Pub Date : 2016-05-13DOI: 10.4337/9781784717766.00027
S. Vezzoso
Big data is an important phenomenon injecting transformative effects into social and economic relationships. Consumers, firms and machines produce unprecedented amounts of data collected, stored and analysed by leveraging the synergic capabilities of mathematics, computer science and the Internet. With the full advent of the Internet of Things, even more data will be observed about, and inferred from, individuals’ everyday activities and habits. The implied promise of big data is that it is increasingly possible to gain valuable insights out of unstructured data collected from different sources. Firms in many industries are increasingly using computer algorithms and big quantities of data to handle problems of analysis and prediction, from market intelligence to strategic management and automated decision-making. Acknowledging the growing potential for big data to have an immediate and direct impact on a broad range of human interactions, conversations within policy circles are starting to focus on how this phenomenon should factor into the competition policy framework itself. While big data can enhance competition, improve product offerings, and create a marketplace where resources are allocated more efficiently, the Chapter argues that competition policy designers and enforcers are bound to deal with unprecedented data-related challenges. The Chapter starts with a description of the big data value chain, highlights in particular how data collection, storage and analysis are driving many of the multisided business models of the digital economy, summarises some well-known peculiarities of data as an economic asset and sets the framework for the analysis of the effects of big data on competition processes. The Chapter concludes by drawing a few preliminary implications for competition policy. In particular, big data could have the effect of making collusion more prevalent, stable and difficult to detect, of reshaping traditional relationships within a vertical supply chain by increasing forms of dependency and potentially restraining inter-platform competition and users behaviour, of increasing market concentration, and, finally, of enabling further abuses of market power.
{"title":"Competition Policy in a World of Big Data","authors":"S. Vezzoso","doi":"10.4337/9781784717766.00027","DOIUrl":"https://doi.org/10.4337/9781784717766.00027","url":null,"abstract":"Big data is an important phenomenon injecting transformative effects into social and economic relationships. Consumers, firms and machines produce unprecedented amounts of data collected, stored and analysed by leveraging the synergic capabilities of mathematics, computer science and the Internet. With the full advent of the Internet of Things, even more data will be observed about, and inferred from, individuals’ everyday activities and habits. The implied promise of big data is that it is increasingly possible to gain valuable insights out of unstructured data collected from different sources. Firms in many industries are increasingly using computer algorithms and big quantities of data to handle problems of analysis and prediction, from market intelligence to strategic management and automated decision-making. Acknowledging the growing potential for big data to have an immediate and direct impact on a broad range of human interactions, conversations within policy circles are starting to focus on how this phenomenon should factor into the competition policy framework itself. While big data can enhance competition, improve product offerings, and create a marketplace where resources are allocated more efficiently, the Chapter argues that competition policy designers and enforcers are bound to deal with unprecedented data-related challenges. The Chapter starts with a description of the big data value chain, highlights in particular how data collection, storage and analysis are driving many of the multisided business models of the digital economy, summarises some well-known peculiarities of data as an economic asset and sets the framework for the analysis of the effects of big data on competition processes. The Chapter concludes by drawing a few preliminary implications for competition policy. In particular, big data could have the effect of making collusion more prevalent, stable and difficult to detect, of reshaping traditional relationships within a vertical supply chain by increasing forms of dependency and potentially restraining inter-platform competition and users behaviour, of increasing market concentration, and, finally, of enabling further abuses of market power.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116133584","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This is a draft of an article that will be published - after some editorial revision - in the Journal of Governance and Regulation. It discusses first the differences between market economic models, socialist or planned economies, and economies controlled by monopolies or cartels, to make the case for competition supervision. Subsequently it argues for a broad approach to competition supervision - beyond a narrow view of antitrust law. This part discusses monopoly or dominant position and the criteria to measure them. It reviews the reasons for merger control as a preventive step against monopoly or dominant position. Finally it discusses the issues related to collusion in the form of cartels and how to detect them. The third part of the paper focuses on the best ways for developing and transition countries to introduce or reinforce comprehensive competition supervision: Functioning institutions and how they have to be empowered and structured; priorities to be set; how competition oversight has to be embedded in the legal system, including court review; and why effective enforcement is so important and how it can be promoted. In an annex, there are links to some 75 countries which have newly introduced competition laws in the past 25 years and their legislative materials. Finally, there are links to another 30 countries which have substantially revised their legislative bases in the same time frame.
{"title":"The Argument for Robust Competition Supervision in Developing and Transition Countries","authors":"F. Emmert","doi":"10.2139/ssrn.2760478","DOIUrl":"https://doi.org/10.2139/ssrn.2760478","url":null,"abstract":"This is a draft of an article that will be published - after some editorial revision - in the Journal of Governance and Regulation. It discusses first the differences between market economic models, socialist or planned economies, and economies controlled by monopolies or cartels, to make the case for competition supervision. Subsequently it argues for a broad approach to competition supervision - beyond a narrow view of antitrust law. This part discusses monopoly or dominant position and the criteria to measure them. It reviews the reasons for merger control as a preventive step against monopoly or dominant position. Finally it discusses the issues related to collusion in the form of cartels and how to detect them. The third part of the paper focuses on the best ways for developing and transition countries to introduce or reinforce comprehensive competition supervision: Functioning institutions and how they have to be empowered and structured; priorities to be set; how competition oversight has to be embedded in the legal system, including court review; and why effective enforcement is so important and how it can be promoted. In an annex, there are links to some 75 countries which have newly introduced competition laws in the past 25 years and their legislative materials. Finally, there are links to another 30 countries which have substantially revised their legislative bases in the same time frame.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"1756 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124299093","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Itallian Abstract: L'articolo si basa sugli atti di una commissione d'inchiesta parlamentare italiana del 1962 sulla concorrenza, per esaminare l'attuale situazione italiana e le prospettive di riforma. L'autore si concentra in particolare sulla testimonianza di Siro Lombardini. Il testo del discorso tenuto al convegno "Mercato e Concorrenza", il 18 novembre 2015, ha organizzato l'Accademia dei Lincei con Economia civile. English Abstract: The article builds on the Proceedings of a 1962 Italian Parliamentary enquiry commission on competition, to examine the current Italian situation and the prospects for reform. The author focuses in particular on the testimony by Siro Lombardini. Text of the speech given at the conference "Mercato e Concorrenza", 18 November 2015, organised the Accademia dei Lincei with Economia civile.
{"title":"Siro Lombardini su monopolio e concorrenza (Siro Lombardini on Monopoly and Competition)","authors":"T. Cozzi","doi":"10.2139/ssrn.3140517","DOIUrl":"https://doi.org/10.2139/ssrn.3140517","url":null,"abstract":"<b>Itallian Abstract:</b> L'articolo si basa sugli atti di una commissione d'inchiesta parlamentare italiana del 1962 sulla concorrenza, per esaminare l'attuale situazione italiana e le prospettive di riforma. L'autore si concentra in particolare sulla testimonianza di Siro Lombardini. Il testo del discorso tenuto al convegno \"Mercato e Concorrenza\", il 18 novembre 2015, ha organizzato l'Accademia dei Lincei con Economia civile. <b>English Abstract:</b> The article builds on the Proceedings of a 1962 Italian Parliamentary enquiry commission on competition, to examine the current Italian situation and the prospects for reform. The author focuses in particular on the testimony by Siro Lombardini. Text of the speech given at the conference \"Mercato e Concorrenza\", 18 November 2015, organised the Accademia dei Lincei with Economia civile.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131366782","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The abusive anti-competitive behaviors arise from the significant market power that certain firms or groups of firms may have. To determine whether a company is in such a position or risk to achieve such a condition, empirical research has developed a series of quantitative tools that facilitate analysis of market power that a firm has in a particular context.
{"title":"Methods of Analyzing Market Power","authors":"Lucian Alexa","doi":"10.2139/ssrn.2714347","DOIUrl":"https://doi.org/10.2139/ssrn.2714347","url":null,"abstract":"The abusive anti-competitive behaviors arise from the significant market power that certain firms or groups of firms may have. To determine whether a company is in such a position or risk to achieve such a condition, empirical research has developed a series of quantitative tools that facilitate analysis of market power that a firm has in a particular context.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131369324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper considers the role of economics in EU competition over the last fifteen years. It offers and personal, and thus subjective, account of policy developments and doctrinal debates. First, I explain the reasons why the European Commission decided to incorporate PhD economists to its ranks, describe the evolution of the Chief Competition Economist Team (CET) at Directorate General for Competition of the European Commission (DG Comp), and document the impact of the creation of the CET for the economic consulting industry. Then, I review the contributions made by the CET economists and economic academics and consultants to the development of EU competition law. I identify those areas where the law does not reflect current economic thinking and those where, on the contrary, the enforcement of competition law is well grounded in economics. I conclude with a brief account and a critical assessment of the views of economists and non-economists who have recently criticized the use – in their opinion abusive – of economics in EU competition law matters.
{"title":"The Role of Economics in EU Competition Law: From Monti's Reform to the State Aid Modernization Package","authors":"Jorge Padilla","doi":"10.2139/ssrn.2666591","DOIUrl":"https://doi.org/10.2139/ssrn.2666591","url":null,"abstract":"This paper considers the role of economics in EU competition over the last fifteen years. It offers and personal, and thus subjective, account of policy developments and doctrinal debates. First, I explain the reasons why the European Commission decided to incorporate PhD economists to its ranks, describe the evolution of the Chief Competition Economist Team (CET) at Directorate General for Competition of the European Commission (DG Comp), and document the impact of the creation of the CET for the economic consulting industry. Then, I review the contributions made by the CET economists and economic academics and consultants to the development of EU competition law. I identify those areas where the law does not reflect current economic thinking and those where, on the contrary, the enforcement of competition law is well grounded in economics. I conclude with a brief account and a critical assessment of the views of economists and non-economists who have recently criticized the use – in their opinion abusive – of economics in EU competition law matters.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121183325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
French Abstract: Garantir la neutralite concurrentielle sur les marches sur lesquels sont en concurrence des entreprises privees et publiques est un complement indispensable, mais trop souvent ignore ou insuffisamment pris en compte, du droit de la concurrence. Sur de tels marches, en effet, la concurrence sans la neutralite concurrentielle est de nature a conduire a des distorsions dans l’allocation des ressources. Or l’absence de neutralite concurrentielle, qui peut revetir de nombreuses formes, peut avoir pour cause tant les differences de statut entre entreprises privees et publiques que le fait que l’Etat peut etre tout a la fois acteur et regulateur des marches sur lesquels il intervient par l’intermediaire d’entreprises publiques. L’analyse de la prise en compte de la neutralite concurrentielle dans un certain nombre de pays de l’OCDE revele une grande variete de situations allant de l’indifference a des regimes tres elabores de neutralite concurrentielle. L’examen de ces differentes situations, appuye par un examen de la jurisprudence en matiere de concurrence dans des secteurs recemment liberalises, revele tout a la fois la necessite et la difficulte de la tâche consistant a s’assurer ex post et au cas par cas de l’equite (et donc de l’efficacite) de la concurrence entre entreprises privees et publiques et permet de faire un certain nombre de recommandations aux Etats et aux autorites de la concurrence. English Abstract: Maintaining competitive neutrality on markets where private and public firms compete is a necessary (but often ignored) complement to competition law enforcement. Indeed on such markets, competition without competitive neutrality will result in misallocation of resources and inefficiencies. The lack of competitive neutrality, which can take many different forms, comes either from differences in the governance of public and private firms or from the fact that the government (national or local) is both the regulator of the market and one of the actors of the market through its state owned firm(s). Competitive neutrality is dealt with very differently across OECD countries. In some countries, the issue of competitive neutrality is largely ignored whereas in some other countries elaborate frameworks regarding the governance of public firms and the transparency of their accounts ensure a high degree of competitive neutrality. An analysis of these different approaches and the examination of a number of competition authority’s decisions or court’s judgements dealing with competition issues in markets where private and public firms compete show both the necessity of ensuring competitive neutrality in order to promote competition and the difficulty of the task, particularly on an ex post case-by-case basis, and allow us to make a number of suggestions to governments and to competition authorities.
保证私营和公共企业竞争市场的竞争中立性是竞争法不可或缺的补充，但往往被忽视或没有得到充分考虑。在这些市场上，没有竞争中立的竞争很可能导致资源分配的扭曲。黄金缺乏竞争性neutralite revetir谁可以有多种形式,可以为事业作为公共和私营企业集团之间的地位差异的事实是,政府可以做任何a既是演员regulateur游行中哪些是通过您的国有企业。对一些经合发组织国家考虑竞争中立的分析揭示了各种各样的情况，从漠不关心到高度发达的竞争中立制度。审查这些不同情况,以考试appuye判例中的liberalises同事的面,行业的竞争,既规定了一切需要和任务,确保了事后的困境并逐个l’equite(公费)之间的竞争,从而使公共和私营企业集团可以若干建议各国和主管竞争。英文摘要:在私营和公共企业竞争是竞争法执行的必要(但往往被忽视)补充的市场上保持竞争中立。事实上，在这类市场上，没有竞争中立性的竞争将导致资源配置不当和效率低下。The lack of many different forms,竞争中立,which can take comes in The governance of public and private不见,from差异意味着公司黄金from The fact that The government(全国)is elod both(当地慈善of The market and one of The演员of The market through its state区的地域晟(s)。经合组织各国对竞争中立的重视程度差别很大。在一些国家，竞争中立问题基本上被忽视了，而在另一些国家则制定了关于公共公司治理的框架，以及它们账户的透明度确保了高度的竞争中立。An analysis of these新书《and the examination of a楼of competition authority’s决定黄金court’s judgements with competition in private and markets或者来自公众的公司争夺show elod both the of”确保竞争性中立in order to promote competition and the尴尬of the task,需认真on An事后case-by-case basis us to make a楼诗》,给政府的建议,and competition,也先摄氏度。
{"title":"Entreprises Publiques, Neutralité Concurrentielle Et Droit De La Concurrence. (State Owned Enterprises, Competitive Neutrality and Competition Law)","authors":"F. Jenny","doi":"10.2139/SSRN.2894886","DOIUrl":"https://doi.org/10.2139/SSRN.2894886","url":null,"abstract":"French Abstract: Garantir la neutralite concurrentielle sur les marches sur lesquels sont en concurrence des entreprises privees et publiques est un complement indispensable, mais trop souvent ignore ou insuffisamment pris en compte, du droit de la concurrence. Sur de tels marches, en effet, la concurrence sans la neutralite concurrentielle est de nature a conduire a des distorsions dans l’allocation des ressources. Or l’absence de neutralite concurrentielle, qui peut revetir de nombreuses formes, peut avoir pour cause tant les differences de statut entre entreprises privees et publiques que le fait que l’Etat peut etre tout a la fois acteur et regulateur des marches sur lesquels il intervient par l’intermediaire d’entreprises publiques. L’analyse de la prise en compte de la neutralite concurrentielle dans un certain nombre de pays de l’OCDE revele une grande variete de situations allant de l’indifference a des regimes tres elabores de neutralite concurrentielle. L’examen de ces differentes situations, appuye par un examen de la jurisprudence en matiere de concurrence dans des secteurs recemment liberalises, revele tout a la fois la necessite et la difficulte de la tâche consistant a s’assurer ex post et au cas par cas de l’equite (et donc de l’efficacite) de la concurrence entre entreprises privees et publiques et permet de faire un certain nombre de recommandations aux Etats et aux autorites de la concurrence. \u0000English Abstract: Maintaining competitive neutrality on markets where private and public firms compete is a necessary (but often ignored) complement to competition law enforcement. Indeed on such markets, competition without competitive neutrality will result in misallocation of resources and inefficiencies. The lack of competitive neutrality, which can take many different forms, comes either from differences in the governance of public and private firms or from the fact that the government (national or local) is both the regulator of the market and one of the actors of the market through its state owned firm(s). Competitive neutrality is dealt with very differently across OECD countries. In some countries, the issue of competitive neutrality is largely ignored whereas in some other countries elaborate frameworks regarding the governance of public firms and the transparency of their accounts ensure a high degree of competitive neutrality. An analysis of these different approaches and the examination of a number of competition authority’s decisions or court’s judgements dealing with competition issues in markets where private and public firms compete show both the necessity of ensuring competitive neutrality in order to promote competition and the difficulty of the task, particularly on an ex post case-by-case basis, and allow us to make a number of suggestions to governments and to competition authorities.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129781412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper considers the increasing use of “negotiated” instruments of European competition law (ECL) enforcement as illustrated by the example of the European Commission’s (EC) enforcement practice directed at firms of American and East Asian origin. The paper first defines the notion of “negotiated” instruments of ECL enforcement as a non-confrontational enforcement method that centres on the existence of a public-private dialogue and mutual will to solve the contested issue, which in turn facilitate mutual benefits in enforcement outcomes (e.g. faster market improvements v. no fines). Three key “negotiated” instruments of ECL enforcement are presented next: conditional merger clearances, commitments decisions, as well as leniency and the settlement procedure. The EC’s decision to introduce negotiated enforcement instruments into its toolkit has been largely embraced by the market. Their ever growing practical application suggests that public-private dialogue is becoming a rule, rather than an exception, in public enforcement of ECL. This thesis is illustrated by a selection of ECL cases involving US (e.g. Microsoft) and East Asian (e.g. Samsung, Sony) companies which chose to cooperate with the EC in order to generate tangible benefits for themselves, which are largely precluded in a more adversarial procedure.
{"title":"Increasing Use of 'Negotiated' Instruments of European Competition Law Enforcement Towards Foreign Companies","authors":"Ewelina D. Sage","doi":"10.2139/ssrn.2741603","DOIUrl":"https://doi.org/10.2139/ssrn.2741603","url":null,"abstract":"This paper considers the increasing use of “negotiated” instruments of European competition law (ECL) enforcement as illustrated by the example of the European Commission’s (EC) enforcement practice directed at firms of American and East Asian origin. The paper first defines the notion of “negotiated” instruments of ECL enforcement as a non-confrontational enforcement method that centres on the existence of a public-private dialogue and mutual will to solve the contested issue, which in turn facilitate mutual benefits in enforcement outcomes (e.g. faster market improvements v. no fines). Three key “negotiated” instruments of ECL enforcement are presented next: conditional merger clearances, commitments decisions, as well as leniency and the settlement procedure. The EC’s decision to introduce negotiated enforcement instruments into its toolkit has been largely embraced by the market. Their ever growing practical application suggests that public-private dialogue is becoming a rule, rather than an exception, in public enforcement of ECL. This thesis is illustrated by a selection of ECL cases involving US (e.g. Microsoft) and East Asian (e.g. Samsung, Sony) companies which chose to cooperate with the EC in order to generate tangible benefits for themselves, which are largely precluded in a more adversarial procedure.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"129 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124701115","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The economic and social advantages of the European internal market good functioning are beyond doubt, and thus neither effort nor means implemented in achieving that goal are worthless. However, pursuing this aim cannot – or should not – be done at the cost of misuse – and abuse – of Competition Law, when other tools fail or simply their implementation is not as effective as the Council or the Commission intend. This seems to be the case in some regulated sectors – namely, telecommunications – where competition law is occasionally serving as a regulatory tool that comes as a complement to the traditional means such as the promulgation of Directives, or the role played by National Regulation Authorities themselves. Accordingly, we show in this paper that the prohibition of the abuse of dominant position – enhanced in article 102 of the Treaty of Functioning of the UE – is currently being used to develop and implement the Commission’s industrial policy agenda, and as mean to avoid market fragmentation. As such, it deviates from what should be its main objective, promoting efficiency and fostering innovation and competitive markets. In particular, given the unsatisfactory results of the regulatory framework and the painful inexistence of a single and efficient internal market in the provision of certain services, both the EC and the European courts are heavily relying on antitrust remedies to impose the economic operators duties that are regulatory in nature, at the expense of legal coherence, lacking the necessary tools and performing a task to which they are ill-suited. This is highlighted by recent high-profile cases, all of them regarding telecom operators – such as Deutsche Telekom, France Telekom, Telefonica, TeliaSonera – sanctioned with astronomic antitrust fines due a recently created form of dominant abuse: margin squeeze. As we shall see, the practical implementation of the prohibition, the contradictory results of application of regulatory and antitrust standards, and the level of legal uncertainty regarding the test of this anticompetitive conduct is far from being satisfactory, in terms of legal consistency and economic analysis. To avoid such pitfalls a simple remedy is proposed in this paper: the merger – as some countries, as Spain, have just recently done with the approval of its new CNMC (ComisionNacional de los Mercados y la Competencia) – of the antitrust and the regulatory authorities, in order to ensure a coherent application of both legal bodies and provide markets – and economic operators – with a higher degree of legal certainty and economic predictability.
{"title":"Achieving European Internal Market in Regulated Sectors by Misuse of Competition Law; The Margin Squeeze 'Disaster'","authors":"F. Díez","doi":"10.2139/ssrn.2405839","DOIUrl":"https://doi.org/10.2139/ssrn.2405839","url":null,"abstract":"The economic and social advantages of the European internal market good functioning are beyond doubt, and thus neither effort nor means implemented in achieving that goal are worthless. However, pursuing this aim cannot – or should not – be done at the cost of misuse – and abuse – of Competition Law, when other tools fail or simply their implementation is not as effective as the Council or the Commission intend. This seems to be the case in some regulated sectors – namely, telecommunications – where competition law is occasionally serving as a regulatory tool that comes as a complement to the traditional means such as the promulgation of Directives, or the role played by National Regulation Authorities themselves. Accordingly, we show in this paper that the prohibition of the abuse of dominant position – enhanced in article 102 of the Treaty of Functioning of the UE – is currently being used to develop and implement the Commission’s industrial policy agenda, and as mean to avoid market fragmentation. As such, it deviates from what should be its main objective, promoting efficiency and fostering innovation and competitive markets. In particular, given the unsatisfactory results of the regulatory framework and the painful inexistence of a single and efficient internal market in the provision of certain services, both the EC and the European courts are heavily relying on antitrust remedies to impose the economic operators duties that are regulatory in nature, at the expense of legal coherence, lacking the necessary tools and performing a task to which they are ill-suited. This is highlighted by recent high-profile cases, all of them regarding telecom operators – such as Deutsche Telekom, France Telekom, Telefonica, TeliaSonera – sanctioned with astronomic antitrust fines due a recently created form of dominant abuse: margin squeeze. As we shall see, the practical implementation of the prohibition, the contradictory results of application of regulatory and antitrust standards, and the level of legal uncertainty regarding the test of this anticompetitive conduct is far from being satisfactory, in terms of legal consistency and economic analysis. To avoid such pitfalls a simple remedy is proposed in this paper: the merger – as some countries, as Spain, have just recently done with the approval of its new CNMC (ComisionNacional de los Mercados y la Competencia) – of the antitrust and the regulatory authorities, in order to ensure a coherent application of both legal bodies and provide markets – and economic operators – with a higher degree of legal certainty and economic predictability.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131236106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Combinatorial Clock Auctions (CCAs) have recently been used around the world to allocate spectrum for mobile telecom licenses. CCAs are claimed to significantly reduce the scope for gaming or strategic bidding. This paper shows, however, that CCAs facilitate strategic bidding. Real bidders in telecom markets are not only interested in the spectrum they win themselves and the price they pay for that, but also in raising rivals’ cost. CCAs provide bidders with excellent opportunities to do so. High auction prices in recent auctions in the Netherlands and Austria are probably to a large extent due to the CCA format. Bidding under a budget constraint is also a highly complicated gaming exercise in a CCA.
{"title":"Gaming in Combinatorial Clock Auctions","authors":"M. Janssen, V. Karamychev","doi":"10.2139/ssrn.2215812","DOIUrl":"https://doi.org/10.2139/ssrn.2215812","url":null,"abstract":"Combinatorial Clock Auctions (CCAs) have recently been used around the world to allocate spectrum for mobile telecom licenses. CCAs are claimed to significantly reduce the scope for gaming or strategic bidding. This paper shows, however, that CCAs facilitate strategic bidding. Real bidders in telecom markets are not only interested in the spectrum they win themselves and the price they pay for that, but also in raising rivals’ cost. CCAs provide bidders with excellent opportunities to do so. High auction prices in recent auctions in the Netherlands and Austria are probably to a large extent due to the CCA format. Bidding under a budget constraint is also a highly complicated gaming exercise in a CCA.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126517791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The EU Competition Law and its central and so uniform enforcement by the EU Commission and the ECJ have taken the important part in the expansion of the number of companies, business, economic growth, and in the effective functioning of the other EU policies, including the formation of the European Internal Market. With changes of the EC Competition policy and so giving the greater importance to the economic efficiency in assessing the potential breach of the EC Competition Law and, at the same time, the decision of the EU Commission to focus primarily on the hard-core cartels have lead to the, so called, modernization of the EC Competition Law. By enabling national competition authorities and national courts to judge upon actions preventing, restricting or distorting the EC Competition Law, without at the same time considering that the EC Competition policy is not merely a policy of promoting competitiveness and consumer welfare, without considering that the Member States have different attitudes towards which policies should be preserved in the greater extent, without considering that the law regulating the enforcement procedure in the Member States varies, that there is not established the fully cooperation between national courts and national competition authorities in this matter, and that there is not preserved the uniform level of legal certainty and protection of those being injured by anticompetitive practices, the questions that rise up are the following. Where, i.e. in which country, the party injured could sue for damages? Is there possible to bring the tort action on the basis of the principle of the most convenient forum? Is it possible to avoid the situation in which the injuring undertaking could be the party in the proceedings going on in more than one Member State at the same time? How the party claiming damages could efficiently prove the anticompetitive action if the part of it is taking place within another jurisdiction or the evidence of anticompetitive effect is located within the territory of the other Member State(s)? How to solve the situation in which the outcome of the case could differ depending on the country where the proceeding is taking place? How to enforce the final decision in the case where injuring undertaking is performing anticompetitive actions outside the jurisdiction of adjudicative authority causing anticompetitive effects within it? How to enforce the final decision if undertaking’s assets are located within the other Member States’ jurisdiction or even outside the EU? Without analyzing these issues it is hard to predict if the modernization of the EC Competition Law, in the way proposed by the EU Commission, is such that would contribute to the greater efficiency of its enforcement or would it cause that injuring undertakings would be tempted to move their activities to the jurisdiction with less strict competition policy and its laws not guaranteeing fully efficient private enforcement.
{"title":"Breaching the EC Competition Law and Private Action for Damages – Race to the Bottom or Improvement of the Efficiency of Enforcement?","authors":"A. Balde","doi":"10.2139/SSRN.2237884","DOIUrl":"https://doi.org/10.2139/SSRN.2237884","url":null,"abstract":"The EU Competition Law and its central and so uniform enforcement by the EU Commission and the ECJ have taken the important part in the expansion of the number of companies, business, economic growth, and in the effective functioning of the other EU policies, including the formation of the European Internal Market. With changes of the EC Competition policy and so giving the greater importance to the economic efficiency in assessing the potential breach of the EC Competition Law and, at the same time, the decision of the EU Commission to focus primarily on the hard-core cartels have lead to the, so called, modernization of the EC Competition Law. By enabling national competition authorities and national courts to judge upon actions preventing, restricting or distorting the EC Competition Law, without at the same time considering that the EC Competition policy is not merely a policy of promoting competitiveness and consumer welfare, without considering that the Member States have different attitudes towards which policies should be preserved in the greater extent, without considering that the law regulating the enforcement procedure in the Member States varies, that there is not established the fully cooperation between national courts and national competition authorities in this matter, and that there is not preserved the uniform level of legal certainty and protection of those being injured by anticompetitive practices, the questions that rise up are the following. Where, i.e. in which country, the party injured could sue for damages? Is there possible to bring the tort action on the basis of the principle of the most convenient forum? Is it possible to avoid the situation in which the injuring undertaking could be the party in the proceedings going on in more than one Member State at the same time? How the party claiming damages could efficiently prove the anticompetitive action if the part of it is taking place within another jurisdiction or the evidence of anticompetitive effect is located within the territory of the other Member State(s)? How to solve the situation in which the outcome of the case could differ depending on the country where the proceeding is taking place? How to enforce the final decision in the case where injuring undertaking is performing anticompetitive actions outside the jurisdiction of adjudicative authority causing anticompetitive effects within it? How to enforce the final decision if undertaking’s assets are located within the other Member States’ jurisdiction or even outside the EU? Without analyzing these issues it is hard to predict if the modernization of the EC Competition Law, in the way proposed by the EU Commission, is such that would contribute to the greater efficiency of its enforcement or would it cause that injuring undertakings would be tempted to move their activities to the jurisdiction with less strict competition policy and its laws not guaranteeing fully efficient private enforcement.","PeriodicalId":130313,"journal":{"name":"ERN: Antitrust (European) (Topic)","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115670853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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