Arguably, the most famous line ever uttered on the decision by British voters of 23 June 2016 to exit from the European Union (EU), is, and always will remain, ‘Brexit means Brexit’. These were the words of the serving British Prime Minister at the time. The triggering of Article 50 of the Treaty on European Union (TEU) – marking the start of the two-year negotiations/ detachment process – eventually occurred on 29 March 2017. That process drew to its end on 29 March 2019. The UK however continues to be an EU Member State. At the time of writing, the UK’s exit from the EU was expected on 31 October 2019, though it is highly uncertain whether this indeed will happen. This article addresses the competition law related challenges, opportunities and implications of the UK becoming a non-EU Member State from an international perspective. The article analyses in particular the future place and role of the UK competition law regime internationally. The article considers the future international agenda of the UK Competition and Markets Authority (CMA) and the international orientation and standing of the UK competition law regime as a fully independent regime, which is both completely UK and European in orientation.
{"title":"Brexit and Competition Law: The Future Place of the UK Competition Law Regime Internationally","authors":"M. Dabbah, Eyad Maher","doi":"10.54648/woco2019027","DOIUrl":"https://doi.org/10.54648/woco2019027","url":null,"abstract":"Arguably, the most famous line ever uttered on the decision by British voters of 23 June 2016 to exit from the European Union (EU), is, and always will remain, ‘Brexit means Brexit’. These were the words of the serving British Prime Minister at the time. The triggering of Article 50 of the Treaty on European Union (TEU) – marking the start of the two-year negotiations/ detachment process – eventually occurred on 29 March 2017. That process drew to its end on 29 March 2019. The UK however continues to be an EU Member State. At the time of writing, the UK’s exit from the EU was expected on 31 October 2019, though it is highly uncertain whether this indeed will happen.\u0000This article addresses the competition law related challenges, opportunities and implications of the UK becoming a non-EU Member State from an international perspective. The article analyses in particular the future place and role of the UK competition law regime internationally. The article considers the future international agenda of the UK Competition and Markets Authority (CMA) and the international orientation and standing of the UK competition law regime as a fully independent regime, which is both completely UK and European in orientation.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"18 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74383259","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 ‘more economic’ approach to antitrust recites two mantras: first of all, that antitrust analysis should only consider the effects of a practice, and secondly, that only the economic effects of a practice are relevant. The first mantra is impossible to satisfy in practice, thus the ‘more economic’ approach to antitrust has relapsed into formalism. Other tools than effects analysis are needed in antitrust enforcement, such as per se rules and an examination of the intentions of the undertakings concerned. The second mantra implies usurping legislation enacted for other purposes and is based on a naturalistic fallacy. Other objectives than economic efficiency should count in antitrust enforcement as well.
{"title":"The Limits of the ‘More Economic’ Approach to Antitrust","authors":"J. Blockx","doi":"10.54648/woco2019026","DOIUrl":"https://doi.org/10.54648/woco2019026","url":null,"abstract":"The ‘more economic’ approach to antitrust recites two mantras: first of all, that antitrust analysis should only consider the effects of a practice, and secondly, that only the economic effects of a practice are relevant. The first mantra is impossible to satisfy in practice, thus the ‘more economic’ approach to antitrust has relapsed into formalism. Other tools than effects analysis are needed in antitrust enforcement, such as per se rules and an examination of the intentions of the undertakings concerned. The second mantra implies usurping legislation enacted for other purposes and is based on a naturalistic fallacy. Other objectives than economic efficiency should count in antitrust enforcement as well.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"4 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79157953","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 argues through a US/EU comparative assessment of the intellectual property (IP) law goals and competition law goals that whilst the overarching goals of competition law and IP rights to enhance overall economic welfare are still complementary, internal conflicts within the two legal spheres are jeopardizing the achievement of these goals. Within the IP laws the private/public reward/incentive to innovate equilibrium is now being tilted in favour of private interests due to recent developments in terms of rapid innovation in digital economy markets and technologies coupled with an expansion of IP rights and increase in patents grants and their width. This has a knock-on effect on the application of the competition rules as a second-tier regulator of IP rights. However, the competition rules also face its own battle in keeping up with the fast-developing digital economy, the concerns regarding Big Data and online platforms raising questions about the sustainability of the ‘consumer welfare’ framework as an optimal standard to ensure effective competition in these markets. Consequently, there is a danger that the competition rules and the IP rights will be out of quilter, risking stifling of innovation and harm to consumer welfare, unless adjustment is made within the two legal spheres.
{"title":"Competition Law and IP Rights: Not So Complementary: Time for Re-alignment of the Goals?","authors":"H. Schmidt","doi":"10.54648/woco2019025","DOIUrl":"https://doi.org/10.54648/woco2019025","url":null,"abstract":"This article argues through a US/EU comparative assessment of the intellectual property (IP) law goals and competition law goals that whilst the overarching goals of competition law and IP rights to enhance overall economic welfare are still complementary, internal conflicts within the two legal spheres are jeopardizing the achievement of these goals.\u0000Within the IP laws the private/public reward/incentive to innovate equilibrium is now being tilted in favour of private interests due to recent developments in terms of rapid innovation in digital economy markets and technologies coupled with an expansion of IP rights and increase in patents grants and their width.\u0000This has a knock-on effect on the application of the competition rules as a second-tier regulator of IP rights. However, the competition rules also face its own battle in keeping up with the fast-developing digital economy, the concerns regarding Big Data and online platforms raising questions about the sustainability of the ‘consumer welfare’ framework as an optimal standard to ensure effective competition in these markets.\u0000Consequently, there is a danger that the competition rules and the IP rights will be out of quilter, risking stifling of innovation and harm to consumer welfare, unless adjustment is made within the two legal spheres.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"38 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91331148","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 digital economy has significantly changed many aspects of our lives, including the way firms do business and compete with each other. In addition to the benefits the digital world has introduced, it has also brought challenges for competition law, including new ways to restrict competition, with computing algorithms representing one of the most prominent examples. Algorithms can lead to, facilitate and maintain anticompetitive collusion, and one of the most pressing tests for competition law and its enforcement in the digital world is algorithmic parallel conduct. The terminology introduced for this conduct in this article is ‘digital polyopoly’. Digital polyopolies encompass conditions similar to oligopolies, in particular, interdependency and transparency. However, unlike parallel conduct arising from oligopolies, digital polyopolies are not limited by their number of competitors. This new phenomenon requires fitted interpretation and rethinking of existing competition-law and economic concepts. What digital polyopolies are, how they differ from pre-digital era concepts and how competition law should tackle them (with a particular emphasis on the European Union competition law’s concept of ‘concerted practice’), are questions explored in this article.
{"title":"Digital Polyopoly","authors":"Barbora Jedličková","doi":"10.54648/woco2019018","DOIUrl":"https://doi.org/10.54648/woco2019018","url":null,"abstract":"The digital economy has significantly changed many aspects of our lives, including the way firms do business and compete with each other. In addition to the benefits the digital world has introduced, it has also brought challenges for competition law, including new ways to restrict competition, with computing algorithms representing one of the most prominent examples. Algorithms can lead to, facilitate and maintain anticompetitive collusion, and one of the most pressing tests for competition law and its enforcement in the digital world is algorithmic parallel conduct. The terminology introduced for this conduct in this article is ‘digital polyopoly’. Digital polyopolies encompass conditions similar to oligopolies, in particular, interdependency and transparency. However, unlike parallel conduct arising from oligopolies, digital polyopolies are not limited by their number of competitors. This new phenomenon requires fitted interpretation and rethinking of existing competition-law and economic concepts. What digital polyopolies are, how they differ from pre-digital era concepts and how competition law should tackle them (with a particular emphasis on the European Union competition law’s concept of ‘concerted practice’), are questions explored in this article.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"26 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83689722","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 investigates under what circumstances parallel conduct under personalized pricing is anticompetitive and whether it is within the scope of competition law, depending on which dimension of consumer preference heterogeneity is targeted by rival firms. Whilst enforcement against the use of personalized pricing based on consumers willingness to pay, and the lack thereof with respect to brand preferences, is problematic due to the inherent ambiguity at the inferential phase; the exploitative use of personalized pricing based on heterogeneous levels of search costs might be beyond the reach of competition because its sustainability is not underpinned by a collusive agreement. In contrast, evidence that firms are obstructing consumers use of third-party price aggregators may provide an unambiguous signal that they are colluding to obfuscate prices.
{"title":"Tackling Anticompetitive Parallel Conduct under Personalized Pricing","authors":"P. Siciliani","doi":"10.54648/woco2019021","DOIUrl":"https://doi.org/10.54648/woco2019021","url":null,"abstract":"This article investigates under what circumstances parallel conduct under personalized pricing is anticompetitive and whether it is within the scope of competition law, depending on which dimension of consumer preference heterogeneity is targeted by rival firms. Whilst enforcement against the use of personalized pricing based on consumers willingness to pay, and the lack thereof with respect to brand preferences, is problematic due to the inherent ambiguity at the inferential phase; the exploitative use of personalized pricing based on heterogeneous levels of search costs might be beyond the reach of competition because its sustainability is not underpinned by a collusive agreement. In contrast, evidence that firms are obstructing consumers use of third-party price aggregators may provide an unambiguous signal that they are colluding to obfuscate prices.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"1 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90531924","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}
For many years, it was believed that trade liberalization would address the lack of competition that many African economies suffer from. Recent insights seem to have falsified that belief. Many of those economies still suffer from a lack of competition and a prevalence of monopoly behaviour, often (enabled) by the State. So if trade liberalization did not do the trick, what other recipes are available? This article focuses on the added value that more rigorous competition law enforcement could bring, and seeks to derive insights from Ordoliberalism. Although often overlooked in recent years, it is submitted that the comprehensive conceptual framework of Ordoliberalism could provide tangible suggestions to strengthen competition in African economies. It provides a theoretical basis for introducing vigorous competition law enforcement, putting the competition rules in the centre of economic policy-making. It affords great weight to the consistency of economic policies and strongly cautions against any undue government influence, both through the enactment an ‘economic constitution’. It also provides scope provides analytical tools how to deal with the interaction between market power and vested interests. This article concludes that Ordoliberalism does in fact have various insights that could be helpful for spurring competition in Africa.
{"title":"Law & Ordo: Exploring What Lessons Ordoliberalism Holds for African Competition Law Regimes","authors":"Tjarda van der Vijver","doi":"10.54648/woco2019023","DOIUrl":"https://doi.org/10.54648/woco2019023","url":null,"abstract":"For many years, it was believed that trade liberalization would address the lack of competition that many African economies suffer from. Recent insights seem to have falsified that belief. Many of those economies still suffer from a lack of competition and a prevalence of monopoly behaviour, often (enabled) by the State. So if trade liberalization did not do the trick, what other recipes are available? This article focuses on the added value that more rigorous competition law enforcement could bring, and seeks to derive insights from Ordoliberalism. Although often overlooked in recent years, it is submitted that the comprehensive conceptual framework of Ordoliberalism could provide tangible suggestions to strengthen competition in African economies. It provides a theoretical basis for introducing vigorous competition law enforcement, putting the competition rules in the centre of economic policy-making. It affords great weight to the consistency of economic policies and strongly cautions against any undue government influence, both through the enactment an ‘economic constitution’. It also provides scope provides analytical tools how to deal with the interaction between market power and vested interests. This article concludes that Ordoliberalism does in fact have various insights that could be helpful for spurring competition in Africa.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"189 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86096655","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 this article, we analyse the foundations, methodology, results and implications of a survey conducted by the French Competition Authority on the perception of cartels and competition policy by general public in France. The results show that French people consider these practices to be harmful and are in favour of dissuasive sanctions. In addition, while not in favour of imposing a prison sentence on individuals, public opinion favours the implementation of criminal sanctions, in particular in the form of disqualification. The results also suggest that cartels are considered to be as serious or more serious breach of the law than other types of fraud. Moreover, French people agree to denounce this practice, but on ethical grounds more than in exchange for a monetary reward. Finally, the French Competition Authority enjoys a certain notoriety, unlike the cartel cases it deals with and despite the amount of sanctions imposed. These empirical results can help to better guide competition policy and enhance its effectiveness.
{"title":"Public Opinion on Cartels and Competition Policy in France: Analysis and Implications","authors":"E. Combe, Constance Monnier-Schlumberger","doi":"10.54648/woco2019019","DOIUrl":"https://doi.org/10.54648/woco2019019","url":null,"abstract":"In this article, we analyse the foundations, methodology, results and implications of a survey conducted by the French Competition Authority on the perception of cartels and competition policy by general public in France. The results show that French people consider these practices to be harmful and are in favour of dissuasive sanctions. In addition, while not in favour of imposing a prison sentence on individuals, public opinion favours the implementation of criminal sanctions, in particular in the form of disqualification. The results also suggest that cartels are considered to be as serious or more serious breach of the law than other types of fraud. Moreover, French people agree to denounce this practice, but on ethical grounds more than in exchange for a monetary reward. Finally, the French Competition Authority enjoys a certain notoriety, unlike the cartel cases it deals with and despite the amount of sanctions imposed. These empirical results can help to better guide competition policy and enhance its effectiveness.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"32 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76938010","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 Damages Directive and the implementing Irish legislation apply to infringements of EU (and Irish) competition law that occurred on or after 27 December 2016. Irish litigation rules were already well developed but the Directive will augment and add to the Irish rules on disclosure, the effect of national decisions on competition law, limitation periods, joint and several liability, quantification of harm, passing-on of overcharges and consensual dispute resolution. However, obstacles remain to bringing competition damages claims in Ireland. In particular, the absence of any class action system and litigation funding coupled with the lack of any real history of such claims will limit the ability to bring such actions in Ireland.
{"title":"Competition Damages Claims in Ireland: The Damages Directive Improves the Irish System Though Obstacles Remain","authors":"Alan Mccarthy","doi":"10.54648/woco2019014","DOIUrl":"https://doi.org/10.54648/woco2019014","url":null,"abstract":"The Damages Directive and the implementing Irish legislation apply to infringements of EU (and Irish) competition law that occurred on or after 27 December 2016. Irish litigation rules were already well developed but the Directive will augment and add to the Irish rules on disclosure, the effect of national decisions on competition law, limitation periods, joint and several liability, quantification of harm, passing-on of overcharges and consensual dispute resolution. However, obstacles remain to bringing competition damages claims in Ireland. In particular, the absence of any class action system and litigation funding coupled with the lack of any real history of such claims will limit the ability to bring such actions in Ireland.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"1 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88793062","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 article reviews the main characteristics of bid rigging in public procurement regarding some forms, objectives and consequences, as well as various features of the industry, products and services that tend to facilitate collusion in public tenders. This article also describes the most common indicators of bid rigging in order to detect and prevent anticompetitive collusion. For the purpose of this analysis, the common definition of bid rigging and some practical examples are included in order to elaborate effective measures for its detection and prevention. Taking into consideration that certain public procurement rules may support bid rigging by lessening competition, this article gives an overview of the Law on Public Procurement in Serbia. It outlines relevant provisions that should boost competition and stimulate participation of potential bidders in the public procurement process. Some incentives concerning participation of small and medium enterprises in public procurement are examined, as well as certain new provisions aimed at increasing transparency, promoting integrity and preventing corruption in public procurement. This article also emphasizes the role of the Commission for Protection of Competition in fighting against bid rigging in public procurement. It includes examination based on legislative framework and empirical data of the Commission for Protection of Competition, that performs the activities in accordance with the Law on Protection of Competition. Some examples of bid rigging cases in Serbia are examined, as well. Finally, concluding remarks and recommendations are included.
{"title":"Bid Rigging Analysis and Relevant Provisions in the Serbian Legislation","authors":"S. Jokoviĉ","doi":"10.54648/woco2019015","DOIUrl":"https://doi.org/10.54648/woco2019015","url":null,"abstract":"The article reviews the main characteristics of bid rigging in public procurement regarding some forms, objectives and consequences, as well as various features of the industry, products and services that tend to facilitate collusion in public tenders. This article also describes the most common indicators of bid rigging in order to detect and prevent anticompetitive collusion. For the purpose of this analysis, the common definition of bid rigging and some practical examples are included in order to elaborate effective measures for its detection and prevention. Taking into consideration that certain public procurement rules may support bid rigging by lessening competition, this article gives an overview of the Law on Public Procurement in Serbia. It outlines relevant provisions that should boost competition and stimulate participation of potential bidders in the public procurement process. Some incentives concerning participation of small and medium enterprises in public procurement are examined, as well as certain new provisions aimed at increasing transparency, promoting integrity and preventing corruption in public procurement. This article also emphasizes the role of the Commission for Protection of Competition in fighting against bid rigging in public procurement. It includes examination based on legislative framework and empirical data of the Commission for Protection of Competition, that performs the activities in accordance with the Law on Protection of Competition. Some examples of bid rigging cases in Serbia are examined, as well. Finally, concluding remarks and recommendations are included.","PeriodicalId":43861,"journal":{"name":"World Competition","volume":"27 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81935624","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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