at national level in the application and interpretation of competition law by national courts and national authorities. In Sweden, the situation is particularly fascinating since the principle of openness – which affords a maximum standard of human right protection – may conflict with the procedural and institutional rights of the Charter, i.e. Articles 41, 47 and 53 of the Charter. The application of the Charter by the public procurement authority is also of interest here. Arguably, the principle of openness as defined by Swedish law should be respected in light of the procedural and institutional rights granted by the EU Charter.

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.

The “objective test” and the downstream market presence requirement in Big Data access cases under the essential facilities doctrine - a critical assessment

One possible way to gain access to competitively relevant sets of Big Data is toapply the essential facilities doctrine. However, the European Commission and theEuropean Court of Justice have established several different criteria for applying thedoctrine. Since neither institution has yet applied the doctrine in Big Data accesscases, it is not clear which of the criteria applies in such positions. This paper attemptsto analyze the impact of the “objective test” and the requirement that the controllingcompany be active in the downstream market (which are included in all assessmentcriteria) in Big Data access cases, with the goal of answering the research question,“Do the application of the “objective test” and the requirement that the controllingcompany be active in the downstream market impede the effectiveness of the doctrinein Big Data access cases under EU competition law, and if so, how should they bechanged?” The conclusion is that in Big Data access cases, the “objective test” shouldbe mitigated and replaced by the “subjective test” or the “average company test” andthe requirement that the controlling company be active in the downstream marketshould be discarded altogether in order for the doctrine to be an effective tool foraccessing competitively relevant sets of Big Data.

Neither Mergers nor Cartels: Innovation Networks and Competition Law

Abstract Organization theorists and innovation economists have been arguing for the past few decades that the locus of research and development activities has gradually moved away from vertically integrated firms to inter-firm alliances. In industries as diverse as construction and biotechnology, cooperation for innovation has given rise to collaborative forms of industrial organization varying from bilateral alliances to networks. Nonetheless, the EU competition law framework opens up limited space for inter-firm collaborations, cabined by the efficiency test of Article 101(3) TFEU and the requirements of the horizontal block exemption regulations. Building on this misfit, this article makes two contributions. First, a theoretical one, arguing that the law’s cautious approach to inter-firm collaboration is rooted in a binary vision of industrial organization which recognizes only firms and markets as modes of organizing production. Second, an explanatory one, showing how the 2023 Research & Development Block Exemption Regulation falls short of facilitating inter-firm collaborations for innovation and proposing fine-tuning suggestions.

The boundary between EU competition law and the GDPR after Meta

The boundary between EU competition law and the GDPR after Meta

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

Collective agreements on working conditions of solo self-employed persons: perspective of EU competition law

Abstract The 2022 Guidelines of the European Commission on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons apparently introduced a fresh approach towards collective agreements in a gig economy era. The main aim of this paper is to discuss whether the 2022 Guidelines are an appropriate tool to address the problems of solo self-employed persons (i.e. persons who are not in a formal employment relationship and who rely primarily on their own personal labour to provide services) from the perspective of EU competition law. To this end, we first present key competition problems related to collective agreements (section 1). Second, we analyse the regulatory framework for exemptions from competition law, with a view for a potential exemption relevant for collective agreements, as well as an approach to collective agreements in EU case law (sections 2 and 3). Third, the background for adopting the Guidelines, and their goals, is analysed (sections 4 and 5). Fourth, the Guidelines are discussed in more detail in sections 6 and 7 from the perspective of exemptions from Art. 101(1) TFEU. Finally, we examine the relationship between the Guidelines and a proposal for a platform work directive. The article attempts to verify the hypothesis that the Guidelines may be considered a pseudo-development.

Friso Bostoen, Abuse of Platform Power: Leveraging Conduct in Digital Markets under EU Competition Law and Beyond

Friso Bostoen, <i>Abuse of Platform Power: Leveraging Conduct in Digital Markets under EU Competition Law and Beyond</i>

Corporate Sustainability Due Diligence and EU Competition Law

Corporate Sustainability Due Diligence and EU Competition Law

Reconsidering the Limits of EU Competition Law on the IP-Competition Interface

Reconsidering the Limits of EU Competition Law on the IP-Competition Interface

EU competition law after the Grand Chamber’s December 2023 sports trilogy: European Super League, International Skating Union and Royal Antwerp FC

EU competition law after the Grand Chamber’s December 2023 sports trilogy: European Super League, International Skating Union and Royal Antwerp FC

Conditional Rebates and Intel: A Step Backwards by any Standard?

Abstract This paper considers the law on conditional rebates. It sets out the changes introduced by the Court of Justice of the European Union (CJEU) Intel decision and how these have been applied in the General Court Intel Renv case. It is explained that the changes are part of a broader move to bring EU competition law in line with a Consumer Welfare Standard (CWS). An analysis of the new test then reveals that it is flawed for five reasons: the new test ignores the fact that low prices and exclusion are separable. The test incorporates the As-Efficient Competitor test, which only protects firms with low costs, not those that are more competitive as a whole. The test introduces a new standard of harm, which means that the law no longer prevents the restriction of competition, but rather prevents making it impossible for a firm with the same costs as the dominant undertaking to compete, which is a different standard. The new standard diminishes the deterrent effect of the law. Finally, compared with the original test, the CJEU test fails to maximize consumer surplus (despite that being the aim of the CWS). Therefore, there is no reason to retain the test and it is recommended that it is reversed.

Unraveling Labor Market Collusion: A Comprehensive Analysis Under EU Competition Law

Unraveling Labor Market Collusion: A Comprehensive Analysis Under EU Competition Law

Search for new green natural solid phases for sample preparation for PAHs determination in seafood samples followed by LC and GC–MS/MS analysis

Polycyclic aromatic hydrocarbons (PAHs) are carcinogenic organic pollutants found in various environments, notably aquatic ecosystems and the food chain, posing significant health risks. Traditional methods for detecting PAHs in food involve complex processes and considerable reagent usage, raising environmental concerns. This study explores eco-friendly approaches suing solid phases derived from natural sources in matrix solid phase dispersion. We aimed to develop, optimize, and validate a sample preparation technique for seafood, employing natural materials for PAH analysis. Ten natural phases were compared with a commercial reference phase. The methodology involved matrix solid phase dispersion and pressurized liquid extraction, followed by liquid chromatography coupled to tandem mass spectrometry (LC-MS/MS). Three solid phases (perlite, sweet manioc starch, and barley) showed superior performance in LC-MS/MS and were further evaluated with gas chromatography-tandem mass spectrometry (GC–MS/MS), confirming perlite as the most effective phase. Validation followed Brazilian regulatory guidelines and European Community Regulation 2021/808/EC. The resulting method offered advantages in cost-effectiveness, reduced environmental impact, cleaner extracts, and enhanced analytical performance compared to the reference solid phase and LC-MS/MS. Proficiency analysis confirmed method reliability, with over 50% alignment with green analytical chemistry principles. In conclusion, this study developed an environmentally sustainable sample preparation technique for seafood analysis using natural solid phases, particularly perlite, for PAH determination.

A Critical Inquiry into ‘Abuse’ in EU Competition Law

Abstract Disagreement abounds on what exactly constitutes an ‘abuse’ within article 102 TFEU, EU competition law’s prohibition of an abuse of a dominant position. This situation is highly undesirable, given the important role this prohibition is expected to play in alleviating concerns about substantial market power and its use in important sectors, typified by actions against ‘Big Tech’. This article responds to this problem by analysing and synthesising the jurisprudence of the Court of Justice of the European Union and its evolution to establish the constituent elements of an exclusionary ‘abuse’. The article corrects crucial legal misconceptions, including the putative dichotomy between violations ‘by object’ and ‘by effect’; the assumed disparate legal tests for pricing and non-pricing conduct; and the lost distinction between the ‘as efficient competitor test’ and the ‘as efficient competitor standard’. This critical inquiry allows one to draw concrete predictions on the future development of this challenging, yet vital, area of law.

Article: The Great Saga of Collective Redress in EU Competition Law: All Cry and No Wool?

The paper presents the evolution of attempts at regulating antitrust collective redress in Europe, and the omission of listing competition law infringements in the annex to Directive 2020/1828 on consumer collective actions and thus from its scope of application. It attempts to understand why the non-availability of antitrust collective actions is the result of the long-lasting drafting processes on the EU level that typically covered competition law, taking into account that the collective redress mechanism is the only real option for consumer private enforcement of antitrust. It calls for the European Commission, the European legislator and the Member States to finally regulate collective actions in the field of competition law as otherwise access to justice for victims of antitrust breaches is not guaranteed. consumer collective redress, collective actions, antitrust collective actions, Directive 2020/1828, Directive 2014/104, follow-on, scope of application, antitrust, competition law

Article: Quantification of Harm in EU Consumer Antitrust Actions for Damages

This paper analyses the development of private actions for damages as a significant pillar of private enforcement of EU competition law and discusses the quantification and estimation of harm. Since the adoption of the EU Directive 2014/104/EU on Antitrust Damages Actions, private enforcement in Europe has undergone crucial clarifications in the case law of EU courts, yet the critical issue of quantifying damages in private actions has only recently been addressed by the Court of Justice of the European Union (CJEU). This paper takes a closer look at the recent ruling in the Tráficos Manuel Ferrer case (C-312/21) and assesses the implications of that case law for private enforcement proceedings. Concerning the allocation of procedural costs, this judgment has established that injured parties may be required to bear a cost risk, even if they are partially successful. This finding needs further reflection in the context of consumer claims for damages, as it is susceptible to add an additional cost burden on plaintiffs. The second intricate finding concerns the relation between the ability of national courts to estimate damages and the exhaustion of evidence disclosure. Taking the example of Spain, the paper advocates for the specific inclusion of the principle of proportionality when determining harm in private actions for damages and especially in cases involving consumers or smaller harmed parties. EU, antitrust, cartels, private enforcement, consumers, damages, quantification, estimation, cost allocation, disclosure of evidence

Article: The Issue of Consumer Compensation Before Antitrust Authorities: Commitments, Cooperation and Competence: The Hungarian Experience

The compensation of consumers for damages stemming from a breach of EU competition law rules has been in the forefront of discussions in the last years. A recent important aspect of the debate is whether a mixing of public and private enforcement efforts could enhance the effectiveness of consumer compensation. In Hungary, consumer compensation for breach of another field of EU law (unfair commercial practices) has been championed by a public authority, the Hungarian Competition Authority, which has achieved significant results to the direct benefit of consumers in this respect. This paper reviews the authority’s recent practices, key decisions and main achievements in this area (including some earlier cases concerning antitrust) and then provides a detailed assessment of the corresponding advantages and disadvantages. The authors argue that some key achievements in Hungary in this respect are very well suited for further use in the development of consumer compensation in the field of antitrust law on both an EU and national level. public enforcement, private enforcement, antitrust, consumer protection, damages, EU, Hungary

Article: EU Merger Control After The Grand Chamber’s Judgment In Commission V. CK Telecoms Investments

The Grand Chamber set aside the judgment of the General Court in CK Telecoms having found eight errors in law. This paper dissects the judgment of the Grand Chamber to illustrate and explain the differences between the two judgments as well as the significance of these differences. The Grand Chamber clarifies the standard of proof and confirms that the analysis of unilateral effects in oligopoly markets requires a holistic analysis of a number of factors none of which is decisive. While it ratifies the analytical stance of the Commission this does not necessarily indicate that the Commission will prevail as the appeal is heard again at the General Court. Furthermore, the judgment as well as the new techniques used by the Commission suggest that a review of the Horizontal Merger Guidelines is much needed More generally, the clash between the two courts reveals a fundamental difference between judges in the two courts about the role of EU competition law. EU Merger Regulation, Horizontal Merger Guidelines, unilateral effects, oligopoly, judicial review, telecommunications market, significant impediment of effective competition, standard of proof, competitive constraint, closeness of competition

Article: Public Compensation for Private Harm: Fair Funds for Consumer Competition Law Redress

This paper discusses the use of the concept of Fair Funds for consumer competition law enforcement from an EU perspective. With such Fair Funds, the US Securities and Exchange Commission distributes collected fines and disgorged profits to compensate victims of securities law violations. The paper explains the use of Fair Funds in US law, highlights similarities, and adapts the concept for use in European competition law enforcement. It places an emphasis on the usefulness of such a concept against the role of consumers, but the conclusions can equally be drawn for small and medium enterprises’ private enforcement or private enforcement of competition law in general. It shows the advantages and disadvantages of including a system of Fair Funds. The paper argues that Fair Funds can serve as an alternative form of compensation, particularly for large groups of individual victims harmed in a small amount, such as consumers, with that overcome the lack of a harmonized collective redress system on EU level, and improve the coordination between public and private enforcement. private enforcement, consumers, collective redress, damages, compensation, fines, disgorgement, US, EU, financial law