Competition Law Provisions Research Articles

The fine as a form of liability for anti-competitive concerted actions: novelties of the competition legislation of Ukraine and review of the AMCU practice

The article analyzes the provisions, including novelties, of the Ukrainian competition law on determining the amount of fines imposed for anticompetitive concerted actions. The article analyzes certain provisions of Ukrainian legislation, in particular, the Law of Ukraine «On Protection of Economic Competition» and the Procedure for Determining the Amount of a Fine Imposed for Violation of the Law on Protection of Economic Competition, approved by the AMCU Order No. 22-rp dated December 14, 2023. The author analyzes the provisions of competition law regulating the mechanisms of: 1) determination of the basic amount of a fine; 2) adjustment of the amount of a fine taking into account the circumstances which are taken into account when determining the amount of a fine and increase or decrease the amount of a fine compared to the basic amount of a fine; 3) determination of the maximum amount of a fine. The author cites the practice of the Antimonopoly Committee of Ukraine to support the statements made in this paper. The authors emphasize that the Procedure has solved one of the existing problems of legal regulation in this area. However, this legal act still provides for unlimited discretion of the AMCU in determining the basic amount of the fine, which leads to the possibility of attempts to influence the authorized representatives of the antimonopoly authorities in order to reduce the amount of the imposed penalties. Based on the analysis of the provisions of the Procedure, the Law of Ukraine and the AMCU Decisions on violation of legislation on protection of economic competition and imposition of a fine, the authors conclude that the provisions of the above Procedure are imperfect in terms of legal regulation of the mechanism for reducing the basic amount of a fine in the presence of circumstances provided for by it. The solution of this problem will be facilitated by cooperation of the business entity that has committed or agreed to commit anticompetitive concerted actions with the bodies of the Antimonopoly Committee of Ukraine. In view of the above, it is proposed to amend the competition legislation of Ukraine, including the Procedure.

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.

К вопросу об эффективности противодействия антиконкурентным действиям коллективных субъектов в публичном праве

In the article, the author addresses the issue of liability of collective legal subjects, covers the matters of its efficiency and potential alternatives to reaction to anti-competitive actions of public government authorities that currently exist in the national law and order. The article focuses on means of impact on addressees of administrative and competition law provisions from the civil liability standpoint. The author pays the greatest attention to the problem of efficient counter-measures including anti-competitive actions of public government authorities, the author believes it inexpedient and illogical to apply penal liability to such authorities to achieve the effect of the so-called institutional liability. Following an analysis of the law enforcement practice, the author concludes that special supervision (antimonopoly monitoring with regards to antimonopoly regulation) is an efficient measure of combating illegal actions of collective subjects to achieve both prospective and retrospective legal liability effects.

THE URGENCY OF REGULATING THE MISUSE OF PERSONAL DATA POSSESSION BY E-COMMERCE FROM THE PERSPECTIVE OF COMPETITION LAW

The era of the digital economy has increased global trade transactions, giving rise to e-commerce companies that utilize the internet, websites, and applications to carry out trading activities in goods and services. This transformation has led to a change in viewing personal data as a commodity, so that e-commerce practices often take possession of personal data. Departing from this background, this study analyzes how the existing business competition law provisions anticipate the mastery of private data by e-commerce. This study uses a normative juridical method, with a legal-statutory approach and a conceptual approach. The results of the study show that mastery of personal data is indeed permitted in the Personal Data Protection Law, but it is necessary to pay attention to its impact on e-commerce business competition in Indonesia. The practice of controlling personal data has the potential to be misused and can result in monopolistic practices and/or unfair business competition. Current business competition legal instruments and the Business Competition Supervisory Commission (KPPU) are still limited in conducting investigations related to the practice of mastery of personal data by e-commerce which involves market advertising, definition of the e-commerce market, measuring market power, and reviewing mergers. It is necessary to formulate separate regulations regarding the prohibition of controlling personal data which can result in monopolistic practices and/or unfair business competition, both in the revision of the Business Competition Law and other related regulations.

PERLINDUNGAN HUKUM BAGI KONSUMEN AKIBAT PRICE FIXING AGREEMENT PADA TARIF ANGKUTAN UDARA YANG MENYEBABKAN PERSAINGAN USAHA TIDAK SEHAT

A price fixing agreement is an agreement practice entered into by companies in the same industry to fix prices for goods/services together in the relevant market. Price fixing agreements on air freight rates have a negative impact on business competition, especially for consumers who use air transport services. This study aims to determine the form of price fixing agreement practices on air freight rates and the form of legal protection for consumers against price fixing agreements on air freight rates. This research uses normative legal research methods through literature study. The results of this study indicate that business actors who enter into price fixing agreements to increase the price of airplane tickets beyond the specified tarif limit have violated the provisions of business competition law, which can harm consumers. The legal protection provided to consumers in the form of preventive legal protection and repressive legal protection depends on the jurisdiction and the applicable legal framework.

FIELD OF APPLICATION OF ALGERIAN COMPETITION LAW TO INTERNATIONAL DISTRIBUTION CONTRACTS (Model Trade Concession Contract)

The astonishing expansion of the global market and its trend to- wards globalization and the spread of international contracts have led to the emergence of international distribution channels aimed at achieving economic development and, thus, to the need for the Algerian market to integrate with these economic developments by creating an economic environment commensurate with these con- tracts considering free competition. The franchise contract is one of the international distribution contracts that contribute significantly to the development of devel- oping countries by expanding the spread of major brands across the world, but these contracts are subject to some competitive legal conditions to avoid competition in the market. Through this study, we will learn about the concept and types of commercial concession contract and the scope of application of the provisions of the Algerian competition law to it.

Addressing Algorithmic Tacit Collusion: Insights from Market Investigations

This article explores the concept of algorithmic tacit collusion and the potential role of market investigation tools in addressing this issue. The use of algorithms in online sales markets has raised concerns about anti-competitive effects and the adequacy of current competition law provisions. The European Commission has been considering the implementation of a 'New Competition Tool' (NCT) to address structural competition issues beyond the scope of existing regulations. The UK's market investigation tool, regulated under the UK Enterprise Act of 2002, serves as a reference point for examining the potential insights and lessons that could inform the development of the NCT at the EU level. The article highlights the impact of algorithmic pricing on market transparency, the challenges of classifying algorithmic tacit collusion, and the potential for market investigations to address competition-related concerns. It also discusses the procedural safeguards embedded in the UK's market investigation system and the benefits of proactive competition promotion through market investigations. Finally, the article considers the implications of adopting similar tools at the EU level and the potential for enhancing the European Commission's competition enforcement framework.

反不正当竞争法一般条款与类型化条款的适用关系——从市场混淆行为切入

反不正当竞争法一般条款与类型化条款的适用关系——从市场混淆行为切入

《反不正当竞争法》一般条款在企业数据爬取行为中的适用

《反不正当竞争法》一般条款在企业数据爬取行为中的适用

Jabatan Rangkap Dalam Hukum Persaingan Usaha Di Indonesia Dan Amerika Serikat

Under the Indonesian Competition Law, interlocking directorate in companies is not absolutely prohibited. This is in contrast to the US Competition Law which prohibits it per se. Nevertheless, the enforcement of competition law for cases relating to interlocking directorate held in the two countries have similarities, namely that it is necessary to prove should there be any impacts on competition. For this reason, this research was conducted by proposing two questions, namely, first, how is the regulation of interlocking directorate in Indonesian and the US Competition Law? Second, how is the enforcement of competition law in regards to interlocking directorate in Indonesia and the US? This normative legal research uses statutory, conceptual, case, and comparative law approaches to answer the question. This study concludes that the US applies the per se illegal approach, whereas Indonesian Competition Law applies the rule of reason approach. However, in the application of the rule of reason approach in Indonesia, it was identified that there was a non-uniformity in the considerations of the Commission Council and KPPU's Decisions for cases of interlocking directorate. The non-uniformity referred to is related to whether or not there has been a violation of the prohibition of interlocking directorate and its impact on unfair competition. Even though the US uses the per se illegal approach, its application still causes controversy because there is a court opinion stating that proof of impact or contrary to all provisions of competition law is required for a violation of interlocking directorate.

The Artificial Intelligence and Competition Law - Challenges for Bosnia and Herzegovina

The digital economy is characterized by new business models based on the use of electronic communications and digital technology for the production and distribution of goods and services. Big data is becoming an invaluable resource in the functioning of the digital economy. In order to survive in the market and be more competitive, firms are changing the way they make their strategic decisions and are increasingly resorting to the use of big data and technologically advanced tools, such as pricing algorithms. Companies increasingly use computer algorithms to improve their pricing models, adjust services and predict market trends, which is recognized as a model to increase efficiency. The use of algorithms in everyday business brings benefits to businesses, consumers and, ultimately, society as a whole, but it also raises a number of legal issues. Many questions also arise in competition law, which aims to protect the competition process in the market by banning certain business practices. Use of algorithms can be new sophisticated method, which will make easier for companies to reach and maintain collusion without any formal agreement or human interaction. The use of algorithms contrary to the provisions of competition law, raises the question of whether competition authorities need to improve existing tools for detecting prohibited agreements as well as a number of other issues. Bosnia and Herzegovina is a country in transition with a small open economy, which has the status of a potential candidate for EU membership. Modern competition law in Bosnia and Herzegovina is the result of foreign pressure and meeting the conditions for membership in the European Union. Lawmakers in Bosnia and Herzegovina face the challenge of harmonizing competition law with the acquis and improving methods and tools that would enable the Council of Competition, as a body to protect competition in BiH, to respond to the use of algorithms for illicit business practices. The paper aims to investigate whether and to what extent business processes in Bosnia and Herzegovina have been digitized, i.e. whether business entities use algorithms and to what extent, and whether and to what extent the BiH Council of Competition is ready for challenges of competition law in digital economy. Key words: Competition law, algorithmic cartels, digitalisation, Council of Competition

ANALISIS HUKUM PERSAINGAN USAHA DI INDONESIA DALAM UNDANG-UNDANG NOMOR 5 TAHUN 2019

In the Reformation Era, there has been a fundamental change in the field of economic and business law, which is characterized among others by the birth of Law No. 5 of 1999 on the Prohibition of Monopoly Practices and Unfair Business Competition. In the law has been regulated a number of prohibitions on monopoly practices and or other unhealthy business competition, in the hopes of providing guarantees of legal certainty and equal protection to every business actor or group of business actors in trying. The provisions of the Law are actually good enough in regulating the provisions of competition law in Indonesia, but the regulation tends to still have a dimension of physical trade. In this case, Law No. 5 of 1999 does not yet have specific arrangements related to e-commerce. Furthermore, in addition to facing the potential for anti-competitive practices, the enforcement of competition law in the field of e-commerce also still faces other challenges such as with regard to the issue of the adoption of the principle of extraterritoriality in Law No. 5 of 2019.Keywords: Law, Competition, Enactment

Administrative sanctions for anti-trust violations: interpretation issues

The legal definition of anti-competitive offenses and the size of fines imposed for their commission are fully consistent with the best international standards and foreign practices. However, in order to further increase the effec-tiveness of application of competition law through its proper interpretation, it should be assumed that the provisions of competition law on sanctions for its violation are inextricably linked with the objectives of competition law, which means that each sanction should be aimed at supporting and protection of economic competition, restriction of monopoly in economic activity to ensure the effective functioning of the economy of Ukraine on the basis of the development of unrestrained competition, which excludes taking into account when deciding on the guilt of the business entity for anticompetitive actions, protection of the national producer and interests of consumers if it is out of connection with fairness of competition. Also, to improve the interpretation of the rule of law in context of the 
 requirement of proportionality of sanctions for anti-trust violations, we note that in exceptional circumstances, the application of competition law, businesses should not lose the opportunity to conduct business and compete prop-erly on fair terms, which determines the need to interpret competition law in context of fines for anticompetitive offenses so that the impact of fines on the financial condition and solvency of economic entities does not irreversibly undermine their business activities with their actual withdrawal from the market. For instance, structural remedies, such as a forced separation of business entity holding a dominant position in the market, are subject to a stricter pro-portionality requirement as they can only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy.

Extending the Presumption of Decisive Influence to Impute Parental Liability to Private Equity Firms for the Anticompetitive Conduct of Portfolio Companies

The private equity firms' goal is to increase the profitability of their portfolio companies, run them up to an initial public offering and exit them. This includes improvements in corporate governance and management practices. The operational economic model of private equity firms is that of financial investors and not that of industrial owners of subsidiaries. However, this economic distinction makes no legal difference when engaging a company’s parental liability for the anticompetitive behaviour of its subsidiaries under the European competition law provisions. This was the case when, on 27 January 2021, the Court of Justice of the European Union rejected the Goldman Sachs Group’s appeal against a judgment of the General Court of the European Union validating the fine the Commission had imposed for the participation of one of its indirectly owned subsidiaries in a cartel during the period it was under Goldman Sachs’ control. For the first time, the Court extended the presumption of the effective exercise of decisive influence to the majority of the voting rights, and any involvement in the day-to-day business of the portfolio company was further proof of this actual exercise. Revitalising the debate of the fundamentals of parental liability in competition law and juxtaposing the differences between European and American legal tradition, the Goldman Sachs case leaves no choice to equity firms but to take strict measures and to harden the negotiations before any acquisition takes place, hoping to escape the strict application of the single economic entity doctrine.

Legal Aspects of Business Competition in the Procurement of Covid-19 Vaccine by Bio Farma Ltd

The purpose of this research is to analyze the exclusion of monopoly by State Owned Enterprises (BUMN) based on the provisions of business competition law in the procurement of the Covid-19 vaccine by Bio Farma (Persero) Ltd. Indonesia is being hit by the Covid-19 outbreak. This condition has had a negative impact in various fields. To overcome this, one of the government's efforts is to bring in vaccines to prevent the spread, and the procurement of vaccines is given to Bio Farma Ltd. There are indications of monopoly actions in the procurement of Covid-19 vaccines by Bio Farma Ltd. This research uses the approach statute approach and conceptual approach. The technique of tracing legal materials uses field study techniques and document studies (library research), as well as study analysis is using qualitative analysis. The results of the research and the discus-sion show that the procurement process for the Covid-19 vaccine is strictly regulated by the government. Even the quantity, procurement, and distribution are coordinated by the government in this case through the assignment of SOEs (BUMN) as regulated in Presidential Regulation Number 99 of 2020 as amended by Presidential Regulation Number 14 of 2021. The results of the study show that the actions taken by SOEs (BUMN) in this case Bio Farma (Persero) Ltd in procuring the Covid-19 vaccine is included in the excluded monopoly category, because it meets the elements of the provisions in Article 50 paragraph a. Law Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition.

Application of pricing algorithms as a challenge for contemporary competition law

In the following paper, the author elaborates on the challenges that today’s competition law has to face with regard to the more and more common use of algorithmic technics by the entrepreneurs, particularly in the field of pricing process. After providing a brief definition of the most fundamental terms, a structural analysis is performed of anticompetitive practices that are facilitated by algorithms. Instances investigated by the author have been assigned into three groups, distinguished according to relations between the entities taking part in a particular practice. The described models are of various complexity and pose different threats to the state of competition. The author made an attempt to draw the line between the cases which fall under the scope of currently enforceable competition law provisions and those to which competition agencies do not apply appropriate tools. In the next part of the paper, the author presents a case study of the so called lex Uber – an Act of the Polish Parliament intended to regulate the passenger transport market in Poland in the light of the rise of modern transportation services, e.g. provided by Uber or Bolt. In the author’s opinion, the enacted provisions may result in inconsistencies with competition law. In the last part of the paper the author suggests possible legal solutions that should safeguard competition on the markets where using algorithmic solutions is still more and more common.

Review of Competition Law on Tariffs Lower Limit Indonesian Airlines

The price policy is an inseparable part of business competition. The price policy is not solely related to efforts to maintain prices or even control prices at a certain level but is an effort to generate profits that are proportional to social welfare. Since the entry of business competition regulations in Indonesia, with the increase in airline business actors, the competition between them has become more profitable for consumers. With high competition and competitive prices, airlines, especially national airlines, show that the target of this airline is the middle market share. In this paper, we will discuss the determination of the lower tariffs for air transportation issued in the Regulation of the Minister of Transportation of the Republic of Indonesia and regarding its application and impact on consumers and business actors in the aspect of business competition. Research result The stipulation of the lower limit rate stipulated in the Regulation of the Minister of Transportation Number 14 of 2016 is basically against the provisions of the business competition law, particularly about the prohibition on price-fixing as regulated in Article 5 Paragraph (1) of Law No. 5/1999. The effect of Regulation of the Minister of Transportation Number 14 of 2016 on airline business actors and consumers, among others, is that the freedom of business actors to determine their fares is reduced, this results in not achieving price efficiency.

Territorial Restrictions in EU Competition Law: From Consten-Grundig To Ping and Pay-TV

Restrictions aimed at limiting cross-border trade within the EU are prima facie unlawful, irrespective of their effects, under Articles 101 and 102 TFEU. The strict legal treatment of these practices is a function of the place and role of competition law in the Treaties. It is clear from the case law that market integration is an autonomous objective of the EU competition law system. This paper considers some of the remaining uncertainties around territorial restrictions. First, it explains how the assessment of practices changes when market integration considerations are part of the analysis. The observed methodological shift to accommodate such considerations may be a source of confusion in practice. The Ping case, decided in the UK, provides an eloquent example in this sense. Second, it is possible for firms to escape the prima facie prohibition of the abovementioned territorial restrictions in two circumstances. First, when the practices are objectively necessary to attain a pro-competitive aim. Second, when they are incapable of restricting competition. An analysis of the administrative practice (in particular, Pay-TV and Character Merchandise) suggests that some key questions (such as the impact of exhaustion of intellectual property rights) remain to be fully addressed. Finally, territorial restrictions, whether they are prohibited by object or effect, can be justified under Article 101(3) TFEU (or under Article 102 TFEU, once the prima facie infringement established). However, the parsimony of the administrative practice declaring that competition law provisions are not infringed makes it difficult to anticipate the instances where a justification is possible.

Pojam, pravna priroda i izvori prava ugovora o isključivoj kupovini kao posebne vrste ugovora o distribuciji

It is noticeable in business practice that direct sales of goods are very rare which means that economic entities in the market, which mainly operate at different levels of production or distribution, are often part of complex distribution systems by which the product reaches from the producer to the final consumer in the fastest and easiest way. These distribution systems are formed by means of distribution agreements, which according to their specifics, can be divided into an exclusive distribution agreement, a non-exclusive distribution agreement, a selective distribution agreement and an exclusive purchasing agreement. An exclusive purchasing agreement, as a special type of distribution agreement, is a framework, unnamed agreement, with permanent obligation, which contains certain elements of exclusivity and thus restricts competition, so it is very important to harmonize it with the relevant provisions of competition law. The subject of this paper is the study of the exclusive purchasing agreement through the determination of its concept, basic features, legal nature and sources of law which are applied to it.

Competition Law in the Quasi-Liberalized Postal Service Market: An Overview

Postal services in the European Union have been liberalized through three postal directives, namely, 97/67/EC, 2002/39/EC and 2008/6/EC as per the Green paper, which emphasises the necessity of the liberalization of postal services for the development of the single market and the promotion of socio-economic development. Nevertheless, the realisation of this transition is questionable. Although these directives, to remove all barriers for new entrants, have established the necessary legal framework, formerly monopolised national postal operators have retained their dominant positions to a large extent and attempted to abuse it. Therefore, the implementation of competition law provisions plays an important role in the liberalization process. This article seeks to discuss how far postal services have advanced in terms of their liberalization under recent competition law judgments issued against national postal operators such as La Poste and Deutsche Post, by considering the Universal Postal Union (UPU)’s postal development reports as well as arguing the counter example of the US position.