European competition law is predominantly focused on maximizing consumer welfare. This overarching purpose (which is supported by economic theory) leaves little place for safeguarding non-economic values, such as sustainability. This makes it difficult to allow cooperation between companies to contribute to such non-economic goals. In this article we explore whether it is possible to establish a different normative framework, in which such goals can be taken into account and can be balanced against the economic goal of consumer welfare. To answer this question, we take four steps. First, we discuss current EU competition law and the difficulty of fitting non-economic goals into the dominant interpretation of that law. Second, we propose a different normative framework, based on the capability approach advanced by philosopher Martha Nussbaum and economist Amartya Sen. Third, we argue that there are good principled reasons to incorporate non-economic goals into competition law. Fourth, we apply both the capability approach and the consumer welfare approach to three (illustrative) cases in which non-economic goals are at stake. Overall, we argue that the capability framework, although not without difficulties of its own, may provide a more legitimate theory for the interpretation of European competition law.
{"title":"Rethinking European Competition Law: From a Consumer Welfare to a Capability Approach","authors":"Rutger Claassen, A. Gerbrandy","doi":"10.18352/ULR.321","DOIUrl":"https://doi.org/10.18352/ULR.321","url":null,"abstract":"European competition law is predominantly focused on maximizing consumer welfare. This overarching purpose (which is supported by economic theory) leaves little place for safeguarding non-economic values, such as sustainability. This makes it difficult to allow cooperation between companies to contribute to such non-economic goals. In this article we explore whether it is possible to establish a different normative framework, in which such goals can be taken into account and can be balanced against the economic goal of consumer welfare. To answer this question, we take four steps. First, we discuss current EU competition law and the difficulty of fitting non-economic goals into the dominant interpretation of that law. Second, we propose a different normative framework, based on the capability approach advanced by philosopher Martha Nussbaum and economist Amartya Sen. Third, we argue that there are good principled reasons to incorporate non-economic goals into competition law. Fourth, we apply both the capability approach and the consumer welfare approach to three (illustrative) cases in which non-economic goals are at stake. Overall, we argue that the capability framework, although not without difficulties of its own, may provide a more legitimate theory for the interpretation of European competition law.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130078790","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}
Two midfield teams competing in the FIA Formula One World Championship (motor racing), have reportedly lodged a formal complaint to the European Commission. They raise two concerns about violations of competition law. First, the system of allocating media revenues (predominantly from the sale of broadcasting rights) between the participating teams is allegedly unlawful and unfair because of non-performance related extra payments to some teams and a heavily front-biased performance-related distribution scheme. Second, the system of rule-making in F1 is unlawful and unfair because some teams have more influence on rules and rule-changes than others. According to the complainants, the commercial rights holder (CRH) abuses its power to benefit certain teams over others and forms a cartel with the favored teams as well as the governing sports authority in order to set the rules in an anticompetitive way for the complaining teams. This comment argues that an investigation into Formula One’s revenue and governance structure is justified since there is ample indication of anticompetitive arrangements.
{"title":"Media-Revenue Allocation in Formula One – A Case for Competition Policy?","authors":"Oliver Budzinski","doi":"10.2139/ssrn.2671301","DOIUrl":"https://doi.org/10.2139/ssrn.2671301","url":null,"abstract":"Two midfield teams competing in the FIA Formula One World Championship (motor racing), have reportedly lodged a formal complaint to the European Commission. They raise two concerns about violations of competition law. First, the system of allocating media revenues (predominantly from the sale of broadcasting rights) between the participating teams is allegedly unlawful and unfair because of non-performance related extra payments to some teams and a heavily front-biased performance-related distribution scheme. Second, the system of rule-making in F1 is unlawful and unfair because some teams have more influence on rules and rule-changes than others. According to the complainants, the commercial rights holder (CRH) abuses its power to benefit certain teams over others and forms a cartel with the favored teams as well as the governing sports authority in order to set the rules in an anticompetitive way for the complaining teams. This comment argues that an investigation into Formula One’s revenue and governance structure is justified since there is ample indication of anticompetitive arrangements.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126486761","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}
Despite the rise of two- or multi-sided platforms in the digital sector, there is not yet an established antitrust policy for defining relevant markets that involve such platforms. Difficulties arise in particular where services are granted for free to some users. This article explains which platform user groups form separate (sub-)markets and with which quantitative and qualitative methods substitution relationships can be assessed for each sub-market. Considering the need to take account of the interactions between all user groups of a multi-sided platform, it is suggested that separate relevant markets should be recognized for each user group with differing demands that individually interacts with the platform in order to procure a service. Such interaction requires direct contact and an exchange between user and platform. It does not, however, pre-suppose any payment stream as users may also ‘pay’ with personal data, their attention or the granting of usage rights. Consequently, search engines, for instance, form a three-sided market consisting of i) a market for online search advertising existing between search providers and advertisers, ii) a market for web search services existing between search providers and Internet users, and iii) a market for indexing content existing between search providers and website operators.
{"title":"Defining Markets for Multi-Sided Platforms: The Case of Search Engines","authors":"Thomas Hoppner","doi":"10.54648/woco2015030","DOIUrl":"https://doi.org/10.54648/woco2015030","url":null,"abstract":"Despite the rise of two- or multi-sided platforms in the digital sector, there is not yet an established antitrust policy for defining relevant markets that involve such platforms. Difficulties arise in particular where services are granted for free to some users. This article explains which platform user groups form separate (sub-)markets and with which quantitative and qualitative methods substitution relationships can be assessed for each sub-market. Considering the need to take account of the interactions between all user groups of a multi-sided platform, it is suggested that separate relevant markets should be recognized for each user group with differing demands that individually interacts with the platform in order to procure a service. Such interaction requires direct contact and an exchange between user and platform. It does not, however, pre-suppose any payment stream as users may also ‘pay’ with personal data, their attention or the granting of usage rights. Consequently, search engines, for instance, form a three-sided market consisting of i) a market for online search advertising existing between search providers and advertisers, ii) a market for web search services existing between search providers and Internet users, and iii) a market for indexing content existing between search providers and website operators.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126881821","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}
Albania was one of the last countries in Europe to adopt a free market economy after suffering from one of the worst dictatorial communist regimes in the world. In order to succeed in its efforts to establish a free market economy, Albania needed to undertake a set of reforms to modernize its economy in order to cope with the new reality of global markets and Euro-Atlantic integration. An important aspect of these reforms is also the implementation of a competition law in line with the acquis an its effective implementation. A lot has been achieved in the last ten years but there is a lot to be done still in order to facilitate a competitive economy able to cope with Albania’s EU integration. The work of the ACA is only one aspect of this process, but it is of utmost importance for the development of the national economy and successful EU membership.
{"title":"Review of Ten Years of Albanian Competition Law Developments","authors":"Petrina Broka, Ermal Nazifi","doi":"10.2139/ssrn.2741631","DOIUrl":"https://doi.org/10.2139/ssrn.2741631","url":null,"abstract":"Albania was one of the last countries in Europe to adopt a free market economy after suffering from one of the worst dictatorial communist regimes in the world. In order to succeed in its efforts to establish a free market economy, Albania needed to undertake a set of reforms to modernize its economy in order to cope with the new reality of global markets and Euro-Atlantic integration. An important aspect of these reforms is also the implementation of a competition law in line with the acquis an its effective implementation. A lot has been achieved in the last ten years but there is a lot to be done still in order to facilitate a competitive economy able to cope with Albania’s EU integration. The work of the ACA is only one aspect of this process, but it is of utmost importance for the development of the national economy and successful EU membership.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115085242","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}
We analyze the incentives of internet service providers (ISPs) to break net neutrality by excluding internet applications competing with their own products, a typical example being the exclusion of VoIP applications by telecom companies offering internet and voice services. Exclusion is not a concern when the ISP is a monopoly because it can extract the additional surplus created by the application through price rebalancing. When ISPs compete, it could lead to a fragmented internet where only one firm offers the application. We show that, both in monopoly and duopoly, prohibiting the exclusion of the app and surcharges for its use ‚Aia strong form of net neutrality‚Ai is not welfare improving.
{"title":"Competing One-Way Essential Complements: The Forgotten Side of Net Neutrality","authors":"Sébastien Broos, A. Gautier","doi":"10.2139/ssrn.2570924","DOIUrl":"https://doi.org/10.2139/ssrn.2570924","url":null,"abstract":"We analyze the incentives of internet service providers (ISPs) to break net neutrality by excluding internet applications competing with their own products, a typical example being the exclusion of VoIP applications by telecom companies offering internet and voice services. Exclusion is not a concern when the ISP is a monopoly because it can extract the additional surplus created by the application through price rebalancing. When ISPs compete, it could lead to a fragmented internet where only one firm offers the application. We show that, both in monopoly and duopoly, prohibiting the exclusion of the app and surcharges for its use ‚Aia strong form of net neutrality‚Ai is not welfare improving.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"37 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130863107","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}
Pub Date : 2014-10-17DOI: 10.1007/978-3-319-11635-8_11
A. Heinemann
{"title":"Behavioural Antitrust - A 'More Realistic Approach' to Competition Law","authors":"A. Heinemann","doi":"10.1007/978-3-319-11635-8_11","DOIUrl":"https://doi.org/10.1007/978-3-319-11635-8_11","url":null,"abstract":"","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"50 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114026732","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}
Report from the international conference, 14 March 2014 in Warsaw, entitled ‘Living with competition Laws Issues'.
2014年3月14日在华沙举行的国际会议报告，题为“竞争法问题”。
{"title":"Living with Competition Law Issues. Report on the Conference","authors":"Dominik Wolski","doi":"10.2139/ssrn.2738444","DOIUrl":"https://doi.org/10.2139/ssrn.2738444","url":null,"abstract":"Report from the international conference, 14 March 2014 in Warsaw, entitled ‘Living with competition Laws Issues'.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126123583","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}
Competition law has always formed a core pillar of the European integration process and so it was among the crucial EU requirements set for the candidate countries. Competition law had a significant influence on the way competition laws and institutions were shaped in the candidate countries. In the pre-accession phase this was due to conditionality, however once conditionality terminates and candidate countries become Member States they fall under the EU law and its governance mechanisms, in competition law under Regulation 1/2003. While pre-accession rule transposition is well documented and closely monitored by the EU in its Regular Reports on the candidate countries, the EU’s internal governance mechanisms are less visible and have not been examined in the light of its external model that developed in the course of its eastward enlargement. In EU competition law such internal mechanisms have developed within the framework of Regulation 1/2003. These post-accession compliance mechanisms are critical both with regard to the effectiveness of the EU’s external governance and the internal system of Regulation 1/2003.The aim of this paper is to analyse the interplay between the EU’s external (pre-accession) and internal (post-accession) governance model in the field of competition law and to arrive at a deeper understanding of the EU’s Europeanization strategy at the intersection of the external and internal governance models. Accordingly, the paper maps the EU’s external law and governance model that applies vis-a-vis third countries that wish to join the EU and examines to what extent and how this external model has shaped the EU’s internal governance model vis-a-vis its Member States. It analyses the role of Regulation 1/2003 in creating an effective implementation of EU competition law in the Member States and its governance mechanisms that framed the Europeanization process. In order to evaluate the effectiveness of post-accession compliance in the Member States the paper examines the compound procedural framework composed of EU and national administrative rules that underlies and challenges the enforcement of EU competition law and investigates how administrative capacity of the national competition authorities may effect competition law enforcement. This inquiry includes the detailed assessment of the European Competition Network as the EU’s main mechanism to monitor compliance of Member States with EU law in the post-accession phase.
{"title":"Accession to the EU's Competition Law Regime: A Law and Governance Approach","authors":"Kati Cseres","doi":"10.2139/ssrn.2738416","DOIUrl":"https://doi.org/10.2139/ssrn.2738416","url":null,"abstract":"Competition law has always formed a core pillar of the European integration process and so it was among the crucial EU requirements set for the candidate countries. Competition law had a significant influence on the way competition laws and institutions were shaped in the candidate countries. In the pre-accession phase this was due to conditionality, however once conditionality terminates and candidate countries become Member States they fall under the EU law and its governance mechanisms, in competition law under Regulation 1/2003. While pre-accession rule transposition is well documented and closely monitored by the EU in its Regular Reports on the candidate countries, the EU’s internal governance mechanisms are less visible and have not been examined in the light of its external model that developed in the course of its eastward enlargement. In EU competition law such internal mechanisms have developed within the framework of Regulation 1/2003. These post-accession compliance mechanisms are critical both with regard to the effectiveness of the EU’s external governance and the internal system of Regulation 1/2003.The aim of this paper is to analyse the interplay between the EU’s external (pre-accession) and internal (post-accession) governance model in the field of competition law and to arrive at a deeper understanding of the EU’s Europeanization strategy at the intersection of the external and internal governance models. Accordingly, the paper maps the EU’s external law and governance model that applies vis-a-vis third countries that wish to join the EU and examines to what extent and how this external model has shaped the EU’s internal governance model vis-a-vis its Member States. It analyses the role of Regulation 1/2003 in creating an effective implementation of EU competition law in the Member States and its governance mechanisms that framed the Europeanization process. In order to evaluate the effectiveness of post-accession compliance in the Member States the paper examines the compound procedural framework composed of EU and national administrative rules that underlies and challenges the enforcement of EU competition law and investigates how administrative capacity of the national competition authorities may effect competition law enforcement. This inquiry includes the detailed assessment of the European Competition Network as the EU’s main mechanism to monitor compliance of Member States with EU law in the post-accession phase.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114138525","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 decision to allocate a given number of governmental interventions in one or more agencies, for example, in the field of regulation and antitrust, raises important issues in organizational and institutional economics. The economics literature suggests that this decision should take into account horizontal and vertical incentive issues and should also take into account the risk of capture and the degree of optimal regulatory independence. More specifically, it should also consider the subtle complementarity and substitutability between competition policy and ex-ante regulation, and its relationship with the vertical chain of government. These issues are illustrated with the decision of the Spanish government to send a legislative proposal to Congress in early 2012 to merge the main network industry regulators with the competition policy authority. The combination of the economic literature's insights with the specific characteristics of regulated sectors in Spain suggests the need for regulatory reform, but does not seem consistent neither with full integration nor with a homogeneous level of (lower than in the status quo) regulatory independence.
{"title":"The Institutional Architecture of Regulation and Competition: Spain's 2012 Reform","authors":"Francesc Trillas","doi":"10.2139/ssrn.2353526","DOIUrl":"https://doi.org/10.2139/ssrn.2353526","url":null,"abstract":"The decision to allocate a given number of governmental interventions in one or more agencies, for example, in the field of regulation and antitrust, raises important issues in organizational and institutional economics. The economics literature suggests that this decision should take into account horizontal and vertical incentive issues and should also take into account the risk of capture and the degree of optimal regulatory independence. More specifically, it should also consider the subtle complementarity and substitutability between competition policy and ex-ante regulation, and its relationship with the vertical chain of government. These issues are illustrated with the decision of the Spanish government to send a legislative proposal to Congress in early 2012 to merge the main network industry regulators with the competition policy authority. The combination of the economic literature's insights with the specific characteristics of regulated sectors in Spain suggests the need for regulatory reform, but does not seem consistent neither with full integration nor with a homogeneous level of (lower than in the status quo) regulatory independence.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125305697","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}
Pub Date : 2007-08-01DOI: 10.5040/9781472560353.ch-001
D. Gerber
Underlying the recurring debates over the future of Article 82 EC (now Article 102) are competing images of what its goals are and should be. Such debates about the law relating to dominant enterprises are not new, and they are also not likely to end, because the legal concept of "abuse" is sufficiently abstract and capacious to allow multiple conceptions of its goals. Where goals become contested and controversial, however, debates can lead to confusion and uncertainty rather than progress in thinking about the issues, and this threatens to occur in the context of discussions of Article 82 and its future. Clashing images of the goals of that provision have yielded much uncertainty about the future of the law in this area. They have also distorted images of both the existing law and of newer alternatives to it. This impedes the capacity of European judges and administrators to apply the law consistently and effectively. This article identifies and assesses the lines and contours of these debates and the images of law, economics and European integration that swirl within them.
{"title":"The Future of Article 82: Dissecting the Conflict","authors":"D. Gerber","doi":"10.5040/9781472560353.ch-001","DOIUrl":"https://doi.org/10.5040/9781472560353.ch-001","url":null,"abstract":"Underlying the recurring debates over the future of Article 82 EC (now Article 102) are competing images of what its goals are and should be. Such debates about the law relating to dominant enterprises are not new, and they are also not likely to end, because the legal concept of \"abuse\" is sufficiently abstract and capacious to allow multiple conceptions of its goals. Where goals become contested and controversial, however, debates can lead to confusion and uncertainty rather than progress in thinking about the issues, and this threatens to occur in the context of discussions of Article 82 and its future. Clashing images of the goals of that provision have yielded much uncertainty about the future of the law in this area. They have also distorted images of both the existing law and of newer alternatives to it. This impedes the capacity of European judges and administrators to apply the law consistently and effectively. This article identifies and assesses the lines and contours of these debates and the images of law, economics and European integration that swirl within them.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129426632","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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