Union Competition Research Articles

Even employees are undertakings in the labour market, but granting social rights is not antitrust’s job

Abstract The lively debate about the right of gig workers to bargain collectively stems from the idea that European Union (EU) competition law treats this group of workers worse than it treats employees. Namely, it is common to argue that employees, unlike gig workers, are permitted to conclude collective agreements because they are not undertakings and, therefore, not subject to EU competition law. In sharp contrast, by analysing the EU notion of undertaking, this article demonstrates—and this is the first of its theses—that in the labour market, which is the market that should matter in relation to the effects of collective agreements, employees are as much undertakings as any other worker, such as gig workers or other self-employed workers. The article further maintains that the reason employees are currently allowed to bargain collectively, while other workers are not, is to be found not within competition law, but outside it. At present, employees’ collective agreements are exempt from the application of EU competition law because employees enjoy the right to bargain collectively, among other social rights, and because the Court of Justice of the European Union has (rightly) recognized that the protection of these rights must trump the protection of competition. Consequently, this article argues, as its second thesis, that if Articles 151–161 TFEU were interpreted so as to grant social rights to workers other than employees, the collective agreements of gig workers and other under-protected self-employed workers would be exempt from EU competition law, as are those of employees. At the same time, however, this paper recognizes that, in the absence of such an interpretative turn, antitrust legislators and policy makers could aid gig workers and other under-protected self-employed workers by excluding them and their collective agreements from the scope of application of competition law. This—and here is the third thesis of the article—would not force the interpretation of antitrust notions and rules and would thus not require antitrust authorities and courts to use competition law to pursue goals different from the protection of efficiency and innovation.

Nenajavljeni uviđaj i (ne)srazmera između ovlašćenja i obaveza Komisije za zaštitu konkurencije

If there is a reasonable suspicion that evidence of competition law infringement may be destroyed or altered, the Commission for Protection of Competition (CPC) is authorized to inspect market participants' premises, without prior notice or any court order or even an effective ex-post court control. Such an investigation may disrupt the market participants' activities and reduce their competitiveness, which is contrary to the key goals of the competition law. This paper analyzes sources of law for the unannounced investigation in the European Union (EU) competition law and Serbian law, as well as the practice of conducting unannounced investigations in EU member states and Serbia. Based on the findings, the conclusion is that Serbia should adopt, among others, amendments to the Law on Protection of Competition, and regulation defining CPC's powers and obligations, so that any differences in CPC's conduct in the same or similar cases are decreased through uniform application of competition law, competition is effectively protected and legal uncertainty for market participants, which is currently significantly higher than in the EU member states, is reduced.

THEORETICAL ASPECTS OF THE BUSINESS PROCESSES CONCEPT, ITS CLASSIFICATION IN THE ACTIVITIES OF ENTERPRISES

Purpose. The purpose of the article is an in-depth study of the theoretical aspects of the business processes concept, its classification and the need for further development in the competitive environment of Ukraine. Methodology of research. General scientific and special methods were used in the research process, in particular: induction and deduction – at the stage of collecting, systematizing and processing the necessary information; analysis and synthesis – to combine various components of the business process; dialectical – to learn the nature, content and essence of the enterprise's business processes; monographic – to study the scientific experience of constituent business processes of enterprises; abstract and logical – to form theoretical conclusions, tables and figures. Findings. The theoretical aspects of the business processes concept, its classification and further development in the conditions of a competitive environment are summarized. It was found that in the conditions of Ukraine, it is necessary to clearly organize business processes, to manage them in the direction of innovative improvement of the structural restructuring of the domestic economy by introducing technological changes in the renewal of management, preparing enterprises for activities in the conditions of the European Union and international competition. There were deepened the concept of business processes in the enterprise, its classification, organization and management of business activities aimed at achieving the main goal - increasing the amount of profit of the business entity and improving the business result to satisfaction of consumer needs. Originality. There was further development of the business process interpretation, its classification, organization and management in the competitive environment of the enterprise. Practical value. The use of the proposed classification and clear organization of business processes will contribute to increasing the economic efficiency of the enterprise's business activities. Key words: concept, organization, classification, business processes, activity, management, efficiency, enterprise.

Contribution of Gregory J. Werden on Commission Notice on the Definition of the Relevant Market for the Purposes of Union Competition Law

Contribution of Gregory J. Werden on Commission Notice on the Definition of the Relevant Market for the Purposes of Union Competition Law

European Union and United Kingdom Competition Law Developments in the Aviation Sector: January to June 2021

As a direct result of the Coronavirus disease 2019 (COVID-19) pandemic, and the support measures initiated by EU Member States to compensate airlines for lost revenues, a review of the EU competition law developments the first half of 2021 continues to be dominated by State aid cases. 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 2020 have continued 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. It is to be expected that for years to come, State aid decisions will form a significantly greater part of the competition law diet. In the six-month period, looking only at COVID-19 pandemic related cases/decision: at least sixteen Commission State aid decisions related to compensating undertakings for the direct or indirect effects of the COVID-19 pandemic; twelve Commission State aid decisions were appealed to the General court (mostly by Ryanair); and we are now seeing a significant number of judgments from the General Court relating to some of the Commission’s COVID-19 State aid decisions. In this period, Ryanair scored equal numbers of successful and unsuccessful appeals. Taking a quick look at the State aid applications submitted to the Commission State, a number of measures 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’. Few could ever contest that the COVID-19 pandemic would not qualify as an ‘exceptional occurrence’ it was an extraordinary, unforeseeable event having a significant economic impact globally. As a result, the interventions by the Member States to compensate for the damages directly linked to the COVID- 19 pandemic were considered justified. The Commission is also empowered to assess State aid measures requested by Member States under Article 107(3)(b) TFEU, which enables it to approve State aid granted to promote the execution of an important project of common European interest or to remedy a serious disturbance in the economy of a Member State. Again, 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. In relation to mergers, there are only five mergers mentioned, of which one reference the abandonment out of the Air Canada/Air Transat transaction after an in-depth investigation lasting more than eleven months. It should be noted that as a direct result of commitments regularly imposed by the Commission in State aid decisions under the Temporary Framework, recipients of State aid (like Air France, TUI, Finavia, Riga Airport etc.) are in principle prohibited from acquiring shares in competing or related markets, and this may have a dampening effect on merger activities in the aviation sector.

Is the Consumer Welfare Obsolete? A European Union Competition Law and Competition Perspective

In 2005, the European Commission advocated for a more economic approach to enforcing competition laws. The sole criterion for assessing the lawfulness of a market practice should be the appraisal of its net effect on consumer welfare. The Court of Justice was reluctant to adopt such an approach until its 2017 Intel Judgment. Its endorsement—which is debatable insofar as the judgment may give rise to different interpretations—may appear paradoxical in that it is concomitant with a sharp challenge to the consumer welfare criterion in the United States. The purpose of this article is to retrace the history of this criterion, particularly its adoption in the context of EU competition law. We aim to show that the criticisms of the effects-based approach can be addressed not by moving away from the consumer welfare criterion but by integrating it into a broader perspective that also takes into account the protection of the competition process itself.

Think Green Before You Apply: EU Competition Law and Climate-Change Abatement

European Union (EU) competition law and the protection of the environment may not be the most obvious bedfellows. Nonetheless, how the EU competition rules can contribute to the EU’s mission to achieve climate neutrality by 2050 is a subject of keen debate – both by the European Commission (EC) and at Member State level. It is submitted, however, that the manner in which Article 101(3) of the Treaty on the Functioning of the European Union (TFEU) and the EU Merger Regulation (EUMR) are applied by the EC is unconducive to the achievement of the EU’s ambitious climate goals. As such, it requires adaptation. A principal, though not the only, stumbling block in this regard pertains to the EC’s insistence on the need to demonstrate economic ‘in-market’ efficiencies with a view to offsetting any alleged competition concerns. Environmental benefits, however, tend by definition to be ‘out-of-market’. Drawing upon recent developments at national level, in particular, this article therefore seeks to offer some food for thought on how the rules relating to Article 101(3) TFEU and the EUMR could be amended/ applied differently as a means of accommodating environmental benefits and supporting the 2050 climate neutrality objective. European Green Deal, Climate neutrality, Environment, Article 101(3) TFEU, EU Merger Regulation, In-market efficiencies, Out-of-market efficiencies, CECED, UK CMA, Netherlands ACM

Physical characteristics of different professional rugby union competition levels

ObjectivesTo evaluate whether differences in physical characteristics (running-related and collision-related metrics) exist between four different professional rugby union competition levels. DesignWe collected and retrospectively analysed microsensor technology data from players of two professional rugby union clubs that competed across four different competition levels: International rugby union, European Rugby Champions Cup, PRO14 club competition, and British and Irish Cup. MethodsDifferences between competition levels were analysed using a one-way ANOVA test. The Tukey HSD test was completed to perform multiple pairwise-comparisons between the means of the competition levels and player positional groups. ResultsTen of the 12 microsensor technology derived physical characteristics were significantly different between competition levels. Collision load-, collisions-, and high metabolic load efforts-per minute all increased at higher competition levels. These differences were also noted across player positional groups. ConclusionsThe physical characteristics of rugby union match-play differ across competitions levels. Our data suggest that professional rugby union players require specific physical preparation for different competition levels. In particular, players are likely to need specific preparation and recovery for the higher collision intensity observed at higher competition levels.

European Union Competition Law Developments in the Aviation Sector: July to December 2020

The second half of 2020 has seen the aviation industry, and the world in general, continue to grapple with the seismic impact of the ongoing COVID-19 pandemic. This article summarizes the main developments over the past six months and provides the reader with greater detail of each of these developments. The European Commission (the ‘Commission’) has adopted a new Temporary Framework to enable Member States to grant further support and aid measures in response to the COVID-19 outbreak. Under the Temporary Framework, and subject to adherence to the criteria set out therein, Member States are able to take measures which are necessary, appropriate and proportionate to remedy a serious disturbance in the economy of a Member State. Given the on-going pandemic, and the resultant travel restrictions to control the spread of the virus, it is not surprising that a very significant number of State Aid measures have been enacted by Member States to support entities active in the aviation sector. While the majority of these measures have been directed towards aiding airlines, which have been hit particularly hard by the general fall in demand for air-passenger services and the travel restrictions, measures have also targeted for example ground handlers, airport operators and manufacturers of aviation parts. Similarly, the form of support offered has varied and included, for example, direct grants, loan guarantees, subsidized loans, tax and/or charges deferral schemes and wage subsidy schemes. The increased number of State Aid notifications to beneficiaries in the aviation sector has led to a similar increase in the number of legal challenges lodged at the EU Courts. Ryanair has been particularly active in challenging State Aid measures which it argues are illegal, and has signalled an intention to lodge further challenges still. Ryanair has taken particular umbrage with what it perceives as attempts by Member States to prop up their own national champions (e.g., operating the aid scheme by reference to the country in which the beneficiary holds an operating licence) at the expense of other competitors active in the Member State who have equally suffered as a result of the pandemic. aviation, airline, regulation, competition and anti-trust

Unique diagnostic signatures of concussion in the saliva of male athletes: the Study of Concussion in Rugby Union through MicroRNAs (SCRUM)

ObjectiveTo investigate the role of salivary small non-coding RNAs (sncRNAs) in the diagnosis of sport-related concussion.MethodsSaliva was obtained from male professional players in the top two tiers of England’s elite...

European Health Care Systems and the Emerging Influence of European Union Competition Policy.

Since the 1990s, the EU's influence over national health care policy has been limited to European internal market law or social policy coordination mechanisms. The introduction of EU competition law into health care is more recent and underdeveloped; however, its introduction would potentially be much more far-reaching and disruptive. Three EU competition law (state-aid) cases are used and comprise both Court of Justice and European Commission decisions. One is from Ireland, one is from the Netherlands, and the third is from Belgium. The Belgian (Iris-H) case sees EU institutions scrutinize a clearly "social" (nonmarket) health care model with EU competition law for the first time. This is a highly significant development. It is clear, however, that the European Commission is more reluctant to use EU competition law to scrutinize health care systems than the European courts are. This intent on the part of EU institutions will have to be assessed in future cases, as considerable uncertainty about its shape and outer contours remains. However, EU competition law, and the EU's state-aid investigation apparatus, encroaching into the national health care systems for the first time is highly significant.

Working-Class Women, Gender, and Union Politics in Turkey, 1965–1980

AbstractThis paper focuses on the ideology and discourses of Tekstil İṣçileri Sendikası (the Textile Workers’ Union, Tekstil) in Turkey to highlight some of the specific visions of the organized labor for an emancipatory gender politics during the 1970s. This history of intersection between gender and working-class organizing has been overlooked by the Left scholarship on the one hand and liberal feminist scholarship on the other. This paper addresses this gap in the literature by highlighting gender and class concurrently throughout the history of the transformation of gender politics in labor organizations. The history of the simultaneous development of gender-related policies in Tekstil/DİSK and TEKSİF/Türk-İṣ reveals an unexplored aspect of the contentious dynamic between rival labor organizations. Between 1975–1980, the politics of gender became another pillar in trade union competition. Following the transnational influences in this transformation, this paper highlights a forgotten period of labor organizing and locates it within the history of labor and women's movements at the national and global scale.

Constituent elements of prohibited vertical agreements in the competition law of Iran and the European Union

The objective of the investigation is to analyze the constituent elements of vertical agreements prohibited by Iran's competition law, in accordance with Chapter IX of the Law on the Implementation of General Policies and in accordance with Article 44 of the Constitution and, as set out in European Union competition law, Article 101 of the Treaty on the Functioning of the European Union. By vertical agreements it can be said that one of the types of agreements is wanted in the competition law. Any reference between natural or legal persons in the longitudinal direction (whether top to bottom or bottom up) that is not close to the consumer's interest is agreed. These agreements may include free clauses that are not compatible with the objectives of competition law. Methodologically, this is a documentary research close to comparative and legal hermeneutics. It is concluded that, to prohibit vertical agreements, they need to have the anti-competitive object or effect and also have a tangible impact on the closure of competition on the market.

A corpus-based study on deontic modality in Competition Law: Insights from the English-Greek language pair

This study investigates deontic modality, the grammatical category through which legal texts express mainly obligation and permission, in an English-Greek bilingual corpus composed of legislative texts related to European Union (EU) Competition Law. More specifically, the study is based on Biel’s discussion on deontic modality, i.e. deontic obligation and deontic permission (Biel 2014: 158). The analysis of the data is mainly quantitative, while a small-scale qualitative analysis is also carried out when necessary. The results of the study are compared with the specific guidelines proposed by the EU Institutions for English and Greek, i.e. the Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation (2015), the English Style Guide: A handbook for authors and translators in the European Commission for English (2018) and the Greek Style Guide: A handbook for authors and translators in the European Commission for Greek (n.d.), as well as with those of earlier studies on legislative texts.

EU Health Union and State Aid Policy: With Great(er) Power Comes Great Responsibility

This contribution evaluates whether European Union State aid policy could play a role in achieving deeper and more solidary integration in the area of public health. According to Article 107 TFEU, the powers of Member States to grant aid to help their economies are seriously limited. Exceptions to the general prohibition to grant State aid are authorised by the European Commission, which enjoys wide discretion in weighing national objectives against European integration goals. The area of public health has been shielded from the application of these rules, with activities such as the provision of health insurance failing to be considered of economic nature (see most recently the Dôvera judgment). The COVID-19 experience shows that, in cases of major health crises, State aid provisions are practically suspended, with interventions allowed in the name of the fight against the pandemic. The eventual creation of a Health Union will require the re-evaluation of the application of the State aid rules to healthcare. This paper questions whether these rules should evolve as a reflective function of strengthened competences in healthcare or whether existing regulatory powers are enough to determine the interaction between national spending policies, a solidary European Health Union and fair competition.

Responsibility of Local Self-Government for Infringement of the European Union Competition and Public Procurement Rules and Its Enforcement in Slovakia

Summary The paper will analyse the position of local self-government (i.e. municipalities and self-governing regions) in the framework of enforcement of internal market, its impact and effectiveness. The analysis of the legal framework of Slovakia has shown, that there are three ways in which the central government can compel local self-governmental authorities to follow rules of internal marker, including competition rules: (1) state aid rules, (2) public procurement rules and (3) “other” rules of competition. Legal analysis is complemented by the analysis of quantitative data regarding sanction policies in respective areas.

Sizing up the competition: explaining reform of European Union competition policy in the Covid-19 era

ABSTRACT Ensuring fair competition has long been a core pillar of the European Union (EU). In the wake of the Covid-19 pandemic, however, the EU has diverted significantly from its traditional commitment to market-based competition, notably in state aid and foreign subsidies. This article explores change and continuity in post-Covid-19 European competition policy (ECP) by considering both the radicality and permanence of these changes. Using process-tracing based on primary documents, secondary materials, and personal interviews, this article examines recent shifts in EU competition policy, probing three causal factors: 1) digitization of the global economy; 2) geopoliticization of competition regulation; and 3) Brexit. We argue that the Covid-19 crisis has brought these pre-existing challenges to ECP to the fore and, thereby, created space for policy entrepreneurs in EU member state governments and institutions to push for greater promotion and protection of European industry in the internal market while reinforcing supranational competition enforcement.

European Union and United Kingdom Competition Law Developments in the Aviation Sector: January to June 2020

Aviation, airline, regulation, competition and anti-trust

Applicability of European Union Competition Law to Health Care Providers: The Dividing Line between Economic and Noneconomic Activities

Ever-increasing health spending, which, according to future projections, continues to outpace economic growth, will further endanger the financial sustainability of health systems. In a quest to improve the efficacy and efficiency of the health system and thus strengthen its financial sustainability, member states are employing market-based mechanisms to finance, manage, and provide health care. However, the introduction of elements of competition is constrained by the application of EU competition law, which raises significant concerns regarding the applicability of competition law and its limits in the field of health care. Due to the lack of a clear definition in EU legislation, the applicability and scope of competition law are determined on a case-by-case basis, which reveals an inconsistent approach by the European Commission and the CJEU regarding the application of competition law to health care providers and has created legal uncertainty. The aim of this article is to analyze relevant decisions by the commission and the CJEU case law in the pursuit of "boundaries" that may trigger the applicability of competition law with regard to health care providers. Based on the findings of the analysis, the article proposes a set of principles or guidelines for determining whether a health care provider should be considered as an undertaking and, as such, subject to EU competition law.

The EU Block Exemption and Horizontal R&D Agreements

We analyze the effect of the European Union Competition Authority’s block exemption towards R&D cooperatives in a horizontal market structure, valid as long as the combined product market share is not too large. Two less efficient firms attempt to catch up with a technological leader, and may use the safe harbour provided by the legislation. We consider when the incentives of the R&D-performing firms are aligned with those of consumers, and when increases in the market share limit improves welfare. We show that an effective policy within this framework might be elusive. The market share restriction must be set in order that it is optimal for firms to use the safe harbour, and that this leads to more R&D than under competition. Even in this case, further increases in the market share restriction can harm welfare. This has widespread implications for how the EU Competition authority should respond to calls for an increase in the market share restriction.