Search results - Concurrences

1 Sep 2020 R

Antitrust and restrictions on privacy in the digital economy

Nicholas Economides, Ioannis Lianos • N° 3-2020

We 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. (...)

1 Sep 2020 R

Antitrust, intellectual property, and dynamic efficiency: An essay in honor of Herbert Hovenkamp

Thomas Cotter • N° 3-2020

Article to be published in Herbert Hovenkamp Liber Amicorum, N. Charbit and al. (eds.), Concurrences, 2020. 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 (...)

1 Sep 2020 R

Untangling the inextricable: The notion of “same offence” in EU competition law

Pierpaolo Rossi, Valentina Sansonetti • N° 3-2020 • pp. 59-68

In 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. (...)

1 Sep 2020 R

COVID-19: Lessons learned in public procurement. Time for a new normal?

Laurence Folliot-Lalliot, Christopher R. Yukins • N° 3-2020 • pp. 46-58

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 (...)

1 Sep 2020 R

European leniency programmes and private enforcement: Dangerous liaisons

Adeline Archimbaud • N° 3-2020

The 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 (...)

1 May 2020 R

Pursuing regulatory objectives under competition law

Christian Bergqvist • N° 2-2020

While 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 (...)

1 May 2020 R

The platform-to-business regulation: Taming the “big tech” beast?

Konstantina Bania • N° 2-2020 • pp. 52-64

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 (...)

1 Feb 2020 R

Conflicts of interest and marketplaces: A business law perspective

Alexandre Rouhette • N° 1-2020

The 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 (...)

1 Feb 2020 R

Mobile telecommunications mergers in the EU – Remedies revisited

Bernd Langeheine, Beatriz Martos Stevenson, Jan Przerwa • N° 1-2020 • pp. 52-67

The 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 (...)

1 Feb 2020 R

Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network

Wouter Wils • N° 1-2020

This 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 (...)

1 Nov 2019 R

Reactionary Antitrust

John M. Newman • N° 4-2019 • pp. 66-72

Article 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 (...)

1 Nov 2019 R

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” firms

Eleanor M. Fox • N° 4-2019 • pp. 73-80

Article 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 (...)

1 Nov 2019 R

Forging links between competition authorities and academic institutions

Mel Marquis • N° 4-2019

Article 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 (...)

1 Sep 2019 R

Google’s (forgotten) monopoly – Ad technology services on the open web

Damien Geradin, Dimitrios Katsifis • N° 3-2019

Online 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, (...)

1 Sep 2019 R

Google and the trans-Atlantic antitrust abyss

Christian Bergqvist, Jonathan Rubin • N° 3-2019

During 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 (...)

1 Sep 2019 R

The obligation for the competition authorities of the EU Member States to apply EU antitrust law and the Facebook decision of the Bundeskartellamt

Wouter Wils • N° 3-2019 • pp. 58-66

Article 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. (...)

1 Sep 2019 R

Abuse of dominance on the digital market: For a legal interpretation of economic imbalance in the light of oligopolies

Nils Monnerie • N° 3-2019 • pp. 67-75

The 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 (...)

1 Sep 2019 R

Independence of competition authorities: The example of the EU and its Member States

Wouter Wils • N° 3-2019

At 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 (...)

1 May 2019 R

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 Authority

Robert Saint-Esteben • N° 2-2019 • pp. 54-65

The 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 (...)

1 May 2019 R

Conditional pricing and the AEC test: A happy marriage or an awkward couple?

Lucas Peeperkorn • N° 2-2019 • pp. 40-53

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 (...)

1 Feb 2019 R

Qualification as State aid and compensation for business costs

Cheik Galokho • N° 1-2019 • pp. 56-65

A 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 (...)

1 Feb 2019 R

Provisions on restrictive practices in question

Frédéric Jenny • N° 1-2019

In 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 (...)

1 Feb 2019 R

Legal professional privilege in EU antitrust enforcement: Law, policy & procedure

Wouter Wils • N° 1-2019

This 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 (...)

1 Nov 2018 R

Connecting competition law standards to the Internet of things

Aymeric de Moncuit • N° 4-2018 • pp. 85-94

The 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 (...)

1 Nov 2018 R

The Arafer dispute settlement: An efficient regulatory instrument for sector actors

Matthieu Poujol • N° 4-2018 • pp. 95-103

The 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 (...)

1 Sep 2018 R

The ancillary restraint to a concentration operation, a circumscribed immunity

Faustine Viala • N° 3-2018

Under 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 (...)

1 Sep 2018 R

Convergence, divergence or disturbance – How major economic powers approach international antitrust

Michael Ristaniemi • N° 3-2018

This 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 (...)

1 Sep 2018 R

To hire or not to hire: U.S. cartel enforcement targeting employment practices

Dina Hoffer, Elizabeth Prewitt • N° 3-2018 • pp. 78-85

In 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 (...)

1 Sep 2018 R

Reflections on gun jumping in mergers

Isabelle de Silva • N° 3-2018 • pp. 55-66

On 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 (...)

1 Sep 2018 R

The role of the European Parliament in the European Union’s institutional competition structure

Claire Mongouachon, Lionel Zevounou • N° 3-2018 • pp. 67-77

This 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 (...)

1 May 2018 R

From Greek olive oil to Latvian music: Is there any such thing as unfair prices?

Nils Wahl • N° 2-2018

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 (...)

1 May 2018 R

Merger control - Assessment of minority shareholdings by the European Commission: From standard solutions to avant-garde theses

Marie-Cecile Rameau, Yelena Trifounovitch • N° 2-2018 • pp. 50-59

In 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, (...)

1 May 2018 R

Assessing online platform mergers: Taking up the new challenges faced by the French Competition Authority in the digital economy

Isabelle de Silva • N° 2-2018 • pp. 39-49

The 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 (...)

1 May 2018 R

Common sense about common ownership

Douglas H. Ginsburg, Keith Klovers • N° 2-2018

Some 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 (...)

1 May 2018 R

NRAs decisions: Zero rating and net neutrality challenges

Carlo Edoardo Cazzato, Stefano De Luca • N° 2-2018

The 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 (...)

1 Feb 2018 R

The decline and fall of the leniency programme in Europe

Johan Ysewyn, Siobhan Kahmann • N° 1-2018 • pp. 44-59

The 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 (...)

1 Feb 2018 R

Unfair prices: A few remarks on competition policy and antitrust analysis

Gabriella Muscolo, Giovanni Pitruzzella • N° 1-2018 • pp. 60-67

Recent 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 (...)

1 Feb 2018 R

Institutional design of enforcing public interest considerations in merger control

Aranka Nagy • N° 1-2018

The 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 (...)

1 Nov 2017 R

Thoughts about the evolution of proof of anti-competitive practices before the competition authorities

Laurence Idot • N° 4-2017 • pp. 45-59

The 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 (...)

1 Nov 2017 R

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 enforcers

Wouter Wils • N° 4-2017 • pp. 60-80

This 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 (...)

1 Nov 2017 R

Fairness and competition law: A fairness paradox

Maurits Dolmans, Wanjie Lin • N° 4-2017

“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 (...)

1 Sep 2017 R

Comparisons are odious: Clarification of the state aid’s criterion of selectivity

Olivier Peiffert • N° 3-2017 • pp.52-63

Pursuant 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 (...)

1 Sep 2017 R

Disruptive innovation and merger remedies: How to predict the unpredictable?

Frédéric de Bure, Laurence Bary • N° 3-2017

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 (...)

1 Sep 2017 R

The distinction between restriction of competition by object / restriction of competition by effect and Article 101 TFEU: A subject of disputatio

Laurence Idot • N° 3-2017

Article 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 (...)

1 May 2017 R

The international aspects of private enforcement after the Directive 2014/104/EU: Gaps in the EU system and competition between national laws?

Laurence Idot • N° 2-2017

Directive 2014/104, i.e. the ’Damages Directive’, is currently being transposed into national law. The aim of this directive is admittedly not to solve the issues of private international law arising from actions for damages; however, its provisions will likely increase these issues in the (...)

1 May 2017 R

FRAND Access to open standards and the patent exclusivity: Restating the principles

Hanns Ullrich • N° 2-2017

When technical standards are to be defined pursuant to the claims of a patent and, therefore, the use of the standard will necessarily infringe that standard-essential patent (SEP), the proprietor may commit to granting all users a license at fair, reasonable and non-discriminatory (FRAND) (...)

1 May 2017 R

Tax rulings coping with the prohibition of state aids

Catherine Prieto • N° 2-2017

This article is a tribute to the memory of Professor Philippe Neau-Leduc. It suggests that the application of State aid law to tax rulings does not disturb tax law, but reveals a convergence of objectives and gives an impetus to a better and stronger European construction. 1. International (...)

1 May 2017 R

Joint tendering under EU competition law

Cyril Ritter • N° 2-2017 • pp.60-69

This article seeks (a) to draw the line between legitimate joint tendering and joint tendering which is actually anti-competitive joint selling, and (b) to draw attention to other theories of harm than joint selling in the area of joint tendering. The EU competition law assessment of joint (...)

1 May 2017 R

Transposition of the EU Damages Directive in France: Views on the new title VIII of French commercial code’s book IV

Rafael P. Amaro • N° 2-2017 • pp.70-81

After a legislative process that lasted nearly twelve years, the epilogue has just been written: the directive 2014/104/EU is finally transposed into French law! The transposition provisions were inserted in a new Title VIII of Book IV of the Commercial Code. This title was created by the two (...)

1 May 2017 R

Private enforcement of EU antitrust law and its relationship with public enforcement: Past, present and future

Wouter Wils • N° 2-2017

This paper provides a short history of private enforcement of EU antitrust law and its relationship with public enforcement, from the 1957 EEC Treaty over Regulation 17 and Regulation 1/2003 until Directive 2014/104 and the current outlook. I. Introduction 1. This article provides a short (...)

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