Field Of Competition Law Research Articles

A era digital e o direito da concorrência: uma análise dos desafios da regulamentação

This article addresses the impact of the Digital Era in the field of Competition Law and the protection of consumer rights. In a globalized and technologically dynamic world, the lack of solid regulation has led to violations of both consumer rights and competitive equity in the electronic market. In particular, the focus is on restrictive practices such as test pricing, exclusivity agreements, price discrimination, anti-competitive agreements between companies and the misuse of privileged information, in addition to the controversies associated with Competition Law in the digital context. For this reason, the question arises whether digital platforms should be restricted due to their unfair practices in the market, or if, instead, they should be allowed in harmony with economic development. The main objective of this article is to provide a critical reflection and harmonization of ideas on how the Digital Age has influenced Competition Law. Various points of view are analyzed in order to offer a comprehensive vision of the need to establish a legal system adapted to the digital era that guarantees both the protection of consumer rights and fairness in competition

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

The Role of the Judiciary in Effective Enforcement of Competition Law in New Jurisdictions: the Case of Kosovo

This paper aims to discuss the role of the judiciary in the effective, or ineffective, enforcement of competition law. It analyses those jurisdictions that can still be considered ‘new’ in the field of competition law, in particular the case of Kosovo, and by using qualitative research methods. The paper addresses the main findings characterizing the weak enforcement of competition law by the judiciary in Kosovo over a period of a decade, that is, from when the courts have started hearing competition cases since 2010. On the other hand, the paper places special attention to the establishment of the Commercial Court in Kosovo in 2022, which now has jurisdiction over the judicial review of competition decisions. The last part of the paper considers recent legal changes in the field of private enforcement of competition law. Kosovo’s new competition legislation, approved in 2022, expressly provides for the right to compensation for damage.

Putting trust into antitrust? Competition policy and data-driven platforms

Anti-competitive notions, it seems, are increasingly informing the critical debate on a data-driven economy organised into scalable digital platforms. Issues of market definitions, how to value personal data on multisided platforms, and how to detect and regulate misuses of dominant positions have become key nomenclature on the battlefield of addressing fairness in our contemporary digital societies. This article looks at the central themes for this special issue on governing trust in European platform societies through the lens of contemporary developments in the field of competition law. Three main questions are addressed: (1) To what extent are the platforms’ own abilities to govern their infrastructures, that is, to be de facto regulators over both human behaviour and market circumstances, a challenge for contemporary competition regulation? (2) In what way is the collection, aggregation, or handling of consumers’ data of relevance for competition? (3) How can the particular European challenges of governing US-based digital platforms more broadly be understood in terms of the relationship between transparency and public trust? Of particular relevance – and challenge – here are the platforms’ abilities to govern their infrastructures, albeit through automated moderation, pricing or scalable data handling. It is argued that this aspect of coded, and possibly autonomously adapting, intra-platform governance, poses significant anti-competitive challenges for supervisory authorities, with possible negative implications for consumer autonomy and wellbeing as well as platform-dependent other companies.

Geo-blocking Regulation: Antitrust or Consumer Protection?

The author attempts to show that the seeming absorption of a large-scale, general geo-blocking prohibition in the field of competition law (antitrust) is unsystematic, and can negatively influence the further development of European competition law and policy and related goals. The positive implications of the GBR regime in the area of consumer protection law (and for trade regulation as such) are not negated. The author, however, attempts to underscore the fact that, in certain constellations, legislative instruments should be very clearly designated, their nature and scope concisely labelled. Formal oversights, such as omission of clear denominations or even plain wrong designations can – in certain circumstances – lead to functional consequences. For this reason the author stresses the view that the GBR is a legislative instrument of market regulation and consumer protection and has no real appreciable link to antitrust.

Should Children Pay for Their Parent’s Sins? The Sumal Preliminary Reference

While EU competition rules are addressed at ‘undertakings’, a notion that denotes economic rather than legal entities, their enforcement requires the identification and imputation of one or more legal persons. The pending Sumal preliminary reference seeks guidance on whether a follow-on claim may be directed against an affiliate of the legal entity identified in the prior decision of the Commission. The questions before the Court are expected to clarify the power of national courts to attribute liability to legal entities when enforcing a decision in the field of competition law.

Should Children Pay for Their Parent’s Sins? The Sumal Preliminary Reference

While EU competition rules are addressed at ‘undertakings’, a notion that denotes economic rather than legal entities, their enforcement requires the identification and imputation of one or more legal persons. The pending Sumal preliminary reference seeks guidance on whether a follow-on claim may be directed against an affiliate of the legal entity identified in the prior decision of the Commission. The questions before the Court are expected to clarify the power of national courts to attribute liability to legal entities when enforcing a decision in the field of competition law.

Price Algorithms as a Threat to Competition Under the Conditions of Digital Economy: Approaches to Antimonopoly Legislation of BRICS Countries

The authors examine certain legal problems of antitrust regulation in the digital economy facing the international community, including BRICS member countries. This article focuses on the problems associated with the use of price algorithms by enterprises as a threat factor to competition. The concept of “price algorithm” and the goals of its use by enterprises are analyzed; it is concluded that the use of price algorithms is just one of the tools for conducting economic activity. At the same time, enterprises can pose a threat to competition by using price algorithms as an element of concluding anti-competitive agreements (concerted actions) between enterprises and illegal coordination of their activities. Restriction of competition through the use of price algorithms can harm consumers of goods, works, and services and should be controlled by antitrust authorities. Based on the analysis of the antitrust laws of the BRICS member countries, it is concluded that currently the concept of a “pricing algorithm” is not enshrined in the laws of any of the BRICS member states, however, there are prohibitions on anticompetitive agreements of enterprises and illegal coordination of economic activity. We refute the need to legally enshrine the concept of “price algorithm” in antitrust law. At the same time, it proves that enterprises should be held accountable for the use of the price algorithm as atool to limit competition. The paper proves that within the framework of interstate cooperation of the BRICS countries in the field of competition law, it is necessary to develop common approaches to antitrust regulation in the digital economy, including to ensure auniform approach to regulating and controlling the use of price algorithms by enterprises in the framework of economic activity.

Are economists Kings? Economic evidence and discretionary assessments at the UK utility regulatory agencies

Abstract UK sectoral regulatory authorities are hybrid communities of, among others, lawyers and economists. Since the liberalization of essential services, expert economists enjoy broad discretionary powers in advancing the agencies’ broad statutory objectives. Yet, despite the significant societal impact of economic regulation, existing scholarship in the fields of competition law and regulation and public law has, with very few exceptions, disregarded these actors and the very essence of their work. This article aims to address this gap in the literature by blending theoretical with empirical insights deriving from 14 semi-structured elite interviews with regulatory economists in the regulatory agencies for energy (Office for Gas and Electricity Markets), telecoms (Office for Communications), and water (Office of Water Services). It explores the increased reliance on economics in the regulatory decision-making process and the impact this has had on the authorities’ decision-making and discretion, when making complex trade-offs between the various goals of the regulatory enterprise. In doing so, it puts forward a theoretical framework inspired by Craig Parsons’ typology of political action so as to identify and examine the nature and scope of the constraints that inform and shape the influence of economics in the exercise of regulatory discretion. This endeavour is significant in the sense that it is the first of its kind and, in that it provides a normative framework of analysis that can be applied in other areas of regulation heavily infused with and influenced by economic evidence and analysis, such as ‘pure’ competition law enforcement by both sectoral and competition authorities.

Osvrt na povrede konkurencije u japanskom pravu

Author in this paper analyses competition violations under the Antimonopoly Act in Japan. Legal definition of competition violations is presented in the first chapter of paper as follows: private monopolization, unreasonable restraint of trade, and unfair trade practices. The second part of the paper focuses on the procedural course of identifying competition violations and the role played by the Japanese Fair Trade Commission in this process. Finally, the importance of the leniency program is emphasized as one of the most effective means of preventing anticompetitive behaviours of market participants. Throughout the paper, the author points out that there are some differences between competition legal framework in Japan and the European Union. The inspiration for writing this paper is the author's desire to share his own experiences and knowledge, gained during a three-week study visit to Japan in direct work with employees of the JFTC and professors in the field of competition law, in order to acquaint the expert public in the Republic of Serbia with Japanese competition law. During the research, the author used sources from the official site of the JFTC, as well as other relevant articles on the Internet.

Competition Law Framework in Kosovo and the Role of the EU in Promoting Competition Policies in Other Countries and Regions Wishing to Join the Block

The aim of this article is, on the one hand, to provide an overview of the competition law framework in Kosovo vis-á-vis the establishment of the Kosovo Competition Authority (hereinafter; the Authority), its institutional design as well as the criteria for becoming a member of the Commission within the Authority, which is the most important decision-making body in the field of competition law in Kosovo. On the other hand, it discusses some of the challenges the Authority as well as the courts are facing as regards the effective enforcement of competition law provisions in Kosovo, be it procedural or substantive. In addition, the only three cases decided by the Authority, since its establishment in 2008, are briefly discussed. Last but not least, it tries to contextualise the role of the EU concerning enacting as well as enforcing competition law in some of the South East Europe (hereinafter; SEE) countries, with the main focus placed on Kosovo. Without the European perspective, it is convincing to say that the picture that would result from a competitiveness viewpoint would change dramatically, although the EU’s efforts alone are not sufficient in the absence of serious efforts by the states themselves.

Disruptive Innovation on Competition Law: Regulation Issues of Online Transportation in Indonesia

Disruptive innovation such as online transportation business is a leap of innovations of in services that triggered chaos in field of competition law. The emergence of new cumbent with its disruptive innovation has disturbed the market that dominated by the incumbent. This chaos cannot be overcome by the same legal approach because it has a different business model, in fact, it also happened in Indonesia. This study aims to: (a) reviewing whether disruptive innovation infringes the principles and provisions of competition law and; (b) identifying and evaluating various regulations regarding online transportation in Indonesia. The method of this research is normative legal research, which examines various legal principles, legal theories, and legislation. Findings of this study are; First, disruptive innovation is not an unlawful act because it does not infringe any provisions in the competition law. And also, this innovation is not contravene with the public order; its using new business platforms that are different from old business models. Second, Indonesian government has regulated this disruptive innovation by issuing regulation which has been sued for judicial review and amendment. Finally, Indonesian government has formulated an accommodative regulation format, i.e., online transportation is equalized to the specialized rental transportation.

The journey from theory to practice in the field of competition law

Abstract This article considers the important relationship between law and economics in the field of competition law. The article shows how economics has become a dominant discipline in the field and the difficulties this development has given, and is likely to give, rise to in practice. In doing so, the article considers the heavy reliance which lawyers in particular have come to place on economics. The article offers a number of illustrations taken from different areas of competition law and policy in order to support the analysis and arguments therein. The article offers a perspective on what the exact relationship between law and economics should be and what role lawyers should play in order to facilitate a smooth transition from theory to practice and ultimately ensure that competition law is developed and applied correctly and in a way that matches the realities of markets and the business world.

Legal incentives for the introduction of antitrust compliance institutesby economic entities: the search for a balance of interests between the state and business

The article is devoted to the research of legal promoting for economic entities to the implement an effective system of internal support of compliance with the antimonopoly law requirements with considering the points of view of leading foreign and Russian experts in the field of competition law and the legal positions of antimonopoly authorities in order to identify drivers for the applying antitrust compliance in Russia. The author comes to the conclusion that mitigation of administrative responsibility should be considered as the most balanced driver to the compliance-system for economic entities.

Joint Venture Agreements and EU Competition Law: The Case of the Construction Industry in Particular

The first and significant hurdle in joint venture competition law analysis has to do with its rigorous definition. No consensual definition of the concept of joint venture in the field of competition law (including EU competition law) has ever been provided. On the contrary, multiple definitions have been proposed, but despite such widespread discussion ambiguity reins in this area.

Professional standard as an instrument of state development policy competition

In today’s Russia there is an objective need for specialists in the field of competition law and antitrust regulation. Adoption of the relevant professional standard, as well as the inclusion of disciplines of competition law and antitrust regulation in federal state educational standards is a prerequisite for meeting this need. The draft professional standard “Specialist in the field of competition law”, developed by the FAS Russia in conjunction with the Association of Antimonopoly Experts and the Chamber of Commerce and Industry of the Russian Federation, was submitted for public discussion.

When Law & Economics violates the rule of law: Three illustrations

Law & Economics scholarship movement continues to be an important methodological approach to the positive and normative analysis of law since its inception in the second half of the 20th century. However, Law & Economics has been criticized on various grounds, from its over-reliance on consequentialist arguments against deontological arguments to its indifference towards the fundamental concepts of law such as the Rule of Law. This latter argument is scrutinized and further illustrated in this article. Here, we demonstrate that despite the common theoretical underpinnings between Law & Economics and the Rule of Law (I), it is argued that Law & Economics conflicts with the Rule of Law principles on three major instances, namely the Coase theorem, the theory of efficient breach of contracts and the influential rule of reason in the field of competition law and policies (II). We therefore conclude that there cannot be a practical convergence between Law & Economics and the Rule of Law at the universal level unless Law & Economics revisits some of its normative conclusions that conflict with the Rule of Law as exemplified in this article.

The Harmonization of Competition Laws towards the ASEAN Economic Integration

On December 31, 2015, the ASEAN Economic Community had officially been launched. The direct impact of this policy will be on the field of Competition Law which differs from one country to another. The Competition Law plays an important role in ensuring fair and equitable business practices within the ASEAN. The ASEAN has its Regional Guidelines on Competition Policy to assist its member countries to increase their awareness about fair and equitable business practices. This policy only serves as a guideline and has not been adopted as an enforceable rule Therefore, the business competition in the domestic market involving the ASEAN member’s company is still being regulated by each ASEAN member country. This paper examines and analyzes the role of the competition law in addressing the intra-ASEAN members’ unfair business practices and the needs for the harmonization of the competition law within the ASEAN Countries as a transition to promulgate the ASEAN Competition Law.

About the 24th St.Gallen International Competition Law Forum ICF

27 & 28 April 2017 The annual destination for more than 200 participants from the practicing bar, the business world, public authorities, academia, and the judiciary. Some of the most distinguished speakers in the field of competition law will address an array of current topics. Highlights include: · Presumptions and fictions in competition law – the practical impact · Boundaries of competition law: excluded sectors · Competition law and economics post Brexit · Sports, sports broadcasting and competition law · Presidents' breakfast · The extended General Court as a competition law court · In-house counsels’ major concerns · The role of a fact-based approach in antitrust Taking place in one of Switzerland’s most beautiful cities, the St.Gallen ICF gives you the opportunity to meet, discuss and network with fellow competition lawyers and leading competition law experts from all over the world. Download the attached flyer to view the full program, the list of speakers and registration info!

The Competition Law Institutions in the BRICS Countries: Developing Better Institutional Models for the Protection of Market Competition

The paper provides a comparative overview of the BRICS competition regimes with a special focus on the institutional design of the national competition authorities in these countries. It analyses the institutional design of the competition law authorities in the BRICS countries by looking at their autonomy, resources (financial and human), enforcement powers, technical capacity and workload. The paper represents an academic contribution to the mutual learning and experience sharing in the field of competition law currently pursued by the competition authorities of the BRICS countries with the aim to strengthen their institutional and procedural competition enforcement frameworks.