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Effective Competition in Digital Platform Markets: journal article

Legislative and Enforcement Trends in the EU and the US

Joseph Antel, Ciara Barbu-O’Connor, John Carroll, Katie Daw, Robert Klotz

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 1, Page 35 - 55

Efforts to tackle the increasing market power of data driven platforms are taking a new turn. So far, the European Union has been more aggressive and creative than the United States, notably with severe antitrust enforcement action. However, there is a perceived enforcement gap in platform markets, due to increased concentration, rising profit margins, declining market entry and low investment compared to profits, according to many. With the European Commission proposing the Digital Markets Act and the US ramping up on a number of fronts with an intensified interest in Big Tech and a political climate favourable to an emerging legislative consensus for targeted antitrust law reforms in this field, we are on the verge of new rules to bridge this gap more effectively. This article sheds light on the current developments in the EU and the US, as a basis for the juxtaposition of both approaches and attempt to draw conclusions for future debate. Keywords: digital platforms, antitrust enforcement, upfront regulation, Digital Markets Act, gatekeepers, global convergence and cooperation


Private Enforcement of Competition Law in Regulated Industries: journal article

Can Railway Undertakings Recover Excessive Railway Infrastructure Charges Under Article 102 TFEU?

Heike Schweitzer

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 1, Page 4 - 16

In DB Station & Service AG, the CJEU will have to decide on the relationship between EU regulatory law – namely Directive 2001/14 – that strives to concentrate decisions on the lawfulness of infrastructure access charges with the regulatory authority, and private damage claims based on a concurrent violation of Article 102 TFEU. The referring court – the KG Berlin – proposes that national civil courts may only award competition law damages once the regulatory authority has established the illegality of the charges under regulatory law. This article argues that the KG Berlin thereby misconceives the hierarchy of norms under EU law and fails to recognise the rights conferred upon individuals by the EU competition rules. Keywords: private enforcement, regulated industries, railways, infrastructure, Article 102 TFEU


The Theory of Economic Unit and the ‘Downward’ Liability of Subsidiaries for the Sins of Their Parent Companies: Better Not! (C-882/19 Sumal) journal article

Catarina Vieira Peres de Fraipont, Inês Neves

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 1, Page 98 - 103

Case C‑882/19 Sumal, S.L. v Mercedes Benz Trucks España, S.L., Judgment of the Court (Grand Chamber) of 6 October 2021 By judgment of 6 October 2021, in the Sumal case, the Court of Justice ruled that the victim of an anticompetitive infringement may bring an action for damages, either against a parent company who has been addressed by an infringement decision of the European Commission, or against a subsidiary which is not referred to in that decision. In order to do so, those two entities have to be part of the same economic unit and there has to be a specific link between the economic activity of that subsidiary and the subject matter of the infringement for which the parent company was held to be responsible.



Bpost and Nordzucker AG: The End of Competition Law Enforcement Exceptionalism Concerning the Principle of Ne bis In Idem journal article

Francesco Rizzuto

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 2, Page 154 - 166

Case C-117/20 bpost SA and Case C-151/20 Nordzucker AG, Zudzucker AG, Agrana Zucker GmbH, Judgments of the Court of Justice (Grand Chamber) of 22 March 2022 The Court of Justice of the European Union in two Grand Chamber rulings has overturned its established case law on the conditions that must be satisfied in order for the protection against double jeopardy provided by Article 50 of the EU Charter of Fundamental rights to be applicable. The controversial and doctrinally weak third condition concerning the identity of the legal interest , in addition to the identity of the facts and persons, has now been abandoned. It has been replaced by the legal exception rule provided for in Article 52 of the Charter. In essence, this means that the double jeopardy rule will not be infringed by enforcers of EU Competition Law in parallel or subsequent enforcement proceedings including complementary proceedings and penalties based on distinct legal grounds as long as the requirements of Article 52, as clarified by the Court are respected. The rulings thus ends EU Competition law enforcement exceptionalism compared two other areas of EU law regarding the conditions that must be met in order for the protection against ‘criminal’ proceedings and penalties to be satisfied.