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Corona and EU Economic Law: journal article

Competition and Free Movement in Times of Crisis

Friso Bostoen, Nina Colpaert, Wouter Devroe, Joris Gruyters, Lennard Michaux, Liesbet Van Acker

European Competition and Regulatory Law Review, Volume 4 (2020), Issue 2, Page 72 - 95

The outbreak of the coronavirus—and the responses of governments and businesses to combat the medical and economic crisis it entails—raise a number of urgent questions, many of which concern European economic law, ie the competition rules and free movement provisions. Can businesses cooperate to guarantee the supply of essential items or a vaccine notwithstanding the cartel prohibition of Article 101 TFEU? Is the excessive price doctrine of Article 102 TFEU a match for the price increases caused by hoarding behaviour? Can competition authorities continue to assess mergers, and might they even become more sympathetic to certain arguments such as the failing firm defence and industrial policy considerations? Under which conditions are Member States allowed to grant aid to undertakings that face economic difficulties due to the crisis? Can Member States prohibit the export of medical supplies to other Member States, and can they close their borders for European citizens? And how much freedom do public procurement rules leave governments to quickly conclude contracts for essential supplies? This article addresses these pressing questions in a comprehensive manner. It situates the numerous guidance documents adopted by the European Commission within the broader framework of EU economic law and then evaluates the compatibility of the public and private corona-related measures with that framework. The aim is to offer a legal guide for governments and businesses combatting the corona crisis. Keywords: corona; EU economic law; competition law; internal market law; public procurement


Commercial Divisions of Public Entities and the Limits of EU Competition Law journal article

Jasper P Sluijs

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 3, Page 261 - 279

Competitive behaviour by public entities is generally approached in the literature as concerning the traditional State-owned enterprises pursuing public interest objectives. However, increasingly we see examples of commercial divisions of public entities aiming to generate revenue per-se. Because these commercial divisions can enjoy competitive advantages over their private sector competitors, their behaviour may distort competition. This phenomenon has become prevalent throughout the EU, and Member States tend to approach its anticompetitive effects through various competition law(-related) frameworks. This article points out, however, that a competition law framework may be ill-suited to address anticompetitive effects of commercial divisions of public entities. With an ill-functioning and diverging legal framework across the EU, anticompetitive effects of commercial divisions of public entities lead to an uneven playing field between public and private firms with adverse effects on the internal market. Keywords: Competition Law, Mixed Markets, State-owned Enterprises


Competition Authorities’ Decisions and Antitrust Damages Actions journal article

Ignacio García-Perrote Martínez

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 4, Page 371 - 379

Private enforcers of competition law, especially the infringers’ direct and indirect purchasers claiming compensation for the damages suffered, must bring evidence of the existence of an infringement of competition law, the loss suffered, the causal relation between the infringement and the damage, and the specific quantum. The most challenging element to prove is the infringement itself. Given competition authorities’ investigation powers, their decisions become a crucial element to ease the claimants’ burden of proof and to make compensation possible. Keywords: Pre-emptive Administrative Ruling, Competition Authorities Decisions, Damages Actions, Competition Law Enforcement



The Perspective of the Bundeskartellamt in the Evaluation of Facebook's Behaviour: journal article

Prior Considerations and Possible Impact

Irene Lorenzo-Rego

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 2, Page 100 - 109

The abuse of a dominant position based on the collection and processing of personal data is a competition law issue under German law. The value of data is the value of advertising on social networks. Inadequate data processing by Facebook has harmed both users and potential competitors. The Bundeskartellamt has focused its recent decision on efficiency, despite its perspective on the application of Article 19(1) of the Act against Restraints of Competition, in accordance with German case-law. The impact on European competition law will depend on the controversial harmonisation of personality rights; so far, only data protection law has been regulated. Keywords: Access to Personal Data, Injured Party, Abuse of Dominance, Facebook, Bundeskartellamt, Competition Law, Data Protection


The Paradox of Discretionary Competition Law journal article

Aaron L Nielson

European Competition and Regulatory Law Review, Volume 2 (2018), Issue 3, Page 156 - 165

Jurisdictions around the world have been converging on a common analytical framework for merger review. Because the circumstances of proposed mergers (or combinations) are often idiosyncratic, the standards that competition authorities apply are flexible, thus providing economists with discretion to perform individualized, merger-specific analysis. Jurisdictions thus have moved away from—or declined to adopt in the first place—bright-line rules in favour of open-ended standards. This shift away from bright-line rules, however, may create a paradox: the very discretion necessary to achieve right outcomes is the cause of wrong ones. Although open-ended standards allow competition authorities to better tailor their analysis, they also empower them to act for pretextual reasons, especially in contexts for which politicized decision-making is most tempting such as the ‘online world.’ Likewise, even when a competition authority’s analysis is not pretextual, discretionary standards may make it more difficult for it to effectively rebut allegations of pretext. Hence, although doing so may introduce more imprecision into merger analysis, greater reliance on bright-line rules might nonetheless be justified. Keywords: Mergers, Discretion, Bias

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