Octave Schyns

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 2, Page 134 - 137

Case C‑680/20 Unilever Italia Mkt. Operations Srl v Autorità Garante della Concorrenza e del Mercato, Judgment of the Court (Fifth Chamber) of 19 January 2023 In the Unilever case1 the CJEU finds that in specific circumstances the conduct of distributors forming part of a distribution network can be attributed under Article 102 TFEU to a producer at the head of this network. It is not necessary that these distributors are part of the dominant undertaking or that ‘hierarchical links’ exist between those distributors and the dominant undertaking. In addition, if in the course of administrative proceedings an undertaking submits evidence that its conduct is unable to produce anti-competitive effects, the competition authority is required to examine this evidence.

Heike Schweitzer

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 1, Page 4 - 16

In DB Station & Service AG, the CJEU will have to decide on the relationship between EU regulatory law – namely Directive 2001/14 – that strives to concentrate decisions on the lawfulness of infrastructure access charges with the regulatory authority, and private damage claims based on a concurrent violation of Article 102 TFEU. The referring court – the KG Berlin – proposes that national civil courts may only award competition law damages once the regulatory authority has established the illegality of the charges under regulatory law. This article argues that the KG Berlin thereby misconceives the hierarchy of norms under EU law and fails to recognise the rights conferred upon individuals by the EU competition rules. Keywords: private enforcement, regulated industries, railways, infrastructure, Article 102 TFEU

Behrang Kianzad

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 3, Page 207 - 221

Despite being heavily regulated, the pharmaceutical sector in Europe has in recent years noted many enforcement decisions against excessive pharmaceutical pricing as an anti-competitive practice under Article 102(a) TFEU. Although described as a ‘rarity’ in competition law in most parts of the doctrine, numerous excessive pricing cases have emerged in Italy, UK, Denmark, and the Netherlands in recent years, but also on the European Commission level. The European competition authority adopted its first excessive pricing commitment decision against a pharmaceutical undertaking (Aspen) in April 2021. Take into account the manifold points of contention in the literature on excessive pricing, concerning the normative issue of preventing supra-competitive pricing on part of dominant undertakings. Add the tension between competition law and sector regulation;, as well as the practical issue of calculating cost, prices and profits for the purpose of finding out the ‘excess’ and ‘unfairness’, and one can see the Aspen case is of particular importance for future cases. Keywords: excessive pricing; Article 102; pharmaceutical pricing; competition law; pricing of medicines; sector regulation, law and economics

Miguel Sousa Ferro

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 4, Page 350 - 355

Case C-721/20 DB Station & Service AG v ODEG Ostdeutsche Eisenbahn GmbH, Judgment of the Court of Justice (Fourth Chamber) of 27 October 2022 The right to damages arising from an infringement of Article 102 TFEU, which may also infringe the railway infrastructure Directive, can only be exercised after using the railway regulator’s appeal procedure. But what happens if the two sets of rules lead to different outcomes? Must the national court follow the regulator’s decision? Are competition authorities similarly prevented from acting? What if the regulator’s decision is not adopted, does not become res judicata or takes too long? And can this case-law be extended to other regulated activities?

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

Richard Masquelier

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 1, Page 24 - 35

Over the past few years, fast-moving markets have brought major concerns to competition law in the digital age: speedy solutions are needed to efficiently address situations in which companies become monopolistic after the market has tipped. One existing legal instrument emerged as a solid and plausible solution: the interim measures to prevent harm to competition while an investigation is on-going. The starting point of this paper finds its roots in the Commission’s decision to impose interim measures on Broadcom in 2019, after almost two decades of complete oblivion of this instrument. Two questions arise from this sudden awakening: why was it neglected by the Commission and should it be overhauled? This article delves back into the relevant case law and legislation to critically ascertain the qualities and flaws of interim measures in order to explain their possible revival. Through their respective application of the tool, as well as their variable desire to impose interim measures, national competition authorities have also shed an interesting light on this topic. Finally, it remains to be seen whether the recent Commission proposals for a Digital Market Act (DMA), which aims at preventing abusive conduct by digital gatekeepers with upfront obligations, will leave much space for such interim measures in the future. Keywords: interim measures; remedies; Article 102 TFEU; procedure; European Commission

Behrang Kianzad

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 2, Page 172 - 176

Case C-372/19 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Weareone.World BVBA and Wecandance NV, Judgment of the Court of Justice of the European Union (Fifth Chamber) of 25 November 2020 The most recent excessive pricing case considered by Court of Justice of European Union (CJEU) revolved around fees imposed by a national royalty collective society (SABAM) on two Belgian festival organizers (Weareone.World BVBA and Wecandance NV). The Belgian national court submitted the case to CJEU for a preliminary ruling on whether the imposition of fees was to be considered an abuse of dominant position, and further, whether the fees levied were to be considered unfair and excessive in light of Article 102(a) Treaty on the Functioning of the European Union.