Pub Date : 2021-01-24DOI: 10.1080/17441056.2021.1930451
G. Werden
ABSTRACT Exploitative abuse of a dominant position is a long-recognized category of infringements of what is now Article 102 TFEU. Article 102’s prohibition originated in the EEC Treaty, which broke down barriers and prohibited restraints on competition so the free market could reign. But every exploitative abuse case is a breach of faith in the market. And punishing exploitative abuse weakens the rule of law: No rule or standard controls, so potential infringers have no way to know what is expected of them. Exploitative abuse should be abandoned, and this essay argues that doing so would not disrespect the text of Article 102, ignore the intentions of the EEC Treaty’s drafters, or undermine any stated goal of the Treaty.
{"title":"Exploitative abuse of a dominant position: a bad idea that now should be abandoned","authors":"G. Werden","doi":"10.1080/17441056.2021.1930451","DOIUrl":"https://doi.org/10.1080/17441056.2021.1930451","url":null,"abstract":"ABSTRACT Exploitative abuse of a dominant position is a long-recognized category of infringements of what is now Article 102 TFEU. Article 102’s prohibition originated in the EEC Treaty, which broke down barriers and prohibited restraints on competition so the free market could reign. But every exploitative abuse case is a breach of faith in the market. And punishing exploitative abuse weakens the rule of law: No rule or standard controls, so potential infringers have no way to know what is expected of them. Exploitative abuse should be abandoned, and this essay argues that doing so would not disrespect the text of Article 102, ignore the intentions of the EEC Treaty’s drafters, or undermine any stated goal of the Treaty.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441056.2021.1930451","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47212559","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}
Pub Date : 2021-01-17DOI: 10.1080/17441056.2021.1872928
A. Andreangeli
ABSTRACT This article considers the implications of restricting the ability of business users to interact with a plurality of platforms for competition between platforms and between the merchants themselves. After examining the economic implications of the merchants’ choice of single- versus multi-homing, the article will analyse the legality of two practices that can restrict, if not altogether deny, the ability of merchants to choose whether to use one or a plurality of platforms in light of the EU Competition rules, namely exclusivity clauses and across platforms parity agreements. It will be argued that due to the features of platform markets, the ability of merchants to multi-home should be preserved so as to ensure that these markets remain open and competitive and that the incentive for new intermediaries to continue innovating in the way they provide their services.
{"title":"Platform markets, dominance issues and single- and multi-homing of merchants: a real or hypothetical choice?","authors":"A. Andreangeli","doi":"10.1080/17441056.2021.1872928","DOIUrl":"https://doi.org/10.1080/17441056.2021.1872928","url":null,"abstract":"ABSTRACT This article considers the implications of restricting the ability of business users to interact with a plurality of platforms for competition between platforms and between the merchants themselves. After examining the economic implications of the merchants’ choice of single- versus multi-homing, the article will analyse the legality of two practices that can restrict, if not altogether deny, the ability of merchants to choose whether to use one or a plurality of platforms in light of the EU Competition rules, namely exclusivity clauses and across platforms parity agreements. It will be argued that due to the features of platform markets, the ability of merchants to multi-home should be preserved so as to ensure that these markets remain open and competitive and that the incentive for new intermediaries to continue innovating in the way they provide their services.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441056.2021.1872928","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41977218","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}
Pub Date : 2021-01-02DOI: 10.1080/17441056.2020.1863038
Erwann Kerguelen
ABSTRACT Aiming at lowering false positive errors (type I error), antitrust enforcement in the digital sector may have neglected false negative errors (type II error), notably due to the assessment of uncertainty, as a probability of occurrence of harm and as a consequence of the incredible dynamics of these markets.
{"title":"What if error risk could embrace uncertainty?","authors":"Erwann Kerguelen","doi":"10.1080/17441056.2020.1863038","DOIUrl":"https://doi.org/10.1080/17441056.2020.1863038","url":null,"abstract":"ABSTRACT Aiming at lowering false positive errors (type I error), antitrust enforcement in the digital sector may have neglected false negative errors (type II error), notably due to the assessment of uncertainty, as a probability of occurrence of harm and as a consequence of the incredible dynamics of these markets.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441056.2020.1863038","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47465302","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}
Pub Date : 2021-01-02DOI: 10.1080/17441056.2020.1860565
Stavros Aravantinos
ABSTRACT In the present paper, we consider the question of the effectiveness of the remedies imposed by the EC. Our fundamental analysis stems from the reciprocal influence between Competition Law and the Digital Economy. Nowadays, Competition Law has a profound role, affecting not only direct undertakings worldwide but also indirectly by having an impact on our daily life and protecting customers. In recent years, however, the idea of creating a culture of innovation among companies has prevailed. For more than 20 years, the Digital Economy is also part of our life characterizing markets by rapid innovation and technological sophistication. The digital era has introduced the global network of economic activities and commercial transactions enabled by information and communication technologies. Through innovative products/ideas, not only the companies themselves benefit by increasing their productivity and consequently constantly creating new jobs (Alibaba, Amazon), but also consumers having the opportunity to choose a plethora of products at the best possible price.
{"title":"Competition law and the digital economy: the framework of remedies in the digital era in the EU","authors":"Stavros Aravantinos","doi":"10.1080/17441056.2020.1860565","DOIUrl":"https://doi.org/10.1080/17441056.2020.1860565","url":null,"abstract":"ABSTRACT In the present paper, we consider the question of the effectiveness of the remedies imposed by the EC. Our fundamental analysis stems from the reciprocal influence between Competition Law and the Digital Economy. Nowadays, Competition Law has a profound role, affecting not only direct undertakings worldwide but also indirectly by having an impact on our daily life and protecting customers. In recent years, however, the idea of creating a culture of innovation among companies has prevailed. For more than 20 years, the Digital Economy is also part of our life characterizing markets by rapid innovation and technological sophistication. The digital era has introduced the global network of economic activities and commercial transactions enabled by information and communication technologies. Through innovative products/ideas, not only the companies themselves benefit by increasing their productivity and consequently constantly creating new jobs (Alibaba, Amazon), but also consumers having the opportunity to choose a plethora of products at the best possible price.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441056.2020.1860565","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43033031","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}
Pub Date : 2021-01-02DOI: 10.1080/17441056.2020.1851478
Gunnar Niels, Helen Ralston
ABSTRACT Market definition remains an important step in competition cases. The European Commission is in the process of updating its 1997 Market Definition Notice. One hotly debated topic is defining markets for two-sided platforms. In this article we address some of the main questions and misunderstandings about two-sided market definition, We discuss how the hypothetical monopolist test and critical loss analysis apply to two-sided platforms, and address questions such as: Should there be one market for the platform, or two markets (one for each side)? Is there a distinction in market definition between transaction and non-transaction platforms? What if the externalities flow in only one direction? What if the price is zero on one side of the platform? And can the market include non-platform competitors?
{"title":"Two-sided market definition: some common misunderstandings","authors":"Gunnar Niels, Helen Ralston","doi":"10.1080/17441056.2020.1851478","DOIUrl":"https://doi.org/10.1080/17441056.2020.1851478","url":null,"abstract":"ABSTRACT Market definition remains an important step in competition cases. The European Commission is in the process of updating its 1997 Market Definition Notice. One hotly debated topic is defining markets for two-sided platforms. In this article we address some of the main questions and misunderstandings about two-sided market definition, We discuss how the hypothetical monopolist test and critical loss analysis apply to two-sided platforms, and address questions such as: Should there be one market for the platform, or two markets (one for each side)? Is there a distinction in market definition between transaction and non-transaction platforms? What if the externalities flow in only one direction? What if the price is zero on one side of the platform? And can the market include non-platform competitors?","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441056.2020.1851478","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42164128","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}
Pub Date : 2020-12-18DOI: 10.1080/17441056.2020.1848059
D. Geradin, Theano Karanikioti, Dimitrios Katsifis
ABSTRACT This paper argues that while the GDPR has arguably delivered positive outcomes by enhancing the protection afforded to data subjects, it has also had adverse effects on competition by strengthening the position of large online platforms in certain markets. In addition, the GDPR has given large platforms a tool to harm rivals by restricting access to the data they need to compete effectively. The present paper focuses on digital advertising and the ad tech industry, where the GDPR appears to have strengthened Google and Facebook. The purpose of this paper is not to call for the weakening of the GDPR, whose positive impact on users cannot be ignored. While from a policy standpoint regulators should thus maintain or even increase the level of protection offered by this legislation, it is vital that they take steps to mitigate its adverse effects on other dimensions of welfare, such as competition.
{"title":"GDPR Myopia: how a well-intended regulation ended up favouring large online platforms - the case of ad tech","authors":"D. Geradin, Theano Karanikioti, Dimitrios Katsifis","doi":"10.1080/17441056.2020.1848059","DOIUrl":"https://doi.org/10.1080/17441056.2020.1848059","url":null,"abstract":"ABSTRACT This paper argues that while the GDPR has arguably delivered positive outcomes by enhancing the protection afforded to data subjects, it has also had adverse effects on competition by strengthening the position of large online platforms in certain markets. In addition, the GDPR has given large platforms a tool to harm rivals by restricting access to the data they need to compete effectively. The present paper focuses on digital advertising and the ad tech industry, where the GDPR appears to have strengthened Google and Facebook. The purpose of this paper is not to call for the weakening of the GDPR, whose positive impact on users cannot be ignored. While from a policy standpoint regulators should thus maintain or even increase the level of protection offered by this legislation, it is vital that they take steps to mitigate its adverse effects on other dimensions of welfare, such as competition.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441056.2020.1848059","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47099789","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}
Pub Date : 2020-12-18DOI: 10.1080/17441056.2020.1860566
M. Botta
ABSTRACT Traditionally, unfair pricing cases were considered a “taboo” in EU competition policy. During the recent years, however, the European Commission and a number of National Competition Authorities have investigated unfair pricing cases. Therefore, national and EU courts had the opportunity to rule on unfair pricing cases, by thus clarifying the legal test. The paper shows that United Brands is not the “only” legal test to assess unfair pricing cases; the CJEU has endorsed alternative “benchmarking” methods. Recent jurisprudence has also introduced some “safeguard tools” to minimize the risk of false negative errors, such as the requirement for the competition agency to verify its findings under “multiple” tests and the possibility for the dominant firm to put forward “objective justifications”. The paper argues that the legal test of unfair pricing cases is becoming “clearer”, by thus contributing to a further shift from the traditional non-enforcement paradigm.
{"title":"Sanctioning unfair pricing under Art. 102(a) TFEU: yes, we can!","authors":"M. Botta","doi":"10.1080/17441056.2020.1860566","DOIUrl":"https://doi.org/10.1080/17441056.2020.1860566","url":null,"abstract":"ABSTRACT Traditionally, unfair pricing cases were considered a “taboo” in EU competition policy. During the recent years, however, the European Commission and a number of National Competition Authorities have investigated unfair pricing cases. Therefore, national and EU courts had the opportunity to rule on unfair pricing cases, by thus clarifying the legal test. The paper shows that United Brands is not the “only” legal test to assess unfair pricing cases; the CJEU has endorsed alternative “benchmarking” methods. Recent jurisprudence has also introduced some “safeguard tools” to minimize the risk of false negative errors, such as the requirement for the competition agency to verify its findings under “multiple” tests and the possibility for the dominant firm to put forward “objective justifications”. The paper argues that the legal test of unfair pricing cases is becoming “clearer”, by thus contributing to a further shift from the traditional non-enforcement paradigm.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441056.2020.1860566","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45953183","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}
Pub Date : 2020-12-18DOI: 10.1080/17441056.2020.1851477
Rhonda L. Smith, A. Duke
ABSTRACT Since the recognition of the platform business model, the following dichotomy has been largely accepted – analyze the conduct of a transaction platform in a single market including both customer groups and the conduct of a non-transaction platform in separate markets based on customer groups. In this article we argue that a single market should be defined to assess the effects of conduct engaged by a nontransaction platform business. Such an approach is consistent with the purposive nature of market definition, recognizes that conduct (anti-competitive or otherwise) has implications for the whole platform business and avoids conduct being incorrectly classified.
{"title":"Platform businesses and market definition","authors":"Rhonda L. Smith, A. Duke","doi":"10.1080/17441056.2020.1851477","DOIUrl":"https://doi.org/10.1080/17441056.2020.1851477","url":null,"abstract":"ABSTRACT Since the recognition of the platform business model, the following dichotomy has been largely accepted – analyze the conduct of a transaction platform in a single market including both customer groups and the conduct of a non-transaction platform in separate markets based on customer groups. In this article we argue that a single market should be defined to assess the effects of conduct engaged by a nontransaction platform business. Such an approach is consistent with the purposive nature of market definition, recognizes that conduct (anti-competitive or otherwise) has implications for the whole platform business and avoids conduct being incorrectly classified.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441056.2020.1851477","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47456631","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}
Pub Date : 2020-11-21DOI: 10.1080/17441056.2020.1839227
Walid Gani
ABSTRACT Proving the excessiveness of the dominant firm's prices constitutes a challenging task for young competition authorities, due to the difficulties in confronting economic theories with facts and the lack of analytical tools to carry out robust investigations. To handle these issues, this paper proposes a statistical algorithm centred on the analysis of the prices and mark-up of the dominant firm. An empirical study involving the use of real industrial data is carried out to show the implementation of the proposed statistical algorithm. The results reveal that the excessiveness of the dominant firm's prices is due to the excessiveness of its mark-up over the total cost. Our findings also show that the pricing behaviour of the dominant firm remains unpredictable in the absence of a large amount of data for the analysis of demand patterns, a direct measurement of the marginal cost, and a good knowledge of market functioning.
{"title":"Excessive prices: a new analytical approach","authors":"Walid Gani","doi":"10.1080/17441056.2020.1839227","DOIUrl":"https://doi.org/10.1080/17441056.2020.1839227","url":null,"abstract":"ABSTRACT Proving the excessiveness of the dominant firm's prices constitutes a challenging task for young competition authorities, due to the difficulties in confronting economic theories with facts and the lack of analytical tools to carry out robust investigations. To handle these issues, this paper proposes a statistical algorithm centred on the analysis of the prices and mark-up of the dominant firm. An empirical study involving the use of real industrial data is carried out to show the implementation of the proposed statistical algorithm. The results reveal that the excessiveness of the dominant firm's prices is due to the excessiveness of its mark-up over the total cost. Our findings also show that the pricing behaviour of the dominant firm remains unpredictable in the absence of a large amount of data for the analysis of demand patterns, a direct measurement of the marginal cost, and a good knowledge of market functioning.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441056.2020.1839227","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46471187","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}
Pub Date : 2020-11-05DOI: 10.1080/17441056.2020.1834973
Peter van Wijck
ABSTRACT In 2009 the European Commission published the art. 102 guidance regarding abusive exclusionary conduct by dominant undertakings. The guidance is based on the more economic approach to competition policy. This paper investigates the welfare implications of the more economic approach to loyalty rebates. First, the paper presents an economic framework linking weights attached to probabilities of false positives and negatives and the legal norm. After that, the paper discusses cases before the guidance paper (i.a. Hoffmann-La Roche), the guidance paper itself, and cases after the guidance paper (i.a. Intel). In the period after the guidance paper, we observe a non-linear increase in the weight attached to preventing false positives. The paper concludes that to further limit welfare losses due to false positives, the category of rebates that is assumed to be abusive should be defined in a restrictive way. Furthermore, in law enforcement priority should be given to cases that, considering all the circumstances, can be expected to be most harmful to consumers.
摘要2009年，欧盟委员会发布了关于占主导地位的企业滥用排他性行为的第102条指导意见。该指导方针以更经济的竞争政策方法为基础。本文研究了更经济的忠诚度回扣方法对福利的影响。首先，本文提出了一个经济框架，将假阳性和假阴性概率的权重与法律规范联系起来。之后，本文讨论了指导文件之前的案例（i.a.Hoffmann La Roche）、指导文件本身以及指导文件之后的案例（i.a.Intel）。在指导文件发布后的一段时间内，我们观察到用于防止误报的权重呈非线性增加。论文的结论是，为了进一步限制误报造成的福利损失，应该以限制性的方式定义被认为是滥用的回扣类别。此外，在执法中，应优先考虑在所有情况下预计对消费者危害最大的案件。
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