Jacques Crémer, David Dinielli, Paul Heidhues, Gene Kimmelman, Giorgio Monti, Rupprecht Podszun, Monika Schnitzer, Fiona Scott Morton, Alexandre de Streel
Abstract This article discusses how the European Commission can achieve the goal of effectively implementing the Digital Markets Act. Based on legal and economic reasoning, we highlight the important role of the gatekeeper’s compliance report, and discuss how to incentivize gatekeepers to write useful reports. In addition, we develop recommendations regarding the internal organization of the Commission, the prioritization of cases, and how to effectively use the concurrent enforcement powers of the Digital Markets Act and Article 102 of the TFEU. We illustrate the principles we develop using four different EU antitrust cases. Furthermore, we discuss coordination between the Commission and National Competition Authorities and the need to already develop an independent evaluation process for the Digital Markets Act.
{"title":"Enforcing the Digital Markets Act: institutional choices, compliance, and antitrust","authors":"Jacques Crémer, David Dinielli, Paul Heidhues, Gene Kimmelman, Giorgio Monti, Rupprecht Podszun, Monika Schnitzer, Fiona Scott Morton, Alexandre de Streel","doi":"10.1093/jaenfo/jnad004","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad004","url":null,"abstract":"Abstract This article discusses how the European Commission can achieve the goal of effectively implementing the Digital Markets Act. Based on legal and economic reasoning, we highlight the important role of the gatekeeper’s compliance report, and discuss how to incentivize gatekeepers to write useful reports. In addition, we develop recommendations regarding the internal organization of the Commission, the prioritization of cases, and how to effectively use the concurrent enforcement powers of the Digital Markets Act and Article 102 of the TFEU. We illustrate the principles we develop using four different EU antitrust cases. Furthermore, we discuss coordination between the Commission and National Competition Authorities and the need to already develop an independent evaluation process for the Digital Markets Act.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135078887","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 examines three, intertwined questions arising from the recent case law on global FRAND licences under threat of injunction. First, whether the obligation of an implementer to enter into a global licence of all the standard-essential patent (SEP) owner’s relevant SEPs on pain of a national injunction is consistent with the policies underpinning a SEP owner’s obligation to grant a FRAND licence. Secondly, whether the conduct of a SEP owner insisting on an implementer entering into a global licence under threat of an injunction is compatible with the UK Chapter II prohibition and Article 102 TFEU. Thirdly, whether the assumption and exercise by national courts of the power to settle the terms of global licences is a rational way of resolving global FRAND licensing disputes. On all three counts, the conclusion is that departing from territorial jurisdiction in the matter of FRAND licences is not advisable as it has the effect of distorting the incentives of SEP owners and implementers in such a way that FRAND licences and FRAND negotiations are less likely to reflect, or be driven by, the value of the underlying technology. As a result, global FRAND licences may apply excessive royalties or royalties for SEPs that are invalid, not essential, or not infringed. A system of national enforcement is better suited to striking a right balance between the interests of SEP owners and implementers, producing better outcomes in terms of effects on social welfare and productivity.
{"title":"Global licences under threat of injunctions: FRAND commitments, competition law, and jurisdictional battles","authors":"Renato Nazzini","doi":"10.1093/jaenfo/jnad002","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad002","url":null,"abstract":"\u0000 This article examines three, intertwined questions arising from the recent case law on global FRAND licences under threat of injunction. First, whether the obligation of an implementer to enter into a global licence of all the standard-essential patent (SEP) owner’s relevant SEPs on pain of a national injunction is consistent with the policies underpinning a SEP owner’s obligation to grant a FRAND licence. Secondly, whether the conduct of a SEP owner insisting on an implementer entering into a global licence under threat of an injunction is compatible with the UK Chapter II prohibition and Article 102 TFEU. Thirdly, whether the assumption and exercise by national courts of the power to settle the terms of global licences is a rational way of resolving global FRAND licensing disputes. On all three counts, the conclusion is that departing from territorial jurisdiction in the matter of FRAND licences is not advisable as it has the effect of distorting the incentives of SEP owners and implementers in such a way that FRAND licences and FRAND negotiations are less likely to reflect, or be driven by, the value of the underlying technology. As a result, global FRAND licences may apply excessive royalties or royalties for SEPs that are invalid, not essential, or not infringed. A system of national enforcement is better suited to striking a right balance between the interests of SEP owners and implementers, producing better outcomes in terms of effects on social welfare and productivity.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44455695","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}
African countries are currently negotiating the African Continental Free Trade Area (AfCFTA) Competition Protocol (CP) to regulate competition in the created continental market. However, the most daunting task for the negotiators and African countries is which institutional design to adopt at the continental level, pitying against a supranational or cooperative institutional model. Drawing from a dearth of literature on institutional designs, I propose two factors that African countries should consider when deciding on the most appropriate institutional design for the AfCFTA CP. First are the benefits and costs of each institution design building on the experiences of existing regional competition regimes. Second is the institutional context in which the AfCFTA Continental Competition Regime (CCR) will be established, which constitutes African countries’ attitudes towards supranational institutions, preference heterogeneity, and power distributions. The findings of this article show that African countries should establish a less ambitious institution design that will attract business and political acceptance.
{"title":"Supranational or cooperative? Rethinking the African Continental Free Trade Area Agreement Competition Protocol institutional design","authors":"Vellah Kedogo Kigwiru","doi":"10.1093/jaenfo/jnad003","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad003","url":null,"abstract":"\u0000 African countries are currently negotiating the African Continental Free Trade Area (AfCFTA) Competition Protocol (CP) to regulate competition in the created continental market. However, the most daunting task for the negotiators and African countries is which institutional design to adopt at the continental level, pitying against a supranational or cooperative institutional model. Drawing from a dearth of literature on institutional designs, I propose two factors that African countries should consider when deciding on the most appropriate institutional design for the AfCFTA CP. First are the benefits and costs of each institution design building on the experiences of existing regional competition regimes. Second is the institutional context in which the AfCFTA Continental Competition Regime (CCR) will be established, which constitutes African countries’ attitudes towards supranational institutions, preference heterogeneity, and power distributions. The findings of this article show that African countries should establish a less ambitious institution design that will attract business and political acceptance.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48519150","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}
Competition law shouldn’t stand in the way of genuine colloboration between competitors to reduce negative externalities, like the emission of greenhouse gases. Competition authorities around the world can play a role by giving guidance. in doing so, they should neither stick to orthodoxy not become naïve.
{"title":"What is fair and efficient in the face of climate change?","authors":"M. Snoep","doi":"10.1093/jaenfo/jnad001","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad001","url":null,"abstract":"\u0000 Competition law shouldn’t stand in the way of genuine colloboration between competitors to reduce negative externalities, like the emission of greenhouse gases. Competition authorities around the world can play a role by giving guidance. in doing so, they should neither stick to orthodoxy not become naïve.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41646721","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 year 2022 of 12 October marks the official birth of the Digital Markets Act (DMA).1 As with the General Data Protection Regulation,2 the European Union sets itself as a forerunner in digital economy rulemaking, attempting to strengthen its global regulatory leadership, through the so-called and well-described Brussels effect.3 The new Regulation is, indeed, complemented by other relevant interventions addressing the role of data and digital intermediaries such as the Data Governance Act,4 the Digital Services Act,5 and the proposal for a Data Act,6 which will shape the European digital policy. Against the emergence of large online platforms, several proposals have been advanced by policymakers around the world to tame digital gatekeepers, including public utilities-style regulations, break-ups, bans on vertical integration, and reforms of competition laws.7 Despite such different approaches, however, the envisaged solutions share the same premise, namely the urgent need for bespoke interventions because of the distrust towards current antitrust rules to face effectively the challenges of the brave new world.
2022年10月12日标志着《数字市场法案》(DMA)的正式诞生与《通用数据保护条例》(General Data Protection Regulation)一样，欧盟将自己定位为数字经济规则制定的先驱，试图通过所谓的“布鲁塞尔效应”(Brussels effect)加强其在全球监管方面的领导地位事实上，新法规得到了其他相关干预措施的补充，这些干预措施解决了数据和数字中介机构的作用，如《数据治理法》、《数字服务法》、《数据法》和《数据法》提案，后者将塑造欧洲的数字政策。针对大型在线平台的出现，世界各地的政策制定者提出了一些建议来驯服数字看门人，包括公用事业式的监管、拆分、禁止垂直整合和竞争法改革然而，尽管方法不同，但设想的解决方案都有一个共同的前提，即迫切需要定制干预措施，因为人们对现行反垄断规则的不信任，无法有效地面对美丽新世界的挑战。
{"title":"DMA begins","authors":"Giuseppe Colangelo","doi":"10.1093/jaenfo/jnac033","DOIUrl":"https://doi.org/10.1093/jaenfo/jnac033","url":null,"abstract":"The year 2022 of 12 October marks the official birth of the Digital Markets Act (DMA).1 As with the General Data Protection Regulation,2 the European Union sets itself as a forerunner in digital economy rulemaking, attempting to strengthen its global regulatory leadership, through the so-called and well-described Brussels effect.3 The new Regulation is, indeed, complemented by other relevant interventions addressing the role of data and digital intermediaries such as the Data Governance Act,4 the Digital Services Act,5 and the proposal for a Data Act,6 which will shape the European digital policy. Against the emergence of large online platforms, several proposals have been advanced by policymakers around the world to tame digital gatekeepers, including public utilities-style regulations, break-ups, bans on vertical integration, and reforms of competition laws.7 Despite such different approaches, however, the envisaged solutions share the same premise, namely the urgent need for bespoke interventions because of the distrust towards current antitrust rules to face effectively the challenges of the brave new world.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135014616","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}
Abstract The Anti-Monopoly Law (AML) in China allows the responsible authority for merger control to consider not only the competition interest but also other public interest reasons when it reviews a takeover or merger. Where the responsible authority considers that the benefits of a takeover or merger to the public interest outweigh the harms to competition, it may ‘exempt’ the transaction. This ‘public interest exemption’ has never been formally applied since the introduction of the law in 2008. One explanation for this can be found in the ambiguity of the law: there are no legal provisions that clarify the public interest considerations. A second explanation is that China did not establish a separate review procedure for this public interest exemption. In practice, some approval decisions made by the enforcement authority led to confusion, as it was unclear whether the transactions were ‘exempted’ for public interest reasons or for industrial policies. This article reflects on the role of the public interest exemption in China. By drawing lessons from the past and examining the public interest exemption regime in Germany, it aims to provide suggestions for future reforms, against the background of the promulgation of the Amendment to the AML in 2022.
{"title":"A critical reflection on the ‘Public Interest Exemption’ in China’s merger control regime","authors":"Huizi Ai, Niels J Philipsen","doi":"10.1093/jaenfo/jnac030","DOIUrl":"https://doi.org/10.1093/jaenfo/jnac030","url":null,"abstract":"Abstract The Anti-Monopoly Law (AML) in China allows the responsible authority for merger control to consider not only the competition interest but also other public interest reasons when it reviews a takeover or merger. Where the responsible authority considers that the benefits of a takeover or merger to the public interest outweigh the harms to competition, it may ‘exempt’ the transaction. This ‘public interest exemption’ has never been formally applied since the introduction of the law in 2008. One explanation for this can be found in the ambiguity of the law: there are no legal provisions that clarify the public interest considerations. A second explanation is that China did not establish a separate review procedure for this public interest exemption. In practice, some approval decisions made by the enforcement authority led to confusion, as it was unclear whether the transactions were ‘exempted’ for public interest reasons or for industrial policies. This article reflects on the role of the public interest exemption in China. By drawing lessons from the past and examining the public interest exemption regime in Germany, it aims to provide suggestions for future reforms, against the background of the promulgation of the Amendment to the AML in 2022.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135449937","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}
‘Restrictions “By Object” After Generics, Lundbeck, and Budapest Bank: Are We Any Wiser Now?’ summarizes the CJEU’s jurisprudence on the question when an agreement or a concerted practice between undertakings restricts competition ‘by object’ and when ‘by effect’, Article 101(1) TFEU. It turns out that there are few certainties in this area. Instead, there is a bewildering array of standards for assessing the consequences of agreements on the relevant market. Time and again, it is unclear how ‘abstract’ or ‘concrete’ the assessment has to be. Not much more clarity comes from the recent judgments in Generics, Lundbeck, and Budapest Bank on patent settlement agreements and price fixing, respectively. Nevertheless, they contain the elements of a simple and comprehensive test that dispenses with the complications that have built up in the case law.
{"title":"Restrictions ‘by object’ after Generics, Lundbeck, and Budapest Bank: are we any wiser now?","authors":"S. Enchelmaier","doi":"10.1093/jaenfo/jnac020","DOIUrl":"https://doi.org/10.1093/jaenfo/jnac020","url":null,"abstract":"\u0000 ‘Restrictions “By Object” After Generics, Lundbeck, and Budapest Bank: Are We Any Wiser Now?’ summarizes the CJEU’s jurisprudence on the question when an agreement or a concerted practice between undertakings restricts competition ‘by object’ and when ‘by effect’, Article 101(1) TFEU. It turns out that there are few certainties in this area. Instead, there is a bewildering array of standards for assessing the consequences of agreements on the relevant market. Time and again, it is unclear how ‘abstract’ or ‘concrete’ the assessment has to be. Not much more clarity comes from the recent judgments in Generics, Lundbeck, and Budapest Bank on patent settlement agreements and price fixing, respectively. Nevertheless, they contain the elements of a simple and comprehensive test that dispenses with the complications that have built up in the case law.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2022-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44936047","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 interplay is reconstructed in an evolutionary perspective along three main stages. In the first one, Commission focused on IPRs holders’ power of disposition in order to prevent that profiting from the statutory ‘territorial scope’ of national exclusive rights, agreements were enacted partitioning the European market thus frustrating the goal of the Single Market. In the second phase, in order to avoid monopolization of top-level innovation, the statutory excludent power itself of holders of patents and copyrights on non-workably substitutable (thus ‘essential’) innovative solutions—and also holders of a dominant position—was tempered by a duty to grant access, on FRAND terms, to competitors willing licensees. In the third stage, in order to clear the market from ‘unworthy’ IPRs, thus ensuring a fairly competitive playing field, the attention focused on the acquisition itself of IPR entitlement and various forms of its anticompetitive misuse.
{"title":"The interplay between antitrust law and intellectual property: stages of the European evolution","authors":"G. Ghidini","doi":"10.1093/jaenfo/jnac025","DOIUrl":"https://doi.org/10.1093/jaenfo/jnac025","url":null,"abstract":"\u0000 The interplay is reconstructed in an evolutionary perspective along three main stages. In the first one, Commission focused on IPRs holders’ power of disposition in order to prevent that profiting from the statutory ‘territorial scope’ of national exclusive rights, agreements were enacted partitioning the European market thus frustrating the goal of the Single Market. In the second phase, in order to avoid monopolization of top-level innovation, the statutory excludent power itself of holders of patents and copyrights on non-workably substitutable (thus ‘essential’) innovative solutions—and also holders of a dominant position—was tempered by a duty to grant access, on FRAND terms, to competitors willing licensees. In the third stage, in order to clear the market from ‘unworthy’ IPRs, thus ensuring a fairly competitive playing field, the attention focused on the acquisition itself of IPR entitlement and various forms of its anticompetitive misuse.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2022-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44903459","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":"What the Dutch Apple case can teach us about future challenges for competition enforcement","authors":"Inge Graef","doi":"10.1093/jaenfo/jnac023","DOIUrl":"https://doi.org/10.1093/jaenfo/jnac023","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2022-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41615521","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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