Union Competition Research Articles

FIFA’s Football Agent Regulations and European Competition Law

Abstract We assess the relationship between professional sport and European Union competition law using the example of the FIFA Football Agent Regulations (FFAR), a set of rules enacted by FIFA, the world football governing body, to regulate the activities of football agents. The FFAR have been challenged under competition law before national courts and in arbitration proceedings before the Court of Arbitration for Sport. The European Court of Justice has been asked to rule on the matter. The FFAR are the result of an anti-competitive decision by an association of undertakings. In particular, there is no exception for such agreements under the so-called Meca-Medina test. This analysis is supported by the European Court of Justice’s 2023 rulings in sports cases, in particular the European Superleague.

Solidarity as a Political Determinant of Health: Insights from EU Competition Policy

Context: The connection between law and political determinants of health is not well understood, but nevertheless it is suggested that the two are inseparable, and this represents an upstream level with scope for influencing other determinants of health (particularly social determinants). Solidarity underpins European health care systems, and given its clear link with redistribution, it can be seen as a means for addressing health inequities. As such, solidarity may be seen as a political determinant of health in the specific context of European Union (EU) competition policy. Methods: A range of EU case law, treaty provisions, and European Commission publications relating to EU competition policy are analyzed. Findings: Solidarity is typically juxtaposed as antithetical to competition and thus as underpinning exceptions to the applicability of prohibitions on anticompetitive agreements, abuse of dominance, and state aid. Case law indicates an additional dynamic between definitions of solidarity at the EU and national levels. Conclusions: This analysis leads to two groups of considerations when framing solidarity as a political determinant of health in the EU competition policy context: first, the predominance of solidarity suggests it may shape competition reforms; second, the EU–member state dynamic indicates less EU-level reach into national competition reforms in health care than may be expected.

Data Driven Dominance in Digital Markets: Assessing Indonesian Competition Law in the Digital Age

Digital markets and multi-sided platforms are created by the internet, that are characterized by the use of big data as new market power. Big data enabled dominant and digital-based key players such as Instagram and Facebook/Meta to record and forecast their users’ personal data and spending capacity to increase their economies of scale by tailoring updates to the users’ demand. Therefore, big data becomes an essential market share, and its scarcity determines newer entrants’ ability to enter the market and the existing incumbents’ ability to survive by grappling with fast-paced digital changes. This legal morphology benefits data-driven undertakings to elevate their position in the market and achieve enough independence to influence market behavior. On the other hand, multi-sided platforms refer to where a single undertaking sells different products to different types of consumers on different sides of the platforms that affect each other’s demand due to the cross-group network effect. Undertakings often sell zero-price products to one side while imposing the monetary burden and gaining revenue from the other. This situation triggered legal challenges to the calculation of market share necessary to determine a dominant position that is essentially mathematical based. Furthermore, big data and multi-sided platforms stimulate the rise of novel abusive practices in the digital market. This paper will analyze the Indonesian 1999 competition law’s flexibility to deal with these changes by comparing the existing framework on consumer data protection, big data, and multi-sided platforms management to the European Union competition law.

Has the European Union (tacitly) adopted a Trinko doctrine, giving priority to sector regulation?

In U.S. antitrust, a level of implied immunity is afforded to matters governed by sector regulation, often referred to as the “Trinko-doctrine.” In contrast, no such immunity is assumed in European Union competition law, where by contrast, there is only a very narrow regulatory defence if laws mandate a specific (anti-competitive) course of action. As always, matters are more nuanced in practice. Not only did the Court of Justice of the European Union, the European Union’s highest legal authority, recently suggest an obligation to halt competition law investigation if sector regulations are available, this has tacitly been practiced for years, indicating a more complex relationship and a possible European Union Trinko-doctrine. Following the adoption of the EU’s Digital Market Act, this has relevance beyond the traditional regulated sector, warranting some considerations.

Designing (restorative) remedies for abuses of dominance by online platforms

Abstract The debate surrounding the application of European Union competition law to online platforms so far has predominantly focused on identifying anti-competitive practices. The design of corresponding remedies has been far less explored, although it is of equal importance to practice. In the absence of effective remedies, the mere identification of anti-competitive practices can do little to protect competition. Given the difficulties associated with identifying competition law infringements by online platforms, there is no reason to assume that the design of remedies intended to tackle the effects of such infringements will be straightforward. Therefore, this article aims to show the intricacies of designing effective remedies for Article 102 TFEU infringements by online platforms based on the case study of tying and bundling practices. In this process, the article clarifies the importance of incorporating restorative measures in competition law remedies that may require opting for structural interventions, which are difficult to impose under the scope of Regulation 1/2003. The article offers three potential options to overcome such difficulties within the ambit of this regulation, namely through the strategic use of interim measures, the introduction of flexible remedies, and the incorporation of the regulatory restraints of the Digital Markets Act.

The evolution of EU competition law and policy in the pharmaceutical sector: long-lasting impacts of a pandemic

Abstract This article investigates the evolution of the European Union (EU) competition law and policy enforcement in the pharmaceuticals sector, focusing on the impact of the coronavirus disease 2019 (COVID-19) crisis as a turning point. Before COVID-19, EU competition authorities’ goals and priorities focused on pay-for-delay agreements between originators and generic pharmaceutical undertakings. During COVID-19, the European Commission developed soft laws (such as temporary frameworks and comfort letters) enabling undertakings to cooperate to increase access to essential health products and COVID-19 vaccines. In the post-pandemic era, initiatives like the Pharmaceutical Strategy for Europe, the Single Market Emergency Instrument (SMEI), the Health Emergency Response Authority (HERA), the compulsory licensing proposal and the upcoming changes in the pharmaceutical regulations reflect a patient-centred approach and diverse agenda. This article underscores the move towards a more inclusive EU competition law and policy framework in the pharmaceutical sector as part of this evolution.

Tackling the tackle 1: A descriptive analysis of 14,679 tackles and risk factors for high tackles in a community-level male amateur rugby union competition during a lowered tackle height law variation trial

ObjectivesIn rugby union (rugby), the tackle is the most frequent cause of concussion and thus a target for intervention to reduce concussion incidence. The aim of this study is to describe tackle characteristics and factors associated with illegal high tackles in amateur community-level rugby during a lowered (armpit level) tackle height law variation trial. DesignProspective observational cohort study. MethodsVideo surveillance of a single season, four-league competition with coding of video data according to a predefined coding framework. Descriptive statistics of tackle detail and logistic regression was performed to analyse factors associated with high tackles. ResultsOne hundred and eight matches with 14,679 tackles and a mean of 137 (±30) tackles per match were analysed. High tackles (above armpit level) had significantly greater odds of occurring in the lower (2nd–4th) leagues (OR: 1.95; 95 % CI: 1.6–2.4; p < 0.001), front-on tackles (OR: 1.61; 95 % CI: 1.3–2.0; p < 0.001), arm tackles (OR: 1.65; 95 % CI: 1.3–2.1; p < 0.001), bent-at-waist ball carrier (OR: 1.93; 95 % CI: 1.6–2.4; p < 0.001), falling/diving ball carrier (OR: 2.21; 95 % CI: 1.6–3.1; p < 0.001), and an upright tackler (OR: 3.38; 95 % CI: 2.7–4.2; p < 0.001). A falling/diving tackler had significantly lower odds of being associated with a high tackle (OR: 0.44; 95 % CI: 0.3–0.6; p < 0.001). ConclusionsOverall mean tackles per match were similar to those of senior amateur and elite rugby. League, tackle type, tackle aspect, and player body positions were associated with high tackles. These findings reiterate the need for ongoing efforts to identify and implement mitigating strategies to reduce tackle-related injury risk.

Does Rocky Mountain Credit Union Competition still Affect Commercial Bank Interest Rates?

&lt;p class="MsoNormal" style="margin-top: 12.0pt;"&gt;&lt;span lang="EN-US" style="mso-bidi-font-size: 10.5pt; font-family: 'Cambria',serif; mso-fareast-font-family: 宋体; mso-bidi-font-family: 'Times New Roman';"&gt;Historically, increased credit union competition in Idaho and Montana has caused commercial banks to offer higher deposit rates to savers and lower loan rates to borrowers. Data are collected for the second quarter of 2018 to examine whether that pattern still holds true. Unlike prior studies, empirical results indicate that credit union competition no longer exerts statistically reliable impacts on deposit rates or loan rates in this northern Rocky Mountain region of the United States. Potential contributing factors include bank and thrift consolidation in recent years, the low interest rate environment prevailing during the late 2010s, and greater emphasis on non-interest forms of intermediary competition in the banking markets that comprise this regional economy.&lt;/span&gt;&lt;/p&gt;

RETRACTED: Digital Markets in EU Competition law

Abstract Online marketplaces’ expansion has completely transformed the way in which products and services are traded, benefiting both consumers and companies in a variety of ways. However, the decentralized nature of online markets, the problem of market domination, and the growing use of big data in digital marketplaces, has brought many difficulties related to competition law. Further complicating matters is the growth of platform-to-business (P2B) partnerships. This manuscript discusses recent competition cases involving online platforms and offers an outline of the difficulties faced by competition authorities in dealing with competition concerns in digital markets. The specific applicability of Articles 101 and 102 of the Treaty on the Functioning of the European Union to concerns involving digital platforms will be thoroughly examined. There will also be discussion of potential fixes for the concerns mentioned. The study outlines the raised concerns and offers potential solutions. Thus, it will provide a glimpse into a potential future strategy that the European Union competition authorities, including the Commission and National Competition Authorities, may adopt about online platforms.

The concept of the application for humanitarian aid and its use with CAD/CAM technologies and virtual reality and its impact on the safety of the healthcare sector

Purpose: The article has presented the concept of a proprietary application for humanitarian aid and prosthetic needs for reconstruction submitted to the European Union Competition for Humanitarian Innovation (InnovAid) for innovative improvement solutions that increase humanitarian aid.&#x0D; Method: analysis of statistical data and data from available literature and scientific articles, observation.&#x0D; Findings: Improving the efficiency and effectiveness of humanitarian aid around the world, reusable and achieving the appropriate level of safety for the world's personnel, as well as providing access to innovative solutions for medical personnel anywhere in the world.&#x0D; Paper type: practical, theoretical.

Article 3 of Regulation 1/2003: a historical and empirical account of an unworkable compromise

Abstract Combining historical, conceptual, and empirical approaches, this article studies one of the most fundamental, yet underexplored, questions surrounding Regulation 1/2003: What limits European Union (EU) competition law places on the adoption and application of national competition and other laws? The relationship between EU competition and national laws was supposedly settled with the adoption of Regulation 1/2003. There are two exceptions to the rule in Article 3(1), under which national competition authorities and courts must apply EU competition law when applying their national competition laws, with primacy for EU provisions: Article 3(2) leaves room for ‘stricter’ national competition rules on unilateral conduct, and Article 3(3) for national rules pursuing a ‘predominantly different objective’. The solution offered by Article 3 is not workable. Through a historical study of the political discussions preceding Article 3’s adoption, a conceptual analysis of potential interpretations, and a systematic content analysis of French and German practice, this article reveals the lack of a dividing line between the notions of national competition laws and other laws. It calls for reform of Article 3 to ensure that conduct that should be governed by EU law is not assessed under national rules and standards that differ from one Member State to another.

The role of state aid for the food industry – Based on the example of dairies in Poland

AbstractThere is lack of research on the evaluation of state aid provided to food industry enterprises in Poland, within the framework of general principles of the European Union competition policy, taking into account structure of the industry. The aim of the study is to assess the scale of general public aid for dairies, taking into account the type of enterprises, their size and location. The statistical analysis is based on SUDOP data. The amount of aid granted in 2015–2021 increased as well as the number of beneficiaries of the aid. The highest value share involved subsidies for R&amp;D projects. The share of large dairies in funds is similar to their market share. We witness a significant concentration of aid regionally and among the beneficiaries. Dairy cooperatives accounted for a greater share of the employment of disabled persons and prisoners than other entities, which may be due to their bimodal nature.

State aid policy in the United Kingdom post-Brexit: a case of de-Europeanisation as orbiting Europeanisation

ABSTRACT Competition policy has been at the core of the European integration project from its very inception. The United Kingdom (UK) played a truly pivotal role in the development of European Union (EU) competition policy with the policy long presenting one of the best illustrations of Europeanisation. The public vote for Brexit in 2016 pushed the reset button for the UK’s engagement with the EU and saw successive UK governments all pursuing a de-Europeanisation trajectory as part of their objective of ‘taking back control’. State aid emerged as a contentious issue during the Brexit negotiations. The UK government hailed its new Subsidy Control Act (2023) as a clear departure from the EU state aid regime, but is this a case of de-Europeanisation or partial de-Europeanisation? This article argues that the UK has still not entirely broken free from EU’s state aid regime and finds itself in a state of orbiting Europeanisation.

Technology Company Merger and Acquisition: a Study of Indonesian and European Union Competition Law

Technology has become an essential part of human activities, people's needs and demands for it are significantly increased. People have become dependent on technology because they use it to travel, communicate, learn, do business and simplify human life. Currently, technology-based companies are growing rapidly all over the world, as we can see how Google, Facebook, Twitter, Microsoft, Apple, and various other companies dominate the market. Likewise in Indonesia, people's activities cannot be separated from various products from technology-based companies, such as Gojek, Tokopedia, Shopee, Grab, Traveloka, etc. Recently, Gojek and Tokopedia officially merged to become the GoTo Group and are claimed to be the largest technology group in Indonesia. This merger is usually carried out by business actors to seek more profit and to become a company that wins the market both on a national and international scale and in fact has a significant impact on changes in structure and control over the market so that there is a potential for abuse of dominant position to occur by limiting the choice of both products, quality, and price. Based on this case, this normative research using the case approach and statute approach aims to analyze how Indonesian competition law regulates technology company mergers, by comparing it with European Union competition law. The conclusion of this research is, lesson learn from European Union, Indonesian Competition Law needs to adapt the Data Protection Law in reviewing tehcnology company mergers in Indonesia.

Antitrust shrugged? Boycotts, content moderation, and free speech cartels

ABSTRACT Antitrust and free speech may seem to have little in common. Yet, they may start interacting more often as Big Tech undertakings might have incentives to coordinate their content moderation policies and collectively suppress unwanted information. Such coordination might be desirable, but in some cases it may lead to antitrust and free speech concerns. Against this backdrop, the article attempts to provide a framework to analyse this type of cases from the point of view of European Union competition law. It identifies five types of agreements that may be entered into by undertakings and provides outlines on possible ways of approaching them. It concludes that while content moderation is often seen as a free speech issue, antitrust should not shrug off such concerns as out of its scope. Yet, it also suggests that these types of cases are not straightforward and that both more research and vigilance on the part of antitrust authorities might be advisable.

A comparison of running and contact loads in U18 and U20 international rugby union competition

The purpose of the present study was to characterize and compare locomotor and contact loads in U18 and U20 international rugby union competition during matches, and specifically during peak match-play phases using short rolling epochs and continuous ball-in-play (BIP) sequences. 20 international matches from French national teams were analysed in the U18 and U20 Six Nations Tournament respectively and World Rugby U20 Championship. Running loads were quantified using global positioning devices (16 Hz) and contact loads via video match analysis software. Players were split into forward (U18, n = 29; U20, n = 32) and back positional groups (U18, n = 20; U20, n = 24). Compared with U20 peers, U18 players covered a higher total distance (effect size (ES) = -0.76 ± 0.25) and at high-speeds per minute (> 4 m · s-1; ES = -0.55 ± 0.25) and performed more accelerations (ES = -0.71 ± 0.25). While a greater frequency of BIP sequences > 90 s duration was observed in U20s versus U18s match-play, U18s covered more total distance and high-speed distance (ES = -0.42 ± 0.13 and -0.33 ± 0.13 respectively) per minute during these longer sequences. During peak rolling phases shorter than 4 minutes, no clear differences existed between age categories in running activity, while U20 forwards performed more contact actions than U18 peers. The match-play loads observed in the present international U18 players suggest that they are ready to respond to the overall and peak demands observed in U20 competition. Moreover, the present information on peak activity phases can aid design of overload high-intensity conditioning sessions to respond to the running- and contact-demands identified in those competitions.

The competition-democracy nexus unpacked—competition law, republican liberty, and democracy

Abstract The proposition that competitive markets and competition law promote democracy constitutes a fundamental normative prior, if not a foundational myth, of US and EU competition law. This article purports to unpack this notion of a competition-democracy nexus. It argues that the idea of a competition-democracy nexus can only be explained by the normative commitment to a specific understanding of liberty: namely, the republican concept of liberty as non-domination. On this basis, the article makes three contributions. First, on a conceptual level, it is the first to pin down a clear and theoretically consistent answer to the question of how competition and competition law further democracy. Second, on a historical level it traces how iterations of the ideal of republican liberty and the associated notion of a competition-democracy nexus shaped competition law in the US and Europe and why both disappeared from our modern competition law landscape. The third contribution is practical. The article sheds light on how the ideal of republican liberty and the competition-democracy nexus can be operationalised through concrete competition law tools and how they could inform ongoing debates on the future of competition law in light of the current challenges posed by the rise of industry concentration notably in digital markets. A revival of the idea of a competition-democracy nexus, the article concludes, must not inevitably conflict with a consumer-oriented competition policy, but requires a radical rethink of the role of competition law.

European Union and United Kingdom Competition Law Developments in the Aviation Sector: January to June 2022

It goes without saying that the effects of the COVID-19 pandemic continue to be acutely felt by the aviation industry. This can be readily seen from the competition law developments in the first half of 2022 which continues to be dominated by State aid cases – not only Commission decisions approving State aid to carriers and arports, but also appeals against previous Commission decisions. This article summarizes the main developments over the past six months and provides the reader with an overview of the details of each of these developments. The first six months of 2022 continue to be dominated by State aid cases, be it decisions by the European Commission (‘Commission’) to approve State aid applications, appeals of those or previously decided State aid cases, or the handing down of judgments from the General Court (GC). As mentioned previously, this is to be expected for years to come. Taking a quick look at the State aid applications submitted to the Commission, most of the applications were submitted under Article 107(2)(b) of the Treaty on the Functioning of the European Union (‘TFEU’), which enables the Commission to approve State aid granted to compensate specific companies or specific sectors for the damages directly caused by ‘exceptional occurrences’. While COVID-19 restrictions continued to be eased in early 2022, operators continued to count the cost of the pandemic, and Member States continued to support operators for the damages directly linked to the COVID-19 pandemic. The Commission is also empowered to assess State aid measures under Article 107(3)(b) TFEU, which enables it to approve State aid granted to promote important projects of common European interest or to remedy a serious disturbance in the economy of a Member State and few would dispute that the COVID-19 pandemic caused serious disturbances in the economies of EU Member States. The final main mechanism to consider State aid is the Temporary Framework specifically set up by the Commission to enable the quick approval of State aid providing that the measures fell within defined parameters. The author is not aware of any merger notifications to EU/UK authorities – indeed, following the abandonment of some previous mergers, and challenges faced by the industry as it attempts to ramp up operations following the pandemic, it is perhaps unsurprising that mergers have not been a priority matter in the aviation sector.

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.

European Union Competition Law Developments in the Aviation Sector: July to December 2021

The second half of 2021 has seen the aviation industry continue to grapple with the impact of the on-going Coronavirus (COVID-19) pandemic, as travel restrictions and similar adjustments have been required in a number of jurisdictions. Key developments included in this article include: – A number of addressees of the European Commission’s (the ‘Commission’) air cargo cartel case, which imposed significant fines on participating airlines, have lodged claims against the Commission seeking compensation as a result of the latter’s refusal to pay interest on fines imposed which the Commission repaid to airlines following the EU court’s annulment of the original cartel decision. – The Commission has closed its investigation into Amadeus and Sabre over their contractual terms governing the distribution of airline tickets in agreements between airlines and travel agents, citing insufficient evidence that the arrangement had restricted competition; and – The seismic impact of the on-going pandemic continues to give rise to a great number of State Aid notifications to various beneficiaries in the aviation sector, with a commensurate uptick in the number of legal challenges before EU courts. As with 2020, Ryanair has continued to be particularly active in challenging these measures. This article summarizes the main developments over the past 6 months and aims to provide the reader with an overview of each of these developments. aviation, airline, regulation, competition and anti-trust