E-commerce entities like Flipkart and Amazon have been alleged to be in violation of the laws governing foreign direct investment [‘FDI’] in India. Additionally, the business model adopted by them appears to be in contravention of the Competition Act, 2002. On 26 December 2018, the Department for Promotion of Industry and Internal Trade [‘DPIIT’] had issued Press Note 2 (2018 Series) which introduced a series of changes in the FDI norms in the e-commerce sector. (These changes have been incorporated in the FDI Policy vide Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) (Fifth Amendment) Regulations, 2019, dated 31 January 2019, Notification No.FEMA.20(R) (6)/2019-RB, available at, https://rbi.org.in/Scripts/BS_FemaNotifications.aspx?Id=11496 [Last accessed on: 21 April 2020].) The Press Note was purportedly introduced to protect the interest of small and medium sized enterprises in India. In this article, the author argues that the changes which are introduced by the Press Note go against the very purpose of their introduction as it leaves every stakeholder in a worse off situation by allowing easy circumvention. After highlighting the issues arising from amendments introduced by the Press Note in Part I of this article, the author delineates the anti-competitive nature of the business model of the e-commerce entities in Part II of this article. The author proposes that the appropriate method to remedy the problem surrounding the e-commerce sector would have been to make the appropriate amendments under Competition Act, 2002 rather than to opt for the FDI route. Foreign Direct Investment, Competition Law, Foreign Exchange Law, Amazon, Flipkart, e-commerce entities, private equity, anti-competitive practices, circumvention of FDI norms, India
{"title":"Remedying The Mischief Created By E-Commerce Entities In India","authors":"Mayank Udhwani","doi":"10.54648/woco2020020","DOIUrl":"https://doi.org/10.54648/woco2020020","url":null,"abstract":"E-commerce entities like Flipkart and Amazon have been alleged to be in violation of the laws governing foreign direct investment [‘FDI’] in India. Additionally, the business model adopted by them appears to be in contravention of the Competition Act, 2002. On 26 December 2018, the Department for Promotion of Industry and Internal Trade [‘DPIIT’] had issued Press Note 2 (2018 Series) which introduced a series of changes in the FDI norms in the e-commerce sector. (These changes have been incorporated in the FDI Policy vide Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) (Fifth Amendment) Regulations, 2019, dated 31 January 2019, Notification No.FEMA.20(R) (6)/2019-RB, available at, https://rbi.org.in/Scripts/BS_FemaNotifications.aspx?Id=11496 [Last accessed on: 21 April 2020].) The Press Note was purportedly introduced to protect the interest of small and medium sized enterprises in India. In this article, the author argues that the changes which are introduced by the Press Note go against the very purpose of their introduction as it leaves every stakeholder in a worse off situation by allowing easy circumvention. After highlighting the issues arising from amendments introduced by the Press Note in Part I of this article, the author delineates the anti-competitive nature of the business model of the e-commerce entities in Part II of this article. The author proposes that the appropriate method to remedy the problem surrounding the e-commerce sector would have been to make the appropriate amendments under Competition Act, 2002 rather than to opt for the FDI route.\u0000Foreign Direct Investment, Competition Law, Foreign Exchange Law, Amazon, Flipkart, e-commerce entities, private equity, anti-competitive practices, circumvention of FDI norms, India","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"195 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77941767","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 Roche/Novartis case raised an issue of European competition law so complex that it called upon the intervention of the most important and authoritative judicial body of the European Union, i.e. the Grand Chamber of the Court of Justice. Some of the outcomes of this case are, however, particularly worth analysing because they show to the highest degree the potential logical shortcomings that can be created by combining a too rigid and sterile application of competition law principles with complex factual circumstances. More specifically, in this case the legal questions of the definition of the relevant product market, of the competitive relationship between the parties and of the implications of a licensing agreement between them needed to be adjudicated with reference to the unlawfulness of the creation and marketing of the relevant product, of the marketing of such product by third-parties (and not by one of the infringers) and of the weight of regulatory issues within the competition law assessment. Despite the arguably unique set of facts of the case, the problematic – even contradictory – nature of its findings cautions us against a formalistic application of competition law and shows instead the preference of adopting a substantive approach within the competition law assessment. Hoffmann-La Roche, Novartis, Avastin, Lucentis, competition law, Article 101 Treaty on the functioning of the European Union (TFEU), off-label, pharmaceuticals, formalism, regulation.
罗氏/诺华案提出了一个非常复杂的欧洲竞争法问题，以至于需要欧盟最重要、最权威的司法机构，即欧洲法院大分庭(Grand Chamber of Justice)的干预。然而，本案的一些结果特别值得分析，因为它们最大程度地显示了将过于僵化和枯燥的竞争法原则应用与复杂的实际情况结合起来可能产生的潜在逻辑缺陷。更具体地说，在这种情况下，相关产品市场的定义、各方之间的竞争关系以及双方之间的许可协议的影响等法律问题需要参照相关产品的创造和营销的非法性、第三方(而不是侵权者之一)对此类产品的营销以及竞争法评估中监管问题的重要性来裁决。尽管该案件的事实集可以说是独特的，但其调查结果的问题-甚至矛盾-性质提醒我们不要将竞争法应用于形式主义，而是表明在竞争法评估中更倾向于采用实质性方法。Hoffmann-La Roche, Novartis, Avastin, Lucentis，竞争法，关于欧盟运作的第101条条约(TFEU)，标签外，药品，形式主义，监管。
{"title":"A Formalistic Approach to Competition Law and Its Risks: The Curious Case of Roche/Novartis","authors":"Patrick Actis Perinetto","doi":"10.54648/woco2020017","DOIUrl":"https://doi.org/10.54648/woco2020017","url":null,"abstract":"The Roche/Novartis case raised an issue of European competition law so complex that it called upon the intervention of the most important and authoritative judicial body of the European Union, i.e. the Grand Chamber of the Court of Justice. Some of the outcomes of this case are, however, particularly worth analysing because they show to the highest degree the potential logical shortcomings that can be created by combining a too rigid and sterile application of competition law principles with complex factual circumstances. More specifically, in this case the legal questions of the definition of the relevant product market, of the competitive relationship between the parties and of the implications of a licensing agreement between them needed to be adjudicated with reference to the unlawfulness of the creation and marketing of the relevant product, of the marketing of such product by third-parties (and not by one of the infringers) and of the weight of regulatory issues within the competition law assessment. Despite the arguably unique set of facts of the case, the problematic – even contradictory – nature of its findings cautions us against a formalistic application of competition law and shows instead the preference of adopting a substantive approach within the competition law assessment.\u0000Hoffmann-La Roche, Novartis, Avastin, Lucentis, competition law, Article 101 Treaty on the functioning of the European Union (TFEU), off-label, pharmaceuticals, formalism, regulation.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"44 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82549561","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 disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany’s implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany’s implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future. Disclosure, Discovery, Damages Directive, Comparative Law, European Law, German Law, US Law, Litigation Hold, Legal Privilege, Principle of Effectiveness
{"title":"Disclosure in European Competition Litigation Through the Lens of US Discovery","authors":"A. Ruster, Sebastian Von Massow","doi":"10.54648/woco2020018","DOIUrl":"https://doi.org/10.54648/woco2020018","url":null,"abstract":"The disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany’s implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany’s implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future.\u0000Disclosure, Discovery, Damages Directive, Comparative Law, European Law, German Law, US Law, Litigation Hold, Legal Privilege, Principle of Effectiveness","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"86 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72636150","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 disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany’s implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany’s implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future. antitrust, competition law, big tech companies, behavioural economics, bounded rationality, digital economy, brand name, platform and merger breakups, market power, remedies.
{"title":"Boundedly Rational Users and the Fable of Break-Ups: Why Breaking-Up Big Tech Companies Probably Will Not Promote Competition from Behavioural Economics Perspective","authors":"Lior Frank","doi":"10.54648/woco2020019","DOIUrl":"https://doi.org/10.54648/woco2020019","url":null,"abstract":"The disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany’s implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany’s implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future.\u0000antitrust, competition law, big tech companies, behavioural economics, bounded rationality, digital economy, brand name, platform and merger breakups, market power, remedies.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"55 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85731370","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}
On 8 April 2020 the European Commission issued its first comfort letter for a competitor collaboration in the context of its Temporary Framework in response to Covid-19. The issuance of this comfort letter is remarkable, particularly given the paradigm shift from the system of comfort letters before 2003 under Regulation 17 towards a system of self-assessment under Regulation 1/2003. While the EC has since ushered in comprehensive guidance – via block exemptions and guidelines – to assist businesses with the task of self-assessing their compliance with the EU competition rules, such guidance still leaves too much room for error und uncertainty. This is notably the case with respect to non-full function joint ventures, and in particular those that are long-term, complex and high in value. A corollary of this is that, rather than enter into pro-competitive collaboration for fear of antitrust repercussions, companies may prefer to desist. With a view to achieving enhanced legal certainty for such joint ventures, and capitalizing on the good work it is currently doing under the Temporary Framework, the EC may wish, therefore, to give meaningful thought to the introduction of a more generalized system of comfort letters – at least for non-full function joint ventures. COVID-19, Temporary Framework, comfort letter, non-full function joint venture, Regulation 17, legal certainty, Regulation 1/2003, Article 101(3), self-assessment, Informal Guidance Notice
{"title":"COVID-20: The Comfort Letter Is Dead. Long Live the Comfort Letter?","authors":"David Henry, Jacques Buhart","doi":"10.54648/woco2020016","DOIUrl":"https://doi.org/10.54648/woco2020016","url":null,"abstract":"On 8 April 2020 the European Commission issued its first comfort letter for a competitor collaboration in the context of its Temporary Framework in response to Covid-19. The issuance of this comfort letter is remarkable, particularly given the paradigm shift from the system of comfort letters before 2003 under Regulation 17 towards a system of self-assessment under Regulation 1/2003. While the EC has since ushered in comprehensive guidance – via block exemptions and guidelines – to assist businesses with the task of self-assessing their compliance with the EU competition rules, such guidance still leaves too much room for error und uncertainty. This is notably the case with respect to non-full function joint ventures, and in particular those that are long-term, complex and high in value. A corollary of this is that, rather than enter into pro-competitive collaboration for fear of antitrust repercussions, companies may prefer to desist. With a view to achieving enhanced legal certainty for such joint ventures, and capitalizing on the good work it is currently doing under the Temporary Framework, the EC may wish, therefore, to give meaningful thought to the introduction of a more generalized system of comfort letters – at least for non-full function joint ventures.\u0000COVID-19, Temporary Framework, comfort letter, non-full function joint venture, Regulation 17, legal certainty, Regulation 1/2003, Article 101(3), self-assessment, Informal Guidance Notice","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"120 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88685512","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 objective behind imposing price controls on essential medicines is to ensure that the masses have access to these essential goods and services without prejudice. However, the prices of these medicines have significantly increased under price controls, defeating the purpose of the ceilings’ implementation. In this article, the author examines the reasons behind these price increases. In particular, the article examines whether price ceilings facilitate collusion in the pharmaceutical market of India. The scope of examination considers the effect of the ceiling on prices both before and after it was implemented. This is important because prices become significantly higher in a cartelized market, thereby preventing the masses from being able to access essential, life-saving medicines. After examining studies of individual drugs and common market tendencies, the author concluded that price ceilings do facilitate anti-competitive practices. This is due to the marketbased price ceilings providing a focal point for tacit collusion. This is especially true in pharmaceutical markets with market-based price ceilings due to the presence of strong intermediary association and monitoring, evidence of communication, and underutilization of capacity. Similar collusive behaviour has been observed in markets across China, the United States, and the United Kingdom. At the end of the article, suggestions to mitigate the effects of price ceilings and prevent the consumers from being harmed further have been enumerated. Tacit Collusion, Signalling, Cartelization, Pharmaceutical, India, Focal Point, Price Control, Ceiling, Market-based, Price-fixing
{"title":"The Anti-Competitive Effect of Price Controls: Study of the Indian Pharmaceutical Industry","authors":"Rhea Reddy Lokesh","doi":"10.54648/woco2020014","DOIUrl":"https://doi.org/10.54648/woco2020014","url":null,"abstract":"The objective behind imposing price controls on essential medicines is to ensure that the masses have access to these essential goods and services without prejudice. However, the prices of these medicines have significantly increased under price controls, defeating the purpose of the ceilings’ implementation. In this article, the author examines the reasons behind these price increases. In particular, the article examines whether price ceilings facilitate collusion in the pharmaceutical market of India. The scope of examination considers the effect of the ceiling on prices both before and after it was implemented. This is important because prices become significantly higher in a cartelized market, thereby preventing the masses from being able to access essential, life-saving medicines.\u0000After examining studies of individual drugs and common market tendencies, the author concluded that price ceilings do facilitate anti-competitive practices. This is due to the marketbased price ceilings providing a focal point for tacit collusion. This is especially true in pharmaceutical markets with market-based price ceilings due to the presence of strong intermediary association and monitoring, evidence of communication, and underutilization of capacity. Similar collusive behaviour has been observed in markets across China, the United States, and the United Kingdom. At the end of the article, suggestions to mitigate the effects of price ceilings and prevent the consumers from being harmed further have been enumerated.\u0000Tacit Collusion, Signalling, Cartelization, Pharmaceutical, India, Focal Point, Price Control, Ceiling, Market-based, Price-fixing","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"28 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77656169","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 United Kingdom’s withdrawal from the European Union and its impending departure from the latter, place the UK and EU competition law regimes in a situation of great uncertainty. From a well-anchored position in which these two regimes have been intertwined and their key actors – the Competition and Markets Authority and the European Commission – enjoy a strong and close association (principally within the European Competition Network), the two regimes are now supposed to go separate ways. This transition could not be more powerful and its implications could not be more serious. Yet, hardly any proper attention has been given to assessing the future relationship between the two regimes especially from a policy perspective. The present article engages in such assessment. In addressing a number of key issues – notably the relationship between UK and EU competition law and authorities – the article offers a vision and critical analysis of the kind of future relationship the two regimes should have. Brexit, Competition and Markets Authority, European Commission, cooperation, European Competition Network, UK and EU competition law regimes
英国退出欧盟以及即将退出欧盟，使英国和欧盟竞争法制度处于极大的不确定性之中。这两种机制相互交织，它们的关键角色——竞争和市场管理局(Competition and Markets Authority)和欧盟委员会(European Commission)——有着牢固而密切的联系(主要是在欧洲竞争网络(European Competition Network)内)，它们原本的定位很好，但现在看来，这两种机制应该分道扬镳。这种转变是最有力的，其影响是最严重的。然而，几乎没有任何适当的关注来评估两个政权之间的未来关系，特别是从政策的角度。本文进行了这样的评估。在解决一些关键问题——尤其是英国和欧盟竞争法和监管机构之间的关系——时，文章对这两个政权未来应该拥有的关系提供了一种愿景和批判性分析。英国脱欧，竞争和市场管理局，欧盟委员会，合作，欧洲竞争网络，英国和欧盟竞争法制度
{"title":"Brexit and Competition Law: The Future Relationship Between the UK and EU Competition Law Regimes","authors":"M. Dabbah","doi":"10.54648/woco2020012","DOIUrl":"https://doi.org/10.54648/woco2020012","url":null,"abstract":"The United Kingdom’s withdrawal from the European Union and its impending departure from the latter, place the UK and EU competition law regimes in a situation of great uncertainty. From a well-anchored position in which these two regimes have been intertwined and their key actors – the Competition and Markets Authority and the European Commission – enjoy a strong and close association (principally within the European Competition Network), the two regimes are now supposed to go separate ways. This transition could not be more powerful and its implications could not be more serious. Yet, hardly any proper attention has been given to assessing the future relationship between the two regimes especially from a policy perspective.\u0000The present article engages in such assessment. In addressing a number of key issues – notably the relationship between UK and EU competition law and authorities – the article offers a vision and critical analysis of the kind of future relationship the two regimes should have.\u0000Brexit, Competition and Markets Authority, European Commission, cooperation, European Competition Network, UK and EU competition law regimes","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"25 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84964197","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 distinction between horizontal and vertical agreements is not always as obvious as suggested in case law. In particular, under US antitrust law, the current case law on section 1 of the Sherman Act sets out a dichotomy between horizontal and vertical restraints. Yet, the commercial reality, as seen for instance in the e-commerce sector, is that the line between those two types of restraints is sometimes blurred. As more recent cases have shown, the legal assessment of vertical restraints that have horizontal effect is more difficult compared to purely vertical or horizontal restraints. Under US antitrust and EU competition law the assessment of those ‘hybrid restraints’ is further obfuscated due to the emergence of intermediate approaches to the rule of reason/per se rule in section 1 of the Sherman Act and arguably the restriction by object/restriction by effect categories in Article 101 Treaty on the Functioning of the European Union (TFEU) respectively. This article explores whether those intermediate approaches are suitable for the legal assessment of vertical restraints with horizontal effect and how the analyses could be conducted in order to be more administrable. vertical restraints, horizontal restraints, hybrid restraints, Most-Favoured Nation clauses, resale price maintenance, rule of reason, per se rule, restriction by object, restriction by effect, Article 101 TFEU
{"title":"Hybrid Restraints and Hybrid Tests Under US Antitrust and EU Competition Law","authors":"B. Balasingham","doi":"10.54648/woco2020013","DOIUrl":"https://doi.org/10.54648/woco2020013","url":null,"abstract":"The distinction between horizontal and vertical agreements is not always as obvious as suggested in case law. In particular, under US antitrust law, the current case law on section 1 of the Sherman Act sets out a dichotomy between horizontal and vertical restraints. Yet, the commercial reality, as seen for instance in the e-commerce sector, is that the line between those two types of restraints is sometimes blurred. As more recent cases have shown, the legal assessment of vertical restraints that have horizontal effect is more difficult compared to purely vertical or horizontal restraints. Under US antitrust and EU competition law the assessment of those ‘hybrid restraints’ is further obfuscated due to the emergence of intermediate approaches to the rule of reason/per se rule in section 1 of the Sherman Act and arguably the restriction by object/restriction by effect categories in Article 101 Treaty on the Functioning of the European Union (TFEU) respectively. This article explores whether those intermediate approaches are suitable for the legal assessment of vertical restraints with horizontal effect and how the analyses could be conducted in order to be more administrable.\u0000vertical restraints, horizontal restraints, hybrid restraints, Most-Favoured Nation clauses, resale price maintenance, rule of reason, per se rule, restriction by object, restriction by effect, Article 101 TFEU","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"43 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90207440","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 focus of the law on competition damages is on the recovery of overcharges appropriated by the cartels. Parties other than purchasers are often neglected, not only as a matter of judicial practice but also due to legal restrictions. We argue that a narrow concept of standing – which excludes parties that supply either the cartels or the firms that purchase from them with complementary product components – falls short of the normative objectives associated with actions for competition damages: effective deterrence of competition infringements and pursuit of corrective justice. We propose a simple economic framework with two complementary products and show that under neither competition nor cartelization do the allocation and distribution of surpluses depend on whether producers of complements purchase from a cartel or supply a cartel or its customers. This indicates that producers of complements should be treated alike, regardless of their position in the supply chain. Based on various factors that determine the enforcement effect of actions oncompetition damages and their role as an instrument to restore corrective justice, we conclude that a broad concept of standing is preferable. competition damages, pass-on, suppliers, complementary goods, causality, antitrust standing, cartel overcharge, effective deterrence, corrective justice, Directive 2014/104/EU, principle of effectiveness
{"title":"Cartel Effects and Component Makers’ Right to Damages","authors":"J. Franck, M. Peitz","doi":"10.54648/woco2020011","DOIUrl":"https://doi.org/10.54648/woco2020011","url":null,"abstract":"The focus of the law on competition damages is on the recovery of overcharges appropriated by the cartels. Parties other than purchasers are often neglected, not only as a matter of judicial practice but also due to legal restrictions. We argue that a narrow concept of standing – which excludes parties that supply either the cartels or the firms that purchase from them with complementary product components – falls short of the normative objectives associated with actions for competition damages: effective deterrence of competition infringements and pursuit of corrective justice. We propose a simple economic framework with two complementary products and show that under neither competition nor cartelization do the allocation and distribution of surpluses depend on whether producers of complements purchase from a cartel or supply a cartel or its customers. This indicates that producers of complements should be treated alike, regardless of their position in the supply chain. Based on various factors that determine the enforcement effect of actions oncompetition damages and their role as an instrument to restore corrective justice, we conclude that a broad concept of standing is preferable.\u0000competition damages, pass-on, suppliers, complementary goods, causality, antitrust standing, cartel overcharge, effective deterrence, corrective justice, Directive 2014/104/EU, principle of effectiveness","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"162 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76918518","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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