This paper attempts to locate the issue of innovation and foreign entry, in particular new entrants from China, in recent US and EU merger decisions. In the first part, the paper examines to what extend US and EU authorities considered foreign entry in recent major merger decisions such as Bayer/Monsanto, Dow/DuPont and ChemChina/Syngenta. The outcome of this short analysis shows that the EU Commission has in recent years begun to accept the argument of foreign entry, in particular from China, as long as the market shares of the merging parties are not too high. The US has not explicitly discussed the question of foreign entry in the above-named decisions. However, in the case Whirlpool/Maytag the US authorities accepted, despite high market shares of the parties, the argument of foreign entry and approved the merger. With regards to innovation, entry into future product markets is not considered favourable to the merging parties by the EU Commission. ‘Innovation competition’ or early ‘pipeline products’ is rather used as an argument to demonstrate that the merging parties hold market power in product markets in the future. Based on the selected case law, the US authorities, by contrast, did recognize entry into future product markets as an argument in favour of the merging parties. In its second part, the paper looks at the pros and cons of forming ‘national champions’ and discusses competition law enforcement in light of the numerous and politically powerful Chinese state-owned enterprises (SOEs). Global competition/antitrust law and policy, foreign entry in merger decisions and China, innovation competition, entry criteria in US/EU mergers, climate change
{"title":"Moderating Globalization: Is There a Role for Antitrust Law? A Comparison of the Relevance of Entry, Expansion and Imports in US and EU Merger Proceedings","authors":"Paul Friederiszick","doi":"10.54648/woco2023010","DOIUrl":"https://doi.org/10.54648/woco2023010","url":null,"abstract":"This paper attempts to locate the issue of innovation and foreign entry, in particular new entrants from China, in recent US and EU merger decisions. In the first part, the paper examines to what extend US and EU authorities considered foreign entry in recent major merger decisions such as Bayer/Monsanto, Dow/DuPont and ChemChina/Syngenta. The outcome of this short analysis shows that the EU Commission has in recent years begun to accept the argument of foreign entry, in particular from China, as long as the market shares of the merging parties are not too high. The US has not explicitly discussed the question of foreign entry in the above-named decisions. However, in the case Whirlpool/Maytag the US authorities accepted, despite high market shares of the parties, the argument of foreign entry and approved the merger. With regards to innovation, entry into future product markets is not considered favourable to the merging parties by the EU Commission. ‘Innovation competition’ or early ‘pipeline products’ is rather used as an argument to demonstrate that the merging parties hold market power in product markets in the future. Based on the selected case law, the US authorities, by contrast, did recognize entry into future product markets as an argument in favour of the merging parties.\u0000In its second part, the paper looks at the pros and cons of forming ‘national champions’ and discusses competition law enforcement in light of the numerous and politically powerful Chinese state-owned enterprises (SOEs).\u0000Global competition/antitrust law and policy, foreign entry in merger decisions and China, innovation competition, entry criteria in US/EU mergers, climate change","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"53 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77205052","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 internationally dominant compulsory notification mechanism under merger control aims to remedy anti-competitive harm by blocking or conditionally approving mergers ex ante. However, such a mechanism is not free from disadvantages. As an alternative, the voluntary notification mechanism, though superficially producing fewer deterrence effects, is in effect no worse than the compulsory mechanism (CM), given its significantly less implementation costs. In order to examine which mechanism suits a given jurisdiction, it is necessary to evaluate the costs and benefits for the implementation of such a mechanism. The enforcement of the CM in China can be argued to present insufficient benefits and high costs, due to the extreme low proportion of blocked and conditional approved cases, as well as the unsatisfactory deterrence effect, and the significant constraints by implementing resources, in particular human capital. Such a particular situation in China implies that the voluntary mechanism (VM) might be advisable to be a more feasible option for young competition jurisdictions. Merger Control, Compulsory Notification, Voluntary Notification, Cost and Benefit Analysis, Young Antitrust Jurisdictions
{"title":"Compulsory v. Voluntary Merger Notification Mechanism: Implications of China’s Enforcement for Young Competition Jurisdictions","authors":"Liyang Hou, Jian Li","doi":"10.54648/woco2022017","DOIUrl":"https://doi.org/10.54648/woco2022017","url":null,"abstract":"The internationally dominant compulsory notification mechanism under merger control aims to remedy anti-competitive harm by blocking or conditionally approving mergers ex ante. However, such a mechanism is not free from disadvantages. As an alternative, the voluntary notification mechanism, though superficially producing fewer deterrence effects, is in effect no worse than the compulsory mechanism (CM), given its significantly less implementation costs. In order to examine which mechanism suits a given jurisdiction, it is necessary to evaluate the costs and benefits for the implementation of such a mechanism. The enforcement of the CM in China can be argued to present insufficient benefits and high costs, due to the extreme low proportion of blocked and conditional approved cases, as well as the unsatisfactory deterrence effect, and the significant constraints by implementing resources, in particular human capital. Such a particular situation in China implies that the voluntary mechanism (VM) might be advisable to be a more feasible option for young competition jurisdictions.\u0000Merger Control, Compulsory Notification, Voluntary Notification, Cost and Benefit Analysis, Young Antitrust Jurisdictions","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"91 2 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90978457","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 focuses on the notion of ‘advantage’, as an element necessary for a national measure to be qualified as state aid. Behaving like a private economic operator implies that the state remains profitoriented and does not grant an advantage to a recipient undertaking (i.e., no aid). In order to determine that economic transactions carried out by public bodies do not confer an advantage on the recipient, the European courts have developed, as of the mid-1980s, a test which implies the comparison between the state and a private economic operator. This article focuses on a number of key issues arising when applying the ‘market economy operator test’ (MEOT) to Member States’ (MSs’) investments, especially in the area of financial instruments, e.g., equity or quasi-equity investments, loans or guarantees. The recent EU soft law indicates the forms that the MEOT may take and clarifies the state’s role in co-investments in financial instruments, together with private investors. The existing EU case-law may be useful for subtracting some principles to assist practitioners with designing financial products in line with the MEOT and avoid the negative effects of illegal aid recovery. We conclude that more proxies may be provided via soft law by the European Commission for designing financial products under the MEOT, in an effort to increase access to finance to European companies. state aid, MEOT, private investor, financial instruments, risk finance measures
{"title":"Practical Considerations on the Notion of ‘Advantage’ and the Application of Market Economy Operator Test in the Context of Financial Instruments","authors":"F. Dascalescu, M. Houtman","doi":"10.54648/woco2022016","DOIUrl":"https://doi.org/10.54648/woco2022016","url":null,"abstract":"This article focuses on the notion of ‘advantage’, as an element necessary for a national measure to be qualified as state aid. Behaving like a private economic operator implies that the state remains profitoriented and does not grant an advantage to a recipient undertaking (i.e., no aid). In order to determine that economic transactions carried out by public bodies do not confer an advantage on the recipient, the European courts have developed, as of the mid-1980s, a test which implies the comparison between the state and a private economic operator. This article focuses on a number of key issues arising when applying the ‘market economy operator test’ (MEOT) to Member States’ (MSs’) investments, especially in the area of financial instruments, e.g., equity or quasi-equity investments, loans or guarantees. The recent EU soft law indicates the forms that the MEOT may take and clarifies the state’s role in co-investments in financial instruments, together with private investors. The existing EU case-law may be useful for subtracting some principles to assist practitioners with designing financial products in line with the MEOT and avoid the negative effects of illegal aid recovery. We conclude that more proxies may be provided via soft law by the European Commission for designing financial products under the MEOT, in an effort to increase access to finance to European companies.\u0000state aid, MEOT, private investor, financial instruments, risk finance measures","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"203 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77005486","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 rise of Big Tech led to a still ongoing debate over the shape of antitrust enforcement. Many of such discussions take place in the United States and focus on the validity of consumer welfare standard, often leading each party of the discussion to entrench its position. In the European context, however, the success of the consumer welfare standard was never so full as in the United States, making way instead to the adoption of a ‘more economic approach’. This article discusses how the current tension within antitrust could be looked at from the European point of view. It suggests that antitrust might be subject to a perpetual movement between what has already been described in European antitrust as the more economic approach and what could be now termed as a more political approach. The article investigates what elements could be seen as part of such a more political approach. It leaves aside the question of which approach is the ‘correct’ one and attempts instead to look for ways of adjusting enforcement in times of change. The article concludes that while the more economic and more political approach are at odds, there appear to be ways of easing tensions within antitrust when political conditions change. Big Tech, Chicago School, consumer welfare, efficiency, enforcement, more economic approach, neobrandeisianism, ordoliberalism, populism, public goals
{"title":"A Positive Program for Antitrust? Enforcement in Times of Political Tides","authors":"Jan Polański","doi":"10.54648/woco2022009","DOIUrl":"https://doi.org/10.54648/woco2022009","url":null,"abstract":"The rise of Big Tech led to a still ongoing debate over the shape of antitrust enforcement. Many of such discussions take place in the United States and focus on the validity of consumer welfare standard, often leading each party of the discussion to entrench its position. In the European context, however, the success of the consumer welfare standard was never so full as in the United States, making way instead to the adoption of a ‘more economic approach’. This article discusses how the current tension within antitrust could be looked at from the European point of view. It suggests that antitrust might be subject to a perpetual movement between what has already been described in European antitrust as the more economic approach and what could be now termed as a more political approach. The article investigates what elements could be seen as part of such a more political approach. It leaves aside the question of which approach is the ‘correct’ one and attempts instead to look for ways of adjusting enforcement in times of change. The article concludes that while the more economic and more political approach are at odds, there appear to be ways of easing tensions within antitrust when political conditions change.\u0000Big Tech, Chicago School, consumer welfare, efficiency, enforcement, more economic approach, neobrandeisianism, ordoliberalism, populism, public goals","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"69 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89350645","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 Article 23(2)(a) of Regulation (EC) No 1/2003, the Commission may impose any fines for the breach of substantive competition rules only on ‘undertakings’. The provision does not contemplate the imposition of fines on individuals considered responsible for the conduct of the undertaking concerned, even though, as explained in this article, this position is not imposed by the relevant legal basis (Article 83 EC [the Treaty establishing the European Community in the version following the Treaty of Amsterdam], corresponding to Article 87 EEC Treaty [the Treaty establishing the European Economic Community in its version of 1957] and the present Article 103 TFEU [the Treaty on the Functioning of the European Union]) That legal basis would indeed allow such liability to be established. From a policy point of view, however, it is often argued that sanctions should also be imposed on such individuals. This raises the question as to why the Union legislator chose not to provide for corresponding powers on the Commission’s part. From the relevant legislative history exposed in this article, it emerges that the approach of Article 23(2)(a) ultimately originates from the ECSC Treaty [theTreaty establishing the European Coal and Steel Community]. In this latter context, it reflected the particular limits placed by its authors on that Treaty. It did not reflect the contemporary orientations at national level regarding punitive sanctions. The approach gradually found its way into Regulation (EC) No 1/2003 without any further specific discussion on the way, despite the different context offered by the relevant provisions of the EEC/EC Treaty. It was first transplanted into Regulation No 11, based on Article 79 EEC Treaty (today Article 95 TFEU) and concerning the abolition of discrimination in transport rates and conditions. The negotiations preceding the adoption of this Regulation brought to light strong reserves regarding the conferral of sanctioning powers upon the (then) EEC, and it was no doubt unrealistic to expect that it would have been granted powers more far-reaching than those available under the ECSC Treaty. When Regulation No 17 (and specifically Article 15) was elaborated, the drafters were aware of the scheme established by Regulation No 11, which served as a reference. No genuine discussion regarding possible powers to punish the persons considered responsible for the conduct of the ‘undertaking’ took place. It is likely that any such innovation would not have been realistic at that point. Lastly, the reform brought about by Regulation (EC) No 1/2003 focused on other aspects regarding the implementation of competition law, and the scheme of Article 15(2) of Regulation No 17 has been taken over into Article 23(2) of Regulation (EC) No 1/2013 without major changes. No consideration was given to the possible imposition of penalties on natural persons implicated in the commission of breaches of competition law. EU antitrust sanctions, Eu
根据法规(EC) No 1/2003第23(2)(a)条，委员会只能对“承诺”处以违反实质性竞争规则的罚款。这项规定并不打算对被认为对有关事业的行为负有责任的个人处以罚款，尽管如本条所解释的，这种立场并不是由有关的法律依据所规定的(欧共体第83条[《阿姆斯特丹条约》之后的《建立欧洲共同体条约》]，对应于《欧洲经济共同体条约》第87条[1957年版建立欧洲经济共同体的条约]和现行的《欧洲联盟运作条约》第103条]，该法律基础确实允许建立这种责任。然而，从政策的角度来看，经常有人认为也应该对这些个人实施制裁。这就提出了一个问题，即为什么联盟立法者选择不规定委员会的相应权力。从本文所揭示的相关立法历史中可以看出，第23(2)(a)条的方法最终源于ECSC条约[建立欧洲煤钢共同体条约]。在后一种情况下，它反映了其作者对该《条约》所作的特殊限制。它没有反映当前国家一级关于惩罚性制裁的方针。尽管EEC/EC条约的相关条款提供了不同的背景，但这种方法在没有进一步具体讨论的情况下逐渐进入了(EC) No 1/2003法规。它首先被移植到第11号条例中，该条例基于《欧洲经济共同体条约》第79条(今天的《欧洲经济共同体条约》第95条)，涉及取消运输费率和条件方面的歧视。本条例通过之前的谈判表明，在授予(当时的)欧共体制裁权力方面存在强烈的保留意见，期望欧共体获得比《欧共体条约》所赋予的更广泛的权力无疑是不现实的。在阐述第17号条例(特别是第15条)时，起草者知道第11号条例所建立的方案，这可以作为参考。关于惩罚被认为对“承诺”行为负有责任的人的可能权力，没有进行真正的讨论。在那个时候，任何这样的创新都可能是不现实的。最后，第(EC) 1/2003号条例带来的改革侧重于竞争法实施的其他方面，第17号条例第15(2)条的方案已被接管为第(EC) 1/2013号条例第23(2)条，没有重大变化。没有考虑到可能对涉嫌违反竞争法的自然人施加惩罚。欧盟反垄断制裁，欧盟委员会，个别制裁，第1/ 2003号条例，第17号条例，第11号条例，ECSC条约，历史
{"title":"Why Does Regulation (EC) No 1/2003 Provide for the Imposition of Penalties Only on Undertakings?: A Historical Perspective","authors":"Walter Mölls","doi":"10.54648/woco2022008","DOIUrl":"https://doi.org/10.54648/woco2022008","url":null,"abstract":"According to Article 23(2)(a) of Regulation (EC) No 1/2003, the Commission may impose any fines for the breach of substantive competition rules only on ‘undertakings’. The provision does not contemplate the imposition of fines on individuals considered responsible for the conduct of the undertaking concerned, even though, as explained in this article, this position is not imposed by the relevant legal basis (Article 83 EC [the Treaty establishing the European Community in the version following the Treaty of Amsterdam], corresponding to Article 87 EEC Treaty [the Treaty establishing the European Economic Community in its version of 1957] and the present Article 103 TFEU [the Treaty on the Functioning of the European Union]) That legal basis would indeed allow such liability to be established. From a policy point of view, however, it is often argued that sanctions should also be imposed on such individuals. This raises the question as to why the Union legislator chose not to provide for corresponding powers on the Commission’s part. From the relevant legislative history exposed in this article, it emerges that the approach of Article 23(2)(a) ultimately originates from the ECSC Treaty [theTreaty establishing the European Coal and Steel Community]. In this latter context, it reflected the particular limits placed by its authors on that Treaty. It did not reflect the contemporary orientations at national level regarding punitive sanctions. The approach gradually found its way into Regulation (EC) No 1/2003 without any further specific discussion on the way, despite the different context offered by the relevant provisions of the EEC/EC Treaty. It was first transplanted into Regulation No 11, based on Article 79 EEC Treaty (today Article 95 TFEU) and concerning the abolition of discrimination in transport rates and conditions. The negotiations preceding the adoption of this Regulation brought to light strong reserves regarding the conferral of sanctioning powers upon the (then) EEC, and it was no doubt unrealistic to expect that it would have been granted powers more far-reaching than those available under the ECSC Treaty. When Regulation No 17 (and specifically Article 15) was elaborated, the drafters were aware of the scheme established by Regulation No 11, which served as a reference. No genuine discussion regarding possible powers to punish the persons considered responsible for the conduct of the ‘undertaking’ took place. It is likely that any such innovation would not have been realistic at that point. Lastly, the reform brought about by Regulation (EC) No 1/2003 focused on other aspects regarding the implementation of competition law, and the scheme of Article 15(2) of Regulation No 17 has been taken over into Article 23(2) of Regulation (EC) No 1/2013 without major changes. No consideration was given to the possible imposition of penalties on natural persons implicated in the commission of breaches of competition law.\u0000EU antitrust sanctions, Eu","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"32 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88126888","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: Alexandr Svetlicinii, Chinese State Owned Enterprises and EU Merger Control, Routledge. 2021","authors":"Anna Panarella","doi":"10.54648/woco2022012","DOIUrl":"https://doi.org/10.54648/woco2022012","url":null,"abstract":"","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"59 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81360916","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 explores whether there is a risk that competition policy on both sides of the Atlantic could be distorted by cultural capture. This type of capture differs from traditional regulatory capture operating through self-interest of public officials. It instead arises when policy-relevant views of the officials are subject to disproportionate social influence exerted by representatives of the private sector. The question here is hence whether social interactions enabling this influence take place between competition officials and practitioners. The article answers in the affirmative, finding that many competition officials seem to self-identify with a community dominated by competition practitioners, hold the practitioners in high regard, and have interpersonal relationships with the practitioners. These risk factors are especially pronounced in the United States. There is thus a possibility that competition policy could be designed and enforced in a way that furthers interests of big business to the detriment of consumers and small businesses. The article also discusses preventive measures to limit cultural capture of competition policy such as promotion of diversity and reduction of revolving door, cautioning nevertheless that difficult trade-offs may need to be made in their implementation. agency independence, anti-interventionism, competition community, competition policy, cultural capture, Antitrust Division, DG Competition, Bureau of Competition, regulatory capture, revolving door, social influence
{"title":"Cultural Capture of Competition Policy: Exploring the Risk in the US and the EU","authors":"J. Broulík","doi":"10.54648/woco2022007","DOIUrl":"https://doi.org/10.54648/woco2022007","url":null,"abstract":"This article explores whether there is a risk that competition policy on both sides of the Atlantic could be distorted by cultural capture. This type of capture differs from traditional regulatory capture operating through self-interest of public officials. It instead arises when policy-relevant views of the officials are subject to disproportionate social influence exerted by representatives of the private sector. The question here is hence whether social interactions enabling this influence take place between competition officials and practitioners. The article answers in the affirmative, finding that many competition officials seem to self-identify with a community dominated by competition practitioners, hold the practitioners in high regard, and have interpersonal relationships with the practitioners. These risk factors are especially pronounced in the United States. There is thus a possibility that competition policy could be designed and enforced in a way that furthers interests of big business to the detriment of consumers and small businesses. The article also discusses preventive measures to limit cultural capture of competition policy such as promotion of diversity and reduction of revolving door, cautioning nevertheless that difficult trade-offs may need to be made in their implementation.\u0000agency independence, anti-interventionism, competition community, competition policy, cultural capture, Antitrust Division, DG Competition, Bureau of Competition, regulatory capture, revolving door, social influence","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"100 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89760347","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 Union legislature and courts leave the European Commission a wide discretion in dealing with antitrust complaints submitted to it. The principal external constraint is that if the Commission chooses not to pursue a formal complaint, it must reject it by means of a reasoned decision, which may be subject to judicial review. But the Commission’s administrative discretion is primarily structured and confined by self-imposed rules and principles. Most of these were introduced or formalized when Regulation 1/2003 was adopted and were intended to incentivize complainants to inform the Commission about potential infringements of the EU antitrust rules. This article maps the precise boundaries of the Commission’s discretion to shelve non-priority antitrust complaints and subsequently examines how the Commission operates within that discretionary space. The empirical analysis is based on a unique dataset of all the rejection decisions the Commission adopted between 2009 and 2021, many of which were uncovered and obtained through access to documents requests. It reveals certain discrepancies between the stated rules and principles governing its treatment of complaints and their implementation in practice, which have the clear potential to undermine the incentives the current complaint handling system sought to create for the filing of formal complaints. antitrust, European Commission, complaints, complainant, prioritization, rejection, enforcement, discretion, priority setting
{"title":"The European Commission’s Handling of Non-priority Antitrust Complaints: An Empirical Assessment","authors":"B. Van Rompuy","doi":"10.54648/woco2022010","DOIUrl":"https://doi.org/10.54648/woco2022010","url":null,"abstract":"The Union legislature and courts leave the European Commission a wide discretion in dealing with antitrust complaints submitted to it. The principal external constraint is that if the Commission chooses not to pursue a formal complaint, it must reject it by means of a reasoned decision, which may be subject to judicial review. But the Commission’s administrative discretion is primarily structured and confined by self-imposed rules and principles. Most of these were introduced or formalized when Regulation 1/2003 was adopted and were intended to incentivize complainants to inform the Commission about potential infringements of the EU antitrust rules.\u0000This article maps the precise boundaries of the Commission’s discretion to shelve non-priority antitrust complaints and subsequently examines how the Commission operates within that discretionary space. The empirical analysis is based on a unique dataset of all the rejection decisions the Commission adopted between 2009 and 2021, many of which were uncovered and obtained through access to documents requests. It reveals certain discrepancies between the stated rules and principles governing its treatment of complaints and their implementation in practice, which have the clear potential to undermine the incentives the current complaint handling system sought to create for the filing of formal complaints.\u0000antitrust, European Commission, complaints, complainant, prioritization, rejection, enforcement, discretion, priority setting","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"9 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91244676","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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