Adina Claici, Peter Davis, Gerhard Dijkstra

European Competition and Regulatory Law Review, Volume 8 (2024), Issue 1, Page 4 - 16

In this paper, we consider the economic analysis that will be required in foreign subsidy reviews. We believe that the regime is right to adopt a case-by-case approach and that the European Commission’s analysis should be structured using well-defined theories of harm since doing so will (i) help focus the Commission’s analyses on what matters; and (ii) help reduce the risk of potentially significant error costs associated with over- or under-enforcement. The Foreign Subsidies Regulation (FSR) refers to a potential, non-exhaustive list of ‘indicators’ which it proposes to use to determine whether the foreign subsidy would distort the internal market. In this paper we provide an initial exploration of the proper role for said indicators by considering four potential theories of harm that foreign subsidies could trigger. Not all indicators will be relevant for all theories of harm, and, more generally, we illustrate the potential for theories of harm to distinguish the indicators that are relevant from those that are not. We also discuss (i) empirical evidence relating to the prevalence of foreign subsidies in different sectors of the EU economy and (ii) the importance of theories of harm for structuring evidence collection with the potential challenges and solutions when applying economic analysis to consider causality (whether the foreign subsidy distorted competition), and the magnitude – if any – of a foreign subsidy’s effects on market outcomes. Keywords: FSR; Foreign Subsidies; theory of harm; competition distortion

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

Joana Fraga Nunes

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 1, Page 29 - 43

Technological progress has led to globalised access to all types of information, and one’s digital traces are now everywhere. As such, electronic evidence has become an extremely important tool for investigations, yet it lacks a legal framework for its collection and processing. Specifically, the use of electronic evidence in EU competition procedures raises several legal challenges, considering i) the lack of a legal framework for the collection and processing of electronic evidence at the EU level, leading to legal uncertainty; ii) the absence of a harmonised EU procedural framework for the enforcement of EU competition law by Member States, resulting in varying levels of judicial protection and iii) the narrow application of defence and data protection rights in EU competition procedures in light of the said conflicting, but complementary, interests. Keywords: EU competition procedures; electronic evidence; defence rights; data protection rights

Mariya Papazova

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 1, Page 44 - 48

Bogdan Marius Chirițoiu, Vlad Dan Roman

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 3, Page 179 - 182

Salomé Cisnal de Ugarte, Mélanie Perez, Ivan Pico

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 1, Page 17 - 23

The third decade of the 21st century promises to look very different for European merger control. After several very successful acquisitions by Big Tech companies, competition law enforcers are increasingly concerned that their merger control regimes might not capture transactions that may have anticompetitive effects in the long run. As a consequence, European regulators are taking various initiatives which make the merger control landscape increasingly fragmented and complex, ranging from the introduction of value-based jurisdictional thresholds and a new referral policy that can catch mergers post-closing, to ground breaking regulatory initiatives in the digital sphere, changes relating to the substantive assessment of mergers in dynamic markets and foreign direct investment and subsidies screenings. This results in decreasing legal certainty for companies engaging in cross-border M&A and increased transaction costs. Keywords: merger control, Digital Markets Act, referrals, Article 22 EUMR, foreign subsidies, dynamic competition

Jeroen Dewispelaere, Victoria Heinen

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 2, Page 129 - 133

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

Paul K Gorecki

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 4, Page 294 - 305

In 2022 Ireland made two important contributions to the debate over price signalling: (i) the publication of the National Competition Agency’s (NCAs) extensive investigation into alleged anticompetitive price signalling in private motor insurance (PMI); and (ii) the enactment of legislation that makes ‘the sharing of future information on prices …’ a specific presumed by object offence. The evidence does not support the NCA’s conclusion that the public PMI premium increase announcements by five insurers, a broker and a broker representative body were either a by object or a by effect breach of competition law. There are solid grounds for following the European Union’s existing open-ended approach to adding by object breaches through the development of case law, rather than legislating specific new by object offences. The sharing of information can, depending on the circumstances, be anticompetitive or procompetitive. It is thus inappropriate to characterise sharing of information as a by object offence, without an appropriate definition and guidance. This is not to imply that the competition in the PMI market in Ireland cannot be improved, as the European Commission’s acceptance in 2022 of binding commitments from the insurers trade association easing access to a data sharing platform so as to facilitate entry demonstrates. Keywords: private motor insurance, Competition Act 2002, Competition (Amendment) Act 2022, concerted practice, tacit collusion, Competition and Consumer Protection Commission, price signalling.

Helene Andersson, Amanda Bos Ekman

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 4, Page 339 - 344