{"title":"Ioannis Kokkoris and Claudia Lemus (eds), Research Handbook on the Law and Economics of Competition Enforcement","authors":"M. O’Regan","doi":"10.4337/clj.2022.04.06","DOIUrl":"https://doi.org/10.4337/clj.2022.04.06","url":null,"abstract":"","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42543629","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}
Assessing market power is central to the CMA’s cases, including cases involving digital markets. Over the past few years, it has adapted its approach to deal effectively with digital markets and revised its guidance to reflect that approach. In dealing with digital cases, the CMA has not found that a new notion of market power was needed specifically for the digital space or for it to be able to capture its concerns in digital markets. However, it has revised its guidance to reflect how it conducts its assessment, including placing less emphasis on a formalistic market definition exercise and more emphasis on dynamic constraints, considering innovation as the current process of rivalry through investment decisions and incorporated the threat of entry when determining current competitive constraints. It has also considered characteristics like multi-sidedness, network effects and any resulting tipping dynamics in performing its assessments. The CMA’s current tools sometimes struggle to deal effectively with digital markets; therefore, the CMA’s Digital Markets Taskforce has recommended the introduction of a new ex ante regulatory regime to proactively shape the behaviour of particularly powerful digital firms and to prevent consumer harm from arising, including a new test to identify what firms should be subject to this new regime which includes, as an integral part, an assessment of market power.
{"title":"The evolving concept of market power in the digital economy","authors":"Eugenia Brandimarte, O. Norden","doi":"10.4337/clj.2022.04.05","DOIUrl":"https://doi.org/10.4337/clj.2022.04.05","url":null,"abstract":"Assessing market power is central to the CMA’s cases, including cases involving digital markets. Over the past few years, it has adapted its approach to deal effectively with digital markets and revised its guidance to reflect that approach. In dealing with digital cases, the CMA has not found that a new notion of market power was needed specifically for the digital space or for it to be able to capture its concerns in digital markets. However, it has revised its guidance to reflect how it conducts its assessment, including placing less emphasis on a formalistic market definition exercise and more emphasis on dynamic constraints, considering innovation as the current process of rivalry through investment decisions and incorporated the threat of entry when determining current competitive constraints. It has also considered characteristics like multi-sidedness, network effects and any resulting tipping dynamics in performing its assessments. The CMA’s current tools sometimes struggle to deal effectively with digital markets; therefore, the CMA’s Digital Markets Taskforce has recommended the introduction of a new ex ante regulatory regime to proactively shape the behaviour of particularly powerful digital firms and to prevent consumer harm from arising, including a new test to identify what firms should be subject to this new regime which includes, as an integral part, an assessment of market power.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46530519","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 1 June 2022, competition law practitioners in the UK were placed in the unenviable position of having to assimilate two new regimes for the treatment of vertical agreements under, respectively, European Union and UK competition law. Despite the long lead-up, which in the case of the EU reforms had lasted since October 2018, practitioners had less than a month to assimilate the final text of both the new EU Vertical Agreements Block Exemption Regulation and the UK’s Vertical Agreements Block Exemption Order before they entered into force. Indeed, the Competition and Markets Authority’s Guidance on the new UK regime was only available six weeks after the new Order came into effect. Despite the new UK regime being promoted as being based on ‘bespoke rules better suited to the UK’, the reality is that its final form reflects a carefully balanced review by the CMA that prioritized close alignment with the EU over divergence for its own sake. Although there are some notable differences between the two regimes, which are reviewed in this article, the overall outcome is one of dynamic alignment with an EU regime that provided the original model for modern UK competition law and looks likely to have a dominant influence on its development for the foreseeable future, despite Brexit.
{"title":"A new dawn? The United Kingdom’s new competition law regime for vertical agreements","authors":"B. McGrath","doi":"10.4337/clj.2022.04.02","DOIUrl":"https://doi.org/10.4337/clj.2022.04.02","url":null,"abstract":"On 1 June 2022, competition law practitioners in the UK were placed in the unenviable position of having to assimilate two new regimes for the treatment of vertical agreements under, respectively, European Union and UK competition law. Despite the long lead-up, which in the case of the EU reforms had lasted since October 2018, practitioners had less than a month to assimilate the final text of both the new EU Vertical Agreements Block Exemption Regulation and the UK’s Vertical Agreements Block Exemption Order before they entered into force. Indeed, the Competition and Markets Authority’s Guidance on the new UK regime was only available six weeks after the new Order came into effect. Despite the new UK regime being promoted as being based on ‘bespoke rules better suited to the UK’, the reality is that its final form reflects a carefully balanced review by the CMA that prioritized close alignment with the EU over divergence for its own sake. Although there are some notable differences between the two regimes, which are reviewed in this article, the overall outcome is one of dynamic alignment with an EU regime that provided the original model for modern UK competition law and looks likely to have a dominant influence on its development for the foreseeable future, despite Brexit.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45287244","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}
A number of jurisdictions, including in the European Union, have adopted legal provisions that ban situations in which one contractual party holds and abuses a position of economic strength relative to a counterparty. This practice, typically referred to as ‘abuse of economic dependence’, can be invoked by companies before national courts, or by or before national competition authorities if they deem that such abuse has implications for competition. A recent yet sudden increase in abuse of economic dependence decisions by national competition authorities indicates that this enforcement tool is gaining traction, possibly due to its lower evidentiary bar compared to the more established abuse of dominance under EU or national competition law. However, if competition policy is intended to protect competition and ultimately consumers, it is unclear how the relationship between two companies can affect competition, especially if the stronger negotiating party is not dominant and the weaker party is too small to make a tangible impact on consumer welfare ‒ unless the same contractual terms are imposed on a large number of weaker parties. This article sets out the principal provisions of such legislation in Belgium, France, Germany and Italy and its enforcement in France and Italy, before considering the economics of bargaining and offering some policy recommendations and conclusions. This article shows that the issues that laws prohibiting the abuse of economic dependence are intended to safeguard can be dealt with by other means, for example contract law. If it is intended to apply these legal provisions to highly innovative sectors such as digital, other regulatory tools may be better placed to bring competition and fairness in the online world, such as the EU’s Digital Markets Act. Nevertheless, it is likely that these enforcement tools will be used more often. As such, it is important to set high thresholds for when such enforcement tools can be used by competition authorities and to introduce quantitative analyses to inform their assessment.
{"title":"Abuse of economic dependence and its interaction with competition policy: the economics perspective","authors":"Roberto Alimonti, Matthew Johnson","doi":"10.4337/clj.2022.02.05","DOIUrl":"https://doi.org/10.4337/clj.2022.02.05","url":null,"abstract":"A number of jurisdictions, including in the European Union, have adopted legal provisions that ban situations in which one contractual party holds and abuses a position of economic strength relative to a counterparty. This practice, typically referred to as ‘abuse of economic dependence’, can be invoked by companies before national courts, or by or before national competition authorities if they deem that such abuse has implications for competition. A recent yet sudden increase in abuse of economic dependence decisions by national competition authorities indicates that this enforcement tool is gaining traction, possibly due to its lower evidentiary bar compared to the more established abuse of dominance under EU or national competition law. However, if competition policy is intended to protect competition and ultimately consumers, it is unclear how the relationship between two companies can affect competition, especially if the stronger negotiating party is not dominant and the weaker party is too small to make a tangible impact on consumer welfare ‒ unless the same contractual terms are imposed on a large number of weaker parties.\u0000\u0000This article sets out the principal provisions of such legislation in Belgium, France, Germany and Italy and its enforcement in France and Italy, before considering the economics of bargaining and offering some policy recommendations and conclusions. This article shows that the issues that laws prohibiting the abuse of economic dependence are intended to safeguard can be dealt with by other means, for example contract law. If it is intended to apply these legal provisions to highly innovative sectors such as digital, other regulatory tools may be better placed to bring competition and fairness in the online world, such as the EU’s Digital Markets Act. Nevertheless, it is likely that these enforcement tools will be used more often. As such, it is important to set high thresholds for when such enforcement tools can be used by competition authorities and to introduce quantitative analyses to inform their assessment.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44248300","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}
Patrick Harrison, Monika Zdzieborska, Bethany M. Wise
The Court of Justice of the European Union has recently issued its judgments in bpost and Nordzucker, in which it considers the scope and interpretation of the ne bis in idem principle (i.e., the protection against double jeopardy) provided by EU law. This article sets out some of the key takeaways from the two judgments and discusses their potential implications in navigating the forthcoming overlap between the Digital Markets Act and EU competition law enforcement. While bpost and Nordzucker provide welcome clarification as regards due process and proportionality in this context, key questions remain unanswered and we can expect more litigation in this area moving forward.
{"title":"Navigating ne bis in idem: bpost, Nordzucker and the Digital Markets Act","authors":"Patrick Harrison, Monika Zdzieborska, Bethany M. Wise","doi":"10.4337/clj.2022.02.01","DOIUrl":"https://doi.org/10.4337/clj.2022.02.01","url":null,"abstract":"The Court of Justice of the European Union has recently issued its judgments in bpost and Nordzucker, in which it considers the scope and interpretation of the ne bis in idem principle (i.e., the protection against double jeopardy) provided by EU law. This article sets out some of the key takeaways from the two judgments and discusses their potential implications in navigating the forthcoming overlap between the Digital Markets Act and EU competition law enforcement. While bpost and Nordzucker provide welcome clarification as regards due process and proportionality in this context, key questions remain unanswered and we can expect more litigation in this area moving forward.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44829257","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}
It is typical in competition law-related litigation for damages claims to be brought by companies who have been overcharged for a product or service. A standard defence is that the claimants passed on the overcharge to buyers of their own products and services, thus reducing or eliminating their losses. Typically, ‘standard economic theory’ is cited to support this argument. However, standard economic theory offers no universal prediction for how firms will respond to a cost increase. Instead, economic theory says that the extent of pass on is dictated by a range of internal and external factors, ultimately implying a whole spectrum of possible rates of pass on.
{"title":"The role of ‘standard economic theory’ and the pass on defence in competition law-related litigation","authors":"W. Ward","doi":"10.4337/clj.2022.02.02","DOIUrl":"https://doi.org/10.4337/clj.2022.02.02","url":null,"abstract":"It is typical in competition law-related litigation for damages claims to be brought by companies who have been overcharged for a product or service. A standard defence is that the claimants passed on the overcharge to buyers of their own products and services, thus reducing or eliminating their losses. Typically, ‘standard economic theory’ is cited to support this argument. However, standard economic theory offers no universal prediction for how firms will respond to a cost increase. Instead, economic theory says that the extent of pass on is dictated by a range of internal and external factors, ultimately implying a whole spectrum of possible rates of pass on.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47105542","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 provision of public transport services, whether by bus, train, taxi or private hire vehicle has been subject to changing regulation over the years and further regulatory changes are foreseen. This article examines how regulation of these services has affected competition between providers, the CMA’s competition advocacy in these markets.
{"title":"On the road and on the rails: regulation and competition in UK public transport","authors":"Ioanna Batzoglou, Paul Kellaway","doi":"10.4337/clj.2022.02.04","DOIUrl":"https://doi.org/10.4337/clj.2022.02.04","url":null,"abstract":"The provision of public transport services, whether by bus, train, taxi or private hire vehicle has been subject to changing regulation over the years and further regulatory changes are foreseen. This article examines how regulation of these services has affected competition between providers, the CMA’s competition advocacy in these markets.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41532940","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 notifications to the European Commission (Commission) under the EU Merger Regulation (EUMR)1 form a central part of the workload of most competition lawyers in private practice, in particular those working in the large commercial firms in Brussels and elsewhere in the European Union. Pre-Brexit, this would have been the case for their colleagues working in London and other legal centres in the UK, although many cross-border transactions that they work on will still be reviewed by the Commission, as well as by the Competition and Markets Authority (CMA).2 Following a slight drop in notifications in 2020
{"title":"C. Jones and L. Weinert (eds), EU Competition Law Volume II: Mergers and Acquisitions* (3rd edition)","authors":"","doi":"10.4337/clj.2022.02.06","DOIUrl":"https://doi.org/10.4337/clj.2022.02.06","url":null,"abstract":"Merger notifications to the European Commission (Commission) under the EU Merger Regulation (EUMR)1 form a central part of the workload of most competition lawyers in private practice, in particular those working in the large commercial firms in Brussels and elsewhere in the European Union. Pre-Brexit, this would have been the case for their colleagues working in London and other legal centres in the UK, although many cross-border transactions that they work on will still be reviewed by the Commission, as well as by the Competition and Markets Authority (CMA).2\u0000\u0000Following a slight drop in notifications in 2020","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41591789","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 article focuses on the supply of information by companies during a European Commission merger investigation. This information enables the Commission to forecast the future effects of the merger. If companies provide incorrect or misleading information, the Commission may inaccurately assess the effects of the merger. This article analyses the Commission’s decision-making practice in the field of submission by companies of misleading or incorrect information, with the aim of determining the scope of the application of the provisions of the EU Merger Regulation that enable the imposition of penalties on companies that provide incorrect or misleading information during a merger investigation.
{"title":"The provision of misleading and incorrect information by merging parties in EU merger investigations","authors":"A. Maziarz","doi":"10.4337/clj.2022.02.03","DOIUrl":"https://doi.org/10.4337/clj.2022.02.03","url":null,"abstract":"This article focuses on the supply of information by companies during a European Commission merger investigation. This information enables the Commission to forecast the future effects of the merger. If companies provide incorrect or misleading information, the Commission may inaccurately assess the effects of the merger. This article analyses the Commission’s decision-making practice in the field of submission by companies of misleading or incorrect information, with the aim of determining the scope of the application of the provisions of the EU Merger Regulation that enable the imposition of penalties on companies that provide incorrect or misleading information during a merger investigation.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48453146","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}
{"title":"Book review: F. Thépot, The Interaction Between Competition Law and Corporate Governance: Opening the ‘Black Box’*","authors":"Matt Cole","doi":"10.4337/clj.2022.01.08","DOIUrl":"https://doi.org/10.4337/clj.2022.01.08","url":null,"abstract":"","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70718709","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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