Template-Type: ReDIF-Article 1.0 Author-Name: Édouard Bruc Author-X-Name-First: Édouard Author-X-Name-Last: Bruc Title: Data as an essential facility in European law: how to define the “target” market and divert the data pipeline? Abstract: A new economic test called the holistic inter-dynamic analysis is proposed to tackle both sides of the multisided market simultaneously. The dominance issue solved, the risk of 102 TFEU abuse regarding data was already highlighted in the 1996 Database Directive. On that matter, this article assesses each legal condition of a “refusal to supply” access. Apropos the indispensability condition, data’s ubiquitous nature may be dispelled by an analysis of the context in which it evolves or its link with AI or the IoT. Concerning its replicability prong, data’s feature, feedback loops, network effects, switching costs or economies of scale/scope are conducive to super-dominance. They altogether can create an insurmountable bottleneck. Regarding innovation, the author carefully analyses the “limitation of technical development” condition either on an economic or a legal standpoint. Finally, regarding privacy law, when granting access, a coherent approach appears feasible through a proportionality test. Journal: European Competition Journal Pages: 177-224 Issue: 2-3 Volume: 15 Year: 2019 Month: 9 X-DOI: 10.1080/17441056.2019.1644576 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1644576 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:2-3:p:177-224 Template-Type: ReDIF-Article 1.0 Author-Name: José Tomás Llanos Author-X-Name-First: José Tomás Author-X-Name-Last: Llanos Title: A close look on privacy protection as a non-price parameter of competition Abstract: Competition in data-driven markets creates tension between undertakings’ incentives and consumers’ online privacy. Driven by the need to collect and process as much personal data as possible, online firms have caused significant privacy harms, drawing attention to their data processing activities. In this context, a great number of consumers have expressed dissatisfaction about privacy-intrusive practices. Accordingly, privacy-sensitive consumers should choose their online service providers based on the higher or lower degree of privacy protection they offer, all other things equal. However, a reality check shows that privacy protection has not emerged as a meaningful competition parameter. This article explores and disentangles the causes of this counter-intuitive phenomenon, showing that, for privacy protection to serve as a meaningful competition parameter, four conditions must be met. As these conditions are not presently fulfilled, privacy protection as a competition parameter is currently a theoretical construction. This finding motivates two important policy prescriptions. Journal: European Competition Journal Pages: 225-253 Issue: 2-3 Volume: 15 Year: 2019 Month: 9 X-DOI: 10.1080/17441056.2019.1644577 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1644577 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:2-3:p:225-253 Template-Type: ReDIF-Article 1.0 Author-Name: Vikas Kathuria Author-X-Name-First: Vikas Author-X-Name-Last: Kathuria Title: Platform competition and market definition in the US Amex case: lessons for economics and law Abstract: The rise of multi-sided platforms in the marketplace has spawned a vast amount of research to understand their implications for competition and welfare. This paper presents the scrutiny of one such academic work that classifies multi-sided platforms into “transaction” and “non-transaction” platforms for the purpose of relevant market definition. It has been posited that in the case of “transaction” platforms, there is one all-encompassing relevant market comprising of all sides of a platform. And such a “transaction” platform can compete only with another “transaction” platform. The U.S. Supreme Court in its Amex decision relied upon this classification and elevated the same into law. This paper identifies flaws in this concept by demonstrating that the relevant academic work defines “transaction” too narrowly. The paper takes the swift adoption of the “transaction” platform approach by the Supreme Court as an opportunity to also provide lessons for economics and law. Journal: European Competition Journal Pages: 254-280 Issue: 2-3 Volume: 15 Year: 2019 Month: 9 X-DOI: 10.1080/17441056.2019.1644578 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1644578 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:2-3:p:254-280 Template-Type: ReDIF-Article 1.0 Author-Name: Patrick Actis Perinetto Author-X-Name-First: Patrick Author-X-Name-Last: Actis Perinetto Title: Hub-and-spoke arrangements: future challenges within Article 101 TFEU assessment Abstract: Notwithstanding the lack of a theoretical elaboration at the EU level, hub-and-spoke arrangements are increasingly surfacing at national level as useful smokescreen to hide anticompetitive conduct. Due to their features favourable to collusion, hub-and-spoke arrangements may represent the future of Article 101 TFEU. This paper aims at providing an analysis of the characteristics of hub-and-spoke arrangements and their interpretative challenges to allow interpreters and courts to correctly deal with them in real-life. The morphology of these arrangements and the indications provided by the available case-law will be first addressed. Then, following a description of the limited EU relevant case-law, the black areas of the EU hub-and-spoke elaboration will be singled out and its relationship with the case-law on information exchange will be investigated. Finally, a proposal of a EU legal assessment of hub-and-spoke will be made and tested with respect to the hub-and-spoke based on information gathered from the market. Journal: European Competition Journal Pages: 281-317 Issue: 2-3 Volume: 15 Year: 2019 Month: 9 X-DOI: 10.1080/17441056.2019.1662209 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1662209 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:2-3:p:281-317 Template-Type: ReDIF-Article 1.0 Author-Name: Kevin Coates Author-X-Name-First: Kevin Author-X-Name-Last: Coates Author-Name: Dirk Middelschulte Author-X-Name-First: Dirk Author-X-Name-Last: Middelschulte Title: Getting Consumer Welfare Right : the competition law implications of market-driven sustainability initiatives Abstract: The global business community is embracing sustainability, actively seeking to develop collective initiatives to reinvigorate the legitimacy of our global market-based economy. Beyond regulatory initiatives – which will always be geographically limited in scope – international cooperation among industry peers can significantly contribute to, and be an absolutely fundamental precondition for, the attainment of the United Nations Sustainable Development Goals (“SDGs”). Competition laws have often been perceived as an obstacle for competitors to cooperate in order to scale-up their contribution to deliver on the SDGs. However, this situation seems to be evolving. This article discusses how Art. 101(3) TFEU should be applied to joint sustainability initiatives, especially when looked at in the context of the overall EU Treaty structure and the fundamental objectives of the EU, and concludes that sustainability goals can be properly taken into account under Article 101(3). Journal: European Competition Journal Pages: 318-326 Issue: 2-3 Volume: 15 Year: 2019 Month: 9 X-DOI: 10.1080/17441056.2019.1665940 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1665940 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:2-3:p:318-326 Template-Type: ReDIF-Article 1.0 Author-Name: Anna Nowak-Salles Author-X-Name-First: Anna Author-X-Name-Last: Nowak-Salles Title: Individual concern in the State aid action for annulment in light of the notion of State aid Abstract: Competitors of aid beneficiaries bringing an action for annulment against a State aid decision must demonstrate that their position on the market is substantially affected. However, the interpretation of this criterion seems inconsistent with the concept of State aid, in particular with the notions of selective advantage and distortion of competition. Indeed, substantial effect privileges selective disadvantage over selective advantage and requires actual harm where a simple threat of distortion of competition is enough. This inconsistency has far-reaching implications because the interpretation of admissibility criteria encroaches upon the interpretation of the notion of State aid. Therefore, by narrowing down the scope of challengeable State measures, the Court effectively excludes from the scope of judicial review an important part of measures falling under Article 107(1) TFEU. Consequently, admissibility conditions should be mitigated and aligned with the logic of State aid law for the sake of completeness of EU State aid control. Journal: European Competition Journal Pages: 327-346 Issue: 2-3 Volume: 15 Year: 2019 Month: 9 X-DOI: 10.1080/17441056.2019.1687186 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1687186 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:2-3:p:327-346 Template-Type: ReDIF-Article 1.0 Author-Name: Antti Aine Author-X-Name-First: Antti Author-X-Name-Last: Aine Author-Name: Tom Björkroth Author-X-Name-First: Tom Author-X-Name-Last: Björkroth Author-Name: Aki Koponen Author-X-Name-First: Aki Author-X-Name-Last: Koponen Title: Horizontal information exchange and innovation in the platform economy – a need to rethink? Abstract: The question of innovation platforms is very topical, as we increasingly observe undertakings being brought together as co-creation partners on innovation platforms, which enable the introduction of new products and services, increasing efficiency and creating customer value. However, the innovation process inevitably requires exchange of information between participating undertakings. While the principles of information exchange are well-established in one-sided markets, this is less so for horizontal cooperation in an environment characterized by competing innovation platforms and specific dynamics. Are innovation platforms special, and is there, for the benefit of legal certainty, a need to clarify the concepts regarding the nature of information? We argue that this could very well be the case, especially if the uncertainty regarding the compliance with competition law threatens to hamper the innovative processes. Moreover, we argue that the doctrine to be applied on information exchange should depend on the proven intent behind the exchange. Journal: European Competition Journal Pages: 347-371 Issue: 2-3 Volume: 15 Year: 2019 Month: 9 X-DOI: 10.1080/17441056.2019.1687187 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1687187 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:2-3:p:347-371 Template-Type: ReDIF-Article 1.0 Author-Name: Michael L. Polemis Author-X-Name-First: Michael L. Author-X-Name-Last: Polemis Author-Name: Aikaterina Oikonomou Author-X-Name-First: Aikaterina Author-X-Name-Last: Oikonomou Title: How effective are remedies in merger cases? A European and national assessment Abstract: Remedies form an essential tool of any enforcement action and need to be devised with great caution from National Competition Authorities (NCAs). If the remedy is ineffective, the enforcement action does not reach the desired objective and resources will have been wasted. If the remedy is disproportionate, the decision is put at risk in a possible subsequent appeal. Remedies either behavioural or structural imposed by competition authorities seek to eliminate unilateral or/and coordinated effects as a result of the merger and restore competition on the relevant market(s) to the status quo ante. Moreover, remedy packages have typically included extensive structural divestments to remove competition concerns. The scope of this paper is to examine various issues relating to the imposition of remedies in merger cases focusing on the gas and electricity sectors (i.e. commodity and capacity release programmes, customer release schemes, network related remedies). This study relies on the energy sector with a view to developing general principles for imposing effective remedies in other sectors as well. Given the nature of competition in energy markets, particularly effective remedies are those that involve gas release programmes, the sale of price-setting generation plants, network assets, and controlling stakes in merging parties’ competitors. Journal: European Competition Journal Pages: 216-247 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1484590 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1484590 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:216-247 Template-Type: ReDIF-Article 1.0 Author-Name: Augustin Ignatov Author-X-Name-First: Augustin Author-X-Name-Last: Ignatov Title: Analysing European economic competitiveness through the prism of economic innovation Abstract: European economic power has considerably diminished since the beginning of the global economic and financial crisis. The present fundamental European economic model i.e. the social-market economy requires high efficiency and technological progress to support high living standards by constantly implementing innovation to stimulate economic competitiveness. Accordingly, not all countries of the European Union have the ability to build social welfare models due to their lower technological readiness and innovation potential. The present paper analyses the European economic competitiveness through the prism of economic innovation. The main goal of this research is to identify the disparities in terms of economic innovation and governance quality across the European Union, these being two of the main pillars of favourable economic growth perspectives. The results reached underline the idea that the past disparities in terms of economic innovation have not been diminished within the period of 2007–2016. Journal: European Competition Journal Pages: 248-277 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1499273 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1499273 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:248-277 Template-Type: ReDIF-Article 1.0 Author-Name: Marcel Canoy Author-X-Name-First: Marcel Author-X-Name-Last: Canoy Author-Name: Jan Tichem Author-X-Name-First: Jan Author-X-Name-Last: Tichem Title: Lower drug prices can improve innovation Abstract: An often made claim is that high drug prices are necessary for innovation. We qualify the innovation claim. Drug prices can be too high when the price exceeds the value of the drug to society. Such prices lead to investment distortions. We propose a benchmark for identifying these cases in practice. Using the Netherlands as an example, we show that when innovation incentives are distorted. In these instances high prices crowd out other health investments and distort innovation. We subsequently discuss how competition law can be applied in this area. We conclude that in the case that a country pays more for a drug under patent protection than the proper willingness to pay, competition authorities can use this feature not only to counteract the argument that such prices are needed for innovation but also as an additional way to operationalize the United Brands test for excessive prices. Journal: European Competition Journal Pages: 278-304 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1512231 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1512231 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:278-304 Template-Type: ReDIF-Article 1.0 Author-Name: Sara Abdollah Dehdashti Author-X-Name-First: Sara Author-X-Name-Last: Abdollah Dehdashti Title: B2B unfair trade practices and EU competition law Abstract: EU competition law appears to interpret fairness in B2B trade relations as “equal opportunities to trade” for market actors. A positive and pragmatic inquiry into the relevant regulations, cases and doctrines support that approach. This contribution suggests a new definition for these practices under EU competition law. Accordingly, any trade practice representing supremacy in bargaining power – usually dominance – and distorting the equal opportunity to trade of one or more trading partners could be conceived as unfair trade practices (UTPs) under EU competition law. Thus, these practices restrict competition according to EU competition law. Indeed, the EU Commission, Parliament and many Member States have emphasized the restrictive effects of UTPs even when practised by non-dominant undertakings. UTPs could include all kinds of trade practices toward trading partners, regardless of the industry and environment in which they occur, whether online or offline. This definition can also relieve competition lawyers from inefficient exploitative/exclusionary abusive conduct divisions. Journal: European Competition Journal Pages: 305-341 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1520439 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1520439 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:305-341 Template-Type: ReDIF-Article 1.0 Author-Name: Stefan Holzweber Author-X-Name-First: Stefan Author-X-Name-Last: Holzweber Title: Tying and bundling in the digital era Abstract: Hardly any doctrine of competition law has been modified more significantly by digitization than tying and bundling. While it was originally developed for the combined sale of two products, this concept was recently applied to cases like software integration or the prioritized display in search engine rankings. Against this backdrop, this paper seeks to shed some light on the reasons that let the concept of tying and bundling evolve in the digital context. On the basis of Post-Chicago School concepts, it is argued that digital markets are particularly vulnerable to tying and bundling practices. This led to a broadening of the scope of the doctrine of tying and bundling: It may be applied to all cases where consumers are nudged to demand a supplementary product, thereby foreclosing the market for this supplementary product. In the context of digital markets, the doctrine tying and bundling thus evolved into a general theory of leveraging. Journal: European Competition Journal Pages: 342-366 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1533360 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1533360 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:342-366 Template-Type: ReDIF-Article 1.0 Author-Name: Maria C. Wasastjerna Author-X-Name-First: Maria C. Author-X-Name-Last: Wasastjerna Title: The role of big data and digital privacy in merger review Abstract: The article examines the implications of big data for competition law, with a focus on personal data and the concerns that data may give rise to in merger review. One of the biggest challenges for competition authorities in the digital age is how to deal with data and privacy issues in their competitive analysis. An emerging issue is the role of competition in protecting consumers from potential privacy risks flowing from the increasing number of mergers in digital markets. The article considers how personal data in the digital economy are considered a currency in exchange for online offerings, and how a loss of privacy can be factored into quality competition. It concludes by addressing some of the challenges with incorporating privacy as a non-price parameter in competition analysis. Journal: European Competition Journal Pages: 417-444 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1533364 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1533364 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:417-444 Template-Type: ReDIF-Article 1.0 Author-Name: Bernadette Zelger Author-X-Name-First: Bernadette Author-X-Name-Last: Zelger Title: Restrictions of online sales and vertical agreements: Bundeskartellamt vs. Commission? Why Coty and Asics are compatible Abstract: There has been an on-going debate about restrictions of internet sales and vertical agreements during the last years. Producers started to impose restrictive rules for the distribution of their products via the internet, arguably due to the increase of “free-riders” negatively affecting fair price competition (as the so-called free-riders benefit from, for example, “no cost” expert advice given in brick and mortar shops). In this respect, it has been subject to controversy, whether online restrictions imposed by producers operating a selective distribution network on their retailers qualify as restrictions by object or restrictions by effect. In this respect, the European Court of Justice’s judgement in Pierre Fabre as well as the German decisions in Adidas and Asics fuelled controversial debates. However, the ECJ’s ruling in Coty might have shed light on restrictions of online sales in selective distribution agreements. Journal: European Competition Journal Pages: 445-461 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1533365 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1533365 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:445-461 Template-Type: ReDIF-Article 1.0 Author-Name: Anca D. Chirita Author-X-Name-First: Anca D. Author-X-Name-Last: Chirita Title: Competition policy’s social paradox: are we losing sight of the wood for the trees? Abstract: The present contribution seeks to provide a normative justification for the better consideration of employment and its negative social consequences in the area of mergers. First, it challenges the widespread rhetoric of competition policy when advancing economic efficiency as a goal of competition policy. Second, it argues that the promotion of efficiency-driven, fierce competition comes at the expense of other sensible social values, such as job creation. As evidenced by statistics, this contribution unravels how job cuts follow from mergers and acquisitions. It argues (i) in favour of an overhaul of the efficiency defence with the aim of focusing more actively on job creation, or at least on balancing the number of job cuts with the number of newly created jobs and (ii) against anti-competitive practices such as social dumping and camouflage. Journal: European Competition Journal Pages: 367-416 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1533366 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1533366 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:367-416 Template-Type: ReDIF-Article 1.0 Author-Name: Maximilian N. Volmar Author-X-Name-First: Maximilian N. Author-X-Name-Last: Volmar Author-Name: Katharina O. Helmdach Author-X-Name-First: Katharina O. Author-X-Name-Last: Helmdach Title: Protecting consumers and their data through competition law? Rethinking abuse of dominance in light of the Federal Cartel Office’s Facebook investigation Abstract: The Facebook proceeding of the German Federal Cartel Office is the latest among a number of competition law investigations that target large US-American technology companies. The Office suspects that Facebook abused its dominant position on the market for social networks by imposing unfair data privacy conditions upon its users. This preliminary finding presents a legal novelty because it relies mainly on the fact that the company violated rules outside of competition law, namely data protection law. This calls for a wider evaluation of the currently debated relationship of competition and data protection law. We investigate if such an abuse theory is also conceivable under EU competition law, specifically under Art 102 TFEU. Although the Court of Justice of the European Union separates competition and data protection law strictly, it hinted at a different understanding in a recent judgment. Also, the sentiment of the nascent ‘Vestager School’ with its emphasis on fairness may support this theory of an abuse. We conclude that this novel concept is conceivable under EU law. Journal: European Competition Journal Pages: 195-215 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1538033 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1538033 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:195-215 Template-Type: ReDIF-Article 1.0 Author-Name: Ioannis Kokkoris Author-X-Name-First: Ioannis Author-X-Name-Last: Kokkoris Title: The Google Saga: episode I Abstract: After 8 years of investigation, the European Commission decided that Google has abused its market dominance by giving prominent placement in its search results to its own comparison shopping service, whilst demoting rival services. This paper discusses the first of these conducts. The paper will assess the harm arising from Google’s conduct on consumers and merchants, and will discuss the importance of causality in proving that a conduct is abusive. The paper will also briefly present the remedies for Google’s conduct. The argument made herein is that the Commission’s decision enters uncharted territories in unilateral conduct enforcement and the decision is subject to criticisms which will be analysed herein. The paper shall assess the implications of the Commission’s approach and remedies in this case for future enforcement in unilateral conduct cases. Journal: European Competition Journal Pages: 462-490 Issue: 2-3 Volume: 14 Year: 2018 Month: 9 X-DOI: 10.1080/17441056.2018.1540457 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1540457 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:2-3:p:462-490 Template-Type: ReDIF-Article 1.0 Author-Name: Michael L. Polemis Author-X-Name-First: Michael L. Author-X-Name-Last: Polemis Author-Name: Aikaterina Oikonomou Author-X-Name-First: Aikaterina Author-X-Name-Last: Oikonomou Title: Tacit collusion or parallel behaviour in oligopolistic markets? The two faces of Janus Abstract: A fundamental step in the assessment of antitrust law cases examined by National Competition Authorities (NCAs) is to detect and penalize anti-competitive behaviour (e.g. cartel agreements, secret agreements and tacit agreements). However, this is not an easy task for NCAs since the boundaries between non-explicit (tacit) collusion and parallel behaviour in oligopolistic markets under Bertrand competition are often vague. The scope of this paper is twofold. On the one hand, it aims to cast light on the role of economic analysis in tacit collusion cases by introducing the main quantitative techniques used in antitrust policy. In this way, it contributes to the literature by highlighting the role of economic analysis blended by the use of modern econometric techniques in unveiling the tacit collusion mechanism. On the other hand, it delves into discussions of Greek competition law matters by analysing in depth a tacit collusion case from the petroleum industry. Journal: European Competition Journal Pages: 1-37 Issue: 1 Volume: 14 Year: 2018 Month: 1 X-DOI: 10.1080/17441056.2018.1426926 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1426926 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:1:p:1-37 Template-Type: ReDIF-Article 1.0 Author-Name: Konstantina Bania Author-X-Name-First: Konstantina Author-X-Name-Last: Bania Title: The role of consumer data in the enforcement of EU competition law Abstract: The EU competition watchdog is increasingly being called upon to deal with cases involving firms that rely heavily on the collection and processing of consumer data. While several decisions explicitly mention that access to large reserves of customer information may affect the competitive process, the European Commission has meticulously refrained from examining concerns that may arise from data-related practices. This hands-off approach may be attributed to the choice of the Commission to ignore the specific conditions of data-driven markets in an attempt to avoid tackling controversial practices the effects of which are not easily measurable. A cautious approach that seeks to sidestep the negative implications of over-enforcement may benefit fast-moving markets. However, ’quick fixes‘ and failure to take account of the specific conditions that determine how data-driven markets work in practice run the risk of producing erroneous results, to the detriment of competition and consumer choice. Journal: European Competition Journal Pages: 38-80 Issue: 1 Volume: 14 Year: 2018 Month: 1 X-DOI: 10.1080/17441056.2018.1429555 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1429555 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:1:p:38-80 Template-Type: ReDIF-Article 1.0 Author-Name: Giuseppe Colangelo Author-X-Name-First: Giuseppe Author-X-Name-Last: Colangelo Author-Name: Valerio Torti Author-X-Name-First: Valerio Author-X-Name-Last: Torti Title: Selective distribution and online marketplace restrictions under EU competition rules after Coty Prestige Abstract: Given the impressive growth of Internet shopping, one may wonder how the antitrust rules on selective distribution systems might fit in the context of online sales. Indeed, the online sales phenomenon has attracted significant attention in recent years in several Member States, mainly by the question on the extent to which restrictions limiting the ability of retailers to sell via online marketplaces are compatible with competition rules. No wonder the Coty Prestige judgment is so much-awaited. The ruling is expected to shape the future of EU e-commerce affecting online markets, the luxury industry and Internet platforms. Journal: European Competition Journal Pages: 81-109 Issue: 1 Volume: 14 Year: 2018 Month: 1 X-DOI: 10.1080/17441056.2018.1440727 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1440727 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:1:p:81-109 Template-Type: ReDIF-Article 1.0 Author-Name: Carsten Koenig Author-X-Name-First: Carsten Author-X-Name-Last: Koenig Title: Making contribution work: the liability of privileged and non-privileged injurers in EU competition law Abstract: The EU Directive on Antitrust Damages Actions holds multiple injurers jointly and severally liable for the harm they cause through jointly infringing competition laws. If an injurer pays a victim more than the injurer’s share, the latter is entitled to obtain a contribution from any other infringer based on their relative responsibility for the harm caused by the infringement. While these rules are relatively clear at first view, their practical application can be complex. This is particularly true for cases involving immunity recipients, small or medium-sized enterprises, or parties to a settlement in that such injurers’ liability can be restricted on account of one of several privileges awarded by the Directive. Against this background, this article illustrates, on the basis of numerical examples, how joint and several liability, and especially contribution, work under the framework established by the Directive. It also describes and comments on additional rules that may be employed by national legislators and courts to close the remaining gaps and achieve fair and efficient results. Journal: European Competition Journal Pages: 110-128 Issue: 1 Volume: 14 Year: 2018 Month: 1 X-DOI: 10.1080/17441056.2018.1455387 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1455387 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:1:p:110-128 Template-Type: ReDIF-Article 1.0 Author-Name: Magali Eben Author-X-Name-First: Magali Author-X-Name-Last: Eben Title: Fining Google: a missed opportunity for legal certainty? Abstract: In December 2017, the European Commission imposed a record fine of €2.42 billion on Google in the Google Search (Shopping) Case for breach of Article 102TFEU. This article criticizes this fine as an infringement of the principle of legal certainty, since Google could not reasonably have foreseen that its conduct would amount to a breach of Article 102TFEU. It discusses the importance of legal certainty, as well as the broad powers and wide discretion the Commission enjoys in abuse of dominance cases, including the ability not to impose a fine. The article also provides an overview of the uncertainty which surrounded the application of the law at the time of the investigation, as well as the lack of clarity subsequently provided by the Decision. It is argued that, in imposing this record fine, the Commission has missed an opportunity to respect legal certainty, and combine the objective of deterrence with a desire to stimulate pro-competitive behaviour. Journal: European Competition Journal Pages: 129-151 Issue: 1 Volume: 14 Year: 2018 Month: 1 X-DOI: 10.1080/17441056.2018.1460973 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1460973 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:1:p:129-151 Template-Type: ReDIF-Article 1.0 Author-Name: John Kirkpatrick Author-X-Name-First: John Author-X-Name-Last: Kirkpatrick Title: Making the case for competition in policymaking – lessons from CMA advocacy 2014–2018 Abstract: This article draws on the experience of the Competition and Markets Authority (CMA) of using its powers to provide information and advice to government, including the power to make recommendations on legislation, and derives some lessons for the CMA itself and for other competition authorities seeking to use similar powers. It describes the regime within which the CMA operates, places its current activities in a historical context, and then uses five case examples of public CMA advocacy activity to illustrate various aspects of the use of its powers, in relation to energy, education, transport and public information policy. It highlights the importance of bringing to bear knowledge based on casework, of understanding the political context, of matching the scale and nature of intervention to both the importance of the issue and the prospects of success, of persistence and timing of advice, and of choosing whether to advise publicly or privately on the prospects for influence. It also comments on the CMA’s assessment of the impact of this work. Journal: European Competition Journal Pages: 152-173 Issue: 1 Volume: 14 Year: 2018 Month: 1 X-DOI: 10.1080/17441056.2018.1460974 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1460974 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:1:p:152-173 Template-Type: ReDIF-Article 1.0 Author-Name: Barbara Baarsma Author-X-Name-First: Barbara Author-X-Name-Last: Baarsma Author-Name: Melvin Vooren Author-X-Name-First: Melvin Author-X-Name-Last: Vooren Title: Bank competition and the transmission of unconventional monetary policy in the euro area Abstract: We analyse the relation between bank competition and the transmission of unconventional monetary policy (UMP) for 14 European countries. We estimate an error-correction model to analyse the relation between the pass-through of UMP to long-term commercial interest rates and the level of competitiveness. We estimate this model for three different measures: the Herfindahl Index (HHI), the Boone indicator and the H-statistic. Our results indicate that bank concentration as measured by the HHI is not a good proxy of competitive conditions in the market, whereas the other two measures are more meaningful in this context. The pass-through of UMP is increasing in the degree of bank competition as measured by the Boone indicator and the H-statistic. The relationship between pass-through and the level of market concentration is less well defined, suggesting that competition and market concentration do not go hand in hand in the banking sector. Journal: European Competition Journal Pages: 174-193 Issue: 1 Volume: 14 Year: 2018 Month: 1 X-DOI: 10.1080/17441056.2018.1463688 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1463688 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:14:y:2018:i:1:p:174-193 Template-Type: ReDIF-Article 1.0 Author-Name: Kevin Coates Author-X-Name-First: Kevin Author-X-Name-Last: Coates Author-Name: Johan Ysewyn Author-X-Name-First: Johan Author-X-Name-Last: Ysewyn Title: Cartels only have one face – a reply Abstract: This article is a response to the article published in this Journal by Michael Polemis and Aikaterina Oikonomou, from the Hellenic Competition Commission (“HCC”) and the Hellenic Single Public Procurement Authority respectively (the “Article”), which in turn analyses a 2008 decision of the HCC in the retail fuel sector. Our response reaffirms the position that tacit collusion can, unless there is a cogent economic rationale, under no circumstance be considered as a cartel.We discuss: The Article and the HCC decision it refers to;Why we believe tacit collusion should not be sanctioned as a cartel;Why, even in the set of factual circumstances put forward, there were credible alternative economic explanations; andHow tacit collusion can be challenged on the basis of other competition instruments Journal: European Competition Journal Pages: 1-14 Issue: 1 Volume: 15 Year: 2019 Month: 1 X-DOI: 10.1080/17441056.2018.1555941 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1555941 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:1:p:1-14 Template-Type: ReDIF-Article 1.0 Author-Name: Oliver Budzinski Author-X-Name-First: Oliver Author-X-Name-Last: Budzinski Author-Name: Annika Stöhr Author-X-Name-First: Annika Author-X-Name-Last: Stöhr Title: Competition policy reform in Europe and Germany – institutional change in the light of digitization Abstract: The ubiquitous process of digitization changes economic competition on markets in several ways and leads to the emergence of new business models. The increasing roles of digital platforms as well as data-driven markets represent two relevant examples. These developments challenge competition policy, which must consider the special economic characteristics of digital goods and markets. In Germany, national competition law was amended in 2017 in order to accommodate for digitization-driven changes in the economy and plans for further changes are already discussed. We review this institutional change from an economics perspective and argue that most of the reform’s elements point into the right direction. However, some upcoming challenges may have been overlooked so far. Furthermore, we discuss whether European competition policy should follow the paragon of the German reform and amend its institutional framework accordingly. We find scope for reform particularly regarding data-driven markets, whereas platform economics appear to be already well-established. Journal: European Competition Journal Pages: 15-54 Issue: 1 Volume: 15 Year: 2019 Month: 1 X-DOI: 10.1080/17441056.2018.1555942 File-URL: http://hdl.handle.net/10.1080/17441056.2018.1555942 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:1:p:15-54 Template-Type: ReDIF-Article 1.0 Author-Name: Damien Geradin Author-X-Name-First: Damien Author-X-Name-Last: Geradin Author-Name: Dimitrios Katsifis Author-X-Name-First: Dimitrios Author-X-Name-Last: Katsifis Title: An EU competition law analysis of online display advertising in the programmatic age Abstract: Online display advertising represents a large source of revenues for online publishers. Because of its vital importance for publishers and advertisers, competition in the advertising ecosystem is desirable. Yet, in the “programmatic” era, the sector is characterized by a high degree of opacity and some of its segments seem to be dominated by Google, with concerns being expressed that it may engage in anti-competitive strategies. Against this background, the purpose of this paper is to explore the display advertising ecosystem and discuss relevant competition law issues. It first discusses market definitions and shows that Google may be dominant on several ad tech markets and then describes how programmatic advertising functions in practice. Finally, the paper identifies several practices which may amount to abuse of a dominant position in breach of Article 102 TFEU. Journal: European Competition Journal Pages: 55-96 Issue: 1 Volume: 15 Year: 2019 Month: 1 X-DOI: 10.1080/17441056.2019.1574440 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1574440 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:1:p:55-96 Template-Type: ReDIF-Article 1.0 Author-Name: Luigi Di Gaetano Author-X-Name-First: Luigi Author-X-Name-Last: Di Gaetano Title: Sublicense and cartel enforcement mechanism in first price auction Abstract: In 2017, the Italian Competition Authority opened a cartel investigation regarding the auction of international television sport rights. In particular, prior to several auctions, bidders have agreed to sublicense the audio-visual football rights in a reciprocal way. Without any reference and evaluation on the specific case, this paper aims at showing that a sublicense agreements can modify the outcome of an auction, even in a first price sealed bid version. This is because the sublicense agreement can be used to indirectly implement a “bid submission mechanism” [RC Marshall and LM Marx, ‘Bidder Collusion’ [2007] 133(1) JET 374]. This result strongly supports the idea that such an agreement should be considered as restriction by object under European antitrust law. Journal: European Competition Journal Pages: 97-106 Issue: 1 Volume: 15 Year: 2019 Month: 1 X-DOI: 10.1080/17441056.2019.1592416 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1592416 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:1:p:97-106 Template-Type: ReDIF-Article 1.0 Author-Name: Oscar Borgogno Author-X-Name-First: Oscar Author-X-Name-Last: Borgogno Author-Name: Giuseppe Colangelo Author-X-Name-First: Giuseppe Author-X-Name-Last: Colangelo Title: Antitrust analysis of two-sided platforms: the day after AmEx Abstract: The US Supreme Court ruling in American Express marks a breakthrough for antitrust enforcement in two-sided markets. Not surprisingly, the ruling has sparked lively discussions in the antitrust law and economics community. The majority of the Court argues that if both groups of players are needed to participate simultaneously for a transaction to occur, then both sides of the platform must be included when defining the relevant market. Furthermore, indirect network effects must be duly considered when carrying out antitrust analysis of transaction platforms. Hence, no inference of anti-competitive effects can be derived from price increases on one side of the platform, this being only a natural consequence of differences in the two groups’ demand elasticity. Moreover, the Court stresses the relevance of the business model when carrying out the antitrust evaluation of a commercial practice. By drawing a comparison with the EU scenario, the paper analyses how the two-sidedness of platforms may affect the definition of the relevant market, and the assessment of competitive effects and undertakings’ business models. Journal: European Competition Journal Pages: 107-135 Issue: 1 Volume: 15 Year: 2019 Month: 1 X-DOI: 10.1080/17441056.2019.1608695 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1608695 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:1:p:107-135 Template-Type: ReDIF-Article 1.0 Author-Name: Florian Kraffert Author-X-Name-First: Florian Author-X-Name-Last: Kraffert Title: How the Intel case changed our understanding of the objectives of EU competition law Abstract: This article discusses the decisions made in the Intel case by the General Court and the European court of justice. To assess the change which took place in the Intel decision, this article first describes the aims of EU competition law and the different approaches taken to interpret its provisions. It then displays the differences between the decisions made by the General Court and the European Court of Justice and carves out their influence on the understanding of Competition law. In so doing, it illustrates that the decision made by the European court of justice displays a shift in the understanding of competition law from an Ordoliberal understanding to a broader more consumer focused understanding. Taking this change into account the article shows that a new understanding of EU competition law is necessary for the maintenance of the EU itself. Journal: European Competition Journal Pages: 136-152 Issue: 1 Volume: 15 Year: 2019 Month: 1 X-DOI: 10.1080/17441056.2019.1617502 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1617502 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:1:p:136-152 Template-Type: ReDIF-Article 1.0 Author-Name: Patrick Actis Perinetto Author-X-Name-First: Patrick Actis Author-X-Name-Last: Perinetto Title: Intent and competition law assessment: useless or useful tool in the quest for legal certainty? Abstract: Competition law is characterized by uncertainty: the vagueness and open-ended character of its provisions and the creative approach of enforcers and case-law indeed blur considerably the boundaries between lawful and unlawful conduct. It submitted that intent – which consists of a mental element coupled with a finalistic element – can be relied upon within the competition assessment as a useful disambiguating factor. To do so, however, the case-law should come clear as to intent importance and relinquish the orthodox position pursuant to which intent would be immaterial or accessory for competition law assessment. This because such position, despite being reinstated in theory as a mantra, is in substance often disavowed: intent importance is particularly evident under an Article 102 TFEU perspective. Furthermore, albeit in more limited cases, intent is also relied upon within Article 101 TFEU analysis, showing that its disambiguating role can be important for the whole competition law assessment. Journal: European Competition Journal Pages: 153-175 Issue: 1 Volume: 15 Year: 2019 Month: 1 X-DOI: 10.1080/17441056.2019.1625150 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1625150 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:15:y:2019:i:1:p:153-175 Template-Type: ReDIF-Article 1.0 Author-Name: Mike Walker Author-X-Name-First: Mike Author-X-Name-Last: Walker Title: Competition policy and digital platforms: six uncontroversial propositions Journal: European Competition Journal Pages: 1-10 Issue: 1 Volume: 16 Year: 2020 Month: 1 X-DOI: 10.1080/17441056.2020.1730063 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1730063 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:1:p:1-10 Template-Type: ReDIF-Article 1.0 Author-Name: Damien Geradin Author-X-Name-First: Damien Author-X-Name-Last: Geradin Author-Name: Dimitrios Katsifis Author-X-Name-First: Dimitrios Author-X-Name-Last: Katsifis Title: “Trust me, I’m fair”: analysing Google’s latest practices in ad tech from the perspective of EU competition law Abstract: In a first paper published in February 2019, we explained the mechanics of online display advertising and real-time bidding and noted that the system is extremely opaque. We identified Google as the leading, and most likely dominant player across the ad tech value chain and expressed the concern that it engages in prima facie anticompetitive conduct, in that it uses its leading ad server to favour its ad intermediation business. We also explained how lack of competition across the ad tech chain enables Google to exploit advertisers and publishers by charging hidden fees for ad intermediation on top of its disclosed commission. In March 2019 Google announced that it would be switching to a first-price unified auction by the end of 2019, arguing that its move will help create a fair and transparent market for everyone. Meanwhile, online advertising has attracted significant regulatory interest in the EU, the USA and Australia. In this new paper, we analyse whether Google’s switch to a unified auction has addressed the concerns we expressed in our first paper. Unfortunately, we conclude that Google’s latest switch does nothing to increase auction transparency. Worse, it seems to strengthen Google’s ability to extract hidden margins from its customers, while undermining the competitive pressure exercised by header bidding. If substantiated, Google’s conduct could result in significant welfare losses for publishers, advertisers and ultimately consumers. We conclude our paper by suggesting various structural and behavioural remedies that could help restore competition in ad tech should our concerns be substantiated. Journal: European Competition Journal Pages: 11-54 Issue: 1 Volume: 16 Year: 2020 Month: 1 X-DOI: 10.1080/17441056.2019.1706413 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1706413 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:1:p:11-54 Template-Type: ReDIF-Article 1.0 Author-Name: Florian Kraffert Author-X-Name-First: Florian Author-X-Name-Last: Kraffert Title: Should EU competition law move towards a Neo-Brandeis approach? Abstract: The following essay deals with the core tenets of two competition philosophies, namely the Neo-Brandeis philosophy and the competition philosophy of the ‘more economic approach’ currently pursued by the EU. As the Neo-Brandeis school is a rather novel economic movement founded at the beginning of the 21st century, this essay will be the first to elaborate a competition theory based on its tenets, which could be used to structure the market in a way that serves the economic philosophy of the Neo-Brandeis movement. Besides this, the essay will also look at the core tenets of other economic philosophies and outline their guiding competition philosophy. It will be demonstrated that each competition philosophy has certain shortcomings that another philosophy would overcome, and that it is impossible to find a competition philosophy which could serve all expectations. Journal: European Competition Journal Pages: 55-96 Issue: 1 Volume: 16 Year: 2020 Month: 1 X-DOI: 10.1080/17441056.2019.1706396 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1706396 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:1:p:55-96 Template-Type: ReDIF-Article 1.0 Author-Name: Philipp Kirst Author-X-Name-First: Philipp Author-X-Name-Last: Kirst Title: The temporal scope of the damages directive: a comparative analysis of the applicability of the new rules on competition infringements in Europe Abstract: The transposition period for the Damages Directive (104/2014/EU) ended on 26 December 2016. In terms of its temporal scope, the Directive prohibits the retroactive application of substantive provisions prior to that date but leaves it to the discretion of Member States whether to apply procedural provisions to proceedings initiated at any day after 26 December 2014. This distinction raises two questions: First, what is the legal nature of the Directive’s provisions and which provisions form part of procedural and which of substantive law? Second, is the determination of substantive law provisions as opposed to procedural law provisions a matter of domestic law or EU law? This paper attempts to answer those questions for the Directive’s provisions in relation to the statute of limitations, the burden of proof and the disclosure regime. Journal: European Competition Journal Pages: 97-125 Issue: 1 Volume: 16 Year: 2020 Month: 1 X-DOI: 10.1080/17441056.2019.1705609 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1705609 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:1:p:97-125 Template-Type: ReDIF-Article 1.0 Author-Name: Claudia Massa Author-X-Name-First: Claudia Author-X-Name-Last: Massa Title: Sincere cooperation and antitrust enforcement: insights from the Damages and ECN+ Directives Abstract: This article focuses on the principle of sincere cooperation in the antitrust enforcement field by analysing its two dimensions: the first one between public and private enforcement, the second one between the different actors of public enforcement. In particular, the article will consider, on the one hand, the cooperation between public enforcement by competition authorities (Commission and NCAs) and private enforcement by national courts envisaged by Regulation 1/2003 and by the Damages Directive and, on the other hand, the cooperation amongst competition authorities provided by Regulation 1/2003 and by the ECN+ Directive, with the aim of demonstrating how both dimensions of the principle of sincere cooperation play an essential role in order to ensure the efficiency and effectiveness of antitrust enforcement. Journal: European Competition Journal Pages: 126-148 Issue: 1 Volume: 16 Year: 2020 Month: 1 X-DOI: 10.1080/17441056.2019.1705631 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1705631 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:1:p:126-148 Template-Type: ReDIF-Article 1.0 Author-Name: Ioannis Lianos Author-X-Name-First: Ioannis Author-X-Name-Last: Lianos Author-Name: Alina Velias Author-X-Name-First: Alina Author-X-Name-Last: Velias Author-Name: Dmitry Katalevsky Author-X-Name-First: Dmitry Author-X-Name-Last: Katalevsky Author-Name: George Ovchinnikov Author-X-Name-First: George Author-X-Name-Last: Ovchinnikov Title: Financialization of the food value chain, common ownership and competition law Abstract: We explore the possibility that common ownership may constitute a competition concern, raising issues of unilateral effects, horizontal collusion, vertical exclusion and vertical exploitation. We proceed to empirical investigation in the context of Global Food Value Chains using the tool of advanced social network analysis, which captures the raising concern that many institutional investors are passive investors in the diverse companies that are active at various segments of the chain. In view of the possible negative welfare effects of common ownership on competition and its prevalence in the food sector, it is contended that competition authorities need to develop adequate legal tools to deal with this issue and rely on economics but also other sources of wisdom (e.g. advanced social network analysis) that may enable a better mapping of the complexity of competitive interactions in this sector and be more adequate in the context of a complex economy. Journal: European Competition Journal Pages: 149-220 Issue: 1 Volume: 16 Year: 2020 Month: 1 X-DOI: 10.1080/17441056.2020.1732682 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1732682 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:1:p:149-220 Template-Type: ReDIF-Article 1.0 Author-Name: Laurine Signoret Author-X-Name-First: Laurine Author-X-Name-Last: Signoret Title: Code of competitive conduct: a new way to supplement EU competition law in addressing abuses of market power by digital giants Abstract: Digital economy is deeply and irreversibly changing markets’ structures and global competitiveness. This paper deals with the suggested adoption of an additional legal framework as a supplement of EU competition law in digital markets. A co-regulatory and legally binding code of competitive conduct will be signed by undertakings that have a Strategic Market Status. A new-born Digital Markets Unit at the Directorate-General for Competition of the Commission will be in charge of the elaboration and enforcement of the code, together with undertakings having a Strategic Market Status and relevant stakeholders of the industry. The code will target behaviours considered to be especially harmful for the consumers in digital markets such as self-preferencing practices by vertically integrated companies. Journal: European Competition Journal Pages: 221-263 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1787625 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1787625 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:221-263 Template-Type: ReDIF-Article 1.0 Author-Name: Ceara Tonna-Barthet Author-X-Name-First: Ceara Author-X-Name-Last: Tonna-Barthet Author-Name: Louis O’Carroll Author-X-Name-First: Louis Author-X-Name-Last: O’Carroll Title: Procedural justice in the age of tech giants – justifying the EU Commission’s approach to competition law enforcement Abstract: The purpose of this article is to highlight the need for a new understanding of what constitutes “procedural justice” in EU competition law enforcement. This is done via an exploration of the concept of procedural justice, followed by a synthetization of this concept with the conceptual underpinnings of EU competition law. The modern realities of EU competition law are then examined, with a particular focus on the Commission's approach to Google. The general thrust of the argument presented is that considering the nature of the problems facing the Commission, it is not necessary, as a matter of justice, to consider large tech firms as being endowed with a huge panoply of procedural justice rights. Journal: European Competition Journal Pages: 264-280 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2019.1706397 File-URL: http://hdl.handle.net/10.1080/17441056.2019.1706397 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:264-280 Template-Type: ReDIF-Article 1.0 Author-Name: Penelope-Alexia Giosa Author-X-Name-First: Penelope-Alexia Author-X-Name-Last: Giosa Title: Preventing collusive tendering in public markets – the case of framework agreements Abstract: Anti-competitive activities, like bid-rigging, undermine the main objectives of public procurement, such as value for money and efficiency in the procurement process. The magnitude of the problem in Europe is demonstrated by the frequency of bid-rigging cases. As it has already been underlined in the literature, bid-rigging may arise particularly in the context of framework agreements, which are constantly gaining ground in public procurement and are rather popular in Nothern Europe. In light of the framework agreements’ popularity in Europe and their vulnerability to collusion, this article identifies the elements of a framework agreement that make coordination feasible and bid-rigging attractive to the suppliers admitted to the framework agreement. This article also makes a number of suggestions for preventing the problem of collusion in framework agreements, with the aim of introducing new design features that will significantly reduce the scope for collusive outcomes within the procurement function. Journal: European Competition Journal Pages: 281-311 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1732681 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1732681 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:281-311 Template-Type: ReDIF-Article 1.0 Author-Name: Lea Bernhardt Author-X-Name-First: Lea Author-X-Name-Last: Bernhardt Author-Name: Ralf Dewenter Author-X-Name-First: Ralf Author-X-Name-Last: Dewenter Title: Collusion by code or algorithmic collusion? When pricing algorithms take over Abstract: As algorithmic pricing becomes more widespread, the discussion about the extent to which the use of algorithms results in an increase of collusion also intensifies. While some scholars argue that algorithms are able to collude on their own (algorithmic collusion), others claim that only the use of code to enforce collusion (collusion by code) is a serious threat. In this paper, we discuss both scenarios as well as the conditions under which collusion is likely to occur. As detection and prosecution seems rather challenging, we also discuss possible remedies. These include statistical analyses of market data, an increase in trained staff for competition authorities or even a general ban of specific classes of pricing algorithms. While current competition law seems to be prepared to tackle current issues, it might be adapted for possible future challenges, in case that autonomous algorithms become greater concerns in the future. Journal: European Competition Journal Pages: 312-342 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1733344 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1733344 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:312-342 Template-Type: ReDIF-Article 1.0 Author-Name: Ho Fung Griffith Cheng Author-X-Name-First: Ho Fung Griffith Author-X-Name-Last: Cheng Title: An economic perspective on the inherent plausibility and frequency of predatory pricing: the case for more aggressive regulation Abstract: Predatory Pricing has often been said to be rare as a unicorn. Accordingly, the legal thresholds a plaintiff has to surmount in establishing predation is prohibitively high across jurisdictions. This article takes on this assumption from a more nuanced economic perspective, focusing on market imperfections, above-cost pricing and contemporaneous recoupment. The ensuing discussion would indicate that predatory pricing is far more common than judicial assumptions take it to be. This article will then proceed to highlight the merits of a multifactorial assessment in lieu of threshold analyses, highlighting the value of abolishing a recoupment condition and of reintroducing a predatory intent factor in particular. Journal: European Competition Journal Pages: 343-367 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1770478 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1770478 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:343-367 Template-Type: ReDIF-Article 1.0 Author-Name: Grant Stirling Author-X-Name-First: Grant Author-X-Name-Last: Stirling Title: The elusive test for unfair excessive pricing under EU law: revisiting United Brands in the light of Competition and Markets Authority v Flynn Pharma Ltd Abstract: The European Commission has historically proved relatively reluctant to intervene in the area of excessive pricing. This is probably partly because the test outlined in United Brands v Commission remains unclear in various respects. In a recent decision of the English Court of Appeal – Competition and Markets Authority v Flynn Pharma – the English court sought to revisit some of the problematic aspects of the United Brands test. While the decision places a useful light on the intrinsic problems with the test, it is argued that in certain respects the Court of Appeal's reading is questionable and that significant uncertainties remain. In particular, the questions of what qualifies a price as being “unfair in itself” and how the economic value of a product should be assessed remain problematic. Until these issues are addressed more thoroughly by the EU courts, the enforcement of unfair excessive pricing will continue to prove problematic. Journal: European Competition Journal Pages: 368-386 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1771007 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1771007 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:368-386 Template-Type: ReDIF-Article 1.0 Author-Name: Xiaowen Tan Author-X-Name-First: Xiaowen Author-X-Name-Last: Tan Title: The overarching principle of full effectiveness in compensation for indirect losses: the lesson from C-435/18 Otis and Others Abstract: Inspired by Case C-435/18 Otis and Others, this article examines central issues raised in Otis and Others, such as who can claim compensation, what harm is genuinely relevant, and the issue of causation. The Court of Justice of the European Union relies on the principle of full effectiveness of EU competition law to ensure that all causally relevant harm is actionable, and thus achieves a very broad protection of the right to full compensation. As a result, in cases involving both competition law and other legal areas, such as contract law and tort law, EU law and CJEU caselaw apply instead of national law and national caselaw. The increasing and problematic dependence on the principle of full effectiveness may develop damages actions for competition law infringements as an independent category of tort governed by a highly specialized set of rules. Journal: European Competition Journal Pages: 387-403 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1805696 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1805696 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:387-403 Template-Type: ReDIF-Article 1.0 Author-Name: Alexandre Ruiz Feases Author-X-Name-First: Alexandre Ruiz Author-X-Name-Last: Feases Title: Sharpening the European Commission’s tools: interim measures Abstract: The European Commission is looking for new tools to enforce competition law faster and more effectively. In this context, the article explores interim measures. These allow the Commission to intervene when the anticompetitive harm must be addressed quickly. Although the antitrust community generally encourages the Commission to use interim measures more frequently, there is room to discuss how to make them sharper. For this purpose, this article studies whether there is any obstacle that may be impeding the Commission from using interim measures and explores aspects that can be reformed to enhance the effectiveness of this tool. The conclusion is that, while there is no need to make any fundamental change for the Commission to use interim measures, three aspects can be amended: the standard of “irreparable damage”, the notion of victims, and the procedure. For each of them, the article offers two options for reform drawing from other jurisdictions. Journal: European Competition Journal Pages: 404-430 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1805697 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1805697 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:404-430 Template-Type: ReDIF-Article 1.0 Author-Name: Friso Bostoen Author-X-Name-First: Friso Author-X-Name-Last: Bostoen Author-Name: Daniel Mândrescu Author-X-Name-First: Daniel Author-X-Name-Last: Mândrescu Title: Assessing abuse of dominance in the platform economy: a case study of app stores Abstract: App stores constitute a quintessential multisided platform market, where a few players (Apple and Google) facilitate transactions between third-party suppliers (app developers) and consumers in exchange for a commission fee. Complicating matters, these app stores are embedded in intricate mobile ecosystems with varying degrees of “openness” to third parties. Increasingly, these third parties are complaining about allegedly anticompetitive practices. In particular, the operators of app stores are said to preference the distribution of their own apps over those of competitors, levy excessive commission fees, and operate in a non-transparent manner. We offer a comprehensive assessment under Article 102 TFEU, examining market definition and market power of app stores, the application of various theories of harm (and corresponding legal tests) to their allegedly anticompetitive behaviour, potential justifications for said behaviour, as well as the impact of the new P2B Regulation and on-going regulatory initiatives. Journal: European Competition Journal Pages: 431-491 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1805698 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1805698 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:431-491 Template-Type: ReDIF-Article 1.0 Author-Name: Oscar Borgogno Author-X-Name-First: Oscar Author-X-Name-Last: Borgogno Author-Name: Giuseppe Colangelo Author-X-Name-First: Giuseppe Author-X-Name-Last: Colangelo Title: The data sharing paradox: BigTechs in finance Abstract: The European wave of regulatory interventions aimed at promoting access to data and data sharing shows no signs of stopping. However, concerns are being expressed about alleged unintended consequences of data portability in financial markets. In particular, new calls have been voiced to contain the engagement of BigTech platforms with retail banking. The paper argues that asymmetrical regulatory measures imposed on BigTechs entry in the financial industry may tilt the market in favour of incumbent banks. Indeed, as FinTech start-ups seem more likely to work alongside incumbent banks rather than compete with them, limiting the entry of BigTechs may remove the only effective source of competitive pressure for traditional bank, thereby ultimately frustrating the pro-competitive potential of the access to account rule enshrined in the revised Payment Service Directive (PSD2). Journal: European Competition Journal Pages: 492-511 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1812285 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1812285 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:492-511 Template-Type: ReDIF-Article 1.0 Author-Name: Jens T. Grüb Author-X-Name-First: Jens T. Author-X-Name-Last: Grüb Title: Can mergers lead to partial collusion? Introducing heterogeneous discount factors to a Bertrand-Edgeworth model Abstract: This paper studies whether mergers may lead to partial collusion where some firms collude and some firms behave competitively. Such mergers have the potential to induce simultaneous coordinated and non-coordinated effects. We use a Bertrand-Edgeworth model with heterogeneous discount factors to derive conditions for profitable and stable collusion and provide a numerical example. Mergers that change the market structure in a way such that maverick firms are eliminated or a set of firms reach a critical share in total capacity can lead to partial collusion. Journal: European Competition Journal Pages: 512-530 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1816335 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1816335 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:512-530 Template-Type: ReDIF-Article 1.0 Author-Name: Marija Stojanovic Author-X-Name-First: Marija Author-X-Name-Last: Stojanovic Title: Can competition law protect consumers in cases of a dominant company breach of data protection rules? Abstract: This paper focuses on the “burning debate” of whether competition law and data protection could go: “hand in hand”. More accurately, whether a breach of data protection law could be considered a breach of competition law and serve as a tool to define that a dominant company abused its dominant position in digital markets. Notably, the recent preliminary finding in the favour of dual proceedings was brought by Bundeskartellamt in the Facebook case but the “too harsh” decision by the Düsseldorf Higher Regional Court created additional confusion and contradicted Bundeskartellamt’s approach. However, the twist happened this week when the German Federal Supreme Court has ruled in favour of Bundeskartellamt. The position of the author is in favour of the need for dual proceedings. A breach of data protection can be considered a breach of competition rules only if a cogent theory of harm based on solid evidence proves that competition is harmed. Journal: European Competition Journal Pages: 531-569 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1824464 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1824464 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:531-569 Template-Type: ReDIF-Article 1.0 Author-Name: Franziska Weber Author-X-Name-First: Franziska Author-X-Name-Last: Weber Title: Tackling pass-on in cartel cases: a comparative analysis of the interplay between damages law and economic insights Abstract: Thinking in terms of supply chains, a crux with a view to antitrust damages is the fact that calculations (of market participants and hence also within legal proceedings) do not stop at the bilateral trader relation but go beyond this two-sided interaction. More often than not victims of antitrust violations pass-on part or all of the harm, to the next level in the supply chain. Under certain conditions this is beneficial for the victim and has to be subtracted from the original amount of damage. Legal benchmarks apply and economics knowledge is of the essence. Focussing on damage stemming from a cartel agreement this paper will first sketch the economic conditions for passing-on. Next, a comparative analysis of recent jurisprudence on passing-on in three jurisdictions (Germany, the Netherlands and Spain) is carried out. It can overall be shown that to successfully tackle cartel cases involving passing-on the potential of an interdisciplinary approach between law and economics needs to be exploited far more than it is currently done. Journal: European Competition Journal Pages: 570-594 Issue: 2-3 Volume: 16 Year: 2020 Month: 9 X-DOI: 10.1080/17441056.2020.1824722 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1824722 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:570-594 Template-Type: ReDIF-Article 1.0 Author-Name: Minh Hung Tao Author-X-Name-First: Minh Hung Author-X-Name-Last: Tao Title: FRAND to address competition issues posed by major digital platforms? Abstract: Major digital platforms (MDPs) such as App Store, Amazon e-commerce site, Google search engine, or Facebook have increasingly shown their significance in our daily lives. The convenience they bring, nonetheless, may distract us from noticing how they are capable of executing their powers to influence different markets or even politics on a global scale. While competition (antitrust) law struggles to deal with the advanced, cutting-edge nature of MDPs, some scholars and antitrust authorities have conceived of applying FRAND (or a quasi-FRAND model), which has proved considerably successful in the field of telecommunication standardization, as a regulatory measure to control unprecedented powers of MDPs. Having said that, to that end, certain complicated policy and technical issues must be analyzed and addressed thoroughly. Journal: European Competition Journal Pages: 595-612 Issue: 2-3 Volume: 16 Year: 2020 Month: 09 X-DOI: 10.1080/17441056.2020.1834993 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1834993 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:595-612 Template-Type: ReDIF-Article 1.0 Author-Name: Bernadette Zelger Author-X-Name-First: Bernadette Author-X-Name-Last: Zelger Title: EU Competition law and extraterritorial jurisdiction – a critical analysis of the ECJ's judgement in Intel Abstract: The focus of this piece lies with extraterritorial jurisdiction in the context of the application of the EU competition provisions. Whereas the doctrine of effects has been established in the context of US antitrust law more than 50 years ago, it has not been until recently that the ECJ confirmed such an approach for the establishment of the jurisdiction of the EU competition provisions in its judgement in Intel. However, the latter decision has not been without criticism, as the ECJ put together different sets of abusive conduct and assessed Intel's behaviour in its entirety. For that reason, also conduct with an arguably very tenuous link to the EU/EEA, that is, behaviour between Intel in the US and Lenovo in China was considered in the Court's judgement. Hence, this article aims to critically analyse the ECJ's decision, also taking into account the first-instance ruling of the General Court as well as the AG opinion. It will conclude that considering other concepts developed in the context of the competition provisions, the ECJ's reasoning seems sound. Furthermore, the adoption of the qualified effects test seems also welcome in order to meet the challenges imposed by our global economy and digital markets. Journal: European Competition Journal Pages: 613-627 Issue: 2-3 Volume: 16 Year: 2020 Month: 09 X-DOI: 10.1080/17441056.2020.1840844 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1840844 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:613-627 Template-Type: ReDIF-Article 1.0 Author-Name: Katharine Kemp Author-X-Name-First: Katharine Author-X-Name-Last: Kemp Title: Concealed data practices and competition law: why privacy matters Abstract: The degradation of consumer data privacy in the digital environment causes objective detriment to consumers and undermines the competitive process. Consumers are frequently unaware of the extent to which their personal data is collected and disclosed, and purposes for which it is used. A key reason is that firms often understate and obscure their actual data practices, preventing consumers from making informed choices. This article defines, and provides examples of, “concealed data practices”, which create objective costs and detriments for consumers, making them more susceptible to criminal activity, discrimination, exclusion, manipulation and humiliation. Aside from consumer protection and privacy regulatory responses, these practices should be of critical concern to competition authorities given their role in chilling privacy competition; preserving substantial market power by means other than superior efficiency; and deepening information asymmetries and imbalances in bargaining power. The article outlines five ways competition authorities should take account of these factors. Journal: European Competition Journal Pages: 628-672 Issue: 2-3 Volume: 16 Year: 2020 Month: 09 X-DOI: 10.1080/17441056.2020.1839228 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1839228 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:16:y:2020:i:2-3:p:628-672 Template-Type: ReDIF-Article 1.0 Author-Name: Rhonda L. Smith Author-X-Name-First: Rhonda L. Author-X-Name-Last: Smith Author-Name: Arlen Duke Author-X-Name-First: Arlen Author-X-Name-Last: Duke Title: Platform businesses and market definition Abstract: Since the recognition of the platform business model, the following dichotomy has been largely accepted – analyze the conduct of a transaction platform in a single market including both customer groups and the conduct of a non-transaction platform in separate markets based on customer groups. In this article we argue that a single market should be defined to assess the effects of conduct engaged by a nontransaction platform business. Such an approach is consistent with the purposive nature of market definition, recognizes that conduct (anti-competitive or otherwise) has implications for the whole platform business and avoids conduct being incorrectly classified. Journal: European Competition Journal Pages: 93-117 Issue: 1 Volume: 17 Year: 2021 Month: 01 X-DOI: 10.1080/17441056.2020.1851477 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1851477 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:1:p:93-117 Template-Type: ReDIF-Article 1.0 Author-Name: Walid Gani Author-X-Name-First: Walid Author-X-Name-Last: Gani Title: Excessive prices: a new analytical approach Abstract: Proving the excessiveness of the dominant firm's prices constitutes a challenging task for young competition authorities, due to the difficulties in confronting economic theories with facts and the lack of analytical tools to carry out robust investigations. To handle these issues, this paper proposes a statistical algorithm centred on the analysis of the prices and mark-up of the dominant firm. An empirical study involving the use of real industrial data is carried out to show the implementation of the proposed statistical algorithm. The results reveal that the excessiveness of the dominant firm's prices is due to the excessiveness of its mark-up over the total cost. Our findings also show that the pricing behaviour of the dominant firm remains unpredictable in the absence of a large amount of data for the analysis of demand patterns, a direct measurement of the marginal cost, and a good knowledge of market functioning. Journal: European Competition Journal Pages: 23-46 Issue: 1 Volume: 17 Year: 2021 Month: 01 X-DOI: 10.1080/17441056.2020.1839227 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1839227 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:1:p:23-46 Template-Type: ReDIF-Article 1.0 Author-Name: Damien Geradin Author-X-Name-First: Damien Author-X-Name-Last: Geradin Author-Name: Theano Karanikioti Author-X-Name-First: Theano Author-X-Name-Last: Karanikioti Author-Name: Dimitrios Katsifis Author-X-Name-First: Dimitrios Author-X-Name-Last: Katsifis Title: GDPR Myopia: how a well-intended regulation ended up favouring large online platforms - the case of ad tech Abstract: This paper argues that while the GDPR has arguably delivered positive outcomes by enhancing the protection afforded to data subjects, it has also had adverse effects on competition by strengthening the position of large online platforms in certain markets. In addition, the GDPR has given large platforms a tool to harm rivals by restricting access to the data they need to compete effectively. The present paper focuses on digital advertising and the ad tech industry, where the GDPR appears to have strengthened Google and Facebook. The purpose of this paper is not to call for the weakening of the GDPR, whose positive impact on users cannot be ignored. While from a policy standpoint regulators should thus maintain or even increase the level of protection offered by this legislation, it is vital that they take steps to mitigate its adverse effects on other dimensions of welfare, such as competition. Journal: European Competition Journal Pages: 47-92 Issue: 1 Volume: 17 Year: 2021 Month: 01 X-DOI: 10.1080/17441056.2020.1848059 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1848059 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:1:p:47-92 Template-Type: ReDIF-Article 1.0 Author-Name: Erwann Kerguelen Author-X-Name-First: Erwann Author-X-Name-Last: Kerguelen Title: What if error risk could embrace uncertainty? Abstract: Aiming at lowering false positive errors (type I error), antitrust enforcement in the digital sector may have neglected false negative errors (type II error), notably due to the assessment of uncertainty, as a probability of occurrence of harm and as a consequence of the incredible dynamics of these markets. Journal: European Competition Journal Pages: 188-204 Issue: 1 Volume: 17 Year: 2021 Month: 01 X-DOI: 10.1080/17441056.2020.1863038 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1863038 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:1:p:188-204 Template-Type: ReDIF-Article 1.0 Author-Name: Stavros Aravantinos Author-X-Name-First: Stavros Author-X-Name-Last: Aravantinos Title: Competition law and the digital economy: the framework of remedies in the digital era in the EU Abstract: In the present paper, we consider the question of the effectiveness of the remedies imposed by the EC. Our fundamental analysis stems from the reciprocal influence between Competition Law and the Digital Economy. Nowadays, Competition Law has a profound role, affecting not only direct undertakings worldwide but also indirectly by having an impact on our daily life and protecting customers. In recent years, however, the idea of creating a culture of innovation among companies has prevailed. For more than 20 years, the Digital Economy is also part of our life characterizing markets by rapid innovation and technological sophistication. The digital era has introduced the global network of economic activities and commercial transactions enabled by information and communication technologies. Through innovative products/ideas, not only the companies themselves benefit by increasing their productivity and consequently constantly creating new jobs (Alibaba, Amazon), but also consumers having the opportunity to choose a plethora of products at the best possible price. Journal: European Competition Journal Pages: 134-155 Issue: 1 Volume: 17 Year: 2021 Month: 01 X-DOI: 10.1080/17441056.2020.1860565 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1860565 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:1:p:134-155 Template-Type: ReDIF-Article 1.0 Author-Name: Marco Botta Author-X-Name-First: Marco Author-X-Name-Last: Botta Title: Sanctioning unfair pricing under Art. 102(a) TFEU: yes, we can! Abstract: Traditionally, unfair pricing cases were considered a “taboo” in EU competition policy. During the recent years, however, the European Commission and a number of National Competition Authorities have investigated unfair pricing cases. Therefore, national and EU courts had the opportunity to rule on unfair pricing cases, by thus clarifying the legal test. The paper shows that United Brands is not the “only” legal test to assess unfair pricing cases; the CJEU has endorsed alternative “benchmarking” methods. Recent jurisprudence has also introduced some “safeguard tools” to minimize the risk of false negative errors, such as the requirement for the competition agency to verify its findings under “multiple” tests and the possibility for the dominant firm to put forward “objective justifications”. The paper argues that the legal test of unfair pricing cases is becoming “clearer”, by thus contributing to a further shift from the traditional non-enforcement paradigm. Journal: European Competition Journal Pages: 156-187 Issue: 1 Volume: 17 Year: 2021 Month: 01 X-DOI: 10.1080/17441056.2020.1860566 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1860566 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:1:p:156-187 Template-Type: ReDIF-Article 1.0 Author-Name: Peter van Wijck Author-X-Name-First: Peter Author-X-Name-Last: van Wijck Title: Loyalty rebates and the more economic approach to EU competition law Abstract: In 2009 the European Commission published the art. 102 guidance regarding abusive exclusionary conduct by dominant undertakings. The guidance is based on the more economic approach to competition policy. This paper investigates the welfare implications of the more economic approach to loyalty rebates. First, the paper presents an economic framework linking weights attached to probabilities of false positives and negatives and the legal norm. After that, the paper discusses cases before the guidance paper (i.a. Hoffmann-La Roche), the guidance paper itself, and cases after the guidance paper (i.a. Intel). In the period after the guidance paper, we observe a non-linear increase in the weight attached to preventing false positives. The paper concludes that to further limit welfare losses due to false positives, the category of rebates that is assumed to be abusive should be defined in a restrictive way. Furthermore, in law enforcement priority should be given to cases that, considering all the circumstances, can be expected to be most harmful to consumers. Journal: European Competition Journal Pages: 1-22 Issue: 1 Volume: 17 Year: 2021 Month: 01 X-DOI: 10.1080/17441056.2020.1834973 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1834973 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:1:p:1-22 Template-Type: ReDIF-Article 1.0 Author-Name: Gunnar Niels Author-X-Name-First: Gunnar Author-X-Name-Last: Niels Author-Name: Helen Ralston Author-X-Name-First: Helen Author-X-Name-Last: Ralston Title: Two-sided market definition: some common misunderstandings Abstract: Market definition remains an important step in competition cases. The European Commission is in the process of updating its 1997 Market Definition Notice. One hotly debated topic is defining markets for two-sided platforms. In this article we address some of the main questions and misunderstandings about two-sided market definition, We discuss how the hypothetical monopolist test and critical loss analysis apply to two-sided platforms, and address questions such as: Should there be one market for the platform, or two markets (one for each side)? Is there a distinction in market definition between transaction and non-transaction platforms? What if the externalities flow in only one direction? What if the price is zero on one side of the platform? And can the market include non-platform competitors? Journal: European Competition Journal Pages: 118-133 Issue: 1 Volume: 17 Year: 2021 Month: 01 X-DOI: 10.1080/17441056.2020.1851478 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1851478 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:1:p:118-133 Template-Type: ReDIF-Article 1.0 Author-Name: Oliver Latham Author-X-Name-First: Oliver Author-X-Name-Last: Latham Author-Name: Mikaël Hervé Author-X-Name-First: Mikaël Author-X-Name-Last: Hervé Author-Name: Romain Bizet Author-X-Name-First: Romain Author-X-Name-Last: Bizet Title: Antitrust concerns in Ad-Tech: formalizing the combined effect of multiple conducts and behaviours Abstract: We present an economic model of competition in the ad tech “stack”. We use this model to understand how the complex web of conducts implemented by Google – and under scrutiny by both U.S. and European antitrust enforcers – can be rationalized as a profit-maximizing, exclusionary strategy. We show how vertical integration, linking of services across the stack and the use of complex auction models increases incentive and ability to foreclose rivals and why there might be incentives to limit data and ID sharing so as to undermine rival intermediaries. We show how these conducts can have negative effects on consumer welfare via an increase in the prices paid by online advertisers and a decline in incentives to invest in producing content. We discuss also the level of “take rate” charged by different intermediaries and explain how differences in the ability to price discriminate undermines the relevance of such comparisons. Journal: European Competition Journal Pages: 353-390 Issue: 2 Volume: 17 Year: 2021 Month: 05 X-DOI: 10.1080/17441056.2021.1893960 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1893960 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:2:p:353-390 Template-Type: ReDIF-Article 1.0 Author-Name: Jean-Sébastien Borghetti Author-X-Name-First: Jean-Sébastien Author-X-Name-Last: Borghetti Author-Name: Igor Nikolic Author-X-Name-First: Igor Author-X-Name-Last: Nikolic Author-Name: Nicolas Petit Author-X-Name-First: Nicolas Author-X-Name-Last: Petit Title: FRAND licensing levels under EU law Abstract: This paper investigates whether EU or national law provides legal authority to impose a direct or indirect obligation on Standard Essential Patent (“SEP”) holders to license at all levels of the value chain, including at component level (“license to all”, hereafter LTA). It concludes that neither patent law, competition law nor general principles of EU law impose an obligation on SEP owners to license at all levels of the production chain. Whether there exists an LTA obligation is primarily a matter of contract law and depends on the precise text of the FRAND commitment made to the relevant Standard-Setting Organisation (SSO). The ETSI FRAND commitment, which is of special relevance in the European context and is governed by French law, does not impose an LTA regime. With the exception of IEEE, other SSOs also do not seem to impose a contractual duty to license to all levels of the production chain. However, what EU law and FRAND commitments do require is access to the standard. Such access can be achieved in different ways: by having a direct license; by selling standard-implementing components to licensed end-device manufacturers (indirect license); by concluding non-assertion agreements; or even without any license or authorization at all if the SEP owner has a policy of monetising its SEPs only at one level of the production chain and does not enforce its patents against others. Journal: European Competition Journal Pages: 205-268 Issue: 2 Volume: 17 Year: 2021 Month: 05 X-DOI: 10.1080/17441056.2020.1862542 File-URL: http://hdl.handle.net/10.1080/17441056.2020.1862542 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:2:p:205-268 Template-Type: ReDIF-Article 1.0 Author-Name: Simonetta Vezzoso Author-X-Name-First: Simonetta Author-X-Name-Last: Vezzoso Title: The dawn of pro-competition data regulation for gatekeepers in the EU Abstract: The Paper offers some preliminary and cautious reflections specifically on the data-related obligations for gatekeepers that the 81-page Proposal for a Digital Markets Act tabled by the European Commission in December 2020 would introduce. First, it will be shown that the breadth and depth of the proposed data-related obligations reflect an increasingly sophisticated understanding of the extensive data governance/regulatory “plumbing” necessary to ensure open and fair markets in the digital sector. Second, it is important to underline how the asymmetrical data governance for gatekeepers that the DMA would introduce builds on and enhances important pieces of the EU data acquis. Finally, the extent to which the DMA ties in with the European Commission’s overall data strategy is also worth investigating going forward. Journal: European Competition Journal Pages: 391-406 Issue: 2 Volume: 17 Year: 2021 Month: 05 X-DOI: 10.1080/17441056.2021.1907080 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1907080 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:2:p:391-406 Template-Type: ReDIF-Article 1.0 Author-Name: Patrick Actis Perinetto Author-X-Name-First: Patrick Actis Author-X-Name-Last: Perinetto Title: Generics (paroxetine), or the new unbearable lightness of patents in competition law Abstract: Generics represents the first instance in which the CJEU analysed the contentious pay-for-delay cases. The Court had to take position on the interplay between IPRs and competition law as well as on potential competition, on unlawful competition and on the general features of the competition law assessment. The answers provided are problematic in many respects. In particular, they risk to undermine the essence of the IPRs, by excluding any relevance of their validity within the competition law assessment. Following an illustration of the case-law concerning the relationship between competition and patent laws and a description of the relevant parts of Generics, this paper aims at discussing the reasons why the Court’s reasoning is hard to reconcile with (i) its own case-law concerning the application of regulatory provisions and of IPRs; (ii) the required assessment of the counterfactual and (iii) the relevance of only lawful competition within the competition law assessment. Journal: European Competition Journal Pages: 437-472 Issue: 2 Volume: 17 Year: 2021 Month: 05 X-DOI: 10.1080/17441056.2021.1916212 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1916212 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:2:p:437-472 Template-Type: ReDIF-Article 1.0 Author-Name: Thomas Wein Author-X-Name-First: Thomas Author-X-Name-Last: Wein Title: Cartel behaviour and efficient sanctioning by criminal sentences Abstract: Hardcore cartels risk receiving both administrative fines from the cartel authority and civil law claims for damages. There is a legal policy discussion that cartelist should also face criminal law consequences. Penalties must be at least as high as expected benefits to deter crimes. Sanctions by the German cartel office might indicate information on the profits We calculate the minimum level of fines required to deter cartel infringement for each case, and compare the figures to the actual penalties. The calculated minimum penalties would result in a considerable increase in fines, which would have to be covered either by compensation payments, or criminal sanctions. If custodial sentences were based on the probability of zero compensation payments, and the monetary loss of benefit, the result would sometimes equal an impractically long criminal sentence. It would be more effective to raise administrative sanctions to a sufficient level, especially against individuals. Journal: European Competition Journal Pages: 309-352 Issue: 2 Volume: 17 Year: 2021 Month: 05 X-DOI: 10.1080/17441056.2021.1886442 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1886442 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:2:p:309-352 Template-Type: ReDIF-Article 1.0 Author-Name: Prateek Bhattacharya Author-X-Name-First: Prateek Author-X-Name-Last: Bhattacharya Title: Competition Commission of India’s “control” conundrum – practice, precedent, and proposals Abstract: The Competition Commission of India’s (CCI) journey with “control” has been the subject of much discussion in Indian competition law circles. As we witness an increase in reliance on technology as well as a consolidation in conventional industries, both catalyzed by the Covid-19 pandemic, there is a marked increase of activity in the Indian merger market. It is therefore crucial for businesses contemplating mergers and acquisitions, to have a clear sense of the hurdles they need to cross, particularly if the merger activity in question falls in the same or a related industry. The CCI would thus need to provide clarity on what constitutes control, and when transacting parties should approach the CCI. The CCI must also be transparent about control transactions resulting in anti-competitive effects. This paper proposes that the CCI provide guidance on what amounts to control, from the perspectives of both notifiability and competitive effects, to resolve the CCI’s control quandary. Journal: European Competition Journal Pages: 473-505 Issue: 2 Volume: 17 Year: 2021 Month: 05 X-DOI: 10.1080/17441056.2021.1921513 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1921513 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:2:p:473-505 Template-Type: ReDIF-Article 1.0 Author-Name: Luigi Di Gaetano Author-X-Name-First: Luigi Author-X-Name-Last: Di Gaetano Title: Are 28 days a month? Price competition with consumer confusion Abstract: This paper contributes to the literature of price framing by analysing the effect of temporal price framing. We introduce in a homogeneous duopoly à la Bertrand, where firms compete with an advertised price that is expressed in a certain periodical frame (i.e. 4-week, daily) that could differ from the standard periodical price (for instance, monthly or yearly price). The model focuses on the effect of the perception of the periodical price by consumers and not on the confusion or complexity of the price frames that leads to a product differentiation. Indeed, on equilibrium the two firms choose the same standard and advertised price, but their profits are greater than the standard Bertrand case. This result gives an important insight regarding the 4-week billing antitrust case conducted by the Italian Antitrust Authority and concluded in January 2020. Journal: European Competition Journal Pages: 296-308 Issue: 2 Volume: 17 Year: 2021 Month: 05 X-DOI: 10.1080/17441056.2021.1886441 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1886441 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:2:p:296-308 Template-Type: ReDIF-Article 1.0 Author-Name: Thomas Stuart Author-X-Name-First: Thomas Author-X-Name-Last: Stuart Title: Too little too late? Abstract: The “competitive strength” of a company in the digital economy is becoming increasingly more reliant on the data it has at its disposal. As such, personal data has been described as “the new oil of the internet and the new currency of the digital world”. The emergence of personal data as “currency” has reinvigorated the development of privacy and consumer protection laws However, competition law has sought to maintain a strict level of separation between what falls within the “scope” of antitrust enforcement and matters deemed “wholly or partially” unrelated to competition. In highlighting the anti-competitive effects created by the vast databases of personal and often sensitive information (Big Data) being acquired by today's dominant internet platforms. this paper seeks to argue that a more refined and comprehensive analysis of the competitive effects of data in merger review is lacking and is required as a matter of urgency. Journal: European Competition Journal Pages: 407-436 Issue: 2 Volume: 17 Year: 2021 Month: 05 X-DOI: 10.1080/17441056.2021.1909234 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1909234 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:2:p:407-436 Template-Type: ReDIF-Article 1.0 Author-Name: Arianna Andreangeli Author-X-Name-First: Arianna Author-X-Name-Last: Andreangeli Title: Platform markets, dominance issues and single- and multi-homing of merchants: a real or hypothetical choice? Abstract: This article considers the implications of restricting the ability of business users to interact with a plurality of platforms for competition between platforms and between the merchants themselves. After examining the economic implications of the merchants’ choice of single- versus multi-homing, the article will analyse the legality of two practices that can restrict, if not altogether deny, the ability of merchants to choose whether to use one or a plurality of platforms in light of the EU Competition rules, namely exclusivity clauses and across platforms parity agreements. It will be argued that due to the features of platform markets, the ability of merchants to multi-home should be preserved so as to ensure that these markets remain open and competitive and that the incentive for new intermediaries to continue innovating in the way they provide their services. Journal: European Competition Journal Pages: 269-295 Issue: 2 Volume: 17 Year: 2021 Month: 05 X-DOI: 10.1080/17441056.2021.1872928 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1872928 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:2:p:269-295 Template-Type: ReDIF-Article 1.0 Author-Name: Gregory J. Werden Author-X-Name-First: Gregory J. Author-X-Name-Last: Werden Title: Exploitative abuse of a dominant position: a bad idea that now should be abandoned Abstract: Exploitative abuse of a dominant position is a long-recognized category of infringements of what is now Article 102 TFEU. Article 102’s prohibition originated in the EEC Treaty, which broke down barriers and prohibited restraints on competition so the free market could reign. But every exploitative abuse case is a breach of faith in the market. And punishing exploitative abuse weakens the rule of law: No rule or standard controls, so potential infringers have no way to know what is expected of them. Exploitative abuse should be abandoned, and this essay argues that doing so would not disrespect the text of Article 102, ignore the intentions of the EEC Treaty’s drafters, or undermine any stated goal of the Treaty. Journal: European Competition Journal Pages: 682-713 Issue: 3 Volume: 17 Year: 2021 Month: 09 X-DOI: 10.1080/17441056.2021.1930451 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1930451 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:3:p:682-713 Template-Type: ReDIF-Article 1.0 Author-Name: Giorgio Monti Author-X-Name-First: Giorgio Author-X-Name-Last: Monti Title: Collective labour agreements and EU competition law: five reconfigurations Abstract: The European Commission has recently begun to reflect on whether competition law is a barrier to the formation of collective labour agreements between industry and atypical workers. The policy focus to date has been on whether and how to extend the antitrust labour exemptions to certain classes of atypical worker. This paper shows how efforts in this direction in the Netherlands and Ireland have revealed that this is a tricky path to pursue. As a result, the paper proposes four additional approaches: three of these indicate that even if atypical workers are treated as undertakings and collective bargains between them and employers fall to be assessed under competition law, many agreements will unlikely have anticompetitive effects and for those that may do so, exemptions are possible. A fifth approach is that active antitrust enforcement against employers imposing unfair terms on atypical workers may function to solve some of the concerns that collective bargaining seeks to address. Journal: European Competition Journal Pages: 714-744 Issue: 3 Volume: 17 Year: 2021 Month: 09 X-DOI: 10.1080/17441056.2021.1930452 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1930452 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:3:p:714-744 Template-Type: ReDIF-Article 1.0 Author-Name: Sumit K. Majumdar Author-X-Name-First: Sumit K. Author-X-Name-Last: Majumdar Title: Structural capital and capital structure: assessing horizontal ownership concentration Abstract: This paper reports an assessment of horizontal ownership concentration, contingent on congeneric acquisitions, on firm-level strategic behaviour in the telecommunications sector. Consequent to deals, the change in the concentration index was over one and half times the value of the original ratio. An asset control Herfindahl Hirschman Index (AHHI) shot up from 1056 to 2747. Firms' strategic behaviour examined has been debt level in capital structure. Companies associated with a high value of the structural capital variable have had significantly lower debt, around 24% less than average, while companies associated with a low value of the structural capital variable have had significantly higher debt, of around 11% more than average. Companies identified as owned by horizontal ownership controllers with high market power have had significantly lower debt, of around 19% less than average. The behaviour of companies have been competitively aggressive, as an outcome of horizontal ownership concentration. Journal: European Competition Journal Pages: 507-541 Issue: 3 Volume: 17 Year: 2021 Month: 09 X-DOI: 10.1080/17441056.2021.1911730 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1911730 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:3:p:507-541 Template-Type: ReDIF-Article 1.0 Author-Name: Rhonda L. Smith Author-X-Name-First: Rhonda L. Author-X-Name-Last: Smith Author-Name: Arlen Duke Author-X-Name-First: Arlen Author-X-Name-Last: Duke Title: Pharmaceuticals and market definition: a cautionary tale Abstract: There is no simple prescription for defining the relevant product market for pharmaceuticals. As price is usually the key variable, the price inelastic demand for pharmaceuticals complicates the market definition process. It unsurprising then that when, as in relation to pharmaceuticals, demand is relatively price inelastic the process of defining the product dimension of a market is more complex. In relation to pharmaceuticals, the question is therefore whether a change in some other variable would cause substitution and so constrain decision-making and, if so, how to best identify such constraints. By reference to approaches adopted in several key cases, this article considers alternative approaches that can be used to identify the product dimension of pharmaceutical markets, including the use of natural events/experiments, the use of consumption data as well as qualitative indicators. The article concludes with a suggested alternative approach based on functionality, response to product quality variation and context. Journal: European Competition Journal Pages: 593-616 Issue: 3 Volume: 17 Year: 2021 Month: 09 X-DOI: 10.1080/17441056.2021.1921516 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1921516 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:3:p:593-616 Template-Type: ReDIF-Article 1.0 Author-Name: Damien Geradin Author-X-Name-First: Damien Author-X-Name-Last: Geradin Author-Name: Dimitrios Katsifis Author-X-Name-First: Dimitrios Author-X-Name-Last: Katsifis Author-Name: Theano Karanikioti Author-X-Name-First: Theano Author-X-Name-Last: Karanikioti Title: Google as a de facto privacy regulator: analysing the Privacy Sandbox from an antitrust perspective Abstract: Now a multi-billion-dollar industry, online advertising is what funds free online content. At the core of this industry lies the ability to track users through various technical means, such as cookies, which has sparked privacy concerns, and is thus subject to a growing body of regulation. But the most important rules around tracking seem to come from a handful of large platforms who have assumed the role of a de facto privacy regulator. In this paper we explore in detail Google’s decision to phase out support for third-party cookies on Chrome, accompanied by a set of proposals known as the Privacy Sandbox proposals. We query whether this decision raises any antitrust concerns – and if so, how they can be reconciled with the objective of privacy. At a conceptual level, we use this opportunity to reflect on the relationship between competition law and privacy and the trade-offs regulators may have to make. Journal: European Competition Journal Pages: 617-681 Issue: 3 Volume: 17 Year: 2021 Month: 09 X-DOI: 10.1080/17441056.2021.1930450 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1930450 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:3:p:617-681 Template-Type: ReDIF-Article 1.0 Author-Name: Giulia Schneider Author-X-Name-First: Giulia Author-X-Name-Last: Schneider Title: Data sharing for collaborative research under art. 101 TFEU: lessons from the proposed regulations for data markets Abstract: Economic operators active in the emerging European data space are currently struggling with two major hurdles: (i) the lack of legal certainty regarding the boundaries of lawfulness of data sharing practices under European competition law; (ii) the lack of coherence of the European competition framework with other European Union regulatory branches. This contribution addresses identified concerns, enquiring the relevance of data sharing agreements as research and development collaborations under art. 101 TFEU. The study considers the Commission’s Guidelines on horizontal cooperation in the light of the proposed Data Governance Act and the Digital Service Package. It identifies some criteria relevant for assessing the lawfulness of data sharing agreements under art. 101(1). These criteria encompass subjective (type of undertakings involves); objective (type of data shared); structural (degree of openness) and teleological features (public interest or commercial-oriented research) of data sharing arrangements. Journal: European Competition Journal Pages: 567-592 Issue: 3 Volume: 17 Year: 2021 Month: 09 X-DOI: 10.1080/17441056.2021.1921515 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1921515 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:3:p:567-592 Template-Type: ReDIF-Article 1.0 Author-Name: Alexandre Carbonnel Author-X-Name-First: Alexandre Author-X-Name-Last: Carbonnel Title: The two sides of platform collusion Abstract: The recent case in the meal vouchers market in France has put collusion in two-sided markets in the spotlight. This paper discusses the key insights from the recent literature with respect to the consequences of collusion on prices and consumer surplus. I explain why focusing exclusively on prices is misleading in the case of two-sided markets and why a broader assessment also accounting for the impact of collusion on externalities is required. Furthermore, collusion does not necessarily harm all users, which justifies a case-by-case approach. Finally, I provide a concrete example of the assessment of collusion in two-sided markets using the example of the meal vouchers market and show that the insights from the current literature do not apply in this instance. This demonstrates the role that the characteristics of the market under investigation play with respect to the conclusions that may be drawn from collusion in two-sided markets. Journal: European Competition Journal Pages: 745-760 Issue: 3 Volume: 17 Year: 2021 Month: 09 X-DOI: 10.1080/17441056.2021.1984011 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1984011 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:3:p:745-760 Template-Type: ReDIF-Article 1.0 Author-Name: Johannes Persch Author-X-Name-First: Johannes Author-X-Name-Last: Persch Title: The role of fundamental rights in antitrust law – a special responsibility for undertakings with regulatory power under Art. 102 TFEU? Abstract: This paper investigates what role fundamental rights can play in the interpretation of EU antitrust law, in particular Art. 102 TFEU. It spells out the difficulties that derive from the fact that antitrust law and fundamental rights are of equal ranking in the EU legal order. It concludes that nevertheless as a matter of systemic and teleological interpretation, EU antitrust law is open for fundamental rights considerations. However, recourse to fundamental rights should be taken only when companies possess regulatory power. This approach sheds light on social media platforms’ recent increased engagement in content moderation. It suggests that for dominant platforms with regulatory power, any discrimination based on political beliefs is prima facie abusive behaviour under Art. 102 TFEU. However, such conduct may be justified by the pursuit of legitimate goals and companies should be granted a wide margin of appreciation in that regard. Journal: European Competition Journal Pages: 542-566 Issue: 3 Volume: 17 Year: 2021 Month: 09 X-DOI: 10.1080/17441056.2021.1921514 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1921514 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:17:y:2021:i:3:p:542-566 Template-Type: ReDIF-Article 1.0 Author-Name: Christophe Samuel Hutchinson Author-X-Name-First: Christophe Samuel Author-X-Name-Last: Hutchinson Author-Name: Diana Treščáková Author-X-Name-First: Diana Author-X-Name-Last: Treščáková Title: The challenges of personalized pricing to competition and personal data protection law Abstract: The development of smart electronic devices are enabling online businesses to collect any data related to the consumer's online activity. Such an extensive trove of consumer personal data can be used for “personalized pricing”. We have evaluated the challenges this form of price discrimination creates for competition and found that in jurisdictions such as the EU which prosecute exploitative abuses, the probability that personalized pricing might be assessed as an abuse of dominant position is high. Another issue raised by the collection and the processing of data for personalized pricing purposes is the growing invasion of privacy. In the EU, the General Data Protection Regulation foresees that personal data cannot be used without the consent of the consumer. As for online businesses processing personal data, they’d better stick to the provisions of the GDPR aiming to ensure greater transparency, if they are to avoid any risk of infringement of privacy law. Journal: European Competition Journal Pages: 105-128 Issue: 1 Volume: 18 Year: 2022 Month: 01 X-DOI: 10.1080/17441056.2021.1936400 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1936400 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:1:p:105-128 Template-Type: ReDIF-Article 1.0 Author-Name: Peter van Wijck Author-X-Name-First: Peter Author-X-Name-Last: van Wijck Author-Name: Franziska Weber Author-X-Name-First: Franziska Author-X-Name-Last: Weber Title: The abstract presumption of harm in the Damages Directive: overconcern of overcompensation Abstract: This paper is focussed on the implementation of the presumption of harm for cartels, as formulated in art. 17.2 of Directive 2014/104/EU. In most Member States the overcharge is presumed to be 0% unless proven otherwise. In two Member States this is 10% and in one it is 20%. These can be considered as three defaults. Damages litigation may lead to under- or overcompensation. Achieving full compensation is rather a coincidence. If harm is de facto substantially lower (higher) than the default, the infringer (victim) has an incentive to prove the actual level of harm. Different choices regarding the presumptions of harm imply a difference in the weighing of under- and overcompensation. A 0% default suggests that preventing overcompensation is the dominant goal. A 10% default will be more effective than a 0% default in serving the compensatory function. Journal: European Competition Journal Pages: 204-227 Issue: 1 Volume: 18 Year: 2022 Month: 01 X-DOI: 10.1080/17441056.2021.1979777 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1979777 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:1:p:204-227 Template-Type: ReDIF-Article 1.0 Author-Name: Jesse Kalashyan Author-X-Name-First: Jesse Author-X-Name-Last: Kalashyan Title: The game behind the game: UEFA's Financial Fair Play Regulations and the need to field a substitute Abstract: European soccer clubs tend to spend beyond their revenues, causing disruptions in their finances. To minimize these disruptions, UEFA enacted the Financial Fair Play Regulations (FFP). FFP achieves its objectives through the “break-even” requirement, which prohibits clubs from spending beyond their revenues. This article argues that FFP violates Articles 101 and 102 TFEU. While there has been scholarly interest in FFP’s incompatibility with competition law, the focus has been on Article 101. In addition to contributing to the scholarship on FFP’s violation of Article 101, this article presents arguments on how FFP violates Article 102. This article then explores UEFA’s interactions with European regulators as a backdrop for explaining why regulators have failed to address FFP’s violation of Articles 101 and 102. This article concludes by arguing that a change to FFP is imminent and suggests a novel method through which UEFA can maintain FFP’s objectives while complying with competition law. Journal: European Competition Journal Pages: 21-81 Issue: 1 Volume: 18 Year: 2022 Month: 01 X-DOI: 10.1080/17441056.2021.1935570 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1935570 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:1:p:21-81 Template-Type: ReDIF-Article 1.0 Author-Name: Bahriye Basaran Author-X-Name-First: Bahriye Author-X-Name-Last: Basaran Title: A closer look on the effectiveness of the EU legal framework for excessive pricing during the COVID-19 crisis Abstract: The unanticipated global mass panic that has arisen as a result of the rapid spread of the COVID-19 has had a major impact on the functioning of many markets. Many competition authorities around the world have faced with excessive pricing practices due to the dramatic price hikes of essential items, ranging from personal and medical equipment to basic food products particularly at the onset of the pandemic. The crisis has not been just about pricing, whether the public or the state is willing to pay for certain products or not; at the heart of the problem, there has been a sudden sharp asymmetry between the supply and demand. Based on this asymmetry, this article, by acknowledging that Article 102 (a) fails to deliver a swift and efficient response to this crisis due to conceptual and practical difficulties in its application, addresses other ways that competition authorities and governments use to deal with the virus-profiteers. Journal: European Competition Journal Pages: 82-104 Issue: 1 Volume: 18 Year: 2022 Month: 01 X-DOI: 10.1080/17441056.2021.1936398 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1936398 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:1:p:82-104 Template-Type: ReDIF-Article 1.0 Author-Name: Hanna Stakheyeva Author-X-Name-First: Hanna Author-X-Name-Last: Stakheyeva Title: Competition law in attempt to understand (Luxury) trademarks Abstract: The paper analyses the legality of online sales bans in selective distribution agreements in the EU, focusing on the “luxury brand image” justification as per the CJEU judgements and the decisions of the EC and national competition authorities. The paper questions the criteria for determining what constitutes a luxury trademark, and whether it is fair to distinguish (or even discriminate) between luxury and non-luxury trademarks, considering that both should have effective control and choice of the distribution of their goods. The paper concludes that the success of the selective distribution system depends on the effective control the trademark owner exercises over it, irrespective of whether or not it is covered by the aura of luxury. The non-luxury brands currently may justify their restrictions on sales on third party platforms under the unfair competition grounds. The selective distribution system should aim at protecting trademark image, which may not necessarily be luxury. Journal: European Competition Journal Pages: 1-20 Issue: 1 Volume: 18 Year: 2022 Month: 01 X-DOI: 10.1080/17441056.2021.1935567 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1935567 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:1:p:1-20 Template-Type: ReDIF-Article 1.0 Author-Name: Amanda Cliffe Author-X-Name-First: Amanda Author-X-Name-Last: Cliffe Title: To what extent does European law ensure a level playing field for fintechs in the payment services sector? Abstract: Fintechs are crucial to ensuring Europe’s transition to a digital economy. In its Digital Finance Strategy, the Commission endorses the need to ensure a level playing field in the provision of digital financial services. However, the dominant position that banks hold in the European economy has enabled them to engage in abusive practices, such as the refusal to grant access to data to fintechs. Such a practice could also occur among bigtechs, which are soon to become dominant players in the payment services sphere. The first part of this article pertains to the Payment Services Directive II and to what extent it has contributed towards levelling the playing field between banks and fintechs. The second part of this paper analyses the extent to which provisions of the proposed Digital Markets Act (DMA) could help contribute towards levelling the playing field between bigtechs and fintechs. Journal: European Competition Journal Pages: 168-203 Issue: 1 Volume: 18 Year: 2022 Month: 01 X-DOI: 10.1080/17441056.2021.1979776 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1979776 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:1:p:168-203 Template-Type: ReDIF-Article 1.0 Author-Name: Tom Smith Author-X-Name-First: Tom Author-X-Name-Last: Smith Author-Name: Damien Geradin Author-X-Name-First: Damien Author-X-Name-Last: Geradin Title: Maintaining a level playing field when Big Tech disrupts the financial services sector Abstract: Google, Apple, Facebook and Amazon (the “GAFAs”) have been slow to disrupt the financial services sector, but they are likely to do so in the coming years by using their control of important customer access points such as mobile operating systems, search engines, app stores, and marketplaces. This paper discusses these issues in the context of competition law enforcement and the emerging UK and EU regulatory regimes aiming to curb the GAFAs’ market power. The new rules can ensure that consumers will benefit from the innovations of the GAFAs and others without suffering the long-run effects of their further accumulation of market power. The new rules can ensure that the GAFAs do not benefit from an asymmetry of regulatory obligations compared to their financial services competitors, and that the GAFAs cannot leverage their market power from core activities into financial services whereby their financial services competitors are hindered in reacting. Journal: European Competition Journal Pages: 129-167 Issue: 1 Volume: 18 Year: 2022 Month: 01 X-DOI: 10.1080/17441056.2021.1936401 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1936401 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:1:p:129-167 Template-Type: ReDIF-Article 1.0 # input file: catalog-resolver3297660823713615435.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220713T202513 git hash: 99d3863004 Author-Name: Oliver Latham Author-X-Name-First: Oliver Author-X-Name-Last: Latham Author-Name: Chara Tzanetaki Author-X-Name-First: Chara Author-X-Name-Last: Tzanetaki Title: R you being foreclosed? Abstract: We draw parallels between the pandemic and foreclosure in network industries by applying “Susceptible, Infected, Recovered” (SIR) modelling to an antitrust setting. We consider a digital service seeking to grow into an addressable market occupied by an incumbent platform. The entrant can grow organically, but amassing more users allows it to spread faster as users invite friends or generate content increasing its attractiveness. We consider the impact of the incumbent taking steps (e.g. reducing interoperability) to make the entrant “less infectious” with three main implications for antitrust policy: conduct may have large effects even if the targeted service continues to grow; conduct is most effective when applied against nascent services before they can harness netwrok effects; and conduct can have non-linear effects, with the most “viral” services continuing to grow while others are eliminated. Each result has parallels with the experience of the pandemic and implications for innovation incentives. Journal: European Competition Journal Pages: 328-355 Issue: 2 Volume: 18 Year: 2022 Month: 05 X-DOI: 10.1080/17441056.2021.2002588 File-URL: http://hdl.handle.net/10.1080/17441056.2021.2002588 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:2:p:328-355 Template-Type: ReDIF-Article 1.0 # input file: catalog-resolver-7287472607242782781.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220713T202513 git hash: 99d3863004 Author-Name: Oliver März Author-X-Name-First: Oliver Author-X-Name-Last: März Title: Estimating cartel damages using machine learning Abstract: This paper presents an alternative to the workhorse linear OLS regression model when predicting “but-for” prices in cartel damage estimation. By replicating the dataset from a prominent Vitamin C antitrust case of price-fixing, I show that a supervized machine learning algorithm achieves more accurate predictions of prices based on cross-validated out-of-sample testing than the OLS model applied by the court expert. The machine learning algorithm is therefore better suited in this case to predict prices for the counterfactual scenario that no cartel existed, and to calculate damages based on those predictions. I find that the machine learning algorithm p redicts damages that are 14% lower than those predicted by the court expert's OLS model. Given that millions of dollars are usually at stake in cartel litigation cases, it is recommended that machine learning algorithms should be in the toolbox of practitioners attempting to derive the most accurate estimate of cartel-related damages. Journal: European Competition Journal Pages: 406-423 Issue: 2 Volume: 18 Year: 2022 Month: 05 X-DOI: 10.1080/17441056.2021.2002590 File-URL: http://hdl.handle.net/10.1080/17441056.2021.2002590 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:2:p:406-423 Template-Type: ReDIF-Article 1.0 # input file: catalog-resolver-1874775531821434312.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220713T202513 git hash: 99d3863004 Author-Name: Wen-Jen Tsay Author-X-Name-First: Wen-Jen Author-X-Name-Last: Tsay Author-Name: Wei-Min Hu Author-X-Name-First: Wei-Min Author-X-Name-Last: Hu Title: Merger simulation based on survey–generated diversion ratios Abstract: This research modifies the well-known three-stage merger simulation procedure of Nevo by replacing demand analysis in the first stage with survey-generated diversion ratios and own-price elasticities. We also provide a post-merger price formula under the scenario of two firms competing in the same relevant market and operating independently of the other firms in the relevant market. The same scenario is considered in upward pricing pressure (UPP) and is commonly observed in most filing cases for mergers. Since the formula is exact and requires only data on each firm's price and own-price elasticity and the diversion ratios between these two firms, our approach's implementation cost is almost identical to that used in the critical loss analysis, the diversion ratio, and UPP. The formula thus is informative and convenient for competition enforcement when dealing with merger cases. Journal: European Competition Journal Pages: 249-264 Issue: 2 Volume: 18 Year: 2022 Month: 05 X-DOI: 10.1080/17441056.2021.1984012 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1984012 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:2:p:249-264 Template-Type: ReDIF-Article 1.0 # input file: catalog-resolver-1429616502274859722.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220713T202513 git hash: 99d3863004 Author-Name: Damien Geradin Author-X-Name-First: Damien Author-X-Name-Last: Geradin Author-Name: Dimitrios Katsifis Author-X-Name-First: Dimitrios Author-X-Name-Last: Katsifis Title: Strengthening effective antitrust enforcement in digital platform markets Abstract: While the initiatives in various jurisdictions to impose ex ante regulation on “digital gatekeepers” – large online platforms that are necessary intermediaries between business users and their customers – have attracted considerable attention, the purpose of this paper is to contribute to the debate on the equally important need to strengthen effective antitrust enforcement in digital markets. The focus is on possible adjustments to the current competition law framework on unilateral conduct. The paper examines four proposals. First, it argues in favour of revisiting the error-cost framework and considering the introduction of presumptions of anticompetitiveness in limited circumstances. Second, it makes the case that competition authorities should make greater use of restorative remedies to reinject lost competition in the market. Third, it discusses the need for greater focus on harms to quality and innovation. Fourth, it argues that when competition has been irreparably harmed, EU competition authorities should consider exploitative cases. Journal: European Competition Journal Pages: 356-405 Issue: 2 Volume: 18 Year: 2022 Month: 05 X-DOI: 10.1080/17441056.2021.2002589 File-URL: http://hdl.handle.net/10.1080/17441056.2021.2002589 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:2:p:356-405 Template-Type: ReDIF-Article 1.0 # input file: catalog-resolver-6436802648927831313.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220713T202513 git hash: 99d3863004 Author-Name: Alberto Pera Author-X-Name-First: Alberto Author-X-Name-Last: Pera Title: Fairness, competition on the merits and article 102 Abstract: This paper examines the role and meaning of the concept of “fairness” in the application of European competition law, and in particular of Art, 102 of TFEU, It argues that, with its emphasis on firms competing on the bases of their superior performance, the paradigm of competition on the merits may well be considered a reference for the definition of whether a conduct by a dominant undertaking may be considered “fair”. The paper finds support for this in the case law of the European Courts and the Commission, as well as in the legal constructions characterizing EU jurisprudence, such as the “special responsibility” of a dominant firm and the “essential facility” doctrine. This view of fairness is also at the bases of the application of art. 102 through the different issues posed by the development of data based digital economy; the paper also argues that such a view helps clarifying the criteria to be used when applying the principles set by the European Courts with respect to the application of art. 102 to excessive prices. Journal: European Competition Journal Pages: 229-248 Issue: 2 Volume: 18 Year: 2022 Month: 05 X-DOI: 10.1080/17441056.2022.2056347 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2056347 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:2:p:229-248 Template-Type: ReDIF-Article 1.0 # input file: catalog-resolver1592729229461659152.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220713T202513 git hash: 99d3863004 Author-Name: Christophe Samuel Hutchinson Author-X-Name-First: Christophe Samuel Author-X-Name-Last: Hutchinson Title: Curbing Big Tech's IoT dominance Abstract: The use of IoT products is increasingly becoming part of the everyday life of citizens in the EU. With the consumer IoT sector braced for rapid growth, the European Commission is concerned that it will be concentrated in a small number of companies. The Commission is particularly wary that Big Tech may leverage their large shares on the voice assistants market to harm developing competitors and consumers. The preliminary report of its inquiry into the consumer IoT sector published in June 2021 shows that many respondents share the Commission’s competition concerns. If, after analyzing the results of the inquiry, the Commission turns up evidence of anti-competitive practices by tech giants, it could initiate investigations against those companies to ensure compliance with EU rules on abuse of dominant position. Nevertheless, some experts doubt whether a crackdown on Big Tech would lead to a more competitive and innovative IoT market. Journal: European Competition Journal Pages: 265-286 Issue: 2 Volume: 18 Year: 2022 Month: 05 X-DOI: 10.1080/17441056.2021.1995206 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1995206 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:2:p:265-286 Template-Type: ReDIF-Article 1.0 # input file: catalog-resolver-2311916103149666575.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220713T202513 git hash: 99d3863004 Author-Name: Cezary Banasiński Author-X-Name-First: Cezary Author-X-Name-Last: Banasiński Author-Name: Marcin Rojszczak Author-X-Name-First: Marcin Author-X-Name-Last: Rojszczak Title: The role of competition authorities in protecting freedom of speech: the PKN Orlen/Polska Press case Abstract: For more than 30 years, EU institutions and Member States have been engaged in a dialogue on what measures might be considered appropriate to protect media pluralism. With the increasing globalization of digital services, national legislatures have increasingly recognized the need to actively shape the media market by controlling mergers taking place within it. The aim of this article is to discuss the PKN Orlen/Polska Press case and to explain the role of EU competition authorities in protecting media pluralism. The analysis also seeks to determine whether – and based on which competencies – the EU should counter systemic threats to media independence in Member States. The Polish experience may also be helpful in view of work currently underway on the new Media Freedom Act – EU legislation intended to counteract the growing monopolization of media and ensure its protection as a central pillar of democracy. Journal: European Competition Journal Pages: 424-457 Issue: 2 Volume: 18 Year: 2022 Month: 05 X-DOI: 10.1080/17441056.2021.2003999 File-URL: http://hdl.handle.net/10.1080/17441056.2021.2003999 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:2:p:424-457 Template-Type: ReDIF-Article 1.0 # input file: catalog-resolver-6381228660814096038.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220713T202513 git hash: 99d3863004 Author-Name: P. Jansen Author-X-Name-First: P. Author-X-Name-Last: Jansen Author-Name: S. J. Beeston Author-X-Name-First: S. J. Author-X-Name-Last: Beeston Author-Name: L. Van Acker Author-X-Name-First: L. Author-X-Name-Last: Van Acker Title: The sustainability guidelines of the Netherlands Authority for Consumers and Markets: an impetus for a modern EU approach to sustainability and competition policy reflecting the principle that the polluter pays? Abstract: In October 2020, the European Commission (EC) published a call for contributions on how competition rules could support the Green Deal. With this initiative, the EC followed in the footsteps of several national competition authorities which had already issued guidance on competition policy and sustainability initiatives. The Netherlands Authority for Consumers and Markets (ACM) is, to date, the only authority to publish draft Sustainability Guidelines with progressive, practical guidance. In this paper, we explore the extent to which ACM’s Sustainability Guidelines could serve as a source of inspiration for a modern EU approach to sustainability and competition policy. We will conclude that while these Guidelines constitute a clear compromise, ACM has created an intelligent modus operandi to allow for more cooperative sustainability initiatives under the third paragraph of Articles 6 Dutch Competition Act and 101 TFEU without itself having to take decisions about public policy. Sustainability – Green Deal - fair share - polluter pays – ACM - Netherlands - Article 101 TFEU. Journal: European Competition Journal Pages: 287-327 Issue: 2 Volume: 18 Year: 2022 Month: 05 X-DOI: 10.1080/17441056.2021.1995227 File-URL: http://hdl.handle.net/10.1080/17441056.2021.1995227 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:2:p:287-327 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_11424997_J.xml processed with: repec_from_tfjats.xsl darts-xml-transformations-20220823T191300 git hash: 39867e6e2f Author-Name: Anne C Witt Author-X-Name-First: Anne C Author-X-Name-Last: Witt Title: Public Policy Goals Under EU Competition Law—Now is the Time to Set the House in Order Journal: European Competition Journal Pages: 443-471 Issue: 3 Volume: 8 Year: 2012 Month: 12 X-DOI: 10.5235/ECJ.8.3.443 File-URL: http://hdl.handle.net/10.5235/ECJ.8.3.443 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:8:y:2012:i:3:p:443-471 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_11424998_J.xml processed with: repec_from_tfjats.xsl darts-xml-transformations-20220823T191300 git hash: 39867e6e2f Author-Name: Alexandr Svetlicinii Author-X-Name-First: Alexandr Author-X-Name-Last: Svetlicinii Author-Name: Marco Botta Author-X-Name-First: Marco Author-X-Name-Last: Botta Title: Article 102 TFEU as a Tool for Market Regulation: “Excessive Enforcement” Against “Excessive Prices” in the New EU Member States and Candidate Countries Journal: European Competition Journal Pages: 473-496 Issue: 3 Volume: 8 Year: 2012 Month: 12 X-DOI: 10.5235/ECJ.8.3.473 File-URL: http://hdl.handle.net/10.5235/ECJ.8.3.473 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:8:y:2012:i:3:p:473-496 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_11424999_J.xml processed with: repec_from_tfjats.xsl darts-xml-transformations-20220823T191300 git hash: 39867e6e2f Author-Name: Adrian Kuenzler Author-X-Name-First: Adrian Author-X-Name-Last: Kuenzler Author-Name: Philip Marsden Author-X-Name-First: Philip Author-X-Name-Last: Marsden Title: Presumptions as Appropriate Means to Regulate Resale Price Maintenance: In Defence of Structuring the Rule of Reason Journal: European Competition Journal Pages: 497-525 Issue: 3 Volume: 8 Year: 2012 Month: 12 X-DOI: 10.5235/ECJ.8.3.497 File-URL: http://hdl.handle.net/10.5235/ECJ.8.3.497 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:8:y:2012:i:3:p:497-525 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_11425000_J.xml processed with: repec_from_tfjats.xsl darts-xml-transformations-20220823T191300 git hash: 39867e6e2f Author-Name: William E Kovacic Author-X-Name-First: William E Author-X-Name-Last: Kovacic Author-Name: David A Hyman Author-X-Name-First: David A Author-X-Name-Last: Hyman Title: Competition Agency Design: What's on the Menu? Journal: European Competition Journal Pages: 527-538 Issue: 3 Volume: 8 Year: 2012 Month: 12 X-DOI: 10.5235/ECJ.8.3.527 File-URL: http://hdl.handle.net/10.5235/ECJ.8.3.527 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:8:y:2012:i:3:p:527-538 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_11425001_J.xml processed with: repec_from_tfjats.xsl darts-xml-transformations-20220823T191300 git hash: 39867e6e2f Author-Name: Cosmo Graham Author-X-Name-First: Cosmo Author-X-Name-Last: Graham Title: The Reform of UK Competition Policy Journal: European Competition Journal Pages: 539-562 Issue: 3 Volume: 8 Year: 2012 Month: 12 X-DOI: 10.5235/ECJ.8.3.539 File-URL: http://hdl.handle.net/10.5235/ECJ.8.3.539 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:8:y:2012:i:3:p:539-562 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_11425002_J.xml processed with: repec_from_tfjats.xsl darts-xml-transformations-20220823T191300 git hash: 39867e6e2f Author-Name: Peter Freeman Author-X-Name-First: Peter Author-X-Name-Last: Freeman Title: “Beware the Ides of March”—The Government's Proposed Competition Reforms Journal: European Competition Journal Pages: 563-572 Issue: 3 Volume: 8 Year: 2012 Month: 12 X-DOI: 10.5235/ECJ.8.3.563 File-URL: http://hdl.handle.net/10.5235/ECJ.8.3.563 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:8:y:2012:i:3:p:563-572 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_11425003_J.xml processed with: repec_from_tfjats.xsl darts-xml-transformations-20220823T191300 git hash: 39867e6e2f Author-Name: Bruce Wardhaugh Author-X-Name-First: Bruce Author-X-Name-Last: Wardhaugh Title: The Cartel Offence Within a “World Class” Competition Regime: An Assessment of the Bis Consultation Exercise and its Results Journal: European Competition Journal Pages: 573-588 Issue: 3 Volume: 8 Year: 2012 Month: 12 X-DOI: 10.5235/ECJ.8.3.573 File-URL: http://hdl.handle.net/10.5235/ECJ.8.3.573 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:8:y:2012:i:3:p:573-588 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_11425004_J.xml processed with: repec_from_tfjats.xsl darts-xml-transformations-20220823T191300 git hash: 39867e6e2f Author-Name: Peter Whelan Author-X-Name-First: Peter Author-X-Name-Last: Whelan Title: Improving Criminal Cartel Enforcement in the UK: The Case for the Adoption of Bis's “Option 4” Journal: European Competition Journal Pages: 589-601 Issue: 3 Volume: 8 Year: 2012 Month: 12 X-DOI: 10.5235/ECJ.8.3.589 File-URL: http://hdl.handle.net/10.5235/ECJ.8.3.589 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:8:y:2012:i:3:p:589-601 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2003998_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Idris Abdelkhalek Author-X-Name-First: Idris Author-X-Name-Last: Abdelkhalek Title: Sustainable development in the EU – which state of play in competition law? Abstract: Sustainable development is today a guiding objective of the EU. This article therefore analyses if and how it can be integrated in competition law and more specifically in the antitrust rules of art. 101 TFEU. This paper first explains the legal background of sustainable development, its economic, social and environmental dimensions on the international scene and highlights its enshrinement in the EU treaties. It then focuses on its environmental dimension and identifies three routes to integration in EU competition law: (i) the agreements not restricting competition while protecting the environment; (ii) the objective necessity route whereby agreements whose restrictions on competition are objectively justified and proportionate make them fall outside of the scope of art. 101 TFEU; (iii) and the exemption route of art. 101 (3) TFEU. This article analyses each of these routes and puts forward the legal points requiring clarifications or modifications in this regard. Journal: European Competition Journal Pages: 532-557 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2021.2003998 File-URL: http://hdl.handle.net/10.1080/17441056.2021.2003998 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:532-557 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2034332_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Christophe Samuel Hutchinson Author-X-Name-First: Christophe Samuel Author-X-Name-Last: Hutchinson Author-Name: Diana Treščáková Author-X-Name-First: Diana Author-X-Name-Last: Treščáková Title: Tackling gatekeepers’ self-preferencing practices Abstract: “Self-preferencing” refers to a conduct of a large provider of core platform services which consists in favouring one’s own products and services over those offered by competitors on the same platform. Drawing on the experience acquired through its various antitrust investigations into the conducts of Big Tech, the European Commission, in its its “proposal for the Digital Market Act”, has put forward the concept of “gatekeeper”. If adopted, this regulatory instrument which aims at ensuring fairness and transparency in the EU digital markets, would enable the Commission to qualify as such any large core platform service on the basis of narrowly defined objectives criteria and submit it to a set of prohibitions and obligations. By opting for such an approach, the Commission would be able to switch from an ex-post assessment of a gatekeepers’ self-preferencing practices to an ex-ante one. Journal: European Competition Journal Pages: 567-590 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2034332 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2034332 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:567-590 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2059962_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Alessia Sophia D’Amico Author-X-Name-First: Alessia Sophia Author-X-Name-Last: D’Amico Author-Name: Baskaran Balasingham Author-X-Name-First: Baskaran Author-X-Name-Last: Balasingham Title: Super-dominant and super-problematic? The degree of dominance in the Google Shopping judgement Abstract: In the Google Shopping judgment, the General Court refers to Google’s super-dominance and with it its stronger obligation not to allow its behaviour to impair effective competition. The concept of super-dominance suggests that certain conduct could breach Article 102 TFEU only when adopted by super-dominant undertakings, but it remains uncertain how exactly it contributes to finding an abuse. The aim of this paper is to analyze the Google Shopping judgment in relation to the concept of super-dominance. We explore how the concept has evolved in the case-law and what role it has played when establishing an abuse of dominance and analyze whether reliance on super-dominance in the case law is consistent with the effects-based approach. Finally, we examine how Google Shopping fits with the evolution of super-dominance in the case law and the effects-based approach and what it means for the regulation of digital gatekeepers going forward. Journal: European Competition Journal Pages: 614-630 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2059962 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2059962 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:614-630 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2056345_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Florian Deuflhard Author-X-Name-First: Florian Author-X-Name-Last: Deuflhard Author-Name: Robert Lauer Author-X-Name-First: Robert Author-X-Name-Last: Lauer Title: The role of contract structure for damage quantification: pitfalls and solutions Abstract: Damage quantification in antitrust cases typically revolves around overcharge and pass-on estimation. In vertical industry structures, both measures crucially depend on contract structure, with linear and two-part tariffs being the most common contract types. While most of the damages literature focuses on linear contracts, two-part tariffs are mostly neglected. We discuss implications of tariff structure for damage quantification, highlight common pitfalls and propose practical solutions in damage assessment when two-part tariffs are present. Journal: European Competition Journal Pages: 591-613 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2056345 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2056345 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:591-613 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2131238_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Bernadette Zelger Author-X-Name-First: Bernadette Author-X-Name-Last: Zelger Title: The new sustainability exemption according to § 2(1) Austrian Cartel Act and its relationship with Article 101 TFEU – European spearhead or born to fail? Abstract: The Austrian legislator, together with the adaptions to be made in order to implement the ECN+ Directive, decided to include into national law, i.e. § 2(1) Austrian Cartel Act serving as corresponding rule to Article 101(3) TFEU, a sustainability exemption from the prohibition on cartels as stipulated in § 1 Austrian Cartel Act being the Austrian counterpart to Article 101(1) TFEU. Hence, in light of Regulation 1/2003 it arguably made a bold decision as the adoption of such exemption into national law is anything but uncontroversial. Moreover, also its compatibility with Article 101(3) TFEU is not clear-cut, as the inclusion of aspects other than economic ones, i.e. environmental and sustainability considerations, in the assessment of exemptions at the European level has been subject to debate ever since. This article shall shed light on the issues emanating from this new sustainability exemption and its relationship with the given EU legal framework. Journal: European Competition Journal Pages: 514-531 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2131238 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2131238 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:514-531 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2115871_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Baskaran Balasingham Author-X-Name-First: Baskaran Author-X-Name-Last: Balasingham Title: Exclusionary innovation in the European Commission’s decisions against Google Abstract: Exclusionary innovation poses a bigger threat to competition in digital platform markets than in other innovation markets given the relevance of data-driven network effects as well as the strong incentive and ability of digital platforms to pursue an envelopment strategy. This paper advocates a theory of harm called “platform-wide exclusionary innovation” which applies to conduct that plausibly creates short-term consumer benefit but is more likely to foreclose rivals and therefore reduce technological progress in the long run. This theory of harm can help to explain Google’s conduct that the European Commission condemned in its three decisions against Google between 2017 and 2019. Due to interconnections between Google’s practices in the three cases this article assesses whether they may be considered jointly for the purpose of finding of an infringement of Article 102 TFEU or under the proposed Digital Markets Act. Journal: European Competition Journal Pages: 631-657 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2115871 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2115871 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:631-657 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2128551_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Tuvana Aras Author-X-Name-First: Tuvana Author-X-Name-Last: Aras Title: Article 102 TFEU to the rescue: filling the legal gaps of the airport slot regulation Abstract: The present article analyses the competition issues that arise from the legal gaps of the Slot Regulation (95/93/EC). Although the Slot Regulation targets a just allocation system, allowing market access for all airlines, the augmenting number of congested airports in the European Union makes it hard to attribute slots to newcomers. The gaps of the Slot Regulation have led to problematic conducts such as 'slot hoarding' as incumbent carriers are aware of the financial and operational importance of these slots, and of their scarcity. The gaps have also allowed dominant airlines to engage in secondary slot trading under secretive and potentially anti-competitive terms, which may have an impact on the competitiveness of the market. The article examines the applicability of Article 102 TFEU to airlines that may abuse their dominance created by the number of slots they have under the essential facilities doctrine and the margin squeeze theory. Journal: European Competition Journal Pages: 658-682 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2128551 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2128551 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:658-682 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2034330_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Suryaprakash Mishra Author-X-Name-First: Suryaprakash Author-X-Name-Last: Mishra Title: Cost structures, innovation and welfare in monopoly Abstract: This paper, concerning cost structures and innovation in monopoly and the resulting welfare, has counter-intuitive results. We consider linear demand and two cases of cost structures namely constant marginal cost (henceforth CMC) and increasing marginal cost (henceforth IMC) in monopoly, and show that innovation is rewarding in both situations. From the regulator’s perspective, in absence of any innovation or in case of equal innovation in both cases, a monopolist with an IMC may be preferred as against the one with a CMC. Journal: European Competition Journal Pages: 558-566 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2034330 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2034330 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:558-566 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2056346_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Cento Veljanovski Author-X-Name-First: Cento Author-X-Name-Last: Veljanovski Title: The case against green antitrust Abstract: The case for a greener antitrust is weak and flawed. It is largely abstract, hypothetical, legalistic, somewhat emotive and lacks supporting evidence. Its proponents claim that the European Commission’s enforcement of Article 101 TFEU blocks efficient industry-initiated cooperation to improve sustainability. But as is shown, this more permissive approach will lead to increased market power, supra-competitive prices and greater industry profits, and is unlikely to achieve greater investment in and the faster adoption of green technologies than competition. Journal: European Competition Journal Pages: 501-513 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2056346 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2056346 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:501-513 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2034331_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Thomas Tombal Author-X-Name-First: Thomas Author-X-Name-Last: Tombal Title: Ensuring contestability and fairness in digital markets through regulation: a comparative analysis of the EU, UK and US approaches Abstract: In a society where individuals increasingly spend time on the internet, large online platforms have become, for many, unavoidable actors. As it is increasingly argued that competition policy alone cannot address all the systemic problems that they create in digital markets where quick reactions are indispensable, there seems to be a consensus across the globe that legislative action must be taken against a specific sub-set of these large online platforms in order to foster contestability and fairness. This contribution aims to analyse how the EU, UK and US legislators intend to do so through regulation. First, the scope of the digital platforms that would be subject to these regulatory initiatives, and the potential discrepancies in this regard, will be clarified. Then, the general approach and options taken in each of these jurisdictions to address this dependence issue will be outlined. Finally, the main discrepancies between these different approaches will be summarized. Journal: European Competition Journal Pages: 468-500 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2034331 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2034331 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:468-500 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2136852_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20220907T060133 git hash: 85d61bd949 Author-Name: Philip Marsden Author-X-Name-First: Philip Author-X-Name-Last: Marsden Title: Restoring the promise of competition: ex ante pro-competitive regulation of FRAND access to SEPs Abstract: Overseeing digital gatekeepers through ex post competition law is too slow and too complicated to prevent serious exclusionary and exploitative harm. To provide greater contestability and fairness in digital markets, new European laws introduce complementary ex ante pro-competitive regulation. Differing forms of intellectual property innovation are crucial for the increasing digitization of markets, particularly involving the Internet of Things. When intellectual property “gatekeepers” thwart willing implementers’ access to standards by seeking injunctions, ex post competition law enforcement is too slow and complicated to prevent serious exclusionary and exploitative harm. Ex ante regulation could ensure re-instatement of the pro-competitive promise of FRAND access that ensures fair, contestable and innovative markets. Journal: European Competition Journal Pages: 459-467 Issue: 3 Volume: 18 Year: 2022 Month: 09 X-DOI: 10.1080/17441056.2022.2136852 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2136852 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:18:y:2022:i:3:p:459-467 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2129766_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Belle Beems Author-X-Name-First: Belle Author-X-Name-Last: Beems Title: The DMA in the broader regulatory landscape of the EU: an institutional perspective Abstract: The recently adopted Digital Markets Act (henceforth: DMA) addresses the behaviour of so-called gatekeepers by imposing a list of prohibitions and obligations on these platforms. Despite the potential of the initiative, it remains questionable how the DMA fits in the regulatory landscape. The DMA is – at least formally – not a competition law instrument but also differs from sector-specific regulation. This begs the question of how the DMA fits in the broader regulatory context. This paper aims to address this issue by assessing to what extent the DMA is different from “traditional” competition law and sector-specific regulation respectively. The unclarities regarding the position of the DMA in the broader regulatory context result in various difficulties, amongst others relating to the institutional set-up. The second part of this paper addresses these institutional difficulties resulting from the concurrent application of the DMA and “traditional” EU competition law. Journal: European Competition Journal Pages: 1-29 Issue: 1 Volume: 19 Year: 2023 Month: 01 X-DOI: 10.1080/17441056.2022.2129766 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2129766 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:1:p:1-29 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2156728_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Jasper van den Boom Author-X-Name-First: Jasper Author-X-Name-Last: van den Boom Title: What does the Digital Markets Act harmonize? – exploring interactions between the DMA and national competition laws Abstract: This article focuses on the interactions between the Digital Markets Act (DMA) and the laws and competition frameworks of Member States. Specifically, the article sets out three different interpretations on the text of articles 1 (5) and (6) of the DMA, which govern interactions between the DMA and national law and competition policy. The article identifies a narrow, broader, and broadest interpretation of the legal interests protected under the DMA. Each interpretation creates different harmonization effects. The article argues that the narrow and broader interpretations allow for significant divergence between national rules, creating the risk of regulatory fragmentation. The broadest interpretation would allow competition authorities and courts to weigh the interests protected in the DMA against national interests and create greater convergence of laws and competition policy in the Digital Single Market. The article also proposes ways forward for the implementation and enforcement of the DMA and national competition laws. Journal: European Competition Journal Pages: 57-85 Issue: 1 Volume: 19 Year: 2023 Month: 01 X-DOI: 10.1080/17441056.2022.2156728 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2156728 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:1:p:57-85 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2168865_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Nora Lampecco Author-X-Name-First: Nora Author-X-Name-Last: Lampecco Title: Dissonance in the European competition law regime of insufficient individual rivalry: the New Competition Tool as a glimmer of hope Abstract: The CK Telecoms judgement shed the light on the difficulties to apprehend unilateral effects, aka insufficient individual rivalry, in the context of a merger. This paper examines the overall European competition law framework applicable to these effects. After underlining the difficulties related to their apprehension by the competition authorities, the adequacy of the solely ex ante-based European competition regime will be assessed as well as the use of the New Competition Tool as an option to solve the identified drawbacks. Journal: European Competition Journal Pages: 150-166 Issue: 1 Volume: 19 Year: 2023 Month: 01 X-DOI: 10.1080/17441056.2023.2168865 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2168865 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:1:p:150-166 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2156729_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Alba Ribera Martínez Author-X-Name-First: Alba Author-X-Name-Last: Ribera Martínez Title: An inverse analysis of the digital markets act: applying the Ne bis in idem principle to enforcement Abstract: On 18 July 2022, the Council gave its final approval of the Digital Market Act’s final text. Notwithstanding the amendments following the initial proposal published by the European Commission on 15 December 2020, the main objectives of the DMA have remained untouched and separate from the objectives pursued by competition rules.In the interim, the Court of Justice of the European Union (CJEU) issued its preliminary rulings on the bpost and Nordzucker cases, with particularly relevant consequences concerning the application of the double jeopardy principle. The potential remedies and obligations imposed on the main digital platforms both under Articles 5 to 7 of the DMA and under competition law rules will overlap and create a risk of incoherent enforcement, especially on the side of the European Commission. Against this background, the paper strives to draw out the narrow enforcement gap left for competition authorities. In addition, the paper highlights a number of alternatives open to competition authorities when enforcing competition law rules on digital markets, namely the segmentation of its enforcement efforts depending on the type of service concerned in each case. Journal: European Competition Journal Pages: 86-115 Issue: 1 Volume: 19 Year: 2023 Month: 01 X-DOI: 10.1080/17441056.2022.2156729 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2156729 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:1:p:86-115 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2129771_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Victoriia Noskova Author-X-Name-First: Victoriia Author-X-Name-Last: Noskova Title: Virtual assistants as gatekeepers for consumption? – how information intermediaries shape competition Abstract: In July 2022 the European Council gave final approval to new regulation of digital markets. This specifically addresses the main concerns raised by the business behaviour of operators of core services in their gatekeeping positions. The list of core services was extended during revisions. In this article, I address the question of whether the inclusion of virtual assistants into the list of core services was the right decision. Overall, this paper argues that (i) virtual assistants as gatekeepers for consumption should be listed among core services, (ii) some of the Digital Markets Act’s obligations need to be adopted to fit the specifics of virtual assistants, (iii) there are two relevant dimensions of power which should be considered in competition policy and regulation analysis: market power on virtual assistants’ market and the ecosystem of related markets (cross-market integration criterion), (iv) the growth of new gatekeepers should be prevented, among other means by stricter merger control. Journal: European Competition Journal Pages: 30-56 Issue: 1 Volume: 19 Year: 2023 Month: 01 X-DOI: 10.1080/17441056.2022.2129771 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2129771 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:1:p:30-56 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2156730_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Konstantina Bania Author-X-Name-First: Konstantina Author-X-Name-Last: Bania Title: Fitting the Digital Markets Act in the existing legal framework: the myth of the “without prejudice” clause Abstract: The Digital Markets Act (DMA), an EU Regulation establishing obligations for gatekeeper platforms in order to protect fairness and contestability in digital markets, will soon start to apply. In addition to the DMA, other (EU and national) instruments regulate platform conduct. Though the DMA explicitly provides that it will apply without prejudice to those other instruments, it is doubted whether it will merely complement them. In certain cases, the DMA may qualify as lex specialis, thereby prevailing over other regulations. In other cases, based on the principle of supremacy, the DMA may override national instruments that pursue legitimate interests other than fairness and contestability. There may also be occasions where the DMA may render certain tools devoid of purpose when this was not the intention of the legislator. In all the above cases, the DMA would not complement (but could possibly endanger) the effectiveness of the existing regime. Given the avalanche of legislative proposals for platforms, addressing potential conflicts between the DMA and other rules is essential to protect legal certainty and to ensure that the regulatory regime that governs harmful platform conduct reaches its full potential. Journal: European Competition Journal Pages: 116-149 Issue: 1 Volume: 19 Year: 2023 Month: 01 X-DOI: 10.1080/17441056.2022.2156730 File-URL: http://hdl.handle.net/10.1080/17441056.2022.2156730 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:1:p:116-149 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2195330_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Joanna Mazur Author-X-Name-First: Joanna Author-X-Name-Last: Mazur Title: Who (and why) gets cited by the Commission? The role and quality of expert knowledge in Google antitrust saga Abstract: The aim of this article is to examine the role that expert knowledge plays in the Commission’s decisions concerning digital economy. I propose a typology of functions served by these types of sources based on an analysis of references in the Commission’s decisions against Google: first, providing evidence about the history of technological development and the changes on digital markets; second, explaining the way digital technologies and markets work; third, justifying authoritative claims about digital technologies and digital markets’ characteristics; and fourth, illustrating the story with data on the usage of digital technologies and the shape of digital markets. While these types of sources are important in building “the body of evidence” which helps the Commission to tell the story of competition harm in the area of digital economy, there are situations in which their quality raises concerns in the light of the requirements for evidence. Journal: European Competition Journal Pages: 261-284 Issue: 2 Volume: 19 Year: 2023 Month: 05 X-DOI: 10.1080/17441056.2023.2195330 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2195330 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:2:p:261-284 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2169310_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Christophe Carugati Author-X-Name-First: Christophe Author-X-Name-Last: Carugati Title: The antitrust privacy dilemma Abstract: Antitrust cases related to privacy are on the agenda of many competition authorities, including Europe and the United States. Antitrust and privacy is thus “one of the big topics of the year”, as stated by the former President of the French competition authority. While some antitrust cases concern a reduction in privacy protection, others concern an increase in privacy protection. In other words, user privacy can decrease or increase due to alleged anticompetitive practices. An antitrust privacy dilemma? From a law and economics standpoint, the paper solves this dilemma and proposes a new way of resolving antitrust cases related to privacy. Section 2 analyses the dilemma. It proposes an analytical framework. Section 3 proposes a new way of resolving cases. It suggests a coordinated participative approach with competition and non-competition regulators and stakeholders to address competition and privacy concerns with tailored remedies to what is necessary without eliminating pro-privacy effects. Journal: European Competition Journal Pages: 167-190 Issue: 2 Volume: 19 Year: 2023 Month: 05 X-DOI: 10.1080/17441056.2023.2169310 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2169310 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:2:p:167-190 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2195329_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Aikaterina Oikonomou Author-X-Name-First: Aikaterina Author-X-Name-Last: Oikonomou Title: Methods of relevant product market delineation in antitrust cases: a critical survey Abstract: The main purpose of this study is to properly identify the relevant product markets in the Greek milk sector. For this reason, we rely on several quantitative techniques to draw robust findings regarding relevant product market delineation. The empirical analysis reveals that there is a single relevant product market for milk in the Greek territory. This means that the market participants can easily create their own distribution network (non-blocking industry). The findings of this study support that the market segments in the Greek milk sector are highly fragmented and there are several competitors in the industry. Moreover, competition intensity in the Greek milk sector between brands guarantees that effective competition cannot be hindered by possible anti-competitive behaviour of the market participants. Journal: European Competition Journal Pages: 246-260 Issue: 2 Volume: 19 Year: 2023 Month: 05 X-DOI: 10.1080/17441056.2023.2195329 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2195329 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:2:p:246-260 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2200327_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Dzmitry Bartalevich Author-X-Name-First: Dzmitry Author-X-Name-Last: Bartalevich Title: Chicago, Harvard, Freiburg, or considerations for Single Market integration? Analysis of theoretical and ideational insights underpinning the European Commission’s merger control with exponential random graph models Abstract: The European Commission has central authority over the European Union’s merger control. It is therefore responsible for making important merger decisions that are bound to affect vast markets and EU and non-EU market players, with significant implications for wider economic, political, and societal segments. These decisions are often informed by theoretical and ideational insights from various schools of competition analysis and economic theories, or they are guided by non-economic objectives. This article analyzes merger cases cleared under the current European Union Merger Regulation (EUMR) in an attempt to reveal whether the following insights underpin the Commission’s merger control: the Chicago School, Harvard School, Freiburg School, and considerations for Single Market integration. The analysis is conducted by employing an exponential random graph model (ERGM) approach. Journal: European Competition Journal Pages: 307-333 Issue: 2 Volume: 19 Year: 2023 Month: 05 X-DOI: 10.1080/17441056.2023.2200327 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2200327 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:2:p:307-333 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2200612_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Jan Polański Author-X-Name-First: Jan Author-X-Name-Last: Polański Title: 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. Journal: European Competition Journal Pages: 334-358 Issue: 2 Volume: 19 Year: 2023 Month: 05 X-DOI: 10.1080/17441056.2023.2200612 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2200612 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:2:p:334-358 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2169366_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Peter J. van de Waerdt Author-X-Name-First: Peter J. Author-X-Name-Last: van de Waerdt Title: From monocle to spectacles: competition for data and “data ecosystem building” Abstract: “Data ecosystem” companies on the digital market are unique in that they attain market power through their combination of personal data across many markets. Due to strong network effects of personal data, exploited on a conglomerate level, competition has moved beyond competition on the market and even beyond competition for the market: there is now competition for data. Consequently, we must reconsider not only the traditional concept of market power and market definition, but even the competitive analysis of alleged abuses. Therefore, the Commission’s singular focus on anti-competitive foreclosure does not do justice to the complex competitive effects of data ecosystems’ conduct. Only by fundamentally integrating competitive assessment with personal data protection can we understand data ecosystems and their role in the digital landscape. In order to fully capture the anti-competitive effects and harm done to consumer welfare, we must consider “data ecosystem building” as its own theory of harm. Journal: European Competition Journal Pages: 191-225 Issue: 2 Volume: 19 Year: 2023 Month: 05 X-DOI: 10.1080/17441056.2023.2169366 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2169366 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:2:p:191-225 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2193454_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Christophe Samuel Hutchinson Author-X-Name-First: Christophe Samuel Author-X-Name-Last: Hutchinson Author-Name: Diana Treščáková Author-X-Name-First: Diana Author-X-Name-Last: Treščáková Author-Name: Anna Alexandrovna Berdnikova Author-X-Name-First: Anna Alexandrovna Author-X-Name-Last: Berdnikova Author-Name: Dmitry Sergeevich Samorodeskii Author-X-Name-First: Dmitry Sergeevich Author-X-Name-Last: Samorodeskii Author-Name: Dmitry Igorevich Lobanov Author-X-Name-First: Dmitry Igorevich Author-X-Name-Last: Lobanov Author-Name: Stanislava Igorevna Semtsiva Author-X-Name-First: Stanislava Igorevna Author-X-Name-Last: Semtsiva Title: Big tech’s acquisition challenge to EU merger control Abstract: In recent years, there has been a tidal wave of merger filings involving large digital firms acquiring low turnover but high value start-ups. The vast majority of those transactions have flown under the radar of EU and National Competition Authorities and, among the few which have been reviewed, none has been blocked. Competition scholars wonder whether there has been a systematic bias towards under-enforcement against acquisitions of start-ups by already dominant tech firms. Some Member States are calling for a reform of the EU merger control’s notification system and an adaptation of the substantive test to effectively address cases of potentially predatory acquisitions. Journal: European Competition Journal Pages: 226-245 Issue: 2 Volume: 19 Year: 2023 Month: 05 X-DOI: 10.1080/17441056.2023.2193454 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2193454 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:2:p:226-245 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2200303_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Aydin Mehdi Khani Saatlou Author-X-Name-First: Aydin Mehdi Author-X-Name-Last: Khani Saatlou Author-Name: Reza Tajarlou Author-X-Name-First: Reza Author-X-Name-Last: Tajarlou Title: Auto cartels and the challenges they pose in private enforcement: scania cartel case Abstract: So far, there have been several studies conducted on the subject of automotive cartels, and the majority of the studies you see focus exclusively on cartels. Collusion in the automotive industry was relatively uncommon in the past. However, due to the increasing level of competition in this industry, auto manufacturers are increasingly colluding in a number of areas to survive. The Scania cartel case provided us with a clearer understanding of the phenomenon of automotive cartels, as well as how EU competition law is applied to cartel member's violations and how the European Commission approaches complex infringements. Due to this case, it becomes apparent that there are many legal loopholes within the private enforcement sector, and that victims also face a number of challenges when seeking damages from auto manufacturers. Journal: European Competition Journal Pages: 285-306 Issue: 2 Volume: 19 Year: 2023 Month: 05 X-DOI: 10.1080/17441056.2023.2200303 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2200303 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:2:p:285-306 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2205650_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: C.-Philipp Heller Author-X-Name-First: C.-Philipp Author-X-Name-Last: Heller Author-Name: Slobodan Sudaric Author-X-Name-First: Slobodan Author-X-Name-Last: Sudaric Author-Name: Anne-Christin Winkler Author-X-Name-First: Anne-Christin Author-X-Name-Last: Winkler Title: The centralised sale of football media rights in Europe Abstract: We analyse the competitive effects of the centralised sale of football media rights in Europe, focusing on the “Big Five” countries (England, France, Germany, Italy, Spain). Contrary to the findings of European competition authorities, we consider that there are arguments in favour of the relevant market for domestic media rights being club- or even match-specific. This raises the question of what competition is restricted by the centralised sale if the rights on offer have limited or no substitutability. We conclude that the centralised sale of media rights is unlikely to be anticompetitive and may have procompetitive effects if the media rights of different clubs are complementary instead of substitutable. In addition, there may be efficiency gains from the bundling of media rights. Under a club or match-specific market definition, a no-single-buyer rule likely reduces the benefits from the centralised sale and may harm consumers. Journal: European Competition Journal Pages: 449-480 Issue: 3 Volume: 19 Year: 2023 Month: 09 X-DOI: 10.1080/17441056.2023.2205650 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2205650 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:3:p:449-480 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2200618_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Can Atik Author-X-Name-First: Can Author-X-Name-Last: Atik Title: Addressing data access problems in the emerging digital agriculture sector: potential of the refusal to deal case law to complement ex-ante regulation Abstract: Tailored data-driven “Digital Agriculture” solutions bring about many benefits. However, there are also challenges related to complicated data access needs in the farm-to-fork chain. Farm-specific data are mostly locked in by the first-mover companies. This prevents farmers from switching to a better or cheaper alternative. This also hinders agricultural data-driven innovation due to unanswered access seekers. Moreover, already powerful players build exclusive data exchange clusters that further exclude small rivals and other access seekers. Also, upstream input producers have exclusive control over their products’ performance data, which generates critical advantages for their downstream data-driven services. These conditions endanger the digital agriculture sector and bring about the risk of reflection of the oligopolistic upstream players in this new sector. This paper explores the adequacy of EU competition law enforcement to address the ag-data access-related concerns – hoping to contribute to the sectoral literature that is currently dominated by regulation-centred discussions. Journal: European Competition Journal Pages: 380-409 Issue: 3 Volume: 19 Year: 2023 Month: 09 X-DOI: 10.1080/17441056.2023.2200618 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2200618 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:3:p:380-409 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2219440_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Elias Deutscher Author-X-Name-First: Elias Author-X-Name-Last: Deutscher Title: Causation and counterfactual analysis in abuse of dominance cases – lessons from the General Court’s Qualcomm ruling Abstract: Counterfactual analysis, which compares the competitive situation prevailing with and without the allegedly abusive behaviour, is nowadays regarded the lynchpin of an effects-based approach to the analysis of dominant firm conduct under Article 102 TFEU. This article draws on the recent Qualcomm ruling by the General Court of the European Union to critically reflect on the use and requirement of counterfactual analysis in abuse of dominance cases. It argues that Qualcomm offers two lessons on the role of the counterfactual analysis in modern competition law. First, it shows that counterfactual analysis is vulnerable to under-inclusiveness and type II errors when it ignores the problem of concurrent causes of foreclosure effects, disregards standard economic analysis of exclusivity rebates, and remains oblivious to dynamic competition. Second, Qualcomm sheds light on the intricate relationship between the counterfactual analysis and the requisite standard of harm for finding anticompetitive effects under Article 102 TFEU. In limiting the relevant counterfactual scenarios to a very narrow set of actual or nearby likely worlds, Qualcomm is but the last indication of a much more profound transformation of Article 102 TFEU: the transition from a capability to a balance of probabilities or beyond reasonable doubt standard of harm. Journal: European Competition Journal Pages: 481-521 Issue: 3 Volume: 19 Year: 2023 Month: 09 X-DOI: 10.1080/17441056.2023.2219440 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2219440 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:3:p:481-521 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2200623_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Viktorija Morozovaite Author-X-Name-First: Viktorija Author-X-Name-Last: Morozovaite Title: The future of anticompetitive self-preferencing: analysis of hypernudging by voice assistants under article 102 TFEU Abstract: With the nascent rise of the voice intelligence industry, consumer engagement is evolving. The expected shift from navigating digital environments by a “click” of a mouse or a “touch” of a screen to “voice commands” has set digital platforms for a race to become leaders in voice-based services. The Commission's inquiry into the consumer IoT sector revealed that the development of the market for general-purpose voice assistants is spearheaded by a handful of big technology companies, highlighting the concerns over the contestability and growing concentration in these markets. This contribution posits that voice assistants are uniquely positioned to engage in dynamically personalized steering – hypernudging – of consumers toward market outcomes. It examines hypernudging by voice assistants through the lens of abuse of dominance prohibition enshrined in article 102 TFEU, showcasing that advanced user influencing, such as hypernudging, could become a vehicle for engaging in a more subtle anticompetitive self-preferencing. Journal: European Competition Journal Pages: 410-448 Issue: 3 Volume: 19 Year: 2023 Month: 09 X-DOI: 10.1080/17441056.2023.2200623 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2200623 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:3:p:410-448 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2200615_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Nikoletta Poulou Author-X-Name-First: Nikoletta Author-X-Name-Last: Poulou Author-Name: Michael L. Polemis Author-X-Name-First: Michael L. Author-X-Name-Last: Polemis Author-Name: Aikaterina Oikonomou Author-X-Name-First: Aikaterina Author-X-Name-Last: Oikonomou Title: The impact of state aid on economic growth: fresh evidence from a panel of 27 EU countries Abstract: In this study, we examine how State aid policy in the European Union (EU) affects the level of economic growth. By applying several panel data econometric techniques, to a sample of 27 EU countries over the period 2007–2019, we investigate how state support and government interventions affect the level of economic growth in the EU member states. Based on the empirical findings, we document a positive impact of state aid programmes on fostering economic growth leaving significant room for the implementation of a new pan-European industrial policy. Lastly, we provide policy implications to government officials and policymakers on the effectiveness of the State Aid Modernization programme and the future of State aid control in the aftermath of the pandemic crisis. Journal: European Competition Journal Pages: 359-379 Issue: 3 Volume: 19 Year: 2023 Month: 09 X-DOI: 10.1080/17441056.2023.2200615 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2200615 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:3:p:359-379 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2228668_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20230119T200553 git hash: 724830af20 Author-Name: Joshua Gans Author-X-Name-First: Joshua Author-X-Name-Last: Gans Author-Name: Mikaël Hervé Author-X-Name-First: Mikaël Author-X-Name-Last: Hervé Author-Name: Muath Masri Author-X-Name-First: Muath Author-X-Name-Last: Masri Title: Economic analysis of proposed regulations of cloud services in Europe Abstract: Cloud computing services (“cloud services”) have attracted the scrutiny of antitrust authorities around the world. Relying in part on data from AWS, we assess the economic impact of measures within the European Commission’s proposed Data Act (with parallels in France, the UK and elsewhere): namely, requiring cloud services providers to phase out data transfer-out fees, offer functionally equivalent services and publish open interfaces to facilitate switching and multi-clouding. The paper comes to three main conclusions. First, there is no clear evidence of market failure in cloud services. Second, a ban on data transfer-out fees will likely lead to unintended consequences, mainly price increases due to excessive levels of data transfer-out when customers do not internalize the costly nature of data transfers. We show how this could materialize using AWS data. Third, requirements to standardize cloud services carry a serious risk of dampening cloud services providers’ incentives to innovate. Journal: European Competition Journal Pages: 522-568 Issue: 3 Volume: 19 Year: 2023 Month: 09 X-DOI: 10.1080/17441056.2023.2228668 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2228668 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:19:y:2023:i:3:p:522-568 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2234221_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20240209T083504 git hash: db97ba8e3a Author-Name: Timo Klein Author-X-Name-First: Timo Author-X-Name-Last: Klein Author-Name: Bertram Neurohr Author-X-Name-First: Bertram Author-X-Name-Last: Neurohr Title: The cost coordination theory of harm and the EU trucks case Abstract: This article reviews and critically assesses the “cost coordination” theory of harm developed in a recent eponymous article, Harrington (2022), and its application to the EU trucks case. We conclude that, while the cost coordination theory is a valuable and interesting contribution to the academic literature, it assumes a number of market features that may not be present in the EU trucks case—in particular that list price coordination is persistent rather than occasional, that transaction prices are sufficiently transparent to implement an effective monitoring and retaliation mechanism, and that list price changes are interpreted by local price setters as reflecting changes in cost rather than changes in other variables. We also note that, compared with standard price coordination, cost coordination generally tends to be both harder to sustain and less effective at raising prices if it is sustained. Journal: European Competition Journal Pages: 1-24 Issue: 1 Volume: 20 Year: 2024 Month: 01 X-DOI: 10.1080/17441056.2023.2234221 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2234221 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:20:y:2024:i:1:p:1-24 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2280323_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20240209T083504 git hash: db97ba8e3a Author-Name: Francesca Niola Author-X-Name-First: Francesca Author-X-Name-Last: Niola Title: Upstream market regulation between competitive tension and technological innovation Abstract: The document examines challenges and innovations in telecommunications law, focusing on the European context. It highlights the importance of asymmetric regulation and ex ante identification of enterprises with substantial market power. The 2018 European Electronic Communications Code introduces pivotal changes, including co-investment agreements (Art. 76), aiming to foster cost and risk sharing among operators, benefiting smaller enterprises. Such agreements respond to the need for sustainable competition. Art. 72 introduces a new obligation: access to civil engineering infrastructures. This obligation can extend beyond the traditional market if necessary and proportionate to achieve competition and unhindered access objectives. The document emphasizes the regulations' efforts to balance the interests of economic operators and consumers, promoting competition and innovation in the telecommunications sector. Journal: European Competition Journal Pages: 218-241 Issue: 1 Volume: 20 Year: 2024 Month: 01 X-DOI: 10.1080/17441056.2023.2280323 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2280323 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:20:y:2024:i:1:p:218-241 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2242698_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20240209T083504 git hash: db97ba8e3a Author-Name: Robert Lauer Author-X-Name-First: Robert Author-X-Name-Last: Lauer Title: The Intel saga: what went wrong with the Commission’s AEC test (in the General Court’s view)? Abstract: The General Court’s annulment of the European Commission’s finding that Intel’s conditional rebate scheme was abusive underscores the Court’s readiness to scrutinize in detail the economic analysis, including the as-efficient competitor (AEC) test. This paper critically reviews some of the key errors that the Commission, according to the Court, made in relation to the implementation of that test, focusing on some of its main ingredients, namely the contestable share of the market, the conditional portion of the rebates, and the relevant cost benchmark. We conclude that the Court’s assessment provides useful lessons for how to perform thorough and robust economic analysis not only within the context of an AEC test but in competition cases more generally. At the same time, considering the test’s intrinsic limitations, we find that, aside from the test’s implementation, its informative value should also be explored, based on economic theory and the facts of the case. Journal: European Competition Journal Pages: 45-77 Issue: 1 Volume: 20 Year: 2024 Month: 01 X-DOI: 10.1080/17441056.2023.2242698 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2242698 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:20:y:2024:i:1:p:45-77 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2262870_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20240209T083504 git hash: db97ba8e3a Author-Name: Manuel Wörsdörfer Author-X-Name-First: Manuel Author-X-Name-Last: Wörsdörfer Title: Apple’s antitrust paradox Abstract: This paper builds on Khan’s work on Amazon by transferring her normative framework to Apple. It explores the company’s anti-competitive business practices, main antitrust concerns, and the currently proposed reform measures from an innovative business ethics and law (i.e., ordoliberal) perspective. The paper argues that one of the key issues with Apple is the company’s closed ecosystem combined with its role as an internet gatekeeper. The E.U.’s Digital Markets Act, which aims to open Apple’s ecosystem – via data portability, interoperability, and multi-homing requirements – is a necessary step in the right direction. Yet, it is insufficient to prevent the lock-in effects of a ‘walled product garden’ and ensure complete device and platform neutrality. That is, additional steps must be taken to overcome Apple’s dual role as a platform operator and service provider and inhibit the company from engaging in anti-competitive business conduct. Journal: European Competition Journal Pages: 113-146 Issue: 1 Volume: 20 Year: 2024 Month: 01 X-DOI: 10.1080/17441056.2023.2262870 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2262870 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:20:y:2024:i:1:p:113-146 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2270744_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20240209T083504 git hash: db97ba8e3a Author-Name: D’Amico Alessia Sophia Author-X-Name-First: D’Amico Author-X-Name-Last: Alessia Sophia Title: Closing the tech acquisitions enforcement gap: from article 22 to article 102 Abstract: Platform power poses a number of challenges for competition authorities. One concern is that big tech companies may harm competition through the acquisition of emerging companies with a high competitive potential. Such acquisitions may escape ex ante merger control if they do not reach the turnover threshold for mandatory notification. The Commission sought to bridge this enforcement gap with its Article 22 guidance and the Digital Markets Act. This paper evaluates the steps taken by the Commission to increase scrutiny of such mergers. Building on this discussion, the paper examines the AG opinion in Towercast and analyses the residual gap-closing function of Article 102 TFEU. The aim of this paper is to bring the new developments surrounding digital merger control together and assess whether they represent an adequate response to the challenges posed by the digital economy. Journal: European Competition Journal Pages: 193-217 Issue: 1 Volume: 20 Year: 2024 Month: 01 X-DOI: 10.1080/17441056.2023.2270744 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2270744 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:20:y:2024:i:1:p:193-217 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2263262_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20240209T083504 git hash: db97ba8e3a Author-Name: Patrick Actis Perinetto Author-X-Name-First: Patrick Author-X-Name-Last: Actis Perinetto Author-Name: Giacomo Grechi Author-X-Name-First: Giacomo Author-X-Name-Last: Grechi Title: Antitrust liability, corporate groups and M&A transactions: a tale of undertakings, economic continuity and effectiveness of EU competition law Abstract: Who should be liable for competition law infringements? While the answer should be, in theory, a simple application of the personal liability principle – the infringer pays – the corporate changes that an infringer may undergo in the years necessary to come to an imputation of the infringement make the matter, in practice, significantly more complex. In this article, we first investigate the core of the antitrust liability theories, all to be traced back to the fundamental concept of undertaking, which constitutes their indispensable theoretical background. Then, we will try to provide an answer to the question, by analyzing, on the basis of the case-law, the multifaceted and colourful applications of antitrust liability theories to M&A transactions involving antitrust infringers. Lastly, we lay out practical suggestions which may be useful for companies to minimize the risks of being left with antitrust liability as a result of corporate transactions. Journal: European Competition Journal Pages: 147-192 Issue: 1 Volume: 20 Year: 2024 Month: 01 X-DOI: 10.1080/17441056.2023.2263262 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2263262 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:20:y:2024:i:1:p:147-192 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2234233_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20240209T083504 git hash: db97ba8e3a Author-Name: Jesper Fredborg Huric-Larsen Author-X-Name-First: Jesper Fredborg Author-X-Name-Last: Huric-Larsen Title: Cartel formation and the business cycle Abstract: Several theoretical propositions suggest that changes in economic activity can explain the decision to form a cartel. The majority of the propositions claim that cartel formation is more likely in expansionary and less likely in contractionary phases of the business cycle. The propositions are re-examined theoretically and by using data on detected cartels for the European Union. In both cases, the results cannot confirm that more cartels are formed in any of the business cycle phases and that correlated economic growth rates create higher incentives to collude. Furthermore, it cannot be confirmed that more cartels form shortly after respectively the trough or the peak in the business cycle. The conclusion is that cartel formation is unaffected by changes in the business cycle. Journal: European Competition Journal Pages: 25-44 Issue: 1 Volume: 20 Year: 2024 Month: 01 X-DOI: 10.1080/17441056.2023.2234233 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2234233 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:20:y:2024:i:1:p:25-44 Template-Type: ReDIF-Article 1.0 # input file: RECJ_A_2242699_J.xml processed with: repec_from_jats12.xsl darts-xml-transformations-20240209T083504 git hash: db97ba8e3a Author-Name: Christophe Samuel Hutchinson Author-X-Name-First: Christophe Samuel Author-X-Name-Last: Hutchinson Title: Incorporating privacy considerations into EU data-driven merger review Abstract: In recent years, large digital companies have been gobbling up hundreds of smaller highly innovative firms involved in the collection and the processing of data. Some regulators, academics and practitioners have expressed concerns that Big Tech might use the increased market power and the greater concentration of consumers’ personal data stemming from data-driven mergers to harm consumers in the form of lower privacy protection. They wonder whether and to what extent the EU Commission and/or national competition authorities should take into account data protection considerations when reviewing transactions under the Merger Regulation and/or national merger control rules. The Commission’s decisional practice points towards three possible routes for integrating privacy concerns into competition analysis. Given their respective shortcomings, we explore the possibility of using the German Federal Cartel Office’s line of reasoning in its Facebook decision as a model for the incorporation of privacy considerations into EU data-driven merger analysis. Journal: European Competition Journal Pages: 78-112 Issue: 1 Volume: 20 Year: 2024 Month: 01 X-DOI: 10.1080/17441056.2023.2242699 File-URL: http://hdl.handle.net/10.1080/17441056.2023.2242699 File-Format: text/html File-Restriction: Access to full text is restricted to subscribers. Handle: RePEc:taf:recjxx:v:20:y:2024:i:1:p:78-112