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

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

Tine Mišic, Eva Hafnar

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 4, Page 334 - 338

Francesco Rizzuto, Monika Lynch

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 2, Page 162 - 171

Case C-857/19 Slovak Telekom a.s. v Protimonopoly Urad Slovenskej Republiky, Judgment of the Court of Justice of the European Union of 25 February 2021 In this ruling the Court of Justice of the European has established two key rules that taken together with previous rulings of the Court amount to rendering virtually redundant the principle of ne bis in idem as a defense in the parallel enforcement of competition law in the European Union under Regulation 1/2003. First, it has clarified that the same abusive conduct may constitute a series of separate offences where the abuse concerns distinct products and prosecuting and sanctioning them separately would not be incompatible with the principle of ne bis in idem. Secondly, it ruled that where the Commission relieves a national competition authority of a case, only the Commission decision prevails regardless of the stage or status of proceedings conducted by the national competition authority. The implications for the liability of undertakings may be far-reaching.

Giorgio Monti

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 2, Page 90 - 101

The Digital Markets Act (DMA) is a major policy initiative to regulate platform gatekeepers in a more systematic manner than under competition law. This paper reflects on the institutional set-up in the Commission proposal. While the DMA is well-designed, this paper recommends improvement in the following aspects: (i) matching the DMA’s objectives with obligations imposed on gatekeepers; (ii) facilitating a regulatory dialogue; (iii) streamlining the enforcement pyramid; (iv) emphasising the role of private enforcement; (iv) clarifying the role of competition law when the DMA applies. Keywords: Digital Markets Act, DMA, responsive regulation, private enforcement

Nicholas Levy, Andris Rimsa, Bianca Buzatu

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 4, Page 364 - 379

In March 2021, in an effort to secure jurisdiction over transactions that might otherwise escape review under EU and national merger control rules, the European Commission (EC) published guidance encouraging Member State competition authorities to ask the EC to examine potentially anti-competitive concentrations that fall below national merger control thresholds. To date, in a decision that is under appeal to the General Court, the EC’s new guidance has been applied only once to refer the Illumina/Grail transaction to the EC. More generally, the EC’s new guidance has proven controversial, revealing divergences between certain Member State antitrust agencies and the EC. Keywords: merger notification thresholds, EU Merger Regulation, killer acquisitions, interagency coordination

Eleana Poulladou

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 3, Page 230 - 233

Jordi Casanova Tormo

European Competition and Regulatory Law Review, Volume 4 (2020), Issue 3, Page 172 - 184

This article reviews the competition case law and the approach of utility regulation to address excessive prices. It considers the potential challenges of applying a reasonable prices framework to access to digital platforms’ data, due to the difficulties in assessing an appropriate return on digital platforms’ investments in R&D. Following this conclusion, the article proposes to assess whether lighter forms of intervention may be sufficient to address the market failures identified and to introduce access to data if these are not likely to succeed. Keywords: reasonable prices; price regulation; digital platforms; access to data; data regulation

Silke Goldberg, Chris Davis

European Competition and Regulatory Law Review, Volume 4 (2020), Issue 3, Page 243 - 248

Case C-454/18 Baltic Cable AB v Energimarknadsinspektionen, Judgment of the Court of Justice of the European Union (Third Chamber) of 11 March 2020 The Court of Justice recently considered the application of use of congestion revenue regulations on the Baltic Cable electricity interconnector. The questions arose on referral from the Swedish Administrative Court after the owners of Baltic Cable contested decisions of the regulator, which severely restricted their use of revenues. The Court’s judgment is significant as it clarifies that (i) single interconnector transmission system operators are classified as transmission system operators in the same way as those that operate a wider transmission system (potentially bringing both additional rights and obligations for those single interconnector operators); and (ii) the regulatory regime must be interpreted differently for single interconnector transmission system operators in order to avoid discrimination.

Tony Shortall

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 1, Page 17 - 28

With the introduction of the ‘Roam Like At Home’ (RLAH) rules in 2017, retail roaming prices were abolished across the EEA but at the wholesale level the existing system of pricing continued, albeit at lower rates. This paper argues that wholesale prices are unrelated to costs because of a structural problem in the way traffic is traded - in particular the custom of bartering traffic or ‘balancing’ has a major role in distorting this market. Recent evidence from the Body of European Regulators for Electronic Communications and the European Commission on RLAH suggests that the strains caused by high wholesale pricing is leaking through to the retail level and consumers are not getting what was promised. The Commission’s data clearly shows that certain operators are greatly disadvantaged in the wholesale roaming markets and that demand suppression practices such as the avoidance of 4G agreements are not currently tracked. The implications for the development of 5G are both obvious and not good. This article argues that the establishment of a wireless trading platform which only permitted one-way bids (and thereby eliminated traffic balancing) as well as anonymising participation, being transparent of pricing and volumes (in line with exchange rules under MiFID II) would enable prices to move towards marginal cost. Such a pricing scheme would enable RLAH to be sustainable for all operators even where data volumes are very high, such as in a 5G environment. Keywords: Roam Like At Home, RLAH, EU Roaming Regulation, Pricing, Mobile Operators