Restriction Of Competition Research Articles

온라인플랫폼 사업자의 자사우대 행위의 위법성에 대한 소고

In December 2023, the Fair Trade Commission announced that it would introduce the tentatively named ‘Platform Fair Competition Promotion Act’ to pre-designate ‘dominant online platforms’ and prohibit abuse of their market dominant position. The fundamental question is whether online platforms’ self-preferencing can be considered subject to regulation under competition law, and what are the standards for judging its illegality. These controversies include what is the basis for recognition of market dominant position in the online market under the current legal system and whether self-preferencing can be included as a regulatory type of abuse of market dominant position. The Monopoly Regulation and Fair Trade Act prohibits abusive practices of market dominant Position in the relevant market, resulting in the effect of restricting competition. But, it is not easy to determine whether a market dominant position exists or whether there is a competition restriction effect in online platform market. Despite this situation, the Fair Trade Commission is establishing legislative policies to preemptively determine dominant online platforms and prohibit their abusive practices. However, the limitations of the use of the SSNIP test in online platforms did not overcome in ‘the Naver shopping case’, and the theory of monopoly leveraging, which is intended to be applied to determine the effect of restricting competition, has virtually lost its value in the United States, and the related discussions in the EU are different from the judgment standards established in ‘the Posco case’ in Korea. Considering the characteristics of the online platform market, which has the possibility of infinite competition in a multi-sided market without regional restrictions due to technological development, and the efficiency enhancing effect that the various services provided by online platforms will bring, regulation of the online platforms must be cautious.

التأصيل القانوني للاتفاقات المقيدة للمنافسة- دراسة تحليلية مقارنة

This research dealt with defining the concept of restricting competition agreements, the stance of legislative and jurisprudential definitions that were said were reviewed in defining what the concept means? Its definition as an agreement whether this agreement is explicit or implicit between two or more establishments, or completely independent from each other, regardless of the form/shape such agreement takes, or its location and the results it achieves that would prevent or impede competition in the market. Also, the conditions to consider the agreement as restricting competition were clarified, as it is required that there be an agreement and that the aim of this agreement is to restrict competition. Pictures of the different competition-restricting agreements that can arise between establishments have also been exposed, whether they are contractual, which are divided into vertical agreements and vertical agreements. It is called organic agreements and orchestrated acts. The exceptions to agreements restricting competition were also addressed, and the prohibition of agreements restricting competition is not considered absolute, but rather has its exceptions, as the comparative legislation in question granted the competent authority (the Minister of Economy, for example) approval to grant licenses to agreements whose owners can prove that they lead to economic development or technical, or contribute to improving operation, or would allow small and medium enterprises to enhance their competitive position in the market. Finally, the boundaries between the agreements restricting competition and other anti-competitive practices, such as abuse of dominant positon and economic concentration, were distinguished and clarified.

Comportamiento colusorio en el sector del automóvil en España. Cuantificación de los daños al consumidor

On July 23, 2015, the Spanish National Markets and Competition Commission (CNMC) passed judgement (S/0482/13) against 20 automotive sector companies for alleged restrictive competition practices between March 2004 and August 2013. The exchange of information among the different companies would have had repercussions on the fixing of vehicle sale prices, homogenization of conditions and future commercial plans for the automobile sale and post-sale services in Spain. This paper estimates the loss suffered by consumers as a result of these collusive practices using the Before and After method. We have reconstructed the prices that would have prevailed in the absence of the collusive practice. The analysis reveals an increase of 10.16 percent. The observation of the prices and the production of automobiles during the period exhibits an anomalous behaviour with respect to GDP evolution and prices in the economy as a whole.

Problems of determining income as a qualifying attribute of a crime under Article 178 of the Criminal Code of the Russian Federation

Competition is an important factor stimulating economic growth and development, as well as improving the quality of goods and services. Protection of competition is one of the basic principles of modern states. The legislation of the Russian Federation provides not only administrative, but also criminal liability (with an increased preventive role) for restricting competition (Article 178 of the Criminal Code of the Russian Federation). At the same time, there are serious problems associated with bringing the perpetrators to justice. Among such problems is the lack of a unified approach to determining income from the conclusion of such agreements. In this paper, existing approaches to determining the income extracted by participants in anti-competitive agreements will be considered, and the approach outlined by the Constitutional Court of the Russian Federation in its Resolution №19-P of 19.04.2023 will also be analyzed.

The concept of restriction of competition: time for a rethink?

Following the end of the transition period after the UK’s exit from the European Union, the UK courts and the Competition Tribunal may, in certain circumstances, depart from the pre-exit case law of the EU courts. This article considers, by reference to the Court of Justice’s judgments in Generics (UK) v. Competition and Markets Authority and Budapest Bank and the Tribunal’s Supplementary Judgment in Generics (UK) v. Competition and Markets Authority, whether it would be appropriate for the UK courts and the Tribunal to depart from the case law on when an agreement has the object of restricting competition by object, so as to develop a more holistic approach to the concepts of a restriction of competition ‘by object’ and ‘by effect’, by considering together the object and effect of an agreement.

Research on Product Blocking from an Antitrust Perspective

In the era of digital economy, risks and opportunities coexist. Business practice is constantly changing, and business strategies of Internet enterprises tend to be conservative. In order to maximize user traffic, Internet platform enterprises widely take product blocking measures against their competitors, such as restricting platform access and blocking network connection. These behaviors are profitable, technical and competitive, conducive to helping platforms create economic benefits. But at the same time, they should be regulated by law as they may damage consumers’ rights and interests and hinder fair competition. From an antitrust perspective, relevant markets should be firstly defined to determine whether the platform with blocking behaviors has a dominant position. If the enterprise dominates the relevant markets, whether the dominance is abused ought to be evaluated according to the components of the rejection transaction. Finally, the effect of restricting competition is expected to be accessed with the principle of rationality. Through clarifying the evaluation framework of antitrust law, this paper aims to improve the legislative concept of antitrust law providing a more complete dispute resolution mechanism for China’s judicial practice.

Antimonopoly compliance as a means of preventing violations in the field of competition restriction

The article is devoted to the analysis of such a new legal phenomenon as compliance (risk management system), in relation to one of its types, namely antimonopoly compliance. The author examines the concept of antimonopoly compliance, analyzes its significance and practice of implementation in the system of state and municipal administration. The article examines statistical data in the field of countering monopolistic activity and restricting competition and concludes that antimonopoly compliance is of high importance as a tool for preventing offenses. At the same time, the author draws attention to the problematic issues of implementing antimonopoly compliance.

Brand Bidding Restraints Revisited: What Is the Appropriate Economic and Legal Framework for the Antitrust Analysis of Vertical Online Search Advertising Restraints?

This article explores the law and economics of brand bidding restraints which constitute the most novel type of vertical restraints imposed by brand owners on their distributors in digital markets. The article tests and critically reflects on the restrictive approach European competition watchdogs have recently adopted towards these brand bidding restraints. It contends that this harsh antitrust treatment of brand bidding restraints is not sufficiently grounded in the economic analysis of vertical restraints. In proposing a comprehensive framework for the legal and economic analysis of brand bidding restraints, the article makes three principal contributions. First, it asserts that brand bidding restraints can have a number of procompetitive effects by internalizing advertising-related externalities, addressing free-riding on display and traditional advertising and facilitating fixed cost recovery through price discrimination. Second, the paper considers different ways through which brand bidding restraints may harm competition and consumer welfare when they disproportionately affect infra-marginal consumers, prevent meaningful intra- and inter-brand comparisons or result in price discrimination on the basis of search costs rather than brand preferences. Moreover, brand bidding restraints are of particular concern when adopted in the context of dual distribution systems where vertically integrated brand owners have an incentive to raise their retailers’ costs to prevent them from cannibalizing on their own sales channel. Third, the article explore various filters that may inform an effects-based analysis of brand bidding restraints. In this respect, the article makes a number of policy recommendations for the future antitrust analysis of brand bidding restraints. These proposals could also inform the ongoing revision of the Vertical Block Exemption Regulation (VBER) and Vertical Guidelines in the EU and in the UK. brand bidding restraints, vertical online search advertising restraints, digital vertical restraints, e-commerce sector inquiry, B2-98/11 Asics, Case COMP/AT.40428 Guess, vertical restraints, Vertical Guidelines, Vertical Block Exemption Regulation

Epic Games v. Apple: Fortnite battle that can change the industry

When Apple Store was launched, there were 500 applications available for iPhone users. Since then, the number of applications in the App Store skyrocketed and in 2017 reached around 2.2 million. In recent years, the number of apps in the App Store is steadily declining, due to Apple’s decision to remove old apps that do not function or the apps that do not follow current app guidelines. The distribution of the apps is only available through the App Store, where the only available payment processor is controlled by Apple. That places Apple in a unique position.The case Epic Games v. Apple raises a broader discussion, whether Apple as the “gatekeeper” of Apps can restrict distribution and access to the apps in the iOS operational system, and whether that kind of activity can be deemed as a monopolist and restrictive competition in App distribution market. This paper will analyze and critically evaluate the recent lawsuit that was brought up against Apple by Epic Games. The main aspect of this analysis is whether Apple can legally restrict the developer’s ability to distribute the applications through the App Store and if it does not restrict the competition. This article is composed of several chapters. Chapter one will examine the relevant facts of the Epic and Apple lawsuit and will summarize the key arguments of this case. The second chapter will explore the relevant legislation and the relevant market related to previously mention proceedings and will explain how the doctrine of the essential facility might affect the case. Chapter three will delve into similar cases brought up earlier and will cover the distribution of digital goods. Chapter four will provide conclusions and the paths moving forward.The object of the paper is to perform a detailed analysis of the case. The purpose of the paper is an assessment of the relevant facts and legal framework regarding Epic’s claim, as well as analyze the topics of foreclosure and dominance in the market. To write this paper several academic writing methods such as descriptive to provide readers with relevant legislation and inform them about relevant facts of the case, also analytical to form the readers’ opinions regarding the recent events and activities of both sides of the suit, also a comparative to compare different legal frameworks in the United States of America and European Union regarding the regulation of monopoly were used. There is no doubt this topic has enormous relevance because of its’ possible after-effects. Epic’s claim already has an impact not only on Apple but also on the whole app development and distribution industry of digital goods and might create a precedent to the similar cases. Currently, this claim is only discussed in the media, and there is no precedent. This article will not give a clear answer to how this lawsuit will be resolved, because it mainly depends on court interpretation of the relevant market. We would rather give a few alternative solutions to this case.

State and municipal preferences: impact on competition

The article considers the institute of state and municipal from the point of view of its impact on competition. Based on the analysis of the legislation and practice of making decisions by the antimonopoly bodies on giving consent to the granting of state or municipal preferences, studying the experience of the European Union, it is concluded that there is a threat of restricting competition even if the antimonopoly body agrees to grant preferences. The importance of the antimonopoly body's assessment of the proportion of positive and negative consequences of such provision of preferences is noted.

Features of exercising control over economic concentration: the experience of Russia, France and USA

The relevance of the topic is due to the comprehensive development of digital technologies and the need for timely legal regulation of new phenomena of public life. Digitalization is not only rapidly penetrating all sectors of the economy, but is a trigger for the creation of qualitatively new economic relations. The digital transformation of the economy and markets, in addition to objective advantages, also carries negative consequences. Negative manifestations are possible in the monopolization of commodity markets. Antitrust laws are changing in line with the expansion of digital markets. The article identifies the main obstacles to regulating monopolies in the digital economy. The practice of antimonopoly regulation of digital platforms is considered. The tasks of adopting the fifth antimonopoly package as expanding the scope of the Federal Law On Protection of Competition are outlined. In addition, the concept of economic concentration is analyzed, as well as signs of restricting competition when considering transactions in its conditions. Particular attention is paid to differences in approaches to regulating the digital market in Russia, France and USA. A comparative analysis of the antimonopoly legislation of Russia, France and USA, types of economic concentration, regulations for control over concentrations at the level of different jurisdictions has been carried out. The phases of control over economic concentration, the powers of the antimonopoly authorities, the assessment of criminal encroachments on competition are considered in detail.

The economics of religious communities

The religious club model is central to the economics of religion. To expand its scope for application, we develop the first model to combine (i) increasing returns to membership, (ii) discrimination, and (iii) religious competition. Any degree of non-rivalry in religious club goods introduces scale effects which require new analytical techniques. Due to increasing returns, a religious leader faces a trade-off between forming a large inclusive club and screening out less committed types to form a small strict club. Endogenous screening makes religious strictness a non-monotonic function of economic development, which is consistent with the emergence of strict sects following periods of liberalization and economic growth. Blanket discrimination against all community members makes the religious community stricter and more cohesive, explaining the survival of religious sects and minorities under persecution. Stigmatizing actively religious members promotes social integration on the whole, but can create an extreme isolationist sect. Contrary to prior work on religious markets, we uncover a mechanism by which religious competition reduces religious participation and boosts social integration. Thus, attempts to moderate religion by stigmatizing participation and restricting competition could backfire. Finally, our model provides guidance for empirical work on religious discrimination and further extensions of the religious club model.

The Economics of Religious Communities

The religious club model is central to the economics of religion. To expand its scope for application, we develop the first model to combine (i) increasing returns to membership, (ii) discrimination, and (iii) religious competition. Any degree of non-rivalry in religious club goods introduces scale effects which require new analytical techniques. Due to increasing returns, a religious leader faces a trade-off between forming a large inclusive club and screening out less committed types to form a small strict club. Endogenous screening makes religious strictness a non-monotonic function of economic development, which is consistent with the emergence of strict sects following periods of liberalization and economic growth. Blanket discrimination against all community members makes the religious community stricter and more cohesive, explaining the survival of religious sects and minorities under persecution. Stigmatizing actively religious members promotes social integration on the whole, but can create an extreme isolationist sect. Contrary to prior work on religious markets, we uncover a mechanism by which religious competition reduces religious participation and boosts social integration. Thus, attempts to moderate religion by stigmatizing participation and restricting competition could backfire. Finally, our model provides guidance for empirical work on religious discrimination and further extensions of the religious club model.

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.

Problems of exemption from criminal liability for restricting competition

The article considers the problems of exemption from criminal liability for restricting competition (Art. 178 of Criminal Code of the Russian Federation). The criminal legislation of Russia and the practice of its application in terms of exemption from liability for restriction of competition are analysed. It is thought that the main objectives of the criminal-law prohibitions contained in Chapter 22 of the Criminal Code of the Russian Federation, is to ensure the criminal-legal protection of economic relations, preventing the growth of crimes that threaten the development of financial institutions of the state. Purpose of work: Identify problems of exemption from criminal liability for restricting competition in the modern practice of preliminary investigation and court, and propose ways to improve the criminal law on the exemption from criminal liability for restricting competition. Methods. The methodological basis of the research was the general dialectical method of scientific knowledge, which has a universal character, as well as methods of logical deduction, induction, cognitive methods and techniques of observation, comparison, analysis, synthesis and description, formally logical. Results. The research revealed the problems of application of the criminal law on the exemption from criminal liability for restriction of competition and suggested ways to improve paragraph 3 of the notes to the Art. 178 of Criminal Code of the Russian Federation, providing for the possibility of exemption from criminal liability for restricting competition.

Banks and Fintech Companies – A Rivalry Situation or a Collaborative Opportunity

Legal scholars are yet to pay quality attention to the intentionally restrictive competition policy regarding the recent wave of digital innovations, referred to as fintech. This paper examines the rebirth of Financial Technology (fintech) in recent times. Associating the current frenzy over the rise of fintech to the effects of the 2008 Global Financial Crisis, regulatory rigidity, and the sluggishness of traditional banks in adjusting to the dynamic needs of their customers. This paper further examines the rise of a financial & digital revolution, discussing both the current and potential effects of the revolution on traditional banks and their regulators. The paper addresses the regulatory hurdles in place designed to resist the revolution, thereby stunting the growth of players in the fintech industry in a bid to protect traditional banks from competition.

Обязательное психиатрическое освидетельствование: государственная монополия или нарушение конкуренции?

The article is devoted to the analysis of paragraph 1 of the Resolution of the Government of the Russian Federation N 695 dated 29 September 2002 and to the investigation of the practice in its application in the bodies’ activities of the executive and judicial branches. Currently there are no legal and regulatory acts with requirements for providing mandatory psychiatric examination by a medical psychiatric commission authorized by the federal executive body in the field of health care or by the executive body of a federal subject of the Russian Federation in the field of health care. This condition significantly limits the competition in this service market and entails the exclusion of a legal entity from participation in tenders. On the basis of systematic, historical and legal, specific sociological, formal logical and hermeneutic methods of the examination and interpretation, the authors make a conclusion about the absence of legislative limits when implementing health services in the area of mandatory psychiatric examination if the organization has a required licence for performing this kind of activity. When analysing actual restrictions the authors studied not only actual and repealed legal and regulatory acts but also contradictory jurisprudence practice and proposed their own recommendations for application of current legislation in order to prevent restricting competition in the market of healthcare delivery.

Antitrust regulation of product ecosystems: The case study of Kaspersky Lab. – Apple Inc.

Implementation of the ecosystem business model can not only bring significant gains to a company, but also entail additional risks, including those of violating antitrust laws. The article analyses the Apple Inc. ecosystem, which has recently become the subject of a number of complaints from independent software developers and of antitrust investigations. The study shows how a unique position within the ecosystem can lead a company to market dominance. As a result, actions aimed at creating preferential conditions for the company’s services can be interpreted as restricting competition through fostering a discriminatory environment and preventing independent software developers from entering the market. The analysis is based on public information about Apple’s actions against third-party developers and the recent investigation into the company’s conduct in response to the complaint by Kaspersky Lab. The reason for the initiation of legal proceedings was Apple’s actions setting new rules for the App Store and resulting in improper functioning of the parental control application “Kaspersky Safe Kids”. Methodologically, the study relies on ecosystem theory and the theory of industrial organization. The main research method is case study. The research demonstrates how Apple’s actions can be interpreted in terms of such concepts as essential facilities, tying practices, aftermarkets, and leveraging of market power. These concepts are applicable to Apple’s conduct, including the closed type of the ecosystem built by the company.

Budapest Bank: New Light Shed on the Notion of Restriction of Competition ‘By Object’

Judgment of the Court in Case C-228/18 Gazdasági Versenyhivatal/Budapest Bank Nyrt e.a., 2 April 2020 (ECLI:EU:C:2020:265). The Court of Justice clarifies that the same conduct can be held to infringe Article 101(1) TFEU for having both the object and the effect of restricting competition. It concludes that, in the credit card payment system, a multilateral interchange fee does not constitute a restriction ‘by object’ unless its terms, objectives, and context reveal a sufficient degree of harm to competition in the light of experience. Together with AG Bobek’s opinion, the ruling remarkably clarifies that a ‘by object’ restriction of competition shall be based on sufficiently common, robust, constant, and reliable experience and that the counterfactual is relevant. On 2 April 2020, the Court of Justice of the EU ruled on questions referred by the Hungarian Supreme Court pursuant to Article 267 TFEU. This case relates to an agreement adopted by banks active in Hungary, which introduced from October 1996 to July 2008 a uniform multilateral interchange fee (‘MIF’) in relation to credit card transactions.

Standard of Foreclosure under Article 102 TFEU and the Digital Economy

In this article, the author examines the standard of foreclosure that the European Commission applied in Google Shopping (Search) and Google Android and concludes that the standard of foreclosure is mere capability to foreclose. The only exception is the revenue-sharing abuse in Google Android, where the Commission adopted a standard of capability to foreclose as efficient competitors. These tests are subjected to scrutiny in light of the case law of the Union Courts on Article 102 TFEU from a doctrinal and policy perspective. The author argues that, under EU law, two standards of foreclosure may apply: capability of foreclose and likelihood of foreclosure of as efficient competitors causing negative effects on price, output, quality, or innovation. The capability standard should apply to ‘naked’ abuses, that is, conduct that clearly falls outside competition on the merits because it has the sole purpose of restricting competition and no plausible efficiency rationale, such as predatory prices when prices are below average variable costs or average incremental costs or certain abuses consisting in making false representations to public authorities. The standard of foreclosure of as efficient competitors causing negative effects on price, output, quality, or innovation should apply to all types of conduct that could be anti-competitive but also consistent with competition on the merits, such as tying, conditional rebates or payments, and self-preferencing. Both the Intel and Post Danmark I cases strongly support this conclusion when they establish that the purpose of Article 102 TFEU is not to protect competitors that are not as valued by consumers in terms of price, output, quality, and innovation as the dominant undertaking.