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Legal, institutional and policy implications of the introduction of a new competition toolYour search returned 310 results Review Articles
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As the European Commission is preparing its proposal for a ’New Competition Tool’, we look at the legal, Institutional and policy Implications of such a tool. We examine questions of legal basis, substantive standard of Intervention, procedural design and judicial review and the role of EU (...)
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A new era for antitrust market definitionA new era is dawning for market definition under EU competition law. It is being rung in by five distinct developments that, together, foreshadow the future of the relevant market as a tool of competition law. A plethora of policy reports on digital markets have made recommendations for (...) -
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Some reactions to “reactionary antitrust”Over the past several years, the consensus that antitrust should focus on protecting the competitive process as measured through its impact on consumer welfare has come under increasing attack. In a recent article, Professor John Newman critiques certain arguments made by those defending the (...) -
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De facto control in EU merger control lawThe Commission’s 2008 Consolidated Jurisdictional Notice addresses the concept of de facto control only superficially. In practice, the notion of de facto control raises many questions. Based on an analysis of the Commission’s decisional practice, this article aims to lay out the analytical grid (...) -
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The digital giants in the face of the ban on abuse of economic dependence: The French counterattackDoes the recent conviction of Apple for abuse of economic dependence by the French Competition Authority attest to the usefulness of this qualification of national competition law in the fight against the omnipotence of the digital giants? We doubt it. For real competition issues, the (...) -
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Publication of antitrust decisions of the European CommissionThis paper deals with the publication by the European Commission of its decisions adopted in the enforcement of the competition rules laid down in Articles 101 and 102 TFEU (antitrust decisions). The paper examines the legal basis of such publication and the interests justifying publication; (...) -
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Antitrust and restrictions on privacy in the digital economyWe present a model of a market failure based on a requirement provision by digital platforms in the acquisition of personal information from users of other products/services. We establish the economic harm from the market failure and the requirement using traditional antitrust methodology. (...) -
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Antitrust, intellectual property, and dynamic efficiency: An essay in honor of Herbert HovenkampArticle to be published in Herbert Hovenkamp Liber Amicorum, N. Charbit and al. (eds.), Concurrences, 2021. This essay argues that, while intellectual property (IP) and antitrust often operate as complementary bodies of law, in some residuum of cases there will be widespread disagreement among (...) -
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Untangling the inextricable: The notion of “same offence” in EU competition lawIn the EU, the ne bis in idem principle restricts the ability of enforcement authorities to prosecute or punish the same defendant for the same criminal offence more than once. That protection applies to competition fines due to its punitive and deterrent nature and its degree of severity. (...) -
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COVID-19: Lessons learned in public procurement. Time for a new normal?The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries (...) -
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European leniency programmes and private enforcement: Dangerous liaisonsThe Damages Directive has seriously undermined the attractivity of the leniency programmes. The safeguards provided by the Directive have not been able to preserve the effectiveness of this key tool for the detection of cartels by European competition authorities. The challenged European (...) -
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Pursuing regulatory objectives under competition lawWhile the Commission has stood its ground against political pressure to relax enforcement for the purpose of grooming European champions, that does not mean only economic welfare arguments have been accepted under competition law. Rather, over the years a pattern has emerged whereby, in the (...) -
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The platform-to-business regulation: Taming the “big tech” beast?In recent years, the term “online platforms” has almost monopolized discussions in EU policy circles. The EU institutions have taken several initiatives in the realms of competition enforcement and regulatory law that seek to ensure that the current legal framework is adapted to the specificities (...) -
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Conflicts of interest and marketplaces: A business law perspectiveThe European Commission’s recent investigations into Amazon have highlighted the issue of conflicts of interest in competition law. This article explores possible ways to preserve competition while regulating the conflicts of interest inherent in marketplaces. Based on financial law and in (...) -
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Mobile telecommunications mergers in the EU – Remedies revisitedThe present article looks at key recent decisions on mobile mergers and examines the development of the Commission’s assessment of the respective remedies offered to overcome the competitive harm identified during the investigation. It describes the marked shift in the approach to remedies which (...) -
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Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition NetworkThis paper deals with the fundamental procedural rights of companies that are targeted in the enforcement of Articles 101 and 102 TFEU by the European Commission or the competition authorities of the EU Member States. The paper first provides a (non-exhaustive) list of such rights as applicable (...) -
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Reactionary AntitrustArticle to be published in Herbert Hovenkamp Liber Amicorum, N. Charbit and al. (eds.), Concurrences, 2020. The antitrust enterprise is undergoing a renaissance. New voices have emerged. Issues long considered settled have been opened for re-examination. Lively debate has prompted antitrust (...) -
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Antitrust and the clash of sovereigns - Bringing under one roof: Extraterritoriality, industrial policy, foreign sovereign compulsion, and (bad) applications of law against “my country’s” firmsArticle to be published in Douglas Ginsburg Liber Amicorum, N. Charbit and al. (eds.), Concurrences, 2020. When sovereign conflicts arise in the course of antitrust litigation, the traditional response is to retreat to “comity.” This article challenges the traditional response. It argues that we (...) -
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Forging links between competition authorities and academic institutionsArticle to be published in Frédéric Jenny: Standing Up for Convergence and Relevance in Antitrust, Vol. II, N. Charbit and al. (eds.), Concurrences, 2019. This article explores the scope for cooperation between competition authorities and academic institutions and posits a number of strategies (...) -
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Google’s (forgotten) monopoly – Ad technology services on the open webOnline advertising is the fuel of the digital economy. Yet despite the industry’s gigantic growth, the lion’s share is captured by a handful of digital platforms, leaving a small share of revenue for publishers, further reduced by commissions charged by ad tech companies. Against this background, (...) -
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Google and the trans-Atlantic antitrust abyssDuring the late 2000s, several jurisdictions, including the EU and the U.S., opened investigations into potential antitrust violations by the Internet search firm, Google, for alleged bias in the ranking of the links returned in response to search queries. While the EU investigations in 2017 (...) -
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The obligation for the competition authorities of the EU Member States to apply EU antitrust law and the Facebook decision of the BundeskartellamtArticle 3 of Regulation 1/2003 obliges the competition authorities of the EU Member States (national competition authorities or NCAs) to apply Articles 101 and 102 TFEU (EU antitrust law) whenever they apply national competition law to conduct falling within the scope of EU antitrust law. (...) -
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Abuse of dominance on the digital market: For a legal interpretation of economic imbalance in the light of oligopoliesThe sentences follow one another without always being the same on either side of the Atlantic. However, it is certain that the digital market is at the heart of the concerns of the European and American authorities. Anti-competitive practices, abusive commercial practices and violations of (...) -
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Independence of competition authorities: The example of the EU and its Member StatesAt the end of 2018, the European Parliament and Council adopted Directive (EU) 2019/1, often referred to as the “ECN+ Directive,” which, among other things, contains provisions ensuring the independence of the competition authorities of the EU Member States (national competition authorities or (...) -
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A repenalization of competition law in France? About the use of Article 40 of the Code of Criminal Procedure by the investigating services of the French Competition AuthorityThe General Rapporteur (Rapporteur Général) of the French Competition Authority (Autorité de la Concurrence) intends to use the procedure provided for under article 40 of the French Code of Criminal Procedure in order to increase the effectiveness of the Competition Authority’s work, in particular (...) -
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Conditional pricing and the AEC test: A happy marriage or an awkward couple?In this article the question is investigated whether and when conditional pricing and the AEC test form a happy couple. In situations where rebates are used to dampen competition between incumbents or as an exploitative device, applying the AEC test does not make sense. However, in cases where (...) -
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Qualification as State aid and compensation for business costsA measure can be classified as State aid only if it gives an advantage to an undertaking. The advantage will disappear when the measure is just a way to compensate some costs to which the undertaking has to face. But the distinction between costs that can be compensated without leading to the (...) -
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Provisions on restrictive practices in questionIn addition to the prohibition of anticompetitive agreements, abuses of dominant positions and the control of anticompetitive mergers, French competition law limits the freedom of negotiation of parties to commercial contracts. The goal of these limitations is to ensure a balance between (...) -
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Legal professional privilege in EU antitrust enforcement: Law, policy & procedureThis paper discusses the law, policy and procedure of legal professional privilege in EU antitrust enforcement. It focuses primarily on the enforcement of Articles 101 and 102 TFEU by the European Commission, but also touches briefly on the enforcement of EU antitrust law by the competition (...) -
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Connecting competition law standards to the Internet of thingsThe advent of the Internet of Things will entail a new Internet revolution and bring about profound changes that will rival the first wave of Internet innovation. This paper explores the competition law implications raised by this upcoming revolution. Starting by discussing the merits of open (...) -
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The Arafer dispute settlement: An efficient regulatory instrument for sector actorsThe dispute settlement procedure has enabled the French Railway Regulatory Body to decisively improve access to the railway network and service facilities. With a view of opening up national passenger services to competition, it now belongs to the railways undertakings to make more regularly (...) -
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The ancillary restraint to a concentration operation, a circumscribed immunityUnder European Union (’EU’) Law, the principle governing the assessment of restrictions directly related and necessary to concentrations - known as ancillary restraints - is that of self-evaluation by the parties. In other words, a decision authorizing a concentration is not a blank check that (...) -
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Convergence, divergence or disturbance – How major economic powers approach international antitrustThis article attempts to understand how the driving forces of the global economy — the European Union, the United States, and China — view and approach international antitrust. This will be done by analysing recent stances that they have taken as well as longer trends in their actions and (...) -
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To hire or not to hire: U.S. cartel enforcement targeting employment practicesIn October 2016, the Antitrust Division of the Department of Justice announced its intention to thereafter—and for the first time—criminally prosecute “naked” no-poach and wage-fixing agreements. Fundamental fairness questions arise when the Justice Department expands the reach of its criminal (...) -
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Reflections on gun jumping in mergersOn 8 November 2016 Altice-SFR was fined 80 million euros by the French Competition Authority for Gun jumping. This decision, first of a kind in Europe with regard to the fine’s amount and the practices at stake, has raised a debate amongst lawyers and companies towards its potential impact on (...) -
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The role of the European Parliament in the European Union’s institutional competition structureThis paper analyzes the marginal role allotted to the European Parliament in the creation and enforcement of competition rules from a legal and political point of view. It describes the process of intensification of the parliamentary control over the European Commission. It shows how the (...) -
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From Greek olive oil to Latvian music: Is there any such thing as unfair prices?Whether antitrust laws should and, if so, under what conditions, prohibit dominant firms to charge “excessive” or “unfair” prices to consumers remains a very controversial issue. It is thus not surprising that, in that respect, different jurisdictions have made different choices. For example, US (...) -
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Merger control - Assessment of minority shareholdings by the European Commission: From standard solutions to avant-garde thesesIn 2017, the European Commission examined several industrial and commercial minority shareholdings that a company may hold in another, and found either that there was exclusive de facto control, even where there was no certainty that the shareholder would have a majority at the general meeting, (...) -
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Assessing online platform mergers: Taking up the new challenges faced by the French Competition Authority in the digital economyThe purpose of this article is to share the lessons learned by the French Competition Authority (“FCA”) following its first in-depth investigation of a merger case involving two major online platforms. The FCA believes that anti-competitive risks arising out of Internet platform mergers must be (...) -
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Common sense about common ownershipSome scholars have argued that the phenomenon known as common ownership, particularly by large investment managers, is anticompetitive and prohibited by the U.S. antitrust laws. These proponents call for the divestiture of trillions of dollars of equities. We believe the argument for antitrust (...) -
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NRAs decisions: Zero rating and net neutrality challengesThe purpose of this paper is to identify policy and regulatory implications of a recent commercial practice called zero rating. Zero rating describes a situation whereby internet service providers do not calculate the data volume consumed for accessing particular online content, applications or (...) -
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The decline and fall of the leniency programme in EuropeThe authors explore the reasons behind the reduction in immunity applications for cartels in Europe. This confirms the Commission’s reliance on immunity applications to uncover cartels, discusses the features of the current regime for applicants in detail, and assesses whether the benefits and (...) -
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Unfair prices: A few remarks on competition policy and antitrust analysisRecent antitrust intervention against unfair prices in the pharmaceutical industry by the Italian and UK competition authorities, as well as the answer of the European Court of Justice to preliminary questions from the Latvian Supreme Court, have breathed new life into the longstanding debate (...) -
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Institutional design of enforcing public interest considerations in merger controlThe author analyses whether or not competition policy should aim to achieve non-competition-related goals. Should other considerations than consumer welfare be taken into account in the standard merger assessment? Furthermore, the author examines how competition regimes can meet the public (...) -
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Thoughts about the evolution of proof of anti-competitive practices before the competition authoritiesThe evidence of anti-competitive practices has been subject to fundamental changes over the last thirty years. The burden of proof on competition authorities is increasingly heavy and varied but, at the same time, the techniques for reducing this burden have become more diversified. The (...) -
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Competition Authorities: Towards More Independence and Prioritisation? – The European Commission’s “ECN+” Proposal for a Directive to empower the competition authorities of the Member States to be more effective enforcersThis paper contains my contribution to the panel “Competition authorities: Towards more independence and prioritisation?” at the 8th International Concurrences Review Conference “New Frontiers of Antitrust” (Paris, 26 June 2017). It focuses in particular on the European Commission’s “ECN+” Proposal (...) -
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Fairness and competition law: A fairness paradox“Fairness” in EU competition law is hotly debated. This article explores the concept from a sociological, philosophical, and legal perspective, and suggests there is a fairness paradox: while competition law should reflect the values of fairness, if fairness were actually employed in substantive (...) -
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Comparisons are odious: Clarification of the state aid’s criterion of selectivityPursuant to the law as it stands, the criterion of selectivity of a State aid within the meaning of Article 107 (1) TFEU remains to be clarified. This article suggests to take into account the fact that this criterion calls for a comparison of the treatments reserved for different categories of (...) -
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Disruptive innovation and merger remedies: How to predict the unpredictable?Innovation seems to have become the new mantra among the antitrust community in Europe. In the specific context of merger control, the debate focuses on the possible impact of mergers on classic R&D and whether turnover-based jurisdictional thresholds create a risk that certain harmful (...) -
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The distinction between restriction of competition by object / restriction of competition by effect and Article 101 TFEU: A subject of disputatioArticle published in Liber amicorum in honor of Claude Lucas de Leyssac, LexisNexis, 2018. The author is speaking in a purely personal capacity. 1. Political law, competition law lends itself to controversy. While, in the context of the substantial modernisation of European antitrust law (...)
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