The suggestion that there has been a widespread reduction in competition across many industries has been widely discussed in recent years by academics, policymakers and the media. But what does the empirical evidence actually say, and what are potential causes and policy options? This article provides a critical assessment of the ever-growing evidence base and draws conclusions on potential policy responses.
{"title":"Is market power on the rise? Potential explanations and implications for competition","authors":"A. Ragno, F. Arduini, N. Rosenboom","doi":"10.4337/CLJ.2019.02.04","DOIUrl":"https://doi.org/10.4337/CLJ.2019.02.04","url":null,"abstract":"The suggestion that there has been a widespread reduction in competition across many industries has been widely discussed in recent years by academics, policymakers and the media. But what does the empirical evidence actually say, and what are potential causes and policy options? This article provides a critical assessment of the ever-growing evidence base and draws conclusions on potential policy responses.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47302653","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 2019 decision by the German Federal Cartel Office (‘FCO’) against Facebook for its alleged abuse of a dominant position through its data collection practices is a landmark case that has received close attention beyond the German borders. It is the first case in which a European competition authority has found that terms of use that breach relevant principles under the data privacy framework can constitute abusive conduct in the form of an exploitative abuse under the competition rules. The case raises questions as to the relationship between the two legal frameworks. The FCO found that Facebook‘s terms of use and data collection practices constituted exploitative business terms directly harming Facebook users and also had detrimental effects on competition by reinforcing Facebook's market power in the social network market and advertising market. The case raises interesting questions on market definition and dominance in digital markets as well as on causality between dominance and abuse. In the bigger picture the Facebook case fits into the continuous efforts by the FCO to apply competition law in the digital sector in a dynamic manner. This article examines the FCO's reasoning in the Facebook Decision and outlines some challenges that companies in the digital sector might face in the aftermath of the decision.
{"title":"The German FCO's decision against Facebook: a first step towards the creation of digital house rules?","authors":"K. Fountoukakos, M. Nuys, J. Penz, P. Rowland","doi":"10.4337/CLJ.2019.02.01","DOIUrl":"https://doi.org/10.4337/CLJ.2019.02.01","url":null,"abstract":"The 2019 decision by the German Federal Cartel Office (‘FCO’) against Facebook for its alleged abuse of a dominant position through its data collection practices is a landmark case that has received close attention beyond the German borders. It is the first case in which a European competition authority has found that terms of use that breach relevant principles under the data privacy framework can constitute abusive conduct in the form of an exploitative abuse under the competition rules. The case raises questions as to the relationship between the two legal frameworks. The FCO found that Facebook‘s terms of use and data collection practices constituted exploitative business terms directly harming Facebook users and also had detrimental effects on competition by reinforcing Facebook's market power in the social network market and advertising market. The case raises interesting questions on market definition and dominance in digital markets as well as on causality between dominance and abuse. In the bigger picture the Facebook case fits into the continuous efforts by the FCO to apply competition law in the digital sector in a dynamic manner. This article examines the FCO's reasoning in the Facebook Decision and outlines some challenges that companies in the digital sector might face in the aftermath of the decision.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43015005","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}
Peter Wantoch, R. Ferrari, Joel Bamford, M. Duarte
The Competition and Markets Authority (‘CMA’) assesses both the price and the non-price effects of mergers. The relative importance of each depends on the process of rivalry between the merging firms and their competitors. Dynamic non-price effects, for instance on innovation, are potentially important, as the CMA found in the ICE/Trayport merger, which was prohibited. Non-price parameters such as quality, range and service are also important and are considered in particular when mergers occur in markets where price competition is limited, for example public services such as hospitals and regulated markets such as pharmacies.
{"title":"Non-price effects of mergers","authors":"Peter Wantoch, R. Ferrari, Joel Bamford, M. Duarte","doi":"10.4337/CLJ.2019.02.03","DOIUrl":"https://doi.org/10.4337/CLJ.2019.02.03","url":null,"abstract":"The Competition and Markets Authority (‘CMA’) assesses both the price and the non-price effects of mergers. The relative importance of each depends on the process of rivalry between the merging firms and their competitors. Dynamic non-price effects, for instance on innovation, are potentially important, as the CMA found in the ICE/Trayport merger, which was prohibited. Non-price parameters such as quality, range and service are also important and are considered in particular when mergers occur in markets where price competition is limited, for example public services such as hospitals and regulated markets such as pharmacies.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/CLJ.2019.02.03","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45835721","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 analyzes the Court of Appeal's judgment in the Balmoral Tanks information exchange case, upholding the Competition and Markets Authority's decision to fine Balmoral Tanks for the exchange of competitively sensitive information at a single meeting even though Balmoral Tanks was not part of a wider cartel. This judgment demonstrates the strict enforcement of competition law to information exchanges and the CMA's unusual approach adopting two separate infringement decisions – one relating to the main cartel and a separate decision relating to the information exchange – even though the participants to the cartel were also involved in the information exchange.
{"title":"Different ways to skin a cat? The Balmoral Tanks information exchange appeal","authors":"Nicole Kar, A. Mitchell","doi":"10.4337/CLJ.2019.02.02","DOIUrl":"https://doi.org/10.4337/CLJ.2019.02.02","url":null,"abstract":"This article analyzes the Court of Appeal's judgment in the Balmoral Tanks information exchange case, upholding the Competition and Markets Authority's decision to fine Balmoral Tanks for the exchange of competitively sensitive information at a single meeting even though Balmoral Tanks was not part of a wider cartel. This judgment demonstrates the strict enforcement of competition law to information exchanges and the CMA's unusual approach adopting two separate infringement decisions – one relating to the main cartel and a separate decision relating to the information exchange – even though the participants to the cartel were also involved in the information exchange.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44045180","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 deployment of complex expert economic evidence is a common feature of competition litigation. However, fundamental differences in thinking between lawyers and economists may have a bearing on the content and presentation of that evidence. This article considers the respective roles of lawyers and economists in competition litigation in the High Court and the Competition Appeal Tribunal, and how those roles interlink in practice.
{"title":"Lawyers come from Mars, and economists come from Venus – or is it the other way round? Some thoughts on expert economic evidence in competition cases","authors":"Marcus L. Smith","doi":"10.4337/CLJ.2019.01.01","DOIUrl":"https://doi.org/10.4337/CLJ.2019.01.01","url":null,"abstract":"The deployment of complex expert economic evidence is a common feature of competition litigation. However, fundamental differences in thinking between lawyers and economists may have a bearing on the content and presentation of that evidence. This article considers the respective roles of lawyers and economists in competition litigation in the High Court and the Competition Appeal Tribunal, and how those roles interlink in practice.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/CLJ.2019.01.01","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49298431","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: Pier Luigi Parcu, Giorgio Monti and Marco Botta (eds), Private Enforcement of EU Competition Law: The Impact of the Damages Directive (Edward Elgar Publishing, Cheltenham 2018, 256 pp.)","authors":"M. O’Regan","doi":"10.4337/CLJ.2019.01.07","DOIUrl":"https://doi.org/10.4337/CLJ.2019.01.07","url":null,"abstract":"","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45389070","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}
Ilaria Fanton, Spyros Droukopoulos, Matthew Johnson
Competition authorities around the world have for many years used sophisticated quantitative tools to assess the likely scale of harm from horizontal mergers. More recently, vertical mergers have also been increasingly scrutinized by competition authorities using a range of quantitative tools. These tools help the authorities to quantify the incentive of the merging parties to enact vertical foreclosure strategies that would harm competition. One of those tools, known as the vGUPPI (vertical gross upward pricing pressure index), uses the same theoretical economic framework as the quantitative assessment used in horizontal merger assessments. This article explains how the vGUPPI tool works and uses two recent merger decisions of the Competition and Markets Authority in the groceries sector as case studies.
多年来，世界各地的竞争监管机构一直使用复杂的定量工具来评估横向合并可能造成的损害程度。最近，垂直并购也越来越多地受到竞争监管机构使用一系列量化工具的审查。这些工具有助于当局量化合并各方制定不利于竞争的垂直止赎策略的动机。其中一种工具被称为vGUPPI(垂直总上行定价压力指数)，它使用与横向合并评估中使用的定量评估相同的理论经济框架。本文解释了vGUPPI工具是如何工作的，并使用竞争和市场管理局(Competition and Markets Authority)最近在杂货行业做出的两项合并决定作为案例研究。
{"title":"Vertical mergers and the vGUPPI: quantifying vertical foreclosure","authors":"Ilaria Fanton, Spyros Droukopoulos, Matthew Johnson","doi":"10.4337/clj.2019.01.06","DOIUrl":"https://doi.org/10.4337/clj.2019.01.06","url":null,"abstract":"Competition authorities around the world have for many years used sophisticated quantitative tools to assess the likely scale of harm from horizontal mergers. More recently, vertical mergers have also been increasingly scrutinized by competition authorities using a range of quantitative tools. These tools help the authorities to quantify the incentive of the merging parties to enact vertical foreclosure strategies that would harm competition.\u0000\u0000One of those tools, known as the vGUPPI (vertical gross upward pricing pressure index), uses the same theoretical economic framework as the quantitative assessment used in horizontal merger assessments. This article explains how the vGUPPI tool works and uses two recent merger decisions of the Competition and Markets Authority in the groceries sector as case studies.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48866550","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 case of BritNed v. ABB is the first time a claim for damages following on from a competition authority's cartel infringement decision has proceeded through trial and to final judgment in the English courts. The judgment provides useful guidance on the approach the English courts may take to the quantification of damages in cartel damages cases. This article looks at the manner in which the judgment grappled with three key areas of evidential dispute in the case, which resulted in the court rejecting the claimant's economic case. The article also considers how the findings in the case may influence the manner in which competition damages claims are pursued in the future.
{"title":"BritNed v. ABB: lessons from the first follow-on damages claim to reach judgment in the English courts","authors":"Lara Hall","doi":"10.4337/CLJ.2019.01.02","DOIUrl":"https://doi.org/10.4337/CLJ.2019.01.02","url":null,"abstract":"The case of BritNed v. ABB is the first time a claim for damages following on from a competition authority's cartel infringement decision has proceeded through trial and to final judgment in the English courts. The judgment provides useful guidance on the approach the English courts may take to the quantification of damages in cartel damages cases. This article looks at the manner in which the judgment grappled with three key areas of evidential dispute in the case, which resulted in the court rejecting the claimant's economic case. The article also considers how the findings in the case may influence the manner in which competition damages claims are pursued in the future.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46164041","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 regulation of vertical restraints is a long-standing facet of competition law, governed at the European level by Article 101 TFEU. However, in the new era of digitization, algorithmic price monitoring and price setting has the potential to lead to rapid and widespread price changes across entire online marketplaces for suppliers, often leading to lower prices, which benefit consumers. The manner in which suppliers react to these pressures has resulted in behaviours that may involve collusion, but more often are reminiscent of classic vertical restraints, albeit in the new digital era. The article considers how the European Commission and some Member States’ national competition authorities have been tackling vertical restraints in the online world, and considers the implications as the European economy continues to digitize.
{"title":"Vertical restraints in an online world: competition authorities gear up their enforcement approach in the digital economy","authors":"Marc Israel, Jacquelyn F. MacLennan, J. Jeram","doi":"10.4337/CLJ.2019.01.03","DOIUrl":"https://doi.org/10.4337/CLJ.2019.01.03","url":null,"abstract":"The regulation of vertical restraints is a long-standing facet of competition law, governed at the European level by Article 101 TFEU. However, in the new era of digitization, algorithmic price monitoring and price setting has the potential to lead to rapid and widespread price changes across entire online marketplaces for suppliers, often leading to lower prices, which benefit consumers. The manner in which suppliers react to these pressures has resulted in behaviours that may involve collusion, but more often are reminiscent of classic vertical restraints, albeit in the new digital era. The article considers how the European Commission and some Member States’ national competition authorities have been tackling vertical restraints in the online world, and considers the implications as the European economy continues to digitize.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44621976","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 the implications of a number of recent cases and court judgments on excessive pricing. It first outlines the economic risks associated with antitrust interventions on excessive pricing. It then seeks to identify a narrow set of specific market conditions to which competition authorities could consider limiting their use of competition law against alleged excessive pricing. The article also highlights the practical challenges in implementing the economic and legal tests for excessive pricing. Finally, it considers whether competition policy is the most appropriate tool with which to ensure that consumers are not charged excessive prices.
{"title":"Excessive intervention? A review of recent excessive pricing investigations","authors":"B. Ignjatovic, P. Hutchinson","doi":"10.4337/CLJ.2019.01.04","DOIUrl":"https://doi.org/10.4337/CLJ.2019.01.04","url":null,"abstract":"This article considers the implications of a number of recent cases and court judgments on excessive pricing. It first outlines the economic risks associated with antitrust interventions on excessive pricing. It then seeks to identify a narrow set of specific market conditions to which competition authorities could consider limiting their use of competition law against alleged excessive pricing. The article also highlights the practical challenges in implementing the economic and legal tests for excessive pricing. Finally, it considers whether competition policy is the most appropriate tool with which to ensure that consumers are not charged excessive prices.","PeriodicalId":36415,"journal":{"name":"Competition Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48073831","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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