Competition Law Infringements Research Articles

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.

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 Compensation for Harm Caused by Infringements of Competition Law in Germany

The Compensation for Harm Caused by Infringements of Competition Law in Germany

Проблема правового регулирования определения срока исполнения контракта в сфере закупок товаров, работ, услуг для обеспечения государственных и муниципальных нужд

The subject of the research in this article is the procedure for determining the deadlines for the execution of contracts to meet state and municipal needs. The author defines a list of principles on the basis of which the functioning of the contract system in the field of procurement is carried out to ensure state and municipal needs: openness and transparency, competition, unity of the contract system, professionalism of the customer, stimulation of innovation. The common mistakes made by the customer in the process of procurement for state and municipal needs are indicated: violations related to overcharging, concluding multiple contracts with the same contractor, etc. The analysis of the norms of the administrative and civil legislation of the Russian Federation, which establish the essential terms of contracts to meet state and municipal needs and the procedure and problems of determining the deadlines for the execution of such contracts, is carried out. The main range of negative consequences associated with the customer's right to determine the terms of the contract at his discretion has been determined: violation of competition law, the formation of penalties, violation of the budget plan of state and municipal customers and non-fulfillment by authorities of their obligations.

Collective Actions for Competition Law Violations and DMA Infringements Following the Transposition of the Representative Action Directive in Germany

Collective Actions for Competition Law Violations and DMA Infringements Following the Transposition of the Representative Action Directive in Germany

Full compensation and the volume effect: assessing different policy options

ABSTRACT According to the Damages Directive victims of infringements of competition law are entitled to full compensation. To achieve this goal overcharges, passing-on, and volume effects should play a role in the calculation of damages (for any purchaser who is not yet the final consumer). Whereas the Damages Directive promotes the passing-on defence for the defendants, it does not regulate volume effects in depth. The computation of these effects requires information on counterfactual prices and quantities. Since this information cannot be observed, the size of the volume effect tends to be uncertain. This paper discusses policy-options that aspire to bring compensation closer to full compensation, given uncertainty about the size of the volume effect. Based on the maximin-principle, a principle for decision-making under uncertainty, not allowing a passing-on defence appears to be an attractive option since this may lead to the minimization of the maximum gap between actual and full compensation.

Compensation for Damages in Competition Law Under the Law of the European Union: Case Law and Fundamental Principles

The implementation of EU legislation into Ukrainian domestic legislation is becoming more and more relevant, given Ukraine’s determination to follow the European integration route and the grant of EU candidateship to Ukraine in the summer of 2022. Competition law is undoubtedly one of the current priority fields for the EU, as it ensures and guarantees the development of the internal market. Simultaneously, in recent years, not only the creation of a competitive environment but also the provision of a right to compensation for damages caused by an infringement of competition law, as a specific type of compensation outside the traditional branch of civil law, has been crucial in the EU. To address the peculiarities of compensation for damages in competition law, the EU adopted Directive 2014/104/EU. The adoption of Directive 2014/104/EU and the outline of its main provisions and principles were based on several landmark decisions of the CJEU. For Ukraine, the issue of compensation for damages in competition law is new and unexplored in the scientific, let alone legislative, field, as there are almost no scientific publications on this question.Therefore, it is vital for Ukrainian legal science and practice to explore the formation and development of provisions regulating the issue of compensation for damages caused by infringements of competition law in the judgments of the CJEU and EU legislation, as well as the fundamental principles and provisions set out in Directive 2014/104/EU. All eight principles, enshrined in the Damages Directive serve as a basis for numerous provisions of the Directive. Among these, the principle of full compensation for damages, which is reflected in almost every norm related to consumer rights, can be considered fundamental for the entire field of compensation in EU competition law.It is critical to implement the defined principles and other provisions of the Damages Directive in Ukrainian competition legislation once Ukraine wins the war.

Antitrust liability, corporate groups and M&A transactions: a tale of undertakings, economic continuity and effectiveness of EU competition law

ABSTRACT Who should be liable for competition law infringements? While the answer should be, in theory, a simple application of the personal liability principle – the infringer pays – the corporate changes that an infringer may undergo in the years necessary to come to an imputation of the infringement make the matter, in practice, significantly more complex. In this article, we first investigate the core of the antitrust liability theories, all to be traced back to the fundamental concept of undertaking, which constitutes their indispensable theoretical background. Then, we will try to provide an answer to the question, by analyzing, on the basis of the case-law, the multifaceted and colourful applications of antitrust liability theories to M&A transactions involving antitrust infringers. Lastly, we lay out practical suggestions which may be useful for companies to minimize the risks of being left with antitrust liability as a result of corporate transactions.

Text classification in fair competition law violations using deep learning

IntroductionEnsuring fair competition through manual review is a complex undertaking. This paper introduces the utilization of Long Short-Term Memory (LSTM) neural networks and TextCNN to establish a text classifier for classifying and reviewing normative documents.MethodsThe experimental dataset used consists of policy measure samples provided by the antitrust division of the Guangdong Market Supervision Administration. We conduct a comparative analysis of the performance of LSTM and TextCNN classification models.ResultsIn three classification experiments conducted without an enhanced experimental dataset, the LSTM classifier achieved an accuracy of 95.74%, while the TextCNN classifier achieved an accuracy of 92.7% on the test set. Conversely, in three classification experiments utilizing an enhanced experimental dataset, the LSTM classifier demonstrated an accuracy of 96.36%, and the TextCNN classifier achieved an accuracy of 96.19% on the test set.DiscussionThe experimental results highlight the effectiveness of LSTM and TextCNN in classifying and reviewing normative documents. The superior accuracy achieved with the enhanced experimental dataset underscores the potential of these models in real-world applications, particularly in tasks involving fair competition review.

The legal aspects of hotel rate parity

This research note delineates the conflict of hotel rate parity and key clauses of competition laws in both Europe and the U.S. We trace the origin of hotel rate parity to the principle of most favored nation (MFN) in international trade agreements. We show that rate parity challenges two pillars of competition law. Under rate parity agreements, it is travel intermediaries—not hotels—that demand rate parity, which comes down to the dominance of travel intermediaries over small and independent hotels. The courts view MFN status as a hindrance to competition and therefore in violation of competition law. The trend and message in Europe are clear: the clause is most likely to be judged as not complying with EU competition law and its national equivalents. In the U.S. though, a lack of case decisions precludes us from reaching any conclusion about the fate of the MFN clause.

Analysing Exclusive Dealing in Two-Sided Markets: Marketplaces for Video Games

Competition law in the EU has a rich history dealing with exclusive dealing (ED). Past economic analysis has informed the view that ED is not by its nature a tool of exclusion and can serve other goals and purposes. Yet, sometimes exclusive dealing may require economic analysis.1 This is particularly true when we look at entry into adjacent markets by large firms that are under greater scrutiny to begin with and whose business practices are sometimes generally under suspicion of having anticompetitive effects.2 This article proposes a theoretical framework and an empirical analysis for analysing ED in a two-sided market. I analyse Epic Games Store, an entrant into online computer game distribution which included ED as a cornerstone of its entry strategy. The purpose of the article is not to provide evidence of anticompetitive conduct in this special case. The conduct in our example is likely not in violation of European competition law as it is the entrant that uses ED to take on an incumbent with a very high market share. Instead, I demonstrate the trade-off between efficiency and consumer choice in a marketplace that can be analysed in the framework of two-sided markets. The economic theory of two-sided markets has gained increasing prominence in antitrust.3 However, analysis rarely moves beyond the assertion that traditional tests and tools are inappropriate and sometimes misleading.

When government sets prices: what can history teach us?

Agreements on prices by undertakings selling competing products are regarded as one of the most serious competition law infringements. This article considers what happens when government sets the prices at which those competing firms can sell their products. This article firstly examines the extensive use of government price controls in World War II. It then reviews early cases in the Restrictive Practices Court that considered the public interest (if any) in price stability. This article then touches on EU case law on when government involvement in price setting is acceptable or may provide some defence for undertakings and more recent EU legislation imposing price controls. Finally, the article draws the arguments for and against price fixing together to show what we can learn from the history of price controls. Current economic conditions and the range of solutions available to government make such a historical review both valuable and timely.

Compensation liability for antitrust damages caused by related companies – development of the concept of a single economic unit Case comment to the CJEU judgment of 6 October 2021 in case C-882/19 Sumal SL v Mercedes Benz Trucks España SL

The subject of this case comment is the analysis and assessment of the judgment of the Court of Justice of the European Union (CJEU) issued on 6 October 2021 in case C-882/19, brought by Sumal SL v Mercedes Benz Trucks España SL. The Sumal judgment concerns an important issue in the area of competition law, both public and private (private enforcement) – determining the group of entities responsible for infringements of competition law operating within one economic body. Earlier CJEU case law in this regard focused primarily on determining the liability of the parent company within a group of companies. In the Sumal judgment, however, the CJEU raised the issue of the liability of subsidiaries in the event of a breach of competition law by the parent company. The CJEU has by no means crossed out its earlier case law on the single economic unit, but looked at the issue from the opposite direction and specified the liability conditions of subsidiaries. Such clarification was undoubtedly desirable. However, it calls into question the principle of liability of subsidiaries in a situation where they were not directly involved in the infringement, rather than only indirectly or informally.

CRIMINAL LIABILITY OF MANAGERS IN THE POLISH COMPETITION LAW – DEVELOPMENT AND THE PERSPECTIVE OF PROCEDURAL GUARANTEES

The article discusses the issue of legal liability of managers set out in the Polish competition and consumer protection law, resulting from the Act of 16 February 2007 on competition and consumer protection (Dz. U. (Journal of Laws) of 2021, item 275) (hereinafter: Competition Act). The starting point for my reflections is the provisions of the Competition Act providing for financial liability of persons in managerial positions for infringing prohibitions resulting from competition law (Article 106a of the Competition Act). In Polish law this type of liability is subsidiary to the liability of undertakings. It was also introduced to the Competition Act relatively recently, after the principles of undertakings’ liability for infringements of competition law had been formed and developed. My goal is to present the scope of managers’ liability and present conclusions resulting from the recent, still rather innumerable, case law of the Polish Competition Authority (President of Office for Competition and Consumer Protection, UOKiK). Due to the quasi-criminal nature of Article 106a, I propose my own reflections on the development of managers’ liability considering whether the law and judicial decisions recognize adequate standards of their rights.

Effect on Trade Between Member States:

This article examines a judgment of the Supreme Court of Hungary (the Curia), in which the Curia called upon in connection with the effect on trade between Member States its holding that competition authorities – compared to other administrative authorities – are required to establish a higher standard of proof in order to draw a reasonable conclusion as to the existence of an infringement. It ruled that this would be in order to draw a reasonable conclusion as to the existence of an infringement. This requirement comes from the quasi-criminal nature of competition proceedings. In this declaration, from the context of the effect on trade between Member States, the Curia equated the applicable standard of proof to substantial competition law infringements with the criterion of applicable law, which only determines appropriate applications of EU competition law. In this article, we present the relevant parts of this case before scrutinising the related literature, legislation and case law. After presenting the case, we analyse the effects on trade between Member States, as well as the role of the market definition in establishing inter-state trade. Then, we turn our attention to questions related to proof and evidence in competition law, both in the context of substantial infringements of law and of the effects on trade between Member States. The Ziegler case points to the direction that these two cannot be equated. In the end, we sketch out the consequences arising from the Curia’s judgment. Keywords: effect on trade between Member States; NAAT-rule; market definition; applicable law; standard of proof; case law

A Behavioural Analysis of the Future of Collective Redress for Financial Consumers Following the Supreme Court Decision in Merricks v Mastercard

One of the biggest problems faced by consumers seeking redress for financial harm is the prohibitive expense and impracticality of bringing low-value individual legal proceedings. The Consumer Rights Act 2015 introduced a new regime for collective redress for competition law infringements whereby for the first time, claims may be brought on an opt-out basis. The new regime was examined by the Supreme Court in its recent decision in Merricks v Mastercard. The Mastercard claim raises important questions about consumer remedies, access to justice, litigation funding and practical enforcement issues. This paper examines the decision through the lens of behavioural science, seeking insights into the availability and accessibility of redress for consumers and considering the implications for the regulation of lenders in the future. The influence of behavioural science on the development of the law is reviewed, the progress of the Mastercard claim and the Supreme Court’s decision is analysed, and some conclusions are proposed about possible future developments and the effectiveness of the collective redress regime from a behavioural perspective.

Personal liability of managers of undertakings for infringements of competition law in the Republic of Lithuania: the sanctions regime from the perspective of the principle of legal certainty

This article focuses on the personal liability of managers of undertakings for breaches of competition law. This article starts with a review of the sanction regime for managers of undertakings according to the Competition law of the Republic of Lithuania. Reviewed are legal provisions and judicial practice of the Lithuanian courts starting from 2017, that is, when the first request to sanction a manager of an undertaking was submitted to the court by the Competition Council (CC). It is pointed out that in most cases the courts do not fully accept the requests of the CC with respect to the severity of the sanctions to be imposed on managers. The second part of the Article comprehensively analyses the case-law of administrative courts of the Republic of Lithuania, and presents key elements of the imposition of sanctions on company managers. Firstly, in exceptional circumstances, courts may impose a lower penalty than the one specified by competition law. Secondly, the courts may impose both, the main sanction as well as an additional one, or any of them. Thirdly, the level of sanctions should be determined the light of the fines imposed on undertakings for their infringements of competition law. The article concludes with a short summary.

Leave it to the experts: A comparative analysis of competition-expert lay judges in private enforcement of competition law

This paper focuses on the procedural instrument of ‘competition-expert’ lay judges to ease damages calculations and private actions for damages for the violation of competition law in general. To this end, the paper analyses various forms of ‘expert’ lay participation that already exist in Europe. It concentrates, in particular, on commercial and intellectual property proceedings, but also delves into the few existing examples of competition-expert lay judges for private enforcement of competition law. It assesses their transferability for competition damages proceedings and attempts to test EU and national competition as well as procedural law boundaries more generally. The paper considers common grounds, advantages and disadvantages, as well as best practices in this context. It concludes with early proposals for including competition-expert lay judges in private enforcement of competition law.

The impact of antitrust law on the formation and activities of corporate associations

The growth of the scale of business in the modern world leads to the inevitable processes of concentration of capital, which, in turn, strengthens the position of large corporate associations in various industry and geographical markets. Large corporations and their associations are becoming major players in various markets. As a result, a significant number of small companies are taken over or squeezed out of the markets by large players. The article presents current trends in the development of antimonopoly regulation in relation to corporations, provides examples of the most high-profile litigation relating to violations of competition law. The authors analyze the current state of the Russian antimonopoly legislation in terms of the definition of corporate associations, highlight the directions of development in relation to corporate associations. The importance of developing a system of internal compliance with the requirements of the antimonopoly legislation is noted, and the positive and negative aspects of the voluntariness of the introduction of such a system are also indicated. It is proposed that antimonopoly compliance be mandatory for large corporations. Mitigation of liability if the corporate association has antimonopoly compliance,

AVRUPA BİRLİĞİ VE TÜRK REKABET HUKUKUNDA DE MINIMIS (HOŞGÖRÜLEBİLİRLİK) KURALI

De minimis (hoşgörülebilirlik) kuralı çoğunlukla Anglosakson hukukunda uygulama alanı bulurken, Kara Avrupası hukukunda daha sınırlı bir işleve sahiptir. Buna karşılık kural, Avrupa Birliği hukukunun çeşitli alanlarında ve bilhassa rekabet hukukunda sıklıkla uygulanmaktadır. Rekabet hukuku anlamında de minimis kuralı; normal şartlar altında bir rekabet ihlali oluşturan anlaşma, uyumlu eylem ve kararların; bu anlaşma, uyumlu eylem ve kararların tarafı olan teşebbüslerin iktisadi güçlerinin ve pazar paylarının düşük olması sebebiyle piyasa üzerinde hissedilir bir etki yaratmaması ve bu nedenle ihlal olarak görülmemesi şeklinde tanımlanabilir. Avrupa Birliği rekabet hukuku de minimis kuralını oldukça detaylı düzenlemelere konu ederken, Türk rekabet hukukunda yakın zamana kadar de minimis kuralı ile ilgili açık bir düzenleme yer almamış ve kural, Rekabet Kurulu’nun kararları doğrultusunda şekillenmiştir. Ancak Haziran 2020’de Rekabetin Korunması Hakkında Kanun’da yapılan değişikliklerle de minimis kuralı, Türk rekabet hukukunda ilk kez kanuni düzenlemelere konu olmuştur. Türk hukukundaki bu düzenlemenin mehazı Avrupa Birliği hukukundaki düzenleme olduğu için, konunun mukayeseli olarak ele alınması tercih edilmiştir. Bu kapsamda öncelikle de minimis kuralının tanımı ve benzer kavramlarla ilişkisi ele alınmış, ardından Avrupa Birliği rekabet hukukundaki düzenlemeler incelenmiştir. En son Türk rekabet hukukundaki durum, 2020’de yapılan kanun değişikliği öncesi ve sonrası şeklinde ikiye ayrılarak değerlendirilmiştir.