The Legal Effects of EU Competition Soft Law in the Decisions of National Competition Authorities: journal article The Case of the Bundeskartellamt Leander Stähler, Mariolina Eliantonio European Competition and Regulatory Law Review, Volume 4 (2020), Issue 4, Page 273 - 288 Soft law issued by the European Commission plays an important role in the area of EU competition law. Focusing on the legal effect of competition soft law as applied by Germany’s national competition authority, the Bundeskartellamt, this contribution analyses how the authority pursues interpretational and decisional objectives through references to competition soft law. This contribution quantifies the references made to soft law and categorises these references on the basis of the involvement of other sources of law in an individual reference. It is shown that the Bundeskartellamt is comfortable making reference to competition soft law as the sole legal basis for certain parts of many decisions, ascribing to competition soft law a strong legal effect in several instances. Keywords: EU soft law; enforcement; Bundeskartellamt; NCAs; EU Commission
PZU Życie: National Competition Law Is Alive and Kicking Thanks to the Threefold Test for Idem (C-617/17 Powszechny Zakład Ubezpieczeń na Życie) journal article Francesco Rizzuto, Monika Ewa Lynch European Competition and Regulatory Law Review, Volume 4 (2020), Issue 3, Page 236 - 242 Case C-617/17 Powszechny Zakład Ubezpieczeń na Życie S.A. v Prezes Urzędu Ochrony Konkurencji i Konsumentów, Judgment of the Court of Justice of the European Union (Fourth Chamber) of 3 April 2019 The Court of Justice confirms the continued importance of national competition law as a distinct legal interest to protect. The infringing undertakings can face distinct penalties for the same infringement if an NCA can show that the harm caused to national and EU markets is distinct in its temporal and jurisdictional effects.
Revaluing the Role of Intent Evidence in EU Antitrust Law journal article Jan Blockx European Competition and Regulatory Law Review, Volume 3 (2019), Issue 4, Page 354 - 362 The arguments that have been made against using intent evidence in EU antitrust enforcement are not conclusive. On the contrary, because of the difficulties of conducting economic analyses of the effects of commercial conduct, it makes sense to look at the intentions of the persons engaging in that conduct to interpret their behaviour. Also for the punishment of anticompetitive behaviour, the presence or absence of anticompetitive intentions should be relevant. Keywords: Antitrust, Intent, Enforcement
The Balance Between Effectiveness and Fundamental Rights Protection in the Law and Enforcement of Article 101 TFEU journal article Baskaran Balasingham European Competition and Regulatory Law Review, Volume 3 (2019), Issue 4, Page 363 - 370 Effectiveness and due process require careful balancing in order to safeguard a workable enforcement environment. On the one hand, the legal qualification of collusive conduct has been facilitated to some degree by a broad interpretation of Article 101(1) TFEU and the use of presumptions. On the other hand, the burden and standard of proof, as well as the judicial review in relation to EU cartel proceedings satisfy the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). This article argues that the EU Courts have succeeded in establishing a proper balance between effective cartel enforcement and the protection of fundamental rights. Keywords: Article 101 TFEU, Cartel Enforcement, Effectiveness, Fundamental Rights, Judicial Review
Competition Authorities’ Decisions and Antitrust Damages Actions journal article Ignacio García-Perrote Martínez European Competition and Regulatory Law Review, Volume 3 (2019), Issue 4, Page 371 - 379 Private enforcers of competition law, especially the infringers’ direct and indirect purchasers claiming compensation for the damages suffered, must bring evidence of the existence of an infringement of competition law, the loss suffered, the causal relation between the infringement and the damage, and the specific quantum. The most challenging element to prove is the infringement itself. Given competition authorities’ investigation powers, their decisions become a crucial element to ease the claimants’ burden of proof and to make compensation possible. Keywords: Pre-emptive Administrative Ruling, Competition Authorities Decisions, Damages Actions, Competition Law Enforcement
Overview of the National Enforcement of EU Competition Law journal article András Tóth European Competition and Regulatory Law Review, Volume 2 (2018), Issue 4, Page 258 - 270 This article provides a practical overview of the most recent and interesting developments arising from the national enforcement of EU competition law. It is not only the preliminary rulings by the Court of Justice of the European Union that highlight interesting competition cases taking place at national level. For example, as will be discussed in this article, other important developments such as the recognition of compliance programmes and the first pricing algorithm case also occurred at national level. It appears that national competition authorities (NCAs) are more opened to ensure consistency between competition and other policies, such as the protection of personal data (eg the Facebook case in Germany) and the promotion of small and medium sized enterprises. NCAs can more rapidly adapt to the changing competition policy context, as can be seen, for example, in their treatment of mergers involving targets not possessing high enough turnover but having significant market potential. The ECN+ Directive provides NCAs with a minimum common tool-kit and effective enforcement powers for the implementation of EU antitrust rules in many important areas. However, there are still significant areas (eg regarding the admissibility of criminal evidence and multiple filings) where further improvements would be desirable in the future. Keywords: Data Driven Economy, Multiple Merger Filing, Admissability of Criminal Evidences, European Competition Network (ECN), Cross-Border Enforcement of Competition Fines
Belgium ∙ Belgian Supreme Court Confirms Heavy Burden of Proof to Oppose Disclosure of Leniency Documents to Parties Claiming Damages in Follow-On Proceedings journal article Jeroen Dewispelaere, Joren Vuylsteke European Competition and Regulatory Law Review, Volume 2 (2018), Issue 4, Page 290 - 292
Theories of Harm in the Implementation of the Foreign Subsidies Regulation Adina Claici, Peter Davis, Gerhard Dijkstra