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Regulating Zero-Rating in Europe journal article

Changes in the Regulatory Analysis of Zero-Rating by NRAs After the Judgments in C‑34/20 Telekom Deutschland (throttling), C‑5/20 Vodafone (tethering) and C‑854/19 Vodafone (roaming)

Dennis Brouwer, Michiel van Dijk

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 1, Page 15 - 28

This article analyses the changes in the regulatory analysis of zero-rating by national regulatory authorities in almost seven years of implementation of the European Union’s Regulation on Open Internet Access. The European Court of Justice issued three landmark judgments in cases C‑34/20 Telekom Deutschland (throttling), C‑5/20 Vodafone (tethering) and C‑854/19 Vodafone (roaming). The Court ruled that ‘zero-tariff options’, a form of zero-rating, violate the general obligation of providers of internet access services to treat traffic equally and without discrimination. The Court determined that these options fail to follow the stipulations of Article 3(3) of the Regulation on Open Internet Access. Prior to the judgments, the Open Internet Guidelines drafted by the Body of European Regulators for Electronic Communications (BEREC) recommended that national regulatory authorities should analyse zero-rating under Article 3(2) of the Regulation. BEREC recommended that they conduct a multi-factor analysis of the effects of zero-rating on the market. After the judgments, BEREC published updated guidelines stating that zero-rating as such is prohibited under Article 3(3), unless the zero-rating does not differentiate between applications based on user traffic. The authors argue that the judgments of the Court in conjunction with the updated Open Internet Guidelines provide NRAs and market actors with more legal certainty regarding the legality of zero-rating under the Regulation on Open Internet Access. Keywords: zero-rating; open internet; net neutrality; regulation; internet access service

Sped-Pro v Commission: Beware of the Rule of Law journal article

Rita Ferreira Gomes

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 1, Page 76 - 79

Case T-791/19 Sped-Pro v Commission, Judgment of the General Court (Tenth Chamber, Extended Composition) of 9 February 2022 With its judgment of 9 February 2022, the General Court annulled a Decision of the European Commission rejecting an antitrust complaint submitted on the grounds of systemic or generalised deficiencies in the rule of law in one Member State. According to the judgment, there should be a limit to the principle of mutual trust and cooperation among Member States within the European Competition Network. This judgment created not only a precedent, but also a powerful protection tool to be used in the future to safeguard of the rule of law.

Illumina v Commission – Confirmation of the European Commission's Renewed Approach to Referrals under Article 22 EUMR (T-227/21 Illumina v Commission) journal article

Jussi Koivusalo, Emilia Rosenblad

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 3, Page 284 - 289

Case T-227/21 Illumina, Inc. v European Commission, Judgment of the General Court (Third Chamber, Extended Composition) of 13 July 2022 The General Court held that the European Commission may accept a referral to investigate a concentration that is not subject to national merger control rules even when the referring Member State has introduced a merger control regime of its own. It also held that a concentration is 'made known' to a Member State pursuant to the second subparagraph of Article 22(1) EUMR only when sufficient information enabling a preliminary assessment of the conditions laid down in the first subparagraph of the same Article is actively submitted to it.

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

Is There a Need for a Visible Hand in Digital Markets? journal article

Gönenç Gürkaynak, Ali Kağan Uçar, Uzay Görkem Yıldız

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 4, Page 306 - 317

This article explores whether there is a need for ex ante regulations in digital markets. It explains implications of ex ante regulations in digital markets and focuses on the competition jurisprudence which has generated new terminologies such as ‘tipping’, ‘gatekeepers’ and ‘self-preferencing’ over the last decade, indicating that competition law easily adapts to emerging problems and sweeping ex ante regulation efforts in the digital markets might be uncalled for. In this regard, the article summarizes the on-going debate on whether competition law, as is, can sufficiently address and deliver solutions for competitive concerns in digital markets. Within this scope, the paper examines the alleged competitive concerns in digital markets and argues that it is crucial to first conduct counterfactual analysis with concrete facts, parameters and data, to identify the risks associated with over regulations. The article further contends that the competition law toolkit in place is a sufficient and more appropriate way to deal with anti-competitive conducts and the ongoing ex ante regulation efforts in digital markets are condemned to result in a decline in competition and innovation in the long run. Keywords: ex ante regulations; digital markets; gatekeepers; assumption of market power

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