The issue of barriers to exit has been neglected by competition authorities and by competition policy research. This is somewhat surprising as it is a topic which goes to the heart of why competition policy exists; if barriers to exit prevent or delay inefficient firms from leaving the market, then the normal competitive process of driving up market efficiency is hampered. This in turn reduces the benefits to other, more efficient firms, and to customers in terms of lower prices, better quality, etc. This article explores the reasons why, despite the importance of barriers to exit in the economic framework that underpins competition policy, very few competition authority decisions discuss the issue. It considers the approach to barriers to exit in different types of competition investigation, such as merger assessment, Article 101 and 102 TFEU cases, and State aid. The article also considers the scope for cross-disciplinary research and collaboration, such as in the design of insolvency or bankruptcy laws.
{"title":"Better out than in: why barriers to exit matter for competition law and policy","authors":"Matthew Johnson","doi":"10.4337/clj.2020.01.05","DOIUrl":"https://doi.org/10.4337/clj.2020.01.05","url":null,"abstract":"The issue of barriers to exit has been neglected by competition authorities and by competition policy research. This is somewhat surprising as it is a topic which goes to the heart of why competition policy exists; if barriers to exit prevent or delay inefficient firms from leaving the market, then the normal competitive process of driving up market efficiency is hampered. This in turn reduces the benefits to other, more efficient firms, and to customers in terms of lower prices, better quality, etc. This article explores the reasons why, despite the importance of barriers to exit in the economic framework that underpins competition policy, very few competition authority decisions discuss the issue. It considers the approach to barriers to exit in different types of competition investigation, such as merger assessment, Article 101 and 102 TFEU cases, and State aid. The article also considers the scope for cross-disciplinary research and collaboration, such as in the design of insolvency or bankruptcy laws.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/clj.2020.01.05","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42749584","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 field of artificial intelligence or ‘AI’ has been reshaping virtually every industry built on the idea that machines could be used to simulate human intelligence through so-called ‘machine learning’. Antitrust interest in this topic has been generated among regulators, policy-makers, academics and business in the EU and internationally. This article explores the extent to which AI may raise competition or other concerns for consumer welfare and whether existing legal and policy instruments are appropriate to deal with the emerging opportunities and challenges.
{"title":"Artificial intelligence, algorithms and antitrust","authors":"S. Rab","doi":"10.4337/clj.2019.04.02","DOIUrl":"https://doi.org/10.4337/clj.2019.04.02","url":null,"abstract":"The field of artificial intelligence or ‘AI’ has been reshaping virtually every industry built on the idea that machines could be used to simulate human intelligence through so-called ‘machine learning’. Antitrust interest in this topic has been generated among regulators, policy-makers, academics and business in the EU and internationally. This article explores the extent to which AI may raise competition or other concerns for consumer welfare and whether existing legal and policy instruments are appropriate to deal with the emerging opportunities and challenges.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":"10 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/clj.2019.04.02","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41319742","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}
Sophie Lawrance, Bristows Llp London Partner, A. Brookes, London Bristows Llp
In May 2020 the Court of Appeal gave judgment in Competition and Markets Authority v. Flynn Pharma and Pfizer, which adjusted the starting point for costs awards following successful appeals of Competition and Markets Authority decisions. Following this judgment, such awards by the Competition Appeal Tribunal must start from the position that no order as to costs should be made against the CMA, rather than the standard approach of ‘costs follow the event’ that had been the CAT's established practice. This article examines the rationale for the CAT's past practice, the basis for the Court of Appeal's judgment altering that approach, and considers the potential implications the judgment may have.
{"title":"The mysterious case of the successful appeal and the missing costs award: Competition and Markets Authority v. Flynn Pharma Limited","authors":"Sophie Lawrance, Bristows Llp London Partner, A. Brookes, London Bristows Llp","doi":"10.4337/CLJ.2020.04.02","DOIUrl":"https://doi.org/10.4337/CLJ.2020.04.02","url":null,"abstract":"In May 2020 the Court of Appeal gave judgment in Competition and Markets Authority v. Flynn Pharma and Pfizer, which adjusted the starting point for costs awards following successful appeals of Competition and Markets Authority decisions. Following this judgment, such awards by the Competition Appeal Tribunal must start from the position that no order as to costs should be made against the CMA, rather than the standard approach of ‘costs follow the event’ that had been the CAT's established practice. This article examines the rationale for the CAT's past practice, the basis for the Court of Appeal's judgment altering that approach, and considers the potential implications the judgment may have.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44321876","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}
Pascale Déchamps, Ambroise Descamps, F. Arduini, Célia Baye, Lola Damstra
A recent topic of debate among economists and policymakers is whether labour markets should be of interest to competition authorities. High-profile cases involving non-poaching agreements have recently made the headlines in the USA, and labour markets were a key aspect of criticisms aimed at recent merger decisions in Europe. In parallel, academic research has provided new findings to fuel this debate. In this article, we shed light on the key elements of this discussion and explain how economic analysis can contribute to it.
{"title":"Labour markets: a blind spot for competition authorities?","authors":"Pascale Déchamps, Ambroise Descamps, F. Arduini, Célia Baye, Lola Damstra","doi":"10.4337/clj.2019.04.07","DOIUrl":"https://doi.org/10.4337/clj.2019.04.07","url":null,"abstract":"A recent topic of debate among economists and policymakers is whether labour markets should be of interest to competition authorities. High-profile cases involving non-poaching agreements have recently made the headlines in the USA, and labour markets were a key aspect of criticisms aimed at recent merger decisions in Europe. In parallel, academic research has provided new findings to fuel this debate. In this article, we shed light on the key elements of this discussion and explain how economic analysis can contribute to it.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46530892","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}
Claimants in private damages actions following on from European Commission cartel decisions are often faced with a choice of jurisdiction in which to pursue their claims. However, seising jurisdiction in the national court of a desired Member State can require the claim to be pursued against an anchor defendant that is not an addressee of a Commission decision. This may, in the English courts, give rise to various disputes as to the role of that non-addressee defendant in the cartel and, accordingly, whether a claim can in fact be sustained as against that defendant. The Court of Justice's recent judgment in Vantaan Kaupunki v Skanska Industrial Solutions potentially relieves claimants from the burden of having to establish that the non-addressee defendant participated in, or implemented, the cartel in order to sustain a claim against it, by holding that it is entire undertakings that are liable for compensation in private damages actions. The Skanska judgment harmonizes the scope of liability under the public and private spheres of EU competition law enforcement and has potentially significant ramifications for competition litigation in the English courts.
{"title":"Skanska: are jurisdiction challenges now an impossible undertaking?","authors":"Andrew Leitch","doi":"10.4337/clj.2019.03.02","DOIUrl":"https://doi.org/10.4337/clj.2019.03.02","url":null,"abstract":"Claimants in private damages actions following on from European Commission cartel decisions are often faced with a choice of jurisdiction in which to pursue their claims. However, seising jurisdiction in the national court of a desired Member State can require the claim to be pursued against an anchor defendant that is not an addressee of a Commission decision. This may, in the English courts, give rise to various disputes as to the role of that non-addressee defendant in the cartel and, accordingly, whether a claim can in fact be sustained as against that defendant. The Court of Justice's recent judgment in Vantaan Kaupunki v Skanska Industrial Solutions potentially relieves claimants from the burden of having to establish that the non-addressee defendant participated in, or implemented, the cartel in order to sustain a claim against it, by holding that it is entire undertakings that are liable for compensation in private damages actions. The Skanska judgment harmonizes the scope of liability under the public and private spheres of EU competition law enforcement and has potentially significant ramifications for competition litigation in the English courts.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46199254","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: Miguel Sousa Ferro, Market Definition in EU Competition Law","authors":"M. O’Regan","doi":"10.4337/clj.2019.03.06","DOIUrl":"https://doi.org/10.4337/clj.2019.03.06","url":null,"abstract":"","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48486534","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 importance of facts in English cartel damages litigation is evident from the rules governing claims for damages. The rules aim to balance the interests of claimants and defendants and incorporate safeguards against defendants being forced to defend unmeritorious claims. In cartel damages claims, however, claimants have deployed, in some cases successfully, tactics aimed at minimizing engagement with the underlying facts at all stages of the proceedings. This article examines these tactics and the extent to which recent judgments, such as the case of BritNed v ABB, have undermined the viability of such an approach.
{"title":"Cartel damages claims in England: end of the ‘post-fact’ era?","authors":"Jonathan Kwan","doi":"10.4337/clj.2019.03.01","DOIUrl":"https://doi.org/10.4337/clj.2019.03.01","url":null,"abstract":"The importance of facts in English cartel damages litigation is evident from the rules governing claims for damages. The rules aim to balance the interests of claimants and defendants and incorporate safeguards against defendants being forced to defend unmeritorious claims. In cartel damages claims, however, claimants have deployed, in some cases successfully, tactics aimed at minimizing engagement with the underlying facts at all stages of the proceedings. This article examines these tactics and the extent to which recent judgments, such as the case of BritNed v ABB, have undermined the viability of such an approach.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44294761","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 new collective actions regime for competition damages claims was introduced in the UK in 2015. Although seven proposed collective proceedings have been brought since that time, none have, as yet, continued beyond the certification stage, and no further cases are likely to proceed to a full certification hearing pending an appeal to the Supreme Court in the Merricks v Mastercard proceedings in 2020. It is, therefore, an opportune time to take stock of the new regime. This article explores the development of the regime to date, considers what lies ahead, and assesses the overall status and progress of the regime. It is suggested that the forthcoming Supreme Court appeal in Merricks provides a welcome opportunity both to build on the significant progress that has already been made on a number of key aspects of the new regimen over the past four years, and to redress some of the legal and policy implications of the recent Court of Appeal judgment in the Merricks proceedings, which risk undermining the important ‘gatekeeping’ function afforded to the Competition Appeal Tribunal under the legislation. The UK collective proceedings regime ought to then be on a strong footing to resume, albeit its development will remain necessarily iterative and cumulative as further important aspects of the new regime are considered by the CAT and appellate courts over the coming years.
{"title":"Collective proceedings in the Competition Appeal Tribunal: taking stock and looking ahead","authors":"Ricky Versteeg, Alexandra Malina","doi":"10.4337/clj.2019.03.03","DOIUrl":"https://doi.org/10.4337/clj.2019.03.03","url":null,"abstract":"A new collective actions regime for competition damages claims was introduced in the UK in 2015. Although seven proposed collective proceedings have been brought since that time, none have, as yet, continued beyond the certification stage, and no further cases are likely to proceed to a full certification hearing pending an appeal to the Supreme Court in the Merricks v Mastercard proceedings in 2020. It is, therefore, an opportune time to take stock of the new regime. This article explores the development of the regime to date, considers what lies ahead, and assesses the overall status and progress of the regime. It is suggested that the forthcoming Supreme Court appeal in Merricks provides a welcome opportunity both to build on the significant progress that has already been made on a number of key aspects of the new regimen over the past four years, and to redress some of the legal and policy implications of the recent Court of Appeal judgment in the Merricks proceedings, which risk undermining the important ‘gatekeeping’ function afforded to the Competition Appeal Tribunal under the legislation. The UK collective proceedings regime ought to then be on a strong footing to resume, albeit its development will remain necessarily iterative and cumulative as further important aspects of the new regime are considered by the CAT and appellate courts over the coming years.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/clj.2019.03.03","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44521309","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 seeks to draw attention to two areas of technological innovation relevant to the digital economy that the European Commission (‘Commission’) seems so far to have missed in its evaluation of the effectiveness of and reforms required to the Vertical Agreements Block Exemption Regulation (‘VBER’) and the associated Guidelines: fintech and blockchain technologies. In particular, this article seeks to demonstrate that vertical agreements can produce novel solutions in certain fintech markets, whilst also creating potential novel issues around exclusion, bundling and market power when used in the context of blockchain technologies. It is hoped that the results of the public consultation will bring some of these issues to the Commission's attention, because without taking these issues into consideration the Commission risks missing the opportunity to make ex ante changes to the VBER to ensure that it is ready for potential future innovations in the digital economy.
{"title":"Mind the gap: the consideration of financial technologies and blockchain in the reform of the Vertical Agreements Block Exemption Regulation","authors":"L. Chambers","doi":"10.4337/clj.2019.03.04","DOIUrl":"https://doi.org/10.4337/clj.2019.03.04","url":null,"abstract":"This article seeks to draw attention to two areas of technological innovation relevant to the digital economy that the European Commission (‘Commission’) seems so far to have missed in its evaluation of the effectiveness of and reforms required to the Vertical Agreements Block Exemption Regulation (‘VBER’) and the associated Guidelines: fintech and blockchain technologies. In particular, this article seeks to demonstrate that vertical agreements can produce novel solutions in certain fintech markets, whilst also creating potential novel issues around exclusion, bundling and market power when used in the context of blockchain technologies. It is hoped that the results of the public consultation will bring some of these issues to the Commission's attention, because without taking these issues into consideration the Commission risks missing the opportunity to make ex ante changes to the VBER to ensure that it is ready for potential future innovations in the digital economy.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45785359","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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