Christian Bergqvist

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 2, Page 84 - 98

While consensus positions continue to emerge regarding what to accept as restrictions by object in horizontal arrangements, little consideration has been given to verticals – presumably because enforcers lost interest several decades ago. But the winds might be changing, and the fact remains that case law has identified a group of vertical restrictions as detrimental to the free market as horizontal hardcore arrangements. In this article, an attempt to capture what to accept as vertical object restrictions will be made, providing guidance for enforcers' renewed interest in the matter. Keywords: Vertical restraints; distribution agreements; by object; hardcore; Article 101

Justin Lindeboom

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 1, Page 92 - 97

Case C-450/19 Kilpailu- ja kuluttajavirasto, Judgment of the Court of Justice (Second Chamber) of 14 January 2021 The Court of Justice held that a bid-rigging cartel ceases to infringe Article 101(1) TFEU once the contracting authority and the undertaking that was involved in the cartel and that subsequently won the contract sign that contract. Once the essential characteristics of the relevant contract and, in particular, the total price to be paid for the work, have been definitively determined, the bid-rigging cartel ceases to infringe Article 101(1) TFEU because the contracting authority is no longer able to obtain the goods, works or services in question under normal market conditions.

Bruce Wardhaugh

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 2, Page 122 - 131

This article is concerned with regulation of dynamic pricing algorithms under the EU competition regime. We show that the competition rules as presently interpreted fail to inadequately capture the harm to consumer welfare that dynamic pricing algorithms may cause. This creates an enforcement ‘gap’ in a competition regime which purports to protect consumer welfare. We then argue the existing rules need to be slightly reframed, if such algorithmic practices are to be effectively controlled. This reformulation includes regarding coordinated price elevation as a concerted practice which Articles 101 and 102 TFEU can interdict, viewing price elevation in algorithmic markets as a form of tacit collusion and as a breach of dominant undertakings’ special responsibility not to further weaken competition in a market. Our suggestions are consistent with existing Article 101 and 102 TFEU case law and allow for a more effective response to any welfare reducing threat found in algorithmic markets. Keywords: Article 101 TFEU, Article 102 TFEU, algorithms, dynamic pricing, tacit collusion, object/effects, concerted practice

Erik Kjær-Hansen

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 4, Page 404 - 406

Baskaran Balasingham

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 4, Page 363 - 370

Effectiveness and due process require careful balancing in order to safeguard a workable enforcement environment. On the one hand, the legal qualification of collusive conduct has been facilitated to some degree by a broad interpretation of Article 101(1) TFEU and the use of presumptions. On the other hand, the burden and standard of proof, as well as the judicial review in relation to EU cartel proceedings satisfy the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). This article argues that the EU Courts have succeeded in establishing a proper balance between effective cartel enforcement and the protection of fundamental rights. Keywords: Article 101 TFEU, Cartel Enforcement, Effectiveness, Fundamental Rights, Judicial Review