{"title":"Restriction by Object: the French Banking Fee Saga","authors":"Constance Bocket","doi":"10.1093/jeclap/lpab070","DOIUrl":"https://doi.org/10.1093/jeclap/lpab070","url":null,"abstract":"","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49245375","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":"Greening Antitrust: Lessons from the ACCC’s Authorisation of a Recycling Co-Operation Agreement","authors":"Gaetano Lapenta, Matteo Giangaspero","doi":"10.1093/jeclap/lpab072","DOIUrl":"https://doi.org/10.1093/jeclap/lpab072","url":null,"abstract":"","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48811242","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
EU State aid control has been a tool for the Member States to swiftly counteract the economic losses of the COVID-19 crisis and keep businesses afloat. The present paper assessed how the recent relaxation of EU State aid control by the Temporary Framework for State Aid (TF) has changed the substance and the enforcement of EU State aid rules and whether these changes will have a long-lasting impact on the internal market. An analysis of EU Commission’s Decisions authorising State aid between March and December 2020 shows that the distribution of aid has been geographically disproportionate. Thus, the Temporary Framework might have enhanced disparities between Member States and undermined the level playing field. Second, the study engages with sectoral aid, as to evaluate what sectors have been the most aided by State resources during the pandemic. Evidence shows that the traditional policy objectives, such as environmental policies, research & development & innovation (RDI) and regional aid have been set aside in order to aid companies in financial hardship. Two case studies are further analysed, RDI and the aviation sector. In conclusion, as the Temporary Framework represents a critical junction in the evolution of EU State aid control, the article aims to take stock of the lessons learnt from the Commission Decisions authorising pandemic aid to reflect on the future of EU State aid control and eventually formulate normative recommendations.
{"title":"Will COVID-19 Make or Break EU State Aid Control? An Analysis of Commission Decisions Authorising Pandemic State Aid Measures","authors":"I. Agnolucci","doi":"10.1093/jeclap/lpab060","DOIUrl":"https://doi.org/10.1093/jeclap/lpab060","url":null,"abstract":"EU State aid control has been a tool for the Member States to swiftly counteract the economic losses of the COVID-19 crisis and keep businesses afloat. The present paper assessed how the recent relaxation of EU State aid control by the Temporary Framework for State Aid (TF) has changed the substance and the enforcement of EU State aid rules and whether these changes will have a long-lasting impact on the internal market. An analysis of EU Commission’s Decisions authorising State aid between March and December 2020 shows that the distribution of aid has been geographically disproportionate. Thus, the Temporary Framework might have enhanced disparities between Member States and undermined the level playing field. Second, the study engages with sectoral aid, as to evaluate what sectors have been the most aided by State resources during the pandemic. Evidence shows that the traditional policy objectives, such as environmental policies, research & development & innovation (RDI) and regional aid have been set aside in order to aid companies in financial hardship. Two case studies are further analysed, RDI and the aviation sector. In conclusion, as the Temporary Framework represents a critical junction in the evolution of EU State aid control, the article aims to take stock of the lessons learnt from the Commission Decisions authorising pandemic aid to reflect on the future of EU State aid control and eventually formulate normative recommendations.","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44774209","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}
European competition policy is in the midst of a fundamental transformation. The ongoing tectonic movements are in every way comparable in relevance to the modernisation era and the rise of the ‘more economics-based approach’, which took o two decades ago. The winds of change will impact on the substantive aspects of the law, the institutions through which it is enforced and the very philosophy underpinning the system. The implications are not easy to calibrate at present, but the direction of travel is clear. Over the past 20 years, enforcement has been marked by caution and the emphasis on the speci c circumstances of each case. By contrast, the emerging ethos favours fast and decisive action to match the pace of change in online markets. In relative terms, this new incarnation of competition policy is less concerned with minimising errors. In addition, it does not seem to shy away from the administration of complex remedies—the very remedies that had long been con ned to exceptional circumstances. Although the reorientation of the discipline can be witnessed across the board, the focus has been placed, by and large, on digital markets. Online platforms—due not only to their sheer power but also to the economic features of the markets in which they operate—are deemed to demand an ad hoc set of rules. The adoption of sectorspeci c regimes (both at the EU andMember States’ level) is the single most visible manifestation of the new competition policy. Enforcement will no longer rely exclusively on Articles 101 and 102 TFEU (and their national counterparts). These sectoral initiatives are the best rationalised as a hybrid between competition law and traditional forms of economic regulation. Like the former, they are a response to (even a codi cation of) a number of concerns that have been examined by competition authorities. Like the latter, they provide for a number of ex ante duties without requiring an assessment of object or e ect of the underlying practices. Formally speaking, sector-speci c regimes have been presented both as an adjustment of competition law and
{"title":"New Times for Competition Policy in Europe: the Challenge of Digital Markets","authors":"Pablo Ibáñez Colomo","doi":"10.1093/jeclap/lpab067","DOIUrl":"https://doi.org/10.1093/jeclap/lpab067","url":null,"abstract":"European competition policy is in the midst of a fundamental transformation. The ongoing tectonic movements are in every way comparable in relevance to the modernisation era and the rise of the ‘more economics-based approach’, which took o two decades ago. The winds of change will impact on the substantive aspects of the law, the institutions through which it is enforced and the very philosophy underpinning the system. The implications are not easy to calibrate at present, but the direction of travel is clear. Over the past 20 years, enforcement has been marked by caution and the emphasis on the speci c circumstances of each case. By contrast, the emerging ethos favours fast and decisive action to match the pace of change in online markets. In relative terms, this new incarnation of competition policy is less concerned with minimising errors. In addition, it does not seem to shy away from the administration of complex remedies—the very remedies that had long been con ned to exceptional circumstances. Although the reorientation of the discipline can be witnessed across the board, the focus has been placed, by and large, on digital markets. Online platforms—due not only to their sheer power but also to the economic features of the markets in which they operate—are deemed to demand an ad hoc set of rules. The adoption of sectorspeci c regimes (both at the EU andMember States’ level) is the single most visible manifestation of the new competition policy. Enforcement will no longer rely exclusively on Articles 101 and 102 TFEU (and their national counterparts). These sectoral initiatives are the best rationalised as a hybrid between competition law and traditional forms of economic regulation. Like the former, they are a response to (even a codi cation of) a number of concerns that have been examined by competition authorities. Like the latter, they provide for a number of ex ante duties without requiring an assessment of object or e ect of the underlying practices. Formally speaking, sector-speci c regimes have been presented both as an adjustment of competition law and","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44252201","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":"No Automatic Moving Up in the Leniency Queue: Case C-694/19 P Italmobiliare","authors":"Georgia Tzifa","doi":"10.1093/jeclap/lpab064","DOIUrl":"https://doi.org/10.1093/jeclap/lpab064","url":null,"abstract":"","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45342435","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":"The Law on Fines Imposed in EU Competition Proceedings: A Judicial Paradox","authors":"É. Serre, Eileen Lagathu","doi":"10.1093/jeclap/lpab063","DOIUrl":"https://doi.org/10.1093/jeclap/lpab063","url":null,"abstract":"","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45206265","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 European Commission’s Digital Markets Act (“DMA”) Proposal relies on the legal basis provided by Article 114 TFEU. The choice of this legal basis enables the EU legislature to avoid the unanimity requirement and to involve the European Parliament as co-legislator, but it also determines the limitations on the scope for EU action. An analysis of the DMA Proposal in light of the relevant EU case law regarding Article 114 TFEU suggests that the current text is likely to be incompatible with EU law. This paper submits that, to ensure that the DMA Proposal is compatible with EU law, the EU legislature needs to ensure (i) that the DMA is effectively designed to harmonize national rules and prevent regulatory fragmentation; and (ii) that the DMA’s scope and list of obligations comply with the principle of proportionality and do not interfere with the fundamental rights of the companies affected beyond what is necessary to ensure the proper functioning of the internal market. Absent these changes, the DMA would, in our view, be vulnerable to an eventual legal challenge before the EU Courts.
{"title":"Why the Proposed DMA Might Be Illegal under Article 114 TFEU, and How to Fix It","authors":"A. Pablo, N. Fernández","doi":"10.1093/jeclap/lpab059","DOIUrl":"https://doi.org/10.1093/jeclap/lpab059","url":null,"abstract":"The European Commission’s Digital Markets Act (“DMA”) Proposal relies on the legal basis provided by Article 114 TFEU. The choice of this legal basis enables the EU legislature to avoid the unanimity requirement and to involve the European Parliament as co-legislator, but it also determines the limitations on the scope for EU action. An analysis of the DMA Proposal in light of the relevant EU case law regarding Article 114 TFEU suggests that the current text is likely to be incompatible with EU law. This paper submits that, to ensure that the DMA Proposal is compatible with EU law, the EU legislature needs to ensure (i) that the DMA is effectively designed to harmonize national rules and prevent regulatory fragmentation; and (ii) that the DMA’s scope and list of obligations comply with the principle of proportionality and do not interfere with the fundamental rights of the companies affected beyond what is necessary to ensure the proper functioning of the internal market. Absent these changes, the DMA would, in our view, be vulnerable to an eventual legal challenge before the EU Courts.","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49315718","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":"The Essential Facilities Doctrine and the Bronner Judgment Clarified: Case C-165/19 P Slovak Telekom v Commission","authors":"Katarzyna Czapracka","doi":"10.1093/jeclap/lpab057","DOIUrl":"https://doi.org/10.1093/jeclap/lpab057","url":null,"abstract":"","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47015624","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 recent judgments by Turkish administrative courts concerning the Turkish Competition Board’s (‘Board’) decisions as a result of investigations conducted into Mey İçki San. ve Tic. A.Ş’s (‘Mey İçki’), a subsidiary of Diageo plc., business practices in the rakı, vodka and gin markets (‘Mey İçki case’) lead the discussions of the applicability of ne bis in idem principle in competition law. First, the Board applied the ne bis in idem principle based on the element of sameness of Mey İçki’s conducts in the rakı market and vodka and gin markets. Then, the local courts adopted the same approach, but the Regional Administrative Court accepted that two offences based on same conduct/conducts in different markets should be subject to duplicative sanctions. Eventually, the Council of State reversed this decision by focusing on the sameness of the actions concerned and found the Board’s decision to be lawful.
{"title":"Single Sanction for Effects of Single Strategy in Multiple Markets—‘Ne Bis in Idem’ Recognised by the Highest Administrative Court in Turkey","authors":"G. Gürkaynak, K. Öztürk, Aydeniz Baytaş","doi":"10.1093/jeclap/lpab061","DOIUrl":"https://doi.org/10.1093/jeclap/lpab061","url":null,"abstract":"The recent judgments by Turkish administrative courts concerning the Turkish Competition Board’s (‘Board’) decisions as a result of investigations conducted into Mey İçki San. ve Tic. A.Ş’s (‘Mey İçki’), a subsidiary of Diageo plc., business practices in the rakı, vodka and gin markets (‘Mey İçki case’) lead the discussions of the applicability of ne bis in idem principle in competition law. First, the Board applied the ne bis in idem principle based on the element of sameness of Mey İçki’s conducts in the rakı market and vodka and gin markets. Then, the local courts adopted the same approach, but the Regional Administrative Court accepted that two offences based on same conduct/conducts in different markets should be subject to duplicative sanctions. Eventually, the Council of State reversed this decision by focusing on the sameness of the actions concerned and found the Board’s decision to be lawful.","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47522498","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":"Digital Markets Act: A Regulatory Perspective","authors":"F. Chirico","doi":"10.1093/jeclap/lpab058","DOIUrl":"https://doi.org/10.1093/jeclap/lpab058","url":null,"abstract":"","PeriodicalId":51907,"journal":{"name":"Journal of European Competition Law & Practice","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45848987","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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