{"title":"The Court of justice’s judgment in Generics (UK) v Competition and Markets Authority and the object/effect dichotomy","authors":"Alison R. Jones","doi":"10.1093/JAENFO/JNAB017","DOIUrl":"https://doi.org/10.1093/JAENFO/JNAB017","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48174511","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 issue’s Contemporary Critique discusses the ruling of the European Court of Justice (ECJ) in Generics (UK) v Competition and Markets Authority. Anticipated as it was, the judgment is something of a milestone in EU antitrust. For one, it marked the first foray by the EU’s apex court into the legal minefield of reverse patent settlements that have, over the past decade, sparked considerable debate in academic and policy-making spheres alike. For another, Generics (UK) is a quite sweeping judgment, addressing head-on several foundational concepts of EU competition law. It therefore has ramifications for EU antitrust enforcement beyond the specific issue at the heart of the case.
{"title":"The European Court of Justice’s Generics (UK) judgment","authors":"","doi":"10.1093/jaenfo/jnab016","DOIUrl":"https://doi.org/10.1093/jaenfo/jnab016","url":null,"abstract":"<span>This issue’s <span style=\"font-style:italic;\">Contemporary Critique</span> discusses the ruling of the European Court of Justice (ECJ) in <span style=\"font-style:italic;\">Generics (UK) v Competition and Markets Authority</span>. Anticipated as it was, the judgment is something of a milestone in EU antitrust. For one, it marked the first foray by the EU’s apex court into the legal minefield of reverse patent settlements that have, over the past decade, sparked considerable debate in academic and policy-making spheres alike. For another, <span style=\"font-style:italic;\">Generics (UK)</span> is a quite sweeping judgment, addressing head-on several foundational concepts of EU competition law. It therefore has ramifications for EU antitrust enforcement beyond the specific issue at the heart of the case.</span>","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"30 2","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138512396","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":"Considerations of Buyer Power in Merger Review","authors":"Tirza J. Angerhofer, R. Blair","doi":"10.1093/JAENFO/JNAB015","DOIUrl":"https://doi.org/10.1093/JAENFO/JNAB015","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43774165","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}
Despite the diversity of contexts and circumstances in which competition laws are developed and exist, many countries have enacted competition laws that are broadly similar. To learn more about the dynamics shaping the development of competition law at the national, regional, and international levels, this article investigates the development of competition law in the Association of Southeast Asian Nations (ASEAN) region, a region whose competition laws remain underexplored. This article undertakes a case study on the drafting of competition law in the ASEAN member states with the most recently drafted and/or enacted new comprehensive competition laws, that being Brunei Darussalam, Cambodia, Lao PDR, Myanmar, and the Philippines. It finds that, while there were differences in the processes of drafting and enacting competition law in these countries as well as in their local contexts, their competition laws are similar in many respects. The case study also finds that intermediaries facilitated the processes of translation and adaptation that occurred in developing competition law in these ASEAN member states. This article argues that the important role that intermediaries played in developing competition laws was a key reason for the broad convergence of these competition laws across their diverse local settings.
{"title":"From Divergence to Convergence: The Role of Intermediaries in Developing Competition Laws in ASEAN","authors":"Wendy Ng","doi":"10.1093/jaenfo/jnab014","DOIUrl":"https://doi.org/10.1093/jaenfo/jnab014","url":null,"abstract":"\u0000 Despite the diversity of contexts and circumstances in which competition laws are developed and exist, many countries have enacted competition laws that are broadly similar. To learn more about the dynamics shaping the development of competition law at the national, regional, and international levels, this article investigates the development of competition law in the Association of Southeast Asian Nations (ASEAN) region, a region whose competition laws remain underexplored. This article undertakes a case study on the drafting of competition law in the ASEAN member states with the most recently drafted and/or enacted new comprehensive competition laws, that being Brunei Darussalam, Cambodia, Lao PDR, Myanmar, and the Philippines. It finds that, while there were differences in the processes of drafting and enacting competition law in these countries as well as in their local contexts, their competition laws are similar in many respects. The case study also finds that intermediaries facilitated the processes of translation and adaptation that occurred in developing competition law in these ASEAN member states. This article argues that the important role that intermediaries played in developing competition laws was a key reason for the broad convergence of these competition laws across their diverse local settings.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41597639","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 COVID-19 pandemic outbreak disrupted markets and had a serious negative impact in economies across the world. Competition Authorities were at the forefront of initial public response measures through strong law enforcement and active market monitoring actions, temporary exemptions from competition provisions, merger control procedural adjustments and advocacy, an increasingly important function vis-à-vis Governments and all relevant stakeholders. Competition law and policy have therefore remained highly relevant during this period in both developed and developing countries. Current common challenges faced are raised by the increased digitalization of the economy and the dominance of digital platforms, especially considering the number and market share of micro and Small and Medium Sized enterprises (SMEs), the most seriously affected by the pandemic lockdown measures. Several jurisdictions and international organizations are equipping themselves with new legislation and instruments to address these challenges, namely supporting SMEs fair access to digital markets and promoting competitive public procurement, but less experienced and resource-constrained authorities of developing countries must prioritize otherwise. Competition advocacy is now more than ever a priority for them so that the economic recovery packages preserver open, fair, and equitable markets. International cooperation, bringing together developed and developing countries authorities, provides a crucial framework of support especially at this time. UNCTAD is particularly well placed to support developing countries’ Competition Authorities contributions to “building back better” in times of crisis.
{"title":"Competition policy’s role in the economic recovery process from the Covid-19 pandemic crisis—insight from UNCTAD","authors":"T. Moreira","doi":"10.1093/jaenfo/jnab013","DOIUrl":"https://doi.org/10.1093/jaenfo/jnab013","url":null,"abstract":"Abstract The COVID-19 pandemic outbreak disrupted markets and had a serious negative impact in economies across the world. Competition Authorities were at the forefront of initial public response measures through strong law enforcement and active market monitoring actions, temporary exemptions from competition provisions, merger control procedural adjustments and advocacy, an increasingly important function vis-à-vis Governments and all relevant stakeholders. Competition law and policy have therefore remained highly relevant during this period in both developed and developing countries. Current common challenges faced are raised by the increased digitalization of the economy and the dominance of digital platforms, especially considering the number and market share of micro and Small and Medium Sized enterprises (SMEs), the most seriously affected by the pandemic lockdown measures. Several jurisdictions and international organizations are equipping themselves with new legislation and instruments to address these challenges, namely supporting SMEs fair access to digital markets and promoting competitive public procurement, but less experienced and resource-constrained authorities of developing countries must prioritize otherwise. Competition advocacy is now more than ever a priority for them so that the economic recovery packages preserver open, fair, and equitable markets. International cooperation, bringing together developed and developing countries authorities, provides a crucial framework of support especially at this time. UNCTAD is particularly well placed to support developing countries’ Competition Authorities contributions to “building back better” in times of crisis.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60927163","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":"Banks v Cryptocurrency exchanges: CADE’s investigation and the search for a villain","authors":"Natália L. Figueiredo","doi":"10.1093/jaenfo/jnab011","DOIUrl":"https://doi.org/10.1093/jaenfo/jnab011","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43568382","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}
EU competition law has a sustainability gap, particularly when it comes to enforcing Article 102 TFEU as a ‘sword’ to prohibit dominant undertakings’ unsustainable conduct. In this article, we ask whether EU competition law can and should be part of a holistic EU solution to the climate crisis and how it can contribute to ensuring that our social, economic, and ecological systems are not entrenched into further perpetuating and mutually reinforcing crises. By using EU constitutional theories of ‘mainstreaming’, we argue for the inclusion of environmental and social sustainability goals in those that are pursued by EU competition law. With research that cuts across law and socioecological studies, we offer an original and unique perspective that identifies a relation between market power and business practices that harm people and planet. We do this by demonstrating empirically that undertakings that have in the past been found to be dominant, also engage in unsustainable business practices. This relation is significant, as it demonstrates that addressing unsustainable business practices through Article 102 TFEU is not only a theoretical possibility mandated by EU constitutional law. It is a real opportunity to address environmental and social injustices and thereby contribute to tackling the most important existential threat facing humanity, climate change.
{"title":"Falling through the cracks no more? Article 102 TFEU and sustainability: the relation between dominance, environmental degradation, and social injustice","authors":"Marios C Iacovides, C. Vrettos","doi":"10.1093/jaenfo/jnab010","DOIUrl":"https://doi.org/10.1093/jaenfo/jnab010","url":null,"abstract":"\u0000 EU competition law has a sustainability gap, particularly when it comes to enforcing Article 102 TFEU as a ‘sword’ to prohibit dominant undertakings’ unsustainable conduct. In this article, we ask whether EU competition law can and should be part of a holistic EU solution to the climate crisis and how it can contribute to ensuring that our social, economic, and ecological systems are not entrenched into further perpetuating and mutually reinforcing crises. By using EU constitutional theories of ‘mainstreaming’, we argue for the inclusion of environmental and social sustainability goals in those that are pursued by EU competition law. With research that cuts across law and socioecological studies, we offer an original and unique perspective that identifies a relation between market power and business practices that harm people and planet. We do this by demonstrating empirically that undertakings that have in the past been found to be dominant, also engage in unsustainable business practices. This relation is significant, as it demonstrates that addressing unsustainable business practices through Article 102 TFEU is not only a theoretical possibility mandated by EU constitutional law. It is a real opportunity to address environmental and social injustices and thereby contribute to tackling the most important existential threat facing humanity, climate change.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46058163","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 presents some thoughts about the relationship between Data Protection and Competition Law—focusing on the implementation of the New Brazilian Data Protection Law (LGPD). The Digital Era, the Digital Economy, and the Data-Driven Market (although they present different definitions, they are all concepts that have a strong connection between their meanings) are significantly changing a variety of aspects in our lives. In terms of legal consequences, the Digital Era has created a new, unique and specialized field (Data Protection). Although Data Protection is affecting Competition Law, as well as other fields of law, it is always important to have in mind its purposes and goals in order to not merge what should not be merged.
{"title":"Some thoughts about the Intersection between Data Protection and Competition Law: A View from Brazil","authors":"Alexandre Cordeiro Macedo","doi":"10.1093/jaenfo/jnab007","DOIUrl":"https://doi.org/10.1093/jaenfo/jnab007","url":null,"abstract":"\u0000 This article presents some thoughts about the relationship between Data Protection and Competition Law—focusing on the implementation of the New Brazilian Data Protection Law (LGPD). The Digital Era, the Digital Economy, and the Data-Driven Market (although they present different definitions, they are all concepts that have a strong connection between their meanings) are significantly changing a variety of aspects in our lives. In terms of legal consequences, the Digital Era has created a new, unique and specialized field (Data Protection). Although Data Protection is affecting Competition Law, as well as other fields of law, it is always important to have in mind its purposes and goals in order to not merge what should not be merged.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60927100","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 German Facebook case has directly addressed the contentious interplay between data protection and competition law for the first time. The Bundeskartellamt’s theory of harm, which directly linked privacy violations to the strengthening of Facebook’s market power, proved controversial: it elicited strong criticism from the appeals court, but then was partially endorsed by the Bundesgerichtshof (German Federal Supreme Court). This article shows that an enforcement action against Facebook under Article 102 TFEU need not be controversial. We present empirical evidence confirming that Facebook’s ‘envelopment by privacy policy tying’ strategy exploits consumers, as it causes clear consumer harm on the market for social networks in the form of lack of choice and degradation of quality. In turn, such consumer harm on the ‘free’ side leads to a weakening of the competitive market structure and foreclosure of competitors on the ‘paid’ market for display advertising and other adjacent markets. This strategy falls neatly within the scope of Article 102 TFEU, irrespective of whether it also violates EU data protection law. In addition, the enveloping by privacy policy tying forms part of an overall anti-competitive strategy over which the Commission can assert jurisdiction and prosecute as a single and continuous infringement.
{"title":"Facebook’s exploitative and exclusionary abuses in the two-sided market for social networks and display advertising","authors":"Liza Lovdahl Gormsen, J. T. Llanos","doi":"10.1093/jaenfo/jnab004","DOIUrl":"https://doi.org/10.1093/jaenfo/jnab004","url":null,"abstract":"\u0000 The German Facebook case has directly addressed the contentious interplay between data protection and competition law for the first time. The Bundeskartellamt’s theory of harm, which directly linked privacy violations to the strengthening of Facebook’s market power, proved controversial: it elicited strong criticism from the appeals court, but then was partially endorsed by the Bundesgerichtshof (German Federal Supreme Court). This article shows that an enforcement action against Facebook under Article 102 TFEU need not be controversial. We present empirical evidence confirming that Facebook’s ‘envelopment by privacy policy tying’ strategy exploits consumers, as it causes clear consumer harm on the market for social networks in the form of lack of choice and degradation of quality. In turn, such consumer harm on the ‘free’ side leads to a weakening of the competitive market structure and foreclosure of competitors on the ‘paid’ market for display advertising and other adjacent markets. This strategy falls neatly within the scope of Article 102 TFEU, irrespective of whether it also violates EU data protection law. In addition, the enveloping by privacy policy tying forms part of an overall anti-competitive strategy over which the Commission can assert jurisdiction and prosecute as a single and continuous infringement.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49251095","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 emergence of the multi-sided platform business model has had a profound impact on the news publishing industry. By acting as gatekeepers to news traffic, large online platforms appear to be unavoidable trading partners for news businesses and may exert substantial bargaining power in their dealings. Concerns have been raised that this bargaining power imbalance may threaten the viability of publishers’ businesses. Notably, digital infomediaries are accused of capturing a huge share of the advertising revenue by free-riding on the investments made in producing news content. Moreover, by affecting the monetization of news, the dominance of some online platforms is deemed to have contributed to the decline of trustworthy sources of news. Against this background, governments have been urged to intervene in order to ensure the sustainability of the publishing industry. The EU has decided to address publishers’ concerns by introducing an additional layer of copyright as a means to encourage cooperation between press publishers and online services. And the French Competition Authority has recently accused Google of adopting a display policy aimed at frustrating the objective of the domestic law implementing the EU legislation, hence requiring Google to conduct negotiations in good faith with publishers and news agencies on the remuneration for the reuse of their protected content. The Australian Competition and Consumer Commission has instead embraced a regulatory approach, developing a mandatory bargaining code. The aim of this article is to analyse the different solutions advanced in order to assess their economic and legal justifications as well as their effectiveness.
多平台商业模式的出现对新闻出版业产生了深远的影响。通过充当新闻流量的看门人，大型在线平台似乎是新闻业务不可避免的交易伙伴，并可能在交易中发挥巨大的议价能力。有人担心，这种议价能力的失衡可能会威胁到出版商业务的生存能力。值得注意的是，数字信息媒体被指控通过免费利用制作新闻内容的投资来获取广告收入的巨大份额。此外，通过影响新闻的货币化，一些在线平台的主导地位被认为是导致值得信赖的新闻来源减少的原因之一。在这种背景下，政府被敦促进行干预，以确保出版业的可持续性。欧盟决定通过引入额外的版权层来解决出版商的担忧，以此鼓励新闻出版商和在线服务之间的合作。法国竞争管理局（French Competition Authority）最近指责谷歌（Google）采取的显示政策旨在阻碍实施欧盟立法的国内法的目标，因此要求谷歌与出版商和新闻机构就重复使用其受保护内容的报酬进行真诚谈判。澳大利亚竞争与消费者委员会（Australian Competition and Consumer Commission）转而采用监管方法，制定了强制性谈判准则。本文的目的是分析提出的不同解决方案，以评估其经济和法律依据以及有效性。
{"title":"Enforcing copyright through antitrust? The strange case of news publishers against digital platforms","authors":"G. Colangelo","doi":"10.1093/jaenfo/jnab009","DOIUrl":"https://doi.org/10.1093/jaenfo/jnab009","url":null,"abstract":"\u0000 The emergence of the multi-sided platform business model has had a profound impact on the news publishing industry. By acting as gatekeepers to news traffic, large online platforms appear to be unavoidable trading partners for news businesses and may exert substantial bargaining power in their dealings. Concerns have been raised that this bargaining power imbalance may threaten the viability of publishers’ businesses. Notably, digital infomediaries are accused of capturing a huge share of the advertising revenue by free-riding on the investments made in producing news content. Moreover, by affecting the monetization of news, the dominance of some online platforms is deemed to have contributed to the decline of trustworthy sources of news. Against this background, governments have been urged to intervene in order to ensure the sustainability of the publishing industry. The EU has decided to address publishers’ concerns by introducing an additional layer of copyright as a means to encourage cooperation between press publishers and online services. And the French Competition Authority has recently accused Google of adopting a display policy aimed at frustrating the objective of the domestic law implementing the EU legislation, hence requiring Google to conduct negotiations in good faith with publishers and news agencies on the remuneration for the reuse of their protected content. The Australian Competition and Consumer Commission has instead embraced a regulatory approach, developing a mandatory bargaining code. The aim of this article is to analyse the different solutions advanced in order to assess their economic and legal justifications as well as their effectiveness.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46742041","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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