The world of work, and indeed the Treaty itself, has changed considerably since the Court first examined the issue of competition law and collective bargaining agreements in the Albany decision. Exempting only those categorised as employees from the scope of Article 101 is no longer adequate to address the imbalance of bargaining power recognised by the Court. Although recognition of the ‘false self-employed’ in FNV went some way towards acknowledging the atypical position of some workers, confusion also stemmed from this intermediary category, which led to inconsistent approaches across Member States. The combination of the COVID-19 pandemic, the increased digitisation of the world of work, and a prominent decision at international level finally prompted the Commission to take action to remedy the uncertainty, by introducing Guidelines on the application of Article 101 to collective agreements regarding the working conditions of solo self-employed persons. The purpose of this paper is thus to critically analyse the likely effectiveness of these Guidelines, focusing on their substance and form respectively, while also exploring potential avenues for the Commission and the Court to provide increased legal certainty for solo self-employed persons seeking to collectively bargain, against the backdrop of an increasingly social understanding of the Treaties. Collective bargaining, Solo self-employed, Albany exception, Interpretative guidelines, Enforcement priorities, Non-competition concerns
{"title":"Collective or Collusive Agreements?","authors":"Ciara Denihan","doi":"10.54648/woco2023019","DOIUrl":"https://doi.org/10.54648/woco2023019","url":null,"abstract":"The world of work, and indeed the Treaty itself, has changed considerably since the Court first examined the issue of competition law and collective bargaining agreements in the Albany decision. Exempting only those categorised as employees from the scope of Article 101 is no longer adequate to address the imbalance of bargaining power recognised by the Court. Although recognition of the ‘false self-employed’ in FNV went some way towards acknowledging the atypical position of some workers, confusion also stemmed from this intermediary category, which led to inconsistent approaches across Member States. The combination of the COVID-19 pandemic, the increased digitisation of the world of work, and a prominent decision at international level finally prompted the Commission to take action to remedy the uncertainty, by introducing Guidelines on the application of Article 101 to collective agreements regarding the working conditions of solo self-employed persons. The purpose of this paper is thus to critically analyse the likely effectiveness of these Guidelines, focusing on their substance and form respectively, while also exploring potential avenues for the Commission and the Court to provide increased legal certainty for solo self-employed persons seeking to collectively bargain, against the backdrop of an increasingly social understanding of the Treaties.\u0000Collective bargaining, Solo self-employed, Albany exception, Interpretative guidelines, Enforcement priorities, Non-competition concerns","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135349045","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 Kuwaiti policymaker has never overlooked the protection of market competition. Anticompetitive practices have always been a concern in Kuwait; from the Kuwaiti Constitution 1962, which allows a legal monopoly for a certain time, and the Commercial Law Act 68/1980, to the Competition Protection Acts (CPA) of 2007 and 2020. However, the legislative responses to anticompetitive behaviours in Kuwait have varied, with criminal prohibition being historically dominant. Recently, with the introduction of the CPA 2020, Kuwait has decriminalized cartel activity. Although it may have been expected that the criminal nature of cartel activity should have been maintained, the major shift in Kuwait was contrary to the global trend towards criminalization. Cartel activity is now being dealt with within a regulatory framework, with only administrative sanctions. This paper suggests that the decriminalization in Kuwait weakens the argument that the global trend towards criminalizing cartel activity has always been driven by a top-down process. This paper has three aims: the first is to explore this inadvertently ‘neglected’ research area in Kuwait; the second is to discuss why cartel activity has been decriminalized, with a focus on the problem of ‘moral ambiguity’ as an explanation; and the third is to argue for the re-criminalization of cartel activity. Competition, Cartel Activity, Decriminalization, Moral Ambiguity, Kuwait
{"title":"The Decriminalization of Cartel Activity in Kuwait: A Regulatory Framework","authors":"Khaled S. Al-Rashidi","doi":"10.54648/woco2023016","DOIUrl":"https://doi.org/10.54648/woco2023016","url":null,"abstract":"The Kuwaiti policymaker has never overlooked the protection of market competition. Anticompetitive practices have always been a concern in Kuwait; from the Kuwaiti Constitution 1962, which allows a legal monopoly for a certain time, and the Commercial Law Act 68/1980, to the Competition Protection Acts (CPA) of 2007 and 2020. However, the legislative responses to anticompetitive behaviours in Kuwait have varied, with criminal prohibition being historically dominant. Recently, with the introduction of the CPA 2020, Kuwait has decriminalized cartel activity. Although it may have been expected that the criminal nature of cartel activity should have been maintained, the major shift in Kuwait was contrary to the global trend towards criminalization. Cartel activity is now being dealt with within a regulatory framework, with only administrative sanctions. This paper suggests that the decriminalization in Kuwait weakens the argument that the global trend towards criminalizing cartel activity has always been driven by a top-down process. This paper has three aims: the first is to explore this inadvertently ‘neglected’ research area in Kuwait; the second is to discuss why cartel activity has been decriminalized, with a focus on the problem of ‘moral ambiguity’ as an explanation; and the third is to argue for the re-criminalization of cartel activity.\u0000Competition, Cartel Activity, Decriminalization, Moral Ambiguity, Kuwait","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135349044","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}
Access to company documents is critical for European Commission (‘Commission’) investigations, but complying with document requests can be a daunting task for a company. The Commission’s powers are expansive but not unlimited. Understanding the limits of mandatory document productions can help manage enforcement risk. This article discusses the Commission’s powers to collect and use company documents in the context of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), taking into account recent EU case Enforcement of Articles 101 and 102 TFEU, Commission investigations, Requests for Information, Inspections, Sector inquiries, Company documents, Fundamental rights and freedoms, Principle of proportionality, Balancing effective enforcement and legal protection
{"title":"Big Data Requests: The Commission’s Powers to Collect Documents in Investigations Under Articles 101 and 102 TFEU","authors":"Michael J. Frese","doi":"10.54648/woco2023017","DOIUrl":"https://doi.org/10.54648/woco2023017","url":null,"abstract":"Access to company documents is critical for European Commission (‘Commission’) investigations, but complying with document requests can be a daunting task for a company. The Commission’s powers are expansive but not unlimited. Understanding the limits of mandatory document productions can help manage enforcement risk. This article discusses the Commission’s powers to collect and use company documents in the context of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), taking into account recent EU case\u0000Enforcement of Articles 101 and 102 TFEU, Commission investigations, Requests for Information, Inspections, Sector inquiries, Company documents, Fundamental rights and freedoms, Principle of proportionality, Balancing effective enforcement and legal protection","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135349223","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: Regulation 1/2003 and EU Antitrust Enforcement: A Systematic Guide Kris Dekeyser, Céline Gauer, Johannes Laitenberger, Nils Wahl, Wouter Wils & Luca Prete (Alphen aan den Rijn: Wolters Kluwer 2023)","authors":"Florian Wagner–von Papp","doi":"10.54648/woco2023015","DOIUrl":"https://doi.org/10.54648/woco2023015","url":null,"abstract":"","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135349221","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 corporate capital structure of firms has come under scrutiny by competition authorities lately, especially with respect to the role of financial investors such as private equity firms. The main concern seems to be that highly indebted firms are not only less resilient, but also, perhaps wilfully, less able to compete. However, a clear theory of anticompetitive harm underpinning competition law enforcement seems to be lacking. This article tries to fill this gap by first reviewing the extant theoretical and empirical literature on how debt affect firms’ strategies and, thus, market outcomes. The general consensus is that a high level of debt induces a weakening of the competitive stance of the borrowing firm, which can be exploited by financially-unconstrained rivals. Therefore, the unilateral adoption of a high level of financial leverage is irrational unless it is reciprocated by rival firms. Ultimately, though, this theory of harm does not provide a robust basis for enforcement – on either and ex-ante basis under merger control, or ex-post basis under competition law – due to the existence of legitimate alternative explanations for the use of financial leverage.
{"title":"Anticompetitive Financial Leverage: In Search of a Theory of Harm","authors":"P. Siciliani","doi":"10.54648/woco2023011","DOIUrl":"https://doi.org/10.54648/woco2023011","url":null,"abstract":"The corporate capital structure of firms has come under scrutiny by competition authorities lately, especially with respect to the role of financial investors such as private equity firms. The main concern seems to be that highly indebted firms are not only less resilient, but also, perhaps wilfully, less able to compete. However, a clear theory of anticompetitive harm underpinning competition law enforcement seems to be lacking. This article tries to fill this gap by first reviewing the extant theoretical and empirical literature on how debt affect firms’ strategies and, thus, market outcomes. The general consensus is that a high level of debt induces a weakening of the competitive stance of the borrowing firm, which can be exploited by financially-unconstrained rivals. Therefore, the unilateral adoption of a high level of financial leverage is irrational unless it is reciprocated by rival firms. Ultimately, though, this theory of harm does not provide a robust basis for enforcement – on either and ex-ante basis under merger control, or ex-post basis under competition law – due to the existence of legitimate alternative explanations for the use of financial leverage.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"58 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84190396","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}
According to the conventional view competition law differs from regulation in that it is applied ex post, through proscriptions, and in a ‘crime-tort’ fashion. From this angle, when competition enforcers intervene ex ante, in a prophylactic manner, and employ prescriptive tools, they inappropriately transform competition law into ‘regulatory antitrust’. The present study challenges this view arguing that modern competition law intervention has moved beyond the crime-tort enforcement model and aspires to be ‘responsive’. This means that modern enforcers intervene ex ante and ex post, use prescriptive and proscriptive tools, and impose restorative and prophylactic remedies to ensure that the law is applied effectively. The works of the Greek Competition Authority offer a case study to illustrate this point. This authority has been utilizing a plurality of tools and enforcement strategies to enhance compliance and deterrence, and apply the law responsively. However, enforcement that aspires to be responsive may create problems of over-enforcement or under-enforcement, be vulnerable to regulatory failures or undermine Rule-of-Law principles. For this reason, this study draws on responsive regulation theory to make fourteen recommendations on how to address these challenges and ensure truly responsive enforcement. competition law, enforcement, remedies, regulation, regulatory theory, competition policy
{"title":"Responsive Competition Law Enforcement: Lessons from the Greek Competition Authority","authors":"Stavros Makris","doi":"10.54648/woco2023013","DOIUrl":"https://doi.org/10.54648/woco2023013","url":null,"abstract":"According to the conventional view competition law differs from regulation in that it is applied ex post, through proscriptions, and in a ‘crime-tort’ fashion. From this angle, when competition enforcers intervene ex ante, in a prophylactic manner, and employ prescriptive tools, they inappropriately transform competition law into ‘regulatory antitrust’. The present study challenges this view arguing that modern competition law intervention has moved beyond the crime-tort enforcement model and aspires to be ‘responsive’. This means that modern enforcers intervene ex ante and ex post, use prescriptive and proscriptive tools, and impose restorative and prophylactic remedies to ensure that the law is applied effectively. The works of the Greek Competition Authority offer a case study to illustrate this point. This authority has been utilizing a plurality of tools and enforcement strategies to enhance compliance and deterrence, and apply the law responsively. However, enforcement that aspires to be responsive may create problems of over-enforcement or under-enforcement, be vulnerable to regulatory failures or undermine Rule-of-Law principles. For this reason, this study draws on responsive regulation theory to make fourteen recommendations on how to address these challenges and ensure truly responsive enforcement.\u0000competition law, enforcement, remedies, regulation, regulatory theory, competition policy","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"85 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90317094","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 the decisions taken by the Brazilian Competition Authority, the Administrative Council for Economic Defence (CADE) in two antitrust cases related the dominant food delivery platform iFood, one merger review and one investigation into exclusive dealing agreements. Through an in-depth examination of the case documents, this article uncovers the evolution in CADE’s comprehension of the competition dynamics in multi-sided digital markets, while also revealing gaps and inadequacies in the authority’s substantive and procedural antitrust enforcement. Based on the findings, the article draws lessons that can help strengthen the authority’s approach to digital platform cases in the future. Firstly, CADE must adapt its steps of analysis and develop new theories of harms that are better tailored to the characteristics of multi-sided platforms. Secondly, CADE should conduct more rigorous merger reviews that take into account the wider impact of dominant platforms’ business strategies on the ecosystem of players orbiting them. Thirdly, the article highlights the importance of the authority building its capacities and expertise to detect competition problems from an early stage, design effective remedies, and ensure these remedies are enforced effectively. These recommendations underscore the significance of continuously updating the enforcement framework and enhancing the capabilities of the competition authority to keep pace with the rapidly evolving digital economy. digital markets, competition law, antitrust, exclusivity dealing, merger review, theories of harm, online food delivery, Brazil
{"title":"Is iFood Starving the Market? Antitrust Enforcement in the Market for Online Food Delivery in Brazil","authors":"Beatriz Kira","doi":"10.54648/woco2023009","DOIUrl":"https://doi.org/10.54648/woco2023009","url":null,"abstract":"This article examines the decisions taken by the Brazilian Competition Authority, the Administrative Council for Economic Defence (CADE) in two antitrust cases related the dominant food delivery platform iFood, one merger review and one investigation into exclusive dealing agreements. Through an in-depth examination of the case documents, this article uncovers the evolution in CADE’s comprehension of the competition dynamics in multi-sided digital markets, while also revealing gaps and inadequacies in the authority’s substantive and procedural antitrust enforcement. Based on the findings, the article draws lessons that can help strengthen the authority’s approach to digital platform cases in the future. Firstly, CADE must adapt its steps of analysis and develop new theories of harms that are better tailored to the characteristics of multi-sided platforms. Secondly, CADE should conduct more rigorous merger reviews that take into account the wider impact of dominant platforms’ business strategies on the ecosystem of players orbiting them. Thirdly, the article highlights the importance of the authority building its capacities and expertise to detect competition problems from an early stage, design effective remedies, and ensure these remedies are enforced effectively. These recommendations underscore the significance of continuously updating the enforcement framework and enhancing the capabilities of the competition authority to keep pace with the rapidly evolving digital economy. digital markets, competition law, antitrust, exclusivity dealing, merger review, theories of harm, online food delivery, Brazil","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135220153","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}
In the recent past Indian government policy relating to the reform of the tribunals has raised debate amongst researchers, policy makers, judiciary and stake holders. However, this reform was never called for in respect of Indian competition law, despite many instances of discord between the relevant adjudicatory and regulatory bodies. Significant time and effort is required to develop an appropriate jurisdiction specific antitrust regime, which is distinct from that required in respect of other sectoral tribunals. Any structural reform pertaining to a developing competition jurisdiction can have a serious impact on its performance and the disposal rate of competition cases. In this paper a substantial performance analysis has been carried out from the perspective of the pre and post restructured adjudicatory institution of competition regulatory body. Ultimately, it is concluded that the reform has resulted in a steady reduction in the performance of the Indian competition enforcement system, thus calling for reconsideration of the reestablishment of a dedicated competition law adjudicatory institution. Competition law, government policy, antitrust regime, litigation disposal rate, developing jurisdiction, specialized tribunal, synergy, AAEC, domain expertise, restructured institution
{"title":"A Paradigm Shift in Indian Competition Regime Vis-A-Vis Restructured Adjudicatory Institution","authors":"Minakshi Ghosh, Souvik Chatterji","doi":"10.54648/woco2023012","DOIUrl":"https://doi.org/10.54648/woco2023012","url":null,"abstract":"In the recent past Indian government policy relating to the reform of the tribunals has raised debate amongst researchers, policy makers, judiciary and stake holders. However, this reform was never called for in respect of Indian competition law, despite many instances of discord between the relevant adjudicatory and regulatory bodies. Significant time and effort is required to develop an appropriate jurisdiction specific antitrust regime, which is distinct from that required in respect of other sectoral tribunals. Any structural reform pertaining to a developing competition jurisdiction can have a serious impact on its performance and the disposal rate of competition cases.\u0000In this paper a substantial performance analysis has been carried out from the perspective of the pre and post restructured adjudicatory institution of competition regulatory body. Ultimately, it is concluded that the reform has resulted in a steady reduction in the performance of the Indian competition enforcement system, thus calling for reconsideration of the reestablishment of a dedicated competition law adjudicatory institution.\u0000Competition law, government policy, antitrust regime, litigation disposal rate, developing jurisdiction, specialized tribunal, synergy, AAEC, domain expertise, restructured institution","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"39 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78077067","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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