This paper, which was given as the 2024 Bellamy Lecture, reviews the law and economics of the consumer welfare standard in competition policy, particularly in relation to mergers and abuse of dominance. With qualifications relating to input markets, the consumer welfare approach is defended against arguments for its relaxation, and against contrary criticisms that it is unduly permissive.
{"title":"Competition policy and the consumer welfare standard","authors":"John Vickers","doi":"10.1093/jaenfo/jnae038","DOIUrl":"https://doi.org/10.1093/jaenfo/jnae038","url":null,"abstract":"This paper, which was given as the 2024 Bellamy Lecture, reviews the law and economics of the consumer welfare standard in competition policy, particularly in relation to mergers and abuse of dominance. With qualifications relating to input markets, the consumer welfare approach is defended against arguments for its relaxation, and against contrary criticisms that it is unduly permissive.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"46 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141576670","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 investigates the evolution of the European Union (EU) competition law and policy enforcement in the pharmaceuticals sector, focusing on the impact of the coronavirus disease 2019 (COVID-19) crisis as a turning point. Before COVID-19, EU competition authorities’ goals and priorities focused on pay-for-delay agreements between originators and generic pharmaceutical undertakings. During COVID-19, the European Commission developed soft laws (such as temporary frameworks and comfort letters) enabling undertakings to cooperate to increase access to essential health products and COVID-19 vaccines. In the post-pandemic era, initiatives like the Pharmaceutical Strategy for Europe, the Single Market Emergency Instrument (SMEI), the Health Emergency Response Authority (HERA), the compulsory licensing proposal and the upcoming changes in the pharmaceutical regulations reflect a patient-centred approach and diverse agenda. This article underscores the move towards a more inclusive EU competition law and policy framework in the pharmaceutical sector as part of this evolution.
{"title":"The evolution of EU competition law and policy in the pharmaceutical sector: long-lasting impacts of a pandemic","authors":"Mina Hosseini","doi":"10.1093/jaenfo/jnae037","DOIUrl":"https://doi.org/10.1093/jaenfo/jnae037","url":null,"abstract":"This article investigates the evolution of the European Union (EU) competition law and policy enforcement in the pharmaceuticals sector, focusing on the impact of the coronavirus disease 2019 (COVID-19) crisis as a turning point. Before COVID-19, EU competition authorities’ goals and priorities focused on pay-for-delay agreements between originators and generic pharmaceutical undertakings. During COVID-19, the European Commission developed soft laws (such as temporary frameworks and comfort letters) enabling undertakings to cooperate to increase access to essential health products and COVID-19 vaccines. In the post-pandemic era, initiatives like the Pharmaceutical Strategy for Europe, the Single Market Emergency Instrument (SMEI), the Health Emergency Response Authority (HERA), the compulsory licensing proposal and the upcoming changes in the pharmaceutical regulations reflect a patient-centred approach and diverse agenda. This article underscores the move towards a more inclusive EU competition law and policy framework in the pharmaceutical sector as part of this evolution.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"364 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141550430","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 are several ways to collect information on violations of antitrust laws, including ex officio detection, reports from the general public, and the use of leniency systems. There have been many discussions on improvements in the use of leniency systems and refining the ex officio detection method by improving the use of data by methods of analysis. However, improvements in public reporting have not often been considered. In this study, we confirm that 68.8 per cent of the general public provides information on bid-rigging and 49.6 per cent of the general public provides information on cartels, and that the reason for not providing information is the unlikelihood of success, which means a sense of powerlessness against powerful companies, followed by a feeling of lack of responsibility. Therefore, addressing that perception is the key to increasing information from the general public.
{"title":"From silence to vigilance: overcoming barriers in public reporting of bid-rigging and cartel violations","authors":"Koki Arai","doi":"10.1093/jaenfo/jnae027","DOIUrl":"https://doi.org/10.1093/jaenfo/jnae027","url":null,"abstract":"There are several ways to collect information on violations of antitrust laws, including ex officio detection, reports from the general public, and the use of leniency systems. There have been many discussions on improvements in the use of leniency systems and refining the ex officio detection method by improving the use of data by methods of analysis. However, improvements in public reporting have not often been considered. In this study, we confirm that 68.8 per cent of the general public provides information on bid-rigging and 49.6 per cent of the general public provides information on cartels, and that the reason for not providing information is the unlikelihood of success, which means a sense of powerlessness against powerful companies, followed by a feeling of lack of responsibility. Therefore, addressing that perception is the key to increasing information from the general public.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"23 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140931033","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 piece is a short essay on the first steps of the implementation of the Digital Markets Act. Our paper is divided in three sections. In the first section “Why does the DMA exist?”, we come back on the genesis of the DMA and the complementing role it plays with competition law. In the second section “Challenges of Gatekeeper Designations”, we look back at this first important step in the implementation of the DMA, and highlight that a key topic in the context of these designation proceedings has been the determination of the appropriate delineation of the core platform services to be designated. Finally, in the third section “Challenges of DMA compliance”, we set out our high-level vision and approach for the concrete implementation of the DMA by the gatekeepers and their endeavour to comply with the various obligations and prohibitions contained in the DMA. In this regard, we highlight that our aim with the DMA is to create room for opportunities.
{"title":"Agency Insights: The first steps of the DMA adventure","authors":"Alberto Bacchiega, Thomas Tombal","doi":"10.1093/jaenfo/jnae026","DOIUrl":"https://doi.org/10.1093/jaenfo/jnae026","url":null,"abstract":"This piece is a short essay on the first steps of the implementation of the Digital Markets Act. Our paper is divided in three sections. In the first section “Why does the DMA exist?”, we come back on the genesis of the DMA and the complementing role it plays with competition law. In the second section “Challenges of Gatekeeper Designations”, we look back at this first important step in the implementation of the DMA, and highlight that a key topic in the context of these designation proceedings has been the determination of the appropriate delineation of the core platform services to be designated. Finally, in the third section “Challenges of DMA compliance”, we set out our high-level vision and approach for the concrete implementation of the DMA by the gatekeepers and their endeavour to comply with the various obligations and prohibitions contained in the DMA. In this regard, we highlight that our aim with the DMA is to create room for opportunities.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"12 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140842371","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 present article advances the understanding of antitrust law by providing theoretical considerations and empirical results of people’s attitudes towards price fixing, specifically within the context of fairness in US antitrust laws. Attitudes were obtained through experimental surveys on Amazon Mechanical Turk in the USA between 2018 and 2021. The empirical results suggest that perceptions of fairness influence public attitudes towards price fixing. Moreover, consumer reaction to price fixing will depend on how the consumer perceives the rules of fairness underlying the competitive market mechanism and the point used to set prices (dual entitlement theory). Results indicate that perceived outcomes and consequences of market transactions influence respondents’ judgment of price fixing. For example, public attitudes will be more lenient whenever a cost-increasing event outside firms’ control affects firms’ profit. The main implication of these findings is that antitrust authorities should not take for granted that people view price fixing as unfair and therefore consider how fairness considerations play out in their approach when dealing with price-fixing cases. The suggestion is for antitrust authorities to focus corporate compliance programmes on people’s attitudes to improve compliance to prevent cartel agreements.
{"title":"Why do people think price fixing is unfair? An empirical legal study on public attitudes in the USA","authors":"Carlos Delvasto, Ruben Acevedo","doi":"10.1093/jaenfo/jnae007","DOIUrl":"https://doi.org/10.1093/jaenfo/jnae007","url":null,"abstract":"The present article advances the understanding of antitrust law by providing theoretical considerations and empirical results of people’s attitudes towards price fixing, specifically within the context of fairness in US antitrust laws. Attitudes were obtained through experimental surveys on Amazon Mechanical Turk in the USA between 2018 and 2021. The empirical results suggest that perceptions of fairness influence public attitudes towards price fixing. Moreover, consumer reaction to price fixing will depend on how the consumer perceives the rules of fairness underlying the competitive market mechanism and the point used to set prices (dual entitlement theory). Results indicate that perceived outcomes and consequences of market transactions influence respondents’ judgment of price fixing. For example, public attitudes will be more lenient whenever a cost-increasing event outside firms’ control affects firms’ profit. The main implication of these findings is that antitrust authorities should not take for granted that people view price fixing as unfair and therefore consider how fairness considerations play out in their approach when dealing with price-fixing cases. The suggestion is for antitrust authorities to focus corporate compliance programmes on people’s attitudes to improve compliance to prevent cartel agreements.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"306 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140202230","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 study aims to establish a connection between human rights violations and unlawful conduct as defined by antitrust laws. To this end, it proposes a systematic teleological interpretation of the Brazilian legal system regarding human rights and competition laws to demonstrate that the Administrative Council for Economic Defence (CADE) has the authority to address human rights violations when enforcing antitrust provisions.
{"title":"A new agenda for antitrust: human rights violations as anti-competitive conduct","authors":"Gustavo H Kastrup","doi":"10.1093/jaenfo/jnae006","DOIUrl":"https://doi.org/10.1093/jaenfo/jnae006","url":null,"abstract":"This study aims to establish a connection between human rights violations and unlawful conduct as defined by antitrust laws. To this end, it proposes a systematic teleological interpretation of the Brazilian legal system regarding human rights and competition laws to demonstrate that the Administrative Council for Economic Defence (CADE) has the authority to address human rights violations when enforcing antitrust provisions.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"85 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140171965","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 presently an increased enthusiasm for competition law enforcement around the world, driven primarily by concerns about the power of digital platform companies. Against this background, this article identifies the emergence of a ‘techno-conservatism’ that invokes a ‘rhetoric of innovation’ to stymy the field’s ongoing shift towards a more interventionist paradigm. Drawing parallels between techno-conservatism and twentieth-century Chicago school conservatism, the article holds that appeals to innovation are a means of deterring enforcement against dominant companies in dynamic markets. This article contests the rhetoric of innovation, maintaining that it is possible to reconcile strong enforcement with care for innovation. It does so by raising three points. First, innovation often arises from smaller companies and deconcentrated markets. Secondly, many of the innovations associated with technology companies often have their origins in the public sector. Thirdly, innovation is not innately beneficial. It is not enough to defend dominance simply by pointing to ‘more innovation’; thought must also be given to the qualitative nature of that innovation. Taken together, these three ideas represent a useful framework with which to counter the rhetoric of innovation and defend the momentum building in competition law.
{"title":"Innovation against change","authors":"Andrew P McLean","doi":"10.1093/jaenfo/jnae002","DOIUrl":"https://doi.org/10.1093/jaenfo/jnae002","url":null,"abstract":"There is presently an increased enthusiasm for competition law enforcement around the world, driven primarily by concerns about the power of digital platform companies. Against this background, this article identifies the emergence of a ‘techno-conservatism’ that invokes a ‘rhetoric of innovation’ to stymy the field’s ongoing shift towards a more interventionist paradigm. Drawing parallels between techno-conservatism and twentieth-century Chicago school conservatism, the article holds that appeals to innovation are a means of deterring enforcement against dominant companies in dynamic markets. This article contests the rhetoric of innovation, maintaining that it is possible to reconcile strong enforcement with care for innovation. It does so by raising three points. First, innovation often arises from smaller companies and deconcentrated markets. Secondly, many of the innovations associated with technology companies often have their origins in the public sector. Thirdly, innovation is not innately beneficial. It is not enough to defend dominance simply by pointing to ‘more innovation’; thought must also be given to the qualitative nature of that innovation. Taken together, these three ideas represent a useful framework with which to counter the rhetoric of innovation and defend the momentum building in competition law.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"15 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139946131","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 analyses the context of the first Brazilian antitrust law, between 1930 and 1945. Its goal is to clarify how the ‘popular economy’—a constitutional and legal concept of the time—functioned as a protective instrument for the internal market. The study explores the hypothesis that the legislation was directed at foreign economic power, already embedded in national economic structures at the time. The research demonstrates that the antitrust legislation arose not only to control prevailing economic power but also to provide meaning to it within the framework of the Estado Novo and its intent to reformulate the internal market. Furthermore, this article highlights the influence of constitutional and administrative doctrines in this movement, indicating how the antitrust system was modulated on liberal bases, assuming the curious figure of a strong State subsidiary to the private sector. The work demonstrates that, aside from the question of supply, a crisis in the insurance policy market throughout 1938 was crucial to drafting the first antitrust law.
{"title":"Antitrust under the popular economy: the birth of the antitrust law in Brazil","authors":"José Augusto Medeiros","doi":"10.1093/jaenfo/jnad047","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad047","url":null,"abstract":"This article analyses the context of the first Brazilian antitrust law, between 1930 and 1945. Its goal is to clarify how the ‘popular economy’—a constitutional and legal concept of the time—functioned as a protective instrument for the internal market. The study explores the hypothesis that the legislation was directed at foreign economic power, already embedded in national economic structures at the time. The research demonstrates that the antitrust legislation arose not only to control prevailing economic power but also to provide meaning to it within the framework of the Estado Novo and its intent to reformulate the internal market. Furthermore, this article highlights the influence of constitutional and administrative doctrines in this movement, indicating how the antitrust system was modulated on liberal bases, assuming the curious figure of a strong State subsidiary to the private sector. The work demonstrates that, aside from the question of supply, a crisis in the insurance policy market throughout 1938 was crucial to drafting the first antitrust law.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"127 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138527544","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 evaluates the implementation of the cartel leniency programme by the Competition Commission of India (CCI) using comprehensive data covering all related decisions of the CCI from 2009 to 2021. All other things remaining the same prima facie discoveries of cartels should have resulted in a ‘shock’ to ex ante expected returns of cartels, thereby encouraging more leniency applications. But, we find no such results or rather no ‘race’ to the agency. A successful leniency programme requires a transparent and deterrent penalty, plus consistency in applying leniency provisions. However, inconsistencies in the choice of penalty base and uncertainties in determining final penalties while using mitigating and aggravating factors have led to a poor correlation of penalties with cartel gain or harm. Strategic or otherwise, this has encouraged appeals to the appellate authority, thereby reducing the effective penalty to levels below deterrence. Many acts of bid rigging have been penalized using less stringent criteria and, in a few circumstances, also provided the benefit of leniency. Further, while individuals concerned in leniency cases have always been penalized, the CCI has not been so consistent in non-leniency cartel cases. These asymmetries and ‘other’ costs create disincentives for exercising the leniency option. We offer suggestions for enhancing the possibility of a race to the agency.
{"title":"Cartel leniency programme in India—why no race here?","authors":"Somashekar T.S., Praveen Tripathi","doi":"10.1093/jaenfo/jnad048","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad048","url":null,"abstract":"This article evaluates the implementation of the cartel leniency programme by the Competition Commission of India (CCI) using comprehensive data covering all related decisions of the CCI from 2009 to 2021. All other things remaining the same prima facie discoveries of cartels should have resulted in a ‘shock’ to ex ante expected returns of cartels, thereby encouraging more leniency applications. But, we find no such results or rather no ‘race’ to the agency. A successful leniency programme requires a transparent and deterrent penalty, plus consistency in applying leniency provisions. However, inconsistencies in the choice of penalty base and uncertainties in determining final penalties while using mitigating and aggravating factors have led to a poor correlation of penalties with cartel gain or harm. Strategic or otherwise, this has encouraged appeals to the appellate authority, thereby reducing the effective penalty to levels below deterrence. Many acts of bid rigging have been penalized using less stringent criteria and, in a few circumstances, also provided the benefit of leniency. Further, while individuals concerned in leniency cases have always been penalized, the CCI has not been so consistent in non-leniency cartel cases. These asymmetries and ‘other’ costs create disincentives for exercising the leniency option. We offer suggestions for enhancing the possibility of a race to the agency.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"33 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138527527","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":"Introduction to the Contemporary Critique — <i>Illumina and Grail merger</i>","authors":"","doi":"10.1093/jaenfo/jnad044","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad044","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"29 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136134146","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：