Until 2023, the UK and EEA had applied the same rules to govern collaboration and competition in the area of research and development. Post-Brexit, they have now gone their separate ways with each creating their own legislation in the form of so-called ‘block exemptions’, which permit certain restrictions of competition and proscribe others. This article considers the two block exemptions side by side, alongside the statutory guidance which has been drafted by the authorities in each jurisdiction. While both block exemptions are broadly similar, such that the parties can consider their requirements side-by-side when planning their collaboration, the different legislative styles of the UK and EU mean that this cannot readily be done by reading the legislation. This article addresses this issue and also flags the points of difference between the two new regimes which would-be parties to research and development-based collaborations must consider. In particular, this article considers in detail the UK legislation’s new closer scrutiny of so-called ‘competition in innovation’.
{"title":"The UK and EU competition rules for research and development agreements: falling out of lockstep","authors":"Richard Jenkinson","doi":"10.4337/clj.2023.03.01","DOIUrl":"https://doi.org/10.4337/clj.2023.03.01","url":null,"abstract":"Until 2023, the UK and EEA had applied the same rules to govern collaboration and competition in the area of research and development. Post-Brexit, they have now gone their separate ways with each creating their own legislation in the form of so-called ‘block exemptions’, which permit certain restrictions of competition and proscribe others. This article considers the two block exemptions side by side, alongside the statutory guidance which has been drafted by the authorities in each jurisdiction. While both block exemptions are broadly similar, such that the parties can consider their requirements side-by-side when planning their collaboration, the different legislative styles of the UK and EU mean that this cannot readily be done by reading the legislation. This article addresses this issue and also flags the points of difference between the two new regimes which would-be parties to research and development-based collaborations must consider. In particular, this article considers in detail the UK legislation’s new closer scrutiny of so-called ‘competition in innovation’.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"19 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138999251","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 Competition and Markets Authority has a target of delivering, through its activities, direct financial benefits to consumers of at least ten times its relevant costs, measured over a rolling three-year period. This article assesses how these benefits are evaluated and communicated.
{"title":"The assessment and communication of the benefits of competition interventions by the Competition and Markets Authority","authors":"Tom Farmer, Paul Kellaway, Mary Reilly","doi":"10.4337/clj.2023.03.04","DOIUrl":"https://doi.org/10.4337/clj.2023.03.04","url":null,"abstract":"The Competition and Markets Authority has a target of delivering, through its activities, direct financial benefits to consumers of at least ten times its relevant costs, measured over a rolling three-year period. This article assesses how these benefits are evaluated and communicated.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"80 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138999602","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 European Commission has initiated the process of changing how exclusionary abuses of dominance are evaluated, moving towards a more ‘form-based’ approach compared to the current ‘effects-based’ approach. This article explains that, if not implemented correctly, its planned approach risks worsening consumer outcomes. This article outlines the Commission’s existing approach to taking enforcement action against exclusionary abuses, and the two actions taken by the Commission to develop this approach. Then, it explores three cases where the false positives that arise from a form-based approach, rather than an effects-based approach, risk worsening outcomes for consumers. It suggests that, while an effects-based approach has its limitations, the Commission should ensure that it does not err too far into adopting a completely form-based approach as it develops updated rules on exclusionary abuses.
{"title":"The risks of a form-based approach to exclusionary abuses of dominance – an economic perspective","authors":"William Ward, Joe Minichiello","doi":"10.4337/clj.2023.03.02","DOIUrl":"https://doi.org/10.4337/clj.2023.03.02","url":null,"abstract":"The European Commission has initiated the process of changing how exclusionary abuses of dominance are evaluated, moving towards a more ‘form-based’ approach compared to the current ‘effects-based’ approach. This article explains that, if not implemented correctly, its planned approach risks worsening consumer outcomes. This article outlines the Commission’s existing approach to taking enforcement action against exclusionary abuses, and the two actions taken by the Commission to develop this approach. Then, it explores three cases where the false positives that arise from a form-based approach, rather than an effects-based approach, risk worsening outcomes for consumers. It suggests that, while an effects-based approach has its limitations, the Commission should ensure that it does not err too far into adopting a completely form-based approach as it develops updated rules on exclusionary abuses.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"35 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139000143","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}
Merger clearance law relating to large technology companies is increasingly debated. This article considers some of the pertinent analysis from the recent decision of the Competition and Markets Authority to require Meta, which owns Facebook, to divest Giphy despite no such challenge arising in the United States. This engages issues of comity, of jurisdiction and of economic evidence, which are analysed and evaluated in the context of prior UK merger review cases.
与大型科技公司有关的兼并许可法引起了越来越多的争论。本文探讨了竞争与市场管理局最近做出的要求拥有 Facebook 的 Meta 公司剥离 Giphy 的决定中的一些相关分析，尽管在美国并未出现此类挑战。这涉及礼让、管辖权和经济证据等问题，本文结合英国以往的兼并审查案例对这些问题进行了分析和评估。
{"title":"If the Competition and Markets Authority were an emoji: merger clearance lessons from Meta/Giphy","authors":"Stephen Dnes, Joseph Day","doi":"10.4337/clj.2023.03.03","DOIUrl":"https://doi.org/10.4337/clj.2023.03.03","url":null,"abstract":"Merger clearance law relating to large technology companies is increasingly debated. This article considers some of the pertinent analysis from the recent decision of the Competition and Markets Authority to require Meta, which owns Facebook, to divest Giphy despite no such challenge arising in the United States. This engages issues of comity, of jurisdiction and of economic evidence, which are analysed and evaluated in the context of prior UK merger review cases.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"19 42","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138970531","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}
There is extensive debate about the use of economic experts in competition litigation, both in the UK and in jurisdictions across Europe. There are several ingredients of good practice that have been developed over time, including the requirement for experts to talk to each other and share their data, and then produce a statement of points of agreement and disagreement to narrow the issues between them. Another ingredient is to give the experts their day in court, through cross-examination or hot tubs. Invented in the Southern Hemisphere, expert hot tubs are increasingly used in competition law cases in Europe. They allow the evidence from economic experts (party-appointed and/or court-appointed) to be heard concurrently in court. These hot tubs come in different shapes and sizes which this article explores.
{"title":"Economists on trial: how to make expert duties, meetings, and hot tubs work","authors":"Gunnar Niels","doi":"10.4337/clj.2023.03.05","DOIUrl":"https://doi.org/10.4337/clj.2023.03.05","url":null,"abstract":"There is extensive debate about the use of economic experts in competition litigation, both in the UK and in jurisdictions across Europe. There are several ingredients of good practice that have been developed over time, including the requirement for experts to talk to each other and share their data, and then produce a statement of points of agreement and disagreement to narrow the issues between them. Another ingredient is to give the experts their day in court, through cross-examination or hot tubs. Invented in the Southern Hemisphere, expert hot tubs are increasingly used in competition law cases in Europe. They allow the evidence from economic experts (party-appointed and/or court-appointed) to be heard concurrently in court. These hot tubs come in different shapes and sizes which this article explores.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"89 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138996142","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}
In the assessment of efficiencies, the European Commission narrowly interprets the conditions set out in the Horizontal Merger Guidelines which must be satisfied for each efficiency claim. Considering certain features of sustainability-driven efficiency claims, if the Commission maintains its current approach in analysing these claims, it may disproportionately limit the success of such claims. To avoid any impediment to the pursuit of sustainable goals through mergers, the Commission’s approach to the relevant conditions should change. There are some alternative models and means of assessment of efficiency claims that can be used to strike the right balance between promoting competition and sustainability.
{"title":"Merging for a sustainable future: integrating sustainability-driven efficiency claims into the merger control assessment","authors":"Gönenç Gürkaynak, Zeynep Ayata Aydoğan, Ersagun Berkay Kiltan, Beyza Nur Adıgüzel","doi":"10.4337/clj.2023.02.04","DOIUrl":"https://doi.org/10.4337/clj.2023.02.04","url":null,"abstract":"In the assessment of efficiencies, the European Commission narrowly interprets the conditions set out in the Horizontal Merger Guidelines which must be satisfied for each efficiency claim. Considering certain features of sustainability-driven efficiency claims, if the Commission maintains its current approach in analysing these claims, it may disproportionately limit the success of such claims. To avoid any impediment to the pursuit of sustainable goals through mergers, the Commission’s approach to the relevant conditions should change. There are some alternative models and means of assessment of efficiency claims that can be used to strike the right balance between promoting competition and sustainability.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"3 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136233908","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}
2022 saw significant changes to policy on merger remedies in the UK. This article examines what they mean for merger clearance strategy along four vectors of change: (i) clarification of the Competition and Markets Authority’s remedial powers and procedural constraints following recent judgments of the Competition Appeal Tribunal; (ii) the CMA’s increased focus on intangible assets when designing remedies; (iii) a revolution in Phase 2 remedies procedure via the first use of a mechanism to concede a substantial lessening of competition to the CMA; and (iv) a substantive evolution in Phase 1 undertakings with the acceptance of creative remedies despite the high threshold for undertakings in lieu of reference to Phase 2 being accepted by the CMA.
{"title":"Strategic implications of changes in UK merger remedy policy","authors":"Joel Bamford, Carlo Sushant Chari","doi":"10.4337/clj.2023.02.05","DOIUrl":"https://doi.org/10.4337/clj.2023.02.05","url":null,"abstract":"2022 saw significant changes to policy on merger remedies in the UK. This article examines what they mean for merger clearance strategy along four vectors of change: (i) clarification of the Competition and Markets Authority’s remedial powers and procedural constraints following recent judgments of the Competition Appeal Tribunal; (ii) the CMA’s increased focus on intangible assets when designing remedies; (iii) a revolution in Phase 2 remedies procedure via the first use of a mechanism to concede a substantial lessening of competition to the CMA; and (iv) a substantive evolution in Phase 1 undertakings with the acceptance of creative remedies despite the high threshold for undertakings in lieu of reference to Phase 2 being accepted by the CMA.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"177 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136233909","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}
On 6 June 2022 the Competition Appeal Tribunal published a Practice Direction enabling the President to make ‘Umbrella Proceedings Orders’ which would enable issues that are common across multiple separate proceedings to be dealt with at the same hearing. The purpose behind the Practice Direction is to avoid inconsistency across different proceedings. This article considers the approach that has been taken by the Tribunal under the Practice Direction so far in proceedings relating to: (i) multilateral interchange fees and (ii) the roll-on, roll-off shipping cartel.
{"title":"A first review of the early application of the Umbrella Proceedings Practice Direction","authors":"Kim Dietzel, Naomi Reid","doi":"10.4337/clj.2023.02.01","DOIUrl":"https://doi.org/10.4337/clj.2023.02.01","url":null,"abstract":"On 6 June 2022 the Competition Appeal Tribunal published a Practice Direction enabling the President to make ‘Umbrella Proceedings Orders’ which would enable issues that are common across multiple separate proceedings to be dealt with at the same hearing. The purpose behind the Practice Direction is to avoid inconsistency across different proceedings. This article considers the approach that has been taken by the Tribunal under the Practice Direction so far in proceedings relating to: (i) multilateral interchange fees and (ii) the roll-on, roll-off shipping cartel.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"4 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136233913","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}
Kimela Shah, Erika Pini, Joseph Bell, Raphael Gastal
The right to compensatory damages and the principle of effectiveness are important legal principles shaping the private enforcement of competition law across the UK and EU. However, the issue of pass-on of loss gives rise to potential tensions in the application of these principles. Where the effect of an infringement is passed on and dissipates broadly across the downstream economy, courts are left with a choice between over-compensating a direct claimant (who has passed on all or some of an overcharge) or waiting for a nebulous group of downstream claims (by final consumers) that may not materialize. Pass-on also creates problems of consistency between claims at different levels of the same value chain in which different information may be available, different methods of calculating loss may be applied, and different answers reached. This article provides some economic reflections on these challenges. It concludes that there is no single economic framework or methodology available that avoids these tensions, and procedural innovations that allow multiple levels of the value chain to be considered in a single process are likely to be needed if the principles of compensation and effectiveness are going to continue to be applied.
{"title":"Reflections on the intersection between economic and legal measures of pass-on in the context of competition litigation","authors":"Kimela Shah, Erika Pini, Joseph Bell, Raphael Gastal","doi":"10.4337/clj.2023.02.06","DOIUrl":"https://doi.org/10.4337/clj.2023.02.06","url":null,"abstract":"The right to compensatory damages and the principle of effectiveness are important legal principles shaping the private enforcement of competition law across the UK and EU. However, the issue of pass-on of loss gives rise to potential tensions in the application of these principles. Where the effect of an infringement is passed on and dissipates broadly across the downstream economy, courts are left with a choice between over-compensating a direct claimant (who has passed on all or some of an overcharge) or waiting for a nebulous group of downstream claims (by final consumers) that may not materialize. Pass-on also creates problems of consistency between claims at different levels of the same value chain in which different information may be available, different methods of calculating loss may be applied, and different answers reached. This article provides some economic reflections on these challenges. It concludes that there is no single economic framework or methodology available that avoids these tensions, and procedural innovations that allow multiple levels of the value chain to be considered in a single process are likely to be needed if the principles of compensation and effectiveness are going to continue to be applied.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136233910","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}
Stephen Whitfield, Ingrid Hodgskiss, Aimee Westley
The Government has introduced a new Digital Markets, Competition and Consumers Bill to Parliament, which will as currently drafted have a significant impact on how competition law is enforced in the digital space. This article considers how recent CMA activity has shaped the rationale for the new legislation, and how the CMA’s caseload has highlighted a desire for key reforms to the UK competition law regime.
{"title":"The UK’s new competition regime for digital markets: to remedy a gap in the CMA’s toolkit","authors":"Stephen Whitfield, Ingrid Hodgskiss, Aimee Westley","doi":"10.4337/clj.2023.02.02","DOIUrl":"https://doi.org/10.4337/clj.2023.02.02","url":null,"abstract":"The Government has introduced a new Digital Markets, Competition and Consumers Bill to Parliament, which will as currently drafted have a significant impact on how competition law is enforced in the digital space. This article considers how recent CMA activity has shaped the rationale for the new legislation, and how the CMA’s caseload has highlighted a desire for key reforms to the UK competition law regime.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"22 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136233911","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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