{"title":"Theories of mitigation by cost reduction in competition law-related damages cases","authors":"S. Barker, James Harvey","doi":"10.4337/clj.2022.01.02","DOIUrl":"https://doi.org/10.4337/clj.2022.01.02","url":null,"abstract":"","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"138 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70719088","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":"The rise of dark patterns: does competition law make it any brighter?","authors":"","doi":"10.4337/clj.2022.03.06","DOIUrl":"https://doi.org/10.4337/clj.2022.03.06","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":"70719629","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 concept of potential competition has had an increasing importance in the application of competition law, in both the analysis of the effects of mergers and in assessing the competitive effects of agreements and unilateral conduct under the Competition Act 1998. Potential competition is the constraint that undertakings currently outside of a market are able to exert through the prospect that they will enter that market. This concept is not hypothetical: it has real-world implications as undertakings already on the market, or considering entering, can be expected to take into account the prospect of other undertakings entering, and to adapt their behaviour accordingly. This article sets out the approach of the Competition and Markets Authority when considering potential competition issues in merger and antitrust cases, with reference to its mergers and antitrust guidance and experience.
{"title":"Potential competition","authors":"C. Harrison, James W. Wright","doi":"10.4337/clj.2021.04.06","DOIUrl":"https://doi.org/10.4337/clj.2021.04.06","url":null,"abstract":"The concept of potential competition has had an increasing importance in the application of competition law, in both the analysis of the effects of mergers and in assessing the competitive effects of agreements and unilateral conduct under the Competition Act 1998. Potential competition is the constraint that undertakings currently outside of a market are able to exert through the prospect that they will enter that market. This concept is not hypothetical: it has real-world implications as undertakings already on the market, or considering entering, can be expected to take into account the prospect of other undertakings entering, and to adapt their behaviour accordingly. This article sets out the approach of the Competition and Markets Authority when considering potential competition issues in merger and antitrust cases, with reference to its mergers and antitrust guidance and experience.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44636335","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}
An article published in 2020 in the Competition Law Journal argued that, on an ex ante basis, the contract divestment remedy package agreed by Ireland’s competition agency in the Berendsen (Elis)/Kings Laundry transaction would be unlikely to mitigate the agency’s competition concerns. In particular, the remedy package would not lead to successful entry into the supply of flat linen rental services for hospitals. This article is an ex post assessment of that remedy. Given the remedy’s fix-it-first nature, the agency was satisfied that entry was both likely and timely. However, the evidence to date – more than 12 months after the entrant took title to the contracts – suggests that entry has not been sufficient. Indeed, the entrant is conspicuous by its absence from the supply of flat linen rental services for hospitals. Such an outcome is consistent with the incentives of the merged entity to select a weak competitor, reinforced by the excessively narrow set of assets that constituted the contract remedy package. Prohibition or a strengthened contract divestment package would have been better alternatives. Such an apparent relaxation of merger control suggests that Ireland’s competition agency needs to reassess its approach to problematic mergers that are likely to damage consumer welfare.
{"title":"The Berendsen (Elis)/Kings Laundry transaction: an ex post assessment of the contract divestment remedy","authors":"P. Gorecki","doi":"10.4337/clj.2021.04.02","DOIUrl":"https://doi.org/10.4337/clj.2021.04.02","url":null,"abstract":"An article published in 2020 in the Competition Law Journal argued that, on an ex ante basis, the contract divestment remedy package agreed by Ireland’s competition agency in the Berendsen (Elis)/Kings Laundry transaction would be unlikely to mitigate the agency’s competition concerns. In particular, the remedy package would not lead to successful entry into the supply of flat linen rental services for hospitals. This article is an ex post assessment of that remedy. Given the remedy’s fix-it-first nature, the agency was satisfied that entry was both likely and timely. However, the evidence to date – more than 12 months after the entrant took title to the contracts – suggests that entry has not been sufficient. Indeed, the entrant is conspicuous by its absence from the supply of flat linen rental services for hospitals. Such an outcome is consistent with the incentives of the merged entity to select a weak competitor, reinforced by the excessively narrow set of assets that constituted the contract remedy package. Prohibition or a strengthened contract divestment package would have been better alternatives. Such an apparent relaxation of merger control suggests that Ireland’s competition agency needs to reassess its approach to problematic mergers that are likely to damage consumer welfare.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46753546","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 increasing awareness of a ‘gender data gap’ in a range of academic, business and policy areas. The problem arises where policy or business decisions are made based on data that has been collected only on men (or by men, as survey designers), or on analyses of data in the aggregate without accounting for gender differences. Competition policy is one such area. Traditionally, consumers have been considered only by their willingness to pay, their (rational) preferences and their ability to substitute between products offered by firms. Meanwhile, firms are treated as entities that are defined by the profit-maximizing objectives of their owners, and only rarely seen as collections of people. Competition policy is gender blind, resulting in a gender data gap in competition. This article considers how surveys carried out for the purpose of market definition, merger analysis and switching behaviour should take account of gender differences.
{"title":"Gender differences in surveys for market definition and merger analysis","authors":"Lola Damstra, Ludovica Salvyuolo, Gunnar Niels","doi":"10.4337/clj.2021.04.04","DOIUrl":"https://doi.org/10.4337/clj.2021.04.04","url":null,"abstract":"There is increasing awareness of a ‘gender data gap’ in a range of academic, business and policy areas. The problem arises where policy or business decisions are made based on data that has been collected only on men (or by men, as survey designers), or on analyses of data in the aggregate without accounting for gender differences. Competition policy is one such area. Traditionally, consumers have been considered only by their willingness to pay, their (rational) preferences and their ability to substitute between products offered by firms. Meanwhile, firms are treated as entities that are defined by the profit-maximizing objectives of their owners, and only rarely seen as collections of people. Competition policy is gender blind, resulting in a gender data gap in competition. This article considers how surveys carried out for the purpose of market definition, merger analysis and switching behaviour should take account of gender differences.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70718561","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 has been a recent increase in merger-related litigation before the Competition Appeal Tribunal, driven largely by an increase in merger prohibition decisions taken by the Competition and Markets Authority. An earlier article considered several merger judgments of the CAT. The present article considers the outcomes of subsequent appeals in two of these cases, Facebook (concerning the CMA’s powers to impose interim enforcement orders) and JD Sports (in which the CAT quashed the CMA’s finding of a substantive lessening of competition). It also considers the outcome of two then pending challenges to CMA decisions to prohibit mergers, FNZ and Sabre. In particular, the Sabre case concerned the CMA’s power to assert jurisdiction, under the share of supply test, to review a merger between two American companies in circumstances where the target company had no direct revenues from customers located in the UK. The judgments in Facebook and Sabre are likely to be of particular relevance to parties that choose not to notify voluntarily their merger to the CMA and so expose themselves to the risk of the CMA identifying and then opening an own initiative investigation into that merger; they confirm that the CMA has a broad discretion in applying the share of supply test and in adopting an IEO of broad scope to the businesses of both merger parties.
{"title":"Merger litigation: more recent developments","authors":"M. O’Regan","doi":"10.4337/clj.2021.04.03","DOIUrl":"https://doi.org/10.4337/clj.2021.04.03","url":null,"abstract":"There has been a recent increase in merger-related litigation before the Competition Appeal Tribunal, driven largely by an increase in merger prohibition decisions taken by the Competition and Markets Authority. An earlier article considered several merger judgments of the CAT. The present article considers the outcomes of subsequent appeals in two of these cases, Facebook (concerning the CMA’s powers to impose interim enforcement orders) and JD Sports (in which the CAT quashed the CMA’s finding of a substantive lessening of competition). It also considers the outcome of two then pending challenges to CMA decisions to prohibit mergers, FNZ and Sabre. In particular, the Sabre case concerned the CMA’s power to assert jurisdiction, under the share of supply test, to review a merger between two American companies in circumstances where the target company had no direct revenues from customers located in the UK. The judgments in Facebook and Sabre are likely to be of particular relevance to parties that choose not to notify voluntarily their merger to the CMA and so expose themselves to the risk of the CMA identifying and then opening an own initiative investigation into that merger; they confirm that the CMA has a broad discretion in applying the share of supply test and in adopting an IEO of broad scope to the businesses of both merger parties.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43664867","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 considers ongoing developments in the Competition and Markets Authority's approach to local merger assessment as highlighted by its recent EG/Asda Phase I decision. The CMA appears to be moving away from its traditional two-stage approach of applying initial competition filters augmented by detailed local assessment of cases identified by those filters, and towards a binary system determined solely on the basis of mechanical rules. This shift has been justified on the grounds of procedural efficiency and as providing a more systematic approach to local merger review. This article demonstrates that the CMA's decisional practice shows that the move away from two-stage filtering is not justified by efficiency considerations, and that the emerging approach of using mechanical rules reduces the quality of merger control by disregarding relevant evidence at the expense of relatively crude structural thresholds. Whereas merger control over the past two decades has generally moved away from thresholds based on numbers of firms or market shares, the CMA's adoption of mechanical decision rules appears to be moving back towards such an approach for the Phase I assessment of local mergers. The new approach may be related to a more general CMA shift towards avoiding the risk of under-intervention in merger review, even if this is at the expense of increasing over-intervention. While the new approach to local merger review may be expected to generate greater intervention, however it will not address any perceived risk of under-intervention.
本文考虑了竞争与市场管理局（Competition and Markets Authority）对当地合并评估方法的持续发展，正如其最近的EG/Asda第一阶段决定所强调的那样。CMA似乎正在摆脱其传统的两阶段方法，即应用初始竞争滤波器，并通过对这些滤波器识别的案例进行详细的局部评估来增强，转向完全基于机械规则确定的二进制系统。这种转变是合理的，理由是程序效率高，为地方合并审查提供了一种更系统的方法。这篇文章表明，CMA的决策实践表明，从效率考虑来看，放弃两阶段过滤是不合理的，而且新出现的使用机械规则的方法无视相关证据，以牺牲相对粗糙的结构阈值为代价，降低了合并控制的质量。尽管在过去二十年中，合并控制通常已经偏离了基于公司数量或市场份额的阈值，但CMA采用的机械决策规则似乎又回到了对本地合并进行第一阶段评估的方法。新方法可能与CMA更普遍地转向避免合并审查中干预不足的风险有关，即使这是以增加过度干预为代价的。虽然本地合并审查的新方法可能会产生更大的干预，但它不会解决任何干预不足的风险。
{"title":"Fuel for thought? Developments in CMA local merger assessment","authors":"D. Gore","doi":"10.4337/clj.2021.04.01","DOIUrl":"https://doi.org/10.4337/clj.2021.04.01","url":null,"abstract":"This article considers ongoing developments in the Competition and Markets Authority's approach to local merger assessment as highlighted by its recent EG/Asda Phase I decision. The CMA appears to be moving away from its traditional two-stage approach of applying initial competition filters augmented by detailed local assessment of cases identified by those filters, and towards a binary system determined solely on the basis of mechanical rules. This shift has been justified on the grounds of procedural efficiency and as providing a more systematic approach to local merger review. This article demonstrates that the CMA's decisional practice shows that the move away from two-stage filtering is not justified by efficiency considerations, and that the emerging approach of using mechanical rules reduces the quality of merger control by disregarding relevant evidence at the expense of relatively crude structural thresholds. Whereas merger control over the past two decades has generally moved away from thresholds based on numbers of firms or market shares, the CMA's adoption of mechanical decision rules appears to be moving back towards such an approach for the Phase I assessment of local mergers. The new approach may be related to a more general CMA shift towards avoiding the risk of under-intervention in merger review, even if this is at the expense of increasing over-intervention. While the new approach to local merger review may be expected to generate greater intervention, however it will not address any perceived risk of under-intervention.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49593399","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 concurrency arrangements under the Competition Act 1998, which enable the sector regulators to enforce ex post competition law alongside their ex ante regulatory powers, aim to promote competition across the regulated sectors. As well as this well-established arrangement, following a range of reports indicating the limitations of ex post competition enforcement in digital markets, the Competition and Markets Authority has more recently taken on a new role in relation to pro-competitive regulation in digital markets, expanding its remit to a new regulatory function. This article considers the UK's approach of applying the right balance of competition enforcement and regulatory alternatives to ensure competition is promoted via the most effective means possible.
{"title":"Competition enforcement and regulatory alternatives","authors":"Thomas Akhgar, David du Parc Braham","doi":"10.4337/clj.2021.04.05","DOIUrl":"https://doi.org/10.4337/clj.2021.04.05","url":null,"abstract":"The concurrency arrangements under the Competition Act 1998, which enable the sector regulators to enforce ex post competition law alongside their ex ante regulatory powers, aim to promote competition across the regulated sectors. As well as this well-established arrangement, following a range of reports indicating the limitations of ex post competition enforcement in digital markets, the Competition and Markets Authority has more recently taken on a new role in relation to pro-competitive regulation in digital markets, expanding its remit to a new regulatory function. This article considers the UK's approach of applying the right balance of competition enforcement and regulatory alternatives to ensure competition is promoted via the most effective means possible.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44524778","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: S. Holmes, D. Middelschulte and M. Sneop (eds), Competition Law, Climate Change and Environmental Sustainability","authors":"M. O’Regan","doi":"10.4337/clj.2021.03.05","DOIUrl":"https://doi.org/10.4337/clj.2021.03.05","url":null,"abstract":"","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45779376","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}
G. Gürkaynak, Kansu Aydoğan Yeşilaltay, Zeynep Ayata Aydoğan
This article examines the recent proposals and reports on the regulation of digital mergers in the European Union, United Kingdom, United States and other jurisdictions, with a particular focus on the proposals for presumptions against mergers. It argues that any intervention in digital mergers needs to calibrate a balance between preventing excessive levels of market concentration and promoting innovation and that any departure from existing laws should be justified. Against this background, this article concludes that the recent arguments for lowering the threshold for blocking digital mergers undermines the risk of chilling innovation and losing significant efficiencies, and does not rely on concrete evidence and sound economic theories.
{"title":"A critical assessment of the recent proposals and reports on the regulation of digital mergers","authors":"G. Gürkaynak, Kansu Aydoğan Yeşilaltay, Zeynep Ayata Aydoğan","doi":"10.4337/clj.2021.03.02","DOIUrl":"https://doi.org/10.4337/clj.2021.03.02","url":null,"abstract":"This article examines the recent proposals and reports on the regulation of digital mergers in the European Union, United Kingdom, United States and other jurisdictions, with a particular focus on the proposals for presumptions against mergers. It argues that any intervention in digital mergers needs to calibrate a balance between preventing excessive levels of market concentration and promoting innovation and that any departure from existing laws should be justified. Against this background, this article concludes that the recent arguments for lowering the threshold for blocking digital mergers undermines the risk of chilling innovation and losing significant efficiencies, and does not rely on concrete evidence and sound economic theories.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47027965","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：