Maria Gaia Pazzi

European Competition and Regulatory Law Review, Volume 4 (2020), Issue 3, Page 231 - 235

Case C-228/18 Gazdasági Versenyhivatal v Budapest Bank Nyrt. and Others, Judgment of the Court of Justice of the European Union (Fifth Chamber) of 2 April 2020 How to define a conduct as an anticompetitive restriction ‘by object’ pursuant to Article 101(1) TFEU and when the effects of such a conduct should be considered. Has the Court shifted the burden of proof in the two-prong test under Article 101 paragraph 1 and paragraph 3 of the TFEU and what is the possible impact on the competition authorities’ practice?

Niccolò Colombo, Alejandra Garcia Hoyos

European Competition and Regulatory Law Review, Volume 4 (2020), Issue 4, Page 328 - 332

Case T-758/14 RENV Infineon Technologies v Commission, Judgment of the General Court of 8 July 2020 Following a referral from the Court of Justice, the General Court, in exercising its unlimited jurisdiction, held that the Commission did not take sufficient account of the individual participation of Infineon in the single overall agreement and reduced the fine by an additional 5% on account of mitigating circumstances.

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