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Regulating Digital Gatekeepers – the Digital Markets Act journal article

Fatma Ceren Morbel

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 4, Page 206 - 215

As digitalisation has increased and data has become more powerful, more comprehensive digital regulation has become necessary, including by national competition authorities and the European Commission. The Digital Markets Act (the DMA) is a good example of this area of regulation.1 In November 2022, the DMA came into force, introducing new regulations for core platform services which functioned as ‘gatekeepers’ in the digital market. By enacting the DMA, these platforms are prevented from treating businesses and consumers unfairly. The purpose of this paper is to provide a general overview of the DMA and its relationship to antitrust enforcement. Keywords: digital markets; digital economy; Digital Markets Act; competition law; antitrust

The Limits of Control: journal article

Competition Law Versus Sector Regulation in the Wake of the European Commission Excessive Pricing Decision in Aspen

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

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

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?

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.

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