This article explores the impact of the General Court's judgment in CK Telecoms and the Commission decision in T-Mobile NL/Tele2 on the assessment of four-to-three mobile mergers. The unconditional clearance in the Dutch case energized some telecoms executives, but the Commission stressed that it was largely due to the very specific circumstances of the case. Then, in CK Telecoms, the General Court delivered a blow to the framework developed by the Commission to assess mobile mergers. The Court's interpretation of the concepts of ‘important competitive force’ and ‘closeness of competition’ raises the threshold for the Commission to challenge mergers and implements the principle that there is no ‘magic number’ of mobile network operators. Though some commentators compared CK Telecoms to the Airtours case, CK Telecoms has not provoked similar soul-searching at DG Competition. Some senior Commission officials criticized the judgment and indicated that the Commission will continue applying the same framework. On appeal, the Commission has challenged all key aspects of the judgment. The Dutch case, however, confirms that the Commission may entertain unconditional clearance in some four-to-three mobile mergers and, while CK Telecoms might not bring an overhaul of the current framework, we can expect some refinements.
{"title":"‘No magic number’ means ‘no magic number’: will the EU Court turn the tide on four-to-three mobile mergers in Europe?","authors":"Katarzyna Czapracka","doi":"10.4337/clj.2021.02.03","DOIUrl":"https://doi.org/10.4337/clj.2021.02.03","url":null,"abstract":"This article explores the impact of the General Court's judgment in CK Telecoms and the Commission decision in T-Mobile NL/Tele2 on the assessment of four-to-three mobile mergers. The unconditional clearance in the Dutch case energized some telecoms executives, but the Commission stressed that it was largely due to the very specific circumstances of the case. Then, in CK Telecoms, the General Court delivered a blow to the framework developed by the Commission to assess mobile mergers. The Court's interpretation of the concepts of ‘important competitive force’ and ‘closeness of competition’ raises the threshold for the Commission to challenge mergers and implements the principle that there is no ‘magic number’ of mobile network operators. Though some commentators compared CK Telecoms to the Airtours case, CK Telecoms has not provoked similar soul-searching at DG Competition. Some senior Commission officials criticized the judgment and indicated that the Commission will continue applying the same framework. On appeal, the Commission has challenged all key aspects of the judgment. The Dutch case, however, confirms that the Commission may entertain unconditional clearance in some four-to-three mobile mergers and, while CK Telecoms might not bring an overhaul of the current framework, we can expect some refinements.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48959420","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 modern economy, algorithms influence many aspects of our lives, from how much we pay for groceries and what adverts we see, to the decisions taken by health professionals. As is true with all new technologies, algorithms bring new economic opportunities and make our lives easier, but they also bring new challenges. Indeed, many competition authorities have voiced their concerns that under certain circumstances algorithms may harm consumers, lead to exclusion of some competitors and may even enable firms (knowingly or otherwise) to avoid competitive pressure and collude. In this article, we explain how algorithms work and what potential benefits and harms they bring to competition.
{"title":"Algorithms and competition: the latest theory and evidence","authors":"Ambroise Descamps, Timo Klein, Gareth Shier","doi":"10.4337/CLJ.2021.01.04","DOIUrl":"https://doi.org/10.4337/CLJ.2021.01.04","url":null,"abstract":"In the modern economy, algorithms influence many aspects of our lives, from how much we pay for groceries and what adverts we see, to the decisions taken by health professionals. As is true with all new technologies, algorithms bring new economic opportunities and make our lives easier, but they also bring new challenges. Indeed, many competition authorities have voiced their concerns that under certain circumstances algorithms may harm consumers, lead to exclusion of some competitors and may even enable firms (knowingly or otherwise) to avoid competitive pressure and collude. In this article, we explain how algorithms work and what potential benefits and harms they bring to competition.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48851419","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}
‘Big data’ and ‘big tech’ have become central topics in recent antitrust debate and regulation. For example, the Competition and Markets Authority (CMA) recently published a report on online platforms, expressing concerns that the major platforms like Google are now protected from competition by such strong incumbency advantages. Underlying the CMA's theory of harm is the essential facility theory of antitrust, under which Google's ability to control access to its click-and-query data is seen as preventing its rivals from competing effectively. EU jurisprudence has identified three criteria to determine whether data are an essential facility and whether access should be mandated. First, the data must be indispensable to compete in the market. Secondly, absent data sharing, technical improvements by competitors must be hampered or precluded. Thirdly, there must be no objective justification to refuse competitors access to the data. It is difficult to reconcile the authorities’ concerns with Google's click-and-query data with these criteria, however. Actual and potential alternatives exist; Google's competitors have been innovating in the search market for more than a decade; and there are objective reasons to limit data access, including threats to innovation and privacy concerns.
{"title":"Access to big data as a remedy in big tech","authors":"N. Dadson, I. Snoddy, Joshua White","doi":"10.4337/CLJ.2021.01.01","DOIUrl":"https://doi.org/10.4337/CLJ.2021.01.01","url":null,"abstract":"‘Big data’ and ‘big tech’ have become central topics in recent antitrust debate and regulation. For example, the Competition and Markets Authority (CMA) recently published a report on online platforms, expressing concerns that the major platforms like Google are now protected from competition by such strong incumbency advantages. Underlying the CMA's theory of harm is the essential facility theory of antitrust, under which Google's ability to control access to its click-and-query data is seen as preventing its rivals from competing effectively. EU jurisprudence has identified three criteria to determine whether data are an essential facility and whether access should be mandated. First, the data must be indispensable to compete in the market. Secondly, absent data sharing, technical improvements by competitors must be hampered or precluded. Thirdly, there must be no objective justification to refuse competitors access to the data. It is difficult to reconcile the authorities’ concerns with Google's click-and-query data with these criteria, however. Actual and potential alternatives exist; Google's competitors have been innovating in the search market for more than a decade; and there are objective reasons to limit data access, including threats to innovation and privacy concerns.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45632422","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 (CMA), in common with other competition authorities, strongly favours structural remedies (i.e. business or asset disposals) as the most effective means to restore competition eliminated by a merger. Behavioural remedies (i.e., measures that seek to regulate the ongoing behaviour of the merger parties) are not generally favoured by the CMA. In considering the effectiveness of proposed remedies, the recent judgment in Ecolab v. CMA demonstrates that the CMA is afforded a wide margin of appreciation. That same margin of discretion was notably exercised by the CMA in the Bauer Media Group Inquiry where, contrary to conventional practice, it accepted a complex behavioural remedy in preference to structural alternatives. This article explores these two cases in greater detail and identifies some key factors that inform the CMA's conduct in relation to merger remedies.
{"title":"Merger remedies: key recent developments in the CMA's practice","authors":"Daniel Vowden, P. Meaney","doi":"10.4337/CLJ.2020.04.05","DOIUrl":"https://doi.org/10.4337/CLJ.2020.04.05","url":null,"abstract":"The Competition and Markets Authority (CMA), in common with other competition authorities, strongly favours structural remedies (i.e. business or asset disposals) as the most effective means to restore competition eliminated by a merger. Behavioural remedies (i.e., measures that seek to regulate the ongoing behaviour of the merger parties) are not generally favoured by the CMA. In considering the effectiveness of proposed remedies, the recent judgment in Ecolab v. CMA demonstrates that the CMA is afforded a wide margin of appreciation. That same margin of discretion was notably exercised by the CMA in the Bauer Media Group Inquiry where, contrary to conventional practice, it accepted a complex behavioural remedy in preference to structural alternatives. This article explores these two cases in greater detail and identifies some key factors that inform the CMA's conduct in relation to merger remedies.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43303581","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 4 August 2020, after a Phase 2 investigation, the Competition and Markets Authority cleared Amazon's proposed minority investment in Deliveroo. The CMA's original concern had been that the investment could damage competition by discouraging Amazon from re-entering restaurant food delivery in the UK and altering its competitive incentives in respect of online delivery of ‘convenience’ groceries. However, the CMA concluded that whilst it was likely that, absent the transaction, Amazon would have re-entered, it was not sufficiently likely that the transaction would have had a material impact on Amazon's incentives to re-enter or its approach following re-entry. Therefore, the transaction would not have resulted in a substantial reduction in potential competition. This article provides some background on the case and analyses the competitive effect of minority shareholdings between potential (as opposed to existing) competitors and discusses some broader factors in the assessment of potential competition concerns.
{"title":"Loss of potential competition through a minority stake? Takeaways from Amazon/Deliveroo","authors":"U. Akgün, Oliver Latham","doi":"10.4337/CLJ.2020.04.06","DOIUrl":"https://doi.org/10.4337/CLJ.2020.04.06","url":null,"abstract":"On 4 August 2020, after a Phase 2 investigation, the Competition and Markets Authority cleared Amazon's proposed minority investment in Deliveroo. The CMA's original concern had been that the investment could damage competition by discouraging Amazon from re-entering restaurant food delivery in the UK and altering its competitive incentives in respect of online delivery of ‘convenience’ groceries. However, the CMA concluded that whilst it was likely that, absent the transaction, Amazon would have re-entered, it was not sufficiently likely that the transaction would have had a material impact on Amazon's incentives to re-enter or its approach following re-entry. Therefore, the transaction would not have resulted in a substantial reduction in potential competition. This article provides some background on the case and analyses the competitive effect of minority shareholdings between potential (as opposed to existing) competitors and discusses some broader factors in the assessment of potential competition concerns.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48881508","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 Peninsula Securities, the Supreme Court held that a restrictive covenant, granted in a lease to an anchor tenant of a shopping centre not to allow any retail unit in the centre to be leased to competing shops, does not engage the doctrine of restraint of trade. The question of its enforceability therefore hinges on whether the relevant covenant breaches competition law, and specifically whether it is anti-competitive by object or effect. This relatively straightforward conclusion of the Supreme Court in Peninsula Securities masks over 50 years of conflicting judgments and uncertainty in the area. Prior to Peninsula Securities, the majority decision of the House of Lords in Esso Petroleum v Harper's Garage gave rise to a ‘battle of the tests’: the majority opined that the doctrine of restraint of trade would only be engaged if the covenantor contracts to give up a freedom they already had (what has come to be known as the ‘pre-existing freedom test’; Lord Wilberforce, dissenting, formulated what came to be known as the ‘trading society test’ which is basically a rule of reason test. In Peninsula Securities, the Supreme Court clearly sided with the latter, but in reality neither test is likely to be considered in future challenges to an anchor tenancy restrictive covenant – the key question is whether it is anti-competitive, something which only the relevant facts of the case will determine.
{"title":"The battle of the tests: a Pyrrhic victory? A case note on the Supreme Court judgment in Peninsula Securities Ltd v. Dunnes Stores (Bangor) Ltd","authors":"M. Jephcott, Max Kaufman, Ben Gordon","doi":"10.4337/CLJ.2020.04.01","DOIUrl":"https://doi.org/10.4337/CLJ.2020.04.01","url":null,"abstract":"In Peninsula Securities, the Supreme Court held that a restrictive covenant, granted in a lease to an anchor tenant of a shopping centre not to allow any retail unit in the centre to be leased to competing shops, does not engage the doctrine of restraint of trade. The question of its enforceability therefore hinges on whether the relevant covenant breaches competition law, and specifically whether it is anti-competitive by object or effect. This relatively straightforward conclusion of the Supreme Court in Peninsula Securities masks over 50 years of conflicting judgments and uncertainty in the area. Prior to Peninsula Securities, the majority decision of the House of Lords in Esso Petroleum v Harper's Garage gave rise to a ‘battle of the tests’: the majority opined that the doctrine of restraint of trade would only be engaged if the covenantor contracts to give up a freedom they already had (what has come to be known as the ‘pre-existing freedom test’; Lord Wilberforce, dissenting, formulated what came to be known as the ‘trading society test’ which is basically a rule of reason test. In Peninsula Securities, the Supreme Court clearly sided with the latter, but in reality neither test is likely to be considered in future challenges to an anchor tenancy restrictive covenant – the key question is whether it is anti-competitive, something which only the relevant facts of the case will determine.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42341280","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: Nicolas Charbit and Sonia Ahmad (eds), Richard Whish QC (Hon) Liber Amicorum: Taking Competition Law Outside the Box","authors":"M. O’Regan","doi":"10.4337/CLJ.2020.04.08","DOIUrl":"https://doi.org/10.4337/CLJ.2020.04.08","url":null,"abstract":"","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42324183","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}
Many firms are facing financial difficulty as a result of COVID-19. However, we have not (yet) seen the predicted increase in merger activity or bankruptcies in some of the sectors most affected by the pandemic, including aviation. This may be, in part, a result of the substantial state support that has been provided to a number of companies in the sector. This article considers whether it is preferable to provide state aid to companies in order to allow them to continue operating, or should these ‘failing’ or ‘flailing’ firms be allowed to be acquired by others. It further considers whether there could be more alignment between these tools.
{"title":"Using competition tools during the COVID-19 pandemic: are merger control and state support substitutes or complements?","authors":"Michele Granatstein","doi":"10.4337/CLJ.2020.04.07","DOIUrl":"https://doi.org/10.4337/CLJ.2020.04.07","url":null,"abstract":"Many firms are facing financial difficulty as a result of COVID-19. However, we have not (yet) seen the predicted increase in merger activity or bankruptcies in some of the sectors most affected by the pandemic, including aviation. This may be, in part, a result of the substantial state support that has been provided to a number of companies in the sector. This article considers whether it is preferable to provide state aid to companies in order to allow them to continue operating, or should these ‘failing’ or ‘flailing’ firms be allowed to be acquired by others. It further considers whether there could be more alignment between these tools.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49633095","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}
Private damage claims that follow after a competition authority's infringement decision require an accurate estimation of the harm caused, in order to avoid under- or over-compensation. The right method for valuation of damage will depend on the specifics of a particular case, and will need to balance the need to allow for a sufficient level of detail, while remaining tractable and practical for the case overall. Regression analysis is often the method that best balances these competing objectives. This article discusses the increasing use of regression analysis in follow-on damage claims in Europe. It outlines possible reasons why this widespread application of regression analysis is not yet extensively reflected in final judgments by national courts, and considers how this may change in the future. It concludes that the regression analysis is here to stay.
{"title":"Here to stay: regression analysis in follow-on cartel damages","authors":"Spyros Droukopoulos, B. Veronese, Stefan Witte","doi":"10.4337/clj.2020.03.04","DOIUrl":"https://doi.org/10.4337/clj.2020.03.04","url":null,"abstract":"Private damage claims that follow after a competition authority's infringement decision require an accurate estimation of the harm caused, in order to avoid under- or over-compensation. The right method for valuation of damage will depend on the specifics of a particular case, and will need to balance the need to allow for a sufficient level of detail, while remaining tractable and practical for the case overall. Regression analysis is often the method that best balances these competing objectives. This article discusses the increasing use of regression analysis in follow-on damage claims in Europe. It outlines possible reasons why this widespread application of regression analysis is not yet extensively reflected in final judgments by national courts, and considers how this may change in the future. It concludes that the regression analysis is here to stay.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/clj.2020.03.04","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41408766","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}
Loss of potential, rather than actual, competition as a theory of harm in merger control has been a hot topic in competition policy debate. The UK's Competition and Markets Authority (CMA) does not face the same jurisdictional constraints that have prevented some of its peer agencies from investigating transactions which give rise to loss of potential competition concerns, and it has adopted a number of recent merger decisions in this area, in many cases after the conclusion of a detailed Phase 2 review. This article outlines the applicable legal framework and explores the CMA's recent decisional practice by reference to three categories of transaction potentially giving rise to a loss of potential competition where the concern is that absent the transaction: (1) one party would have been a market entrant; (2) one or both parties would have become a greater competitive constraint on the other; and/or (3) there was an alternative purchaser which would have made the target more competitive. It then summarizes the CMA's approach to assessing such transactions, including its intention, ability and incentive framework. It concludes by setting out the case for revision to the CMA's Merger Assessment Guidelines to reflect explicitly its approach to these types of transactions.
{"title":"The loss of potential competition in UK merger control – the emergence of an analytical framework in the CMA's recent decisional practice","authors":"Joe Williams, Stephen Wisking","doi":"10.4337/clj.2020.03.02","DOIUrl":"https://doi.org/10.4337/clj.2020.03.02","url":null,"abstract":"Loss of potential, rather than actual, competition as a theory of harm in merger control has been a hot topic in competition policy debate. The UK's Competition and Markets Authority (CMA) does not face the same jurisdictional constraints that have prevented some of its peer agencies from investigating transactions which give rise to loss of potential competition concerns, and it has adopted a number of recent merger decisions in this area, in many cases after the conclusion of a detailed Phase 2 review. This article outlines the applicable legal framework and explores the CMA's recent decisional practice by reference to three categories of transaction potentially giving rise to a loss of potential competition where the concern is that absent the transaction: (1) one party would have been a market entrant; (2) one or both parties would have become a greater competitive constraint on the other; and/or (3) there was an alternative purchaser which would have made the target more competitive. It then summarizes the CMA's approach to assessing such transactions, including its intention, ability and incentive framework. It concludes by setting out the case for revision to the CMA's Merger Assessment Guidelines to reflect explicitly its approach to these types of transactions.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43838806","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：