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Changing Competition Law for the Digital Sector journal article

Kiran Desai

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 1, Page 11 - 23

Policy debate in the EU and international fora and institutions are leading to proposed changes to competition law as applied to the technology and in particular digital sectors. A review of the proposals identifies two groups, first, those that are a more aggressive application of competition law and second, those addressing non-traditional goals, such as data privacy. The EU’s Digital Markets Act is an example of the latter, while a change to the EU Merger Regulation is an example of the former. The proposed changes are open to criticism, for example because they create a differential application of competition law to one sector compared to others and there are definitional challenges. Furthermore, competition economic analysis, with its emphasis on consumer welfare,may need to be broadened to enable a normative and theoretical consistency between the current laws and the proposed changes. In addition, where the changes are to address goals not susceptible to such analysis, such as human rights, lawyers will need to be open to adding arguments based on other jurisprudential theories to support their cases. Keywords: competition; digital; proposals; objective; economics


Tacit Collusion and the Boundaries of Competition Law: journal article

The Parallel Case of Common Ownership and Algorithmic Pricing

John Weche, Thomas Weck

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 1, Page 4 - 10

Tacit collusion gives rise to major practical challenges for the enforcement of competition law. A problem which is well known from the gas station markets, now acquires new topicality with the intervention of institutional investors (‘common ownership’) and the use of online pricing algorithms. This article connects the previous strands of discussion and establishes a link to the discussion regarding a New Competition Tool. Keywords: tacit collusion; algorithms; common ownership; Digital Markets Act; DMA; New Competition Tool; NCT


Corona and EU Economic Law: journal article open-access

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


Infineon Technologies AG v Commission: A Referral from the Court of Justice on Proportionality Grounds (T-758/14 RENV Infineon Technologies v Commission) journal article

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.




Budapest Bank: Can a Conduct Be a Restriction by Object and by Effect? (C-228/18 Gazdasági Versenyhivatal v Budapest Bank Nyrt. and Others) journal article

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?



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


The ECN Plus Directive: journal article

Empowering National Competition Authorities to Be More Effective Enforcers of EU Competition Law

Francesco Rizzuto

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 2, Page 80 - 99

Regulation 1/2003 left it to the Member States to determine the investigative and procedural powers of national competition authorities (NCAs). As a consequence, the enforcement of EU competition law in the Member States has not developed uniformly. Directive 2019/1 puts in place obligations on the Member States to harmonise the status and powers of NCAs in order to create a more uniform competition law single market regulatory space. In short, it aims to establish a level competition law enforcement field relating to investigative and fining powers, resources and independence, leniency, and rules governing mutual assistance between NCAs in the context of the operation of the European Competition Network. Many of the provisions are either closely aligned or indeed replicate the investigative and decision-making powers granted to the Commission under Regulation 1/2003 and the institutional resources and autonomy of national regulatory bodies established under EU sectoral legislation. This Directive in combination with the Private Damages Directive constitutes a significant push towards the federalisation of EU competition law enforcement in line with the case law of the Court of Justice of the European Union. Keywords: European Competition Network, ECN Plus Directive, National Competition Authorities