scholarly journals PATENT ASSERTION ENTITIES AND EU COMPETITION LAW

2019 ◽  
Vol 15 (2-3) ◽  
pp. 204-236 ◽  
Author(s):  
Damien Geradin
Keyword(s):  
Competition Law ◽  
Active Role ◽  
Case Law ◽  
Significant Degree ◽  
Product Markets ◽  
Eu Competition Law ◽  
Degree Of Control ◽  
The Impact ◽  
Operating Company

Abstract Patent assertion entities (PAEs) are playing an increasingly active role in Europe. Their activities are controversial in that although they may be a source of efficiencies, they may also create anticompetitive harm. Given the growing trend of operating companies transferring patents to PAEs to increase their licensing revenues, the risks of anticompetitive harm created by PAE activities must be taken seriously. When analyzing the impact of PAE activities on competition, a distinction must be drawn between “pure” PAEs, which acquire patents from a variety of sources and generate revenues by asserting them, and “hybrid” PAEs, which acquire patents from operating companies and maintain a relationship with these companies postacquisition. Although pure PAEs create risks of exploitation, hybrid PAEs create exclusionary concerns as such PAEs may be used by operating companies to harm their rivals on downstream product markets. These exclusionary concerns are particularly serious when the operating company retains a significant degree of control over the PAE’s activities following the transfer of the patents. As there is currently no EU competition case-law on the activities of PAEs, this article attempts to show through hypotheticals that depending on the circumstances of each case, privateering may lead to exclusion. JEL: K21, K41, L24, L40.

Anticompetitive Effects in EU Competition Law

2020 ◽  
Author(s):  
Pablo Ibáñez Colomo
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Time Variable ◽  
Court Of Justice ◽  
Open Questions ◽  
Eu Competition Law ◽  
Competitive Disadvantage ◽  
Probability Threshold ◽  
The Impact ◽  
Freedom Of Action

Abstract This article examines the meaning and scope of the notion of anticompetitive effects in EU competition law. It does so by bringing together several strands of the case law (and this across all provisions, namely Articles 101 and 102 TFEU and merger control). The analysis is structured around a framework that considers the main variables that shape the notion in practice: the time variable (actual or potential effects); the dimensions of competition and the counterfactual; the meaning of effects and the probability threshold (plausibility, likelihood, certainty). The exercise shows that it is possible to discern a concrete meaning to the notion of anticompetitive effects. Some central questions, including the role and operation of the counterfactual and the threshold of effects, have already been answered by the Court of Justice. In particular, it has long been clear that anticompetitive effects amount to more than a mere competitive disadvantage and/or a limitation of a firm’s freedom of action. The impact on equally efficient firms’ ability and/or incentive to compete would need to be established. At the same time, some open questions and some potential areas of friction (relating, inter alia, to stakeholders’ tendency to conflate appreciability and effects) remain. These are also discussed.

Part V The Analytical Framework of Article 102, 12 General Conclusion

2011 ◽  
Author(s):  
Nazzini Renato
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Analytical Framework ◽  
Current Case ◽  
Eu Competition Law ◽  
The Law ◽  
Normative Foundations ◽  
Main Thread

This concluding chapter retraces the main thread of the reasoning in this book, from the identification of the normative foundations of competition law to the discussion of the objective of EU competition law and Article 102 and the design of the tests to determine whether conduct is abusive and whether one or more undertakings are dominant. The objective, principles, and tests that constitute the legal fabric of Article 102 can be summarized in thirty-four propositions divided into three parts: objectives and general principles; assessment of conduct; and assessment of dominance. The chapter then highlights the main areas where the current case law or enforcement practice is in need of being reviewed. These main areas include the law on conditional rebates, refusal to supply, margin squeeze, tying, discrimination, and exploitative abuses.

LOYALTY REBATES AND ABUSE OF DOMINANCE

2018 ◽  
Vol 77 (1) ◽  
pp. 25-28
Author(s):  
Mark Friend
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Analytical Framework ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
Abuse Of Dominance ◽  
Article 102 Tfeu ◽  
Missed Opportunity

THE recent judgment of the Court of Justice in Intel v Commission (Case C-413/14 P, EU:C:2017:632) deserves a cautious welcome for signalling a move to a more economics-based approach to the assessment of loyalty rebates under Article 102 TFEU, and for modulating the rigid legal presumptions that have characterised nearly four decades of case law. Yet it also represents a missed opportunity to provide a comprehensive analytical framework for one of the more unsatisfactory areas of EU competition law.

scholarly journals Applicability of European Union Competition Law to Health Care Providers: The Dividing Line between Economic and Noneconomic Activities

2020 ◽  
Author(s):  
Bruno Nikolić
Keyword(s):  
Health Care ◽  
Health Care Providers ◽  
Health Spending ◽  
Competition Law ◽  
Case Law ◽  
Financial Sustainability ◽  
Care Providers ◽  
Eu Competition Law ◽  
Case Basis ◽  
Union Competition

Abstract Ever-increasing health spending, which, according to future projections, continues to outpace economic growth, will further endanger the financial sustainability of health systems. In a quest to improve the efficacy and efficiency of the health system and thus strengthen its financial sustainability, member states are employing market-based mechanisms to finance, manage, and provide health care. However, the introduction of elements of competition is constrained by the application of EU competition law, which raises significant concerns regarding the applicability of competition law and its limits in the field of health care. Due to the lack of a clear definition in EU legislation, the applicability and scope of competition law are determined on a case-by-case basis, which reveals an inconsistent approach by the European Commission and the CJEU regarding the application of competition law to health care providers and has created legal uncertainty. The aim of this article is to analyze relevant decisions by the commission and the CJEU case law in the pursuit of “boundaries” that may trigger the applicability of competition law with regard to health care providers. Based on the findings of the analysis, the article proposes a set of principles or guidelines for determining whether a health care provider should be considered as an undertaking and, as such, subject to EU competition law.

scholarly journals Towards the Effects-based Approach in EU Competition Law: the Assessment of Single Branding Agreements

2020 ◽  
Author(s):  
Chang-Chiang Hsieh
Keyword(s):  
Competition Law ◽  
Integrated Approach ◽  
Case Law ◽  
Barriers To Entry ◽  
Exclusive Dealing ◽  
Judicial Practice ◽  
Eu Competition Law ◽  
The U.S ◽  
Relevant Factors ◽  
The Eu

This article compares the economic assessments conducted by judicial practice on single branding/exclusive dealing cases between the EU and the U.S. in order to gain insights on how to improve the effects-based approach to competition law. Generally speaking, the U.S. judicial practice presented a more integrated approach to examine the practical effects caused by exclusive dealing arrangements than its EU as well as Taiwanese counterpart. The U.S. cases Tampa and Standard Stations laid down the requirement to weigh the anti-competitive effect with all relevant factors taken into account. More recent cases exemplified the incorporation of the theory of Raising Rivals’ Cost (RRC) into assessment of contested conducts, which enriched the analysis of the practical effects on barriers to entry.In contrast, the EU case law has still been taking a more formalistic approach. Though it is widely acknowledged that analysis of effects on restriction of competition is required as to single branding agreements under Art. 101 TFEU, Delimitis as the leading case failed to clarify the economic logic behind and the economic relationship between the factors required to be examined. The application of Art. 102 TFEU before Intel is close to a per se standard. However, the turn of Van den Bergh and Intel to more consideration of the effect on cost of existing or potential competitors deserves more observation as to future developments. It is argued that the U.S. practice can shed light on EU competition law in two perspectives. Firstly, the test of Delimitis needs to be restructured to examine and weigh the effect of the contested agreements. Secondly, the approach for Art. 102 TFEU could be developed through adoption of similar tests with those conducted in application of Art. 101 TFEU, where assessment of barriers to entry is crucial.

scholarly journals What Has Changed in European Concept of Undertaking? From „FENIN“ to „EASY PAY“

2021 ◽  
Vol 1 ◽  
pp. 81-88
Author(s):  
Katarína Kalesná
Keyword(s):  
Economic Activity ◽  
Competition Law ◽  
Case Law ◽  
Internal Market ◽  
Correct Interpretation ◽  
General Internal ◽  
Key Concepts ◽  
Regulatory Principle ◽  
Competition Rules ◽  
The Impact

Competition is the main self-regulatory principle of the market in general, internal market included. Competition law has the form of general clauses making its application dependant on the correct interpretation of general concepts. Core competition rules of the Functional Treaty („TFEU“) are addressed to undertakings; undertaking thus belongs to key concepts of competition law. Interpretation of this concept is decisive for the scope of competition rules application. So, the article explores different approaches of the case law to the interpretation of the concept of undertaking based on economic activity.  It compares the FENIN doctrine and the new functional test of separability developed in EASY PAY. It drives attention to the impact of this new test for the evaluation of procurement activities under competition scrutiny.

The Foundations of European Union Competition Law

2011 ◽  
Author(s):  
Nazzini Renato
Keyword(s):  
Interdisciplinary Approach ◽  
Competition Law ◽  
Consumer Welfare ◽  
Case Law ◽  
Analytical Framework ◽  
Dominant Position ◽  
Eu Competition Law ◽  
The Common ◽  
Definition Of ◽  
Union Competition

Article 102 of the TFEU prohibits the abuse of a dominant position as incompatible with the common market. Its application in practice has been wide-ranging with goals as diverse as the preservation of an undistorted competitive process, the protection of economic freedom, the maximisation of consumer welfare, total welfare, or economic efficiency all cited as possible or desirable objectives. These conflicting aims have raised complex, conceptual questions such as how a dominant position should be defined, and how abuses can be assessed. This book addresses the conceptual questions underlying the test to be applied under Article 102 in light of the objectives of EU competition law. Adopting a comparative and interdisciplinary approach, the book covers all the main issues relating to Article 102, including the definition of dominance, the taxonomy of abuses, and the criteria for the assessment of individual abusive practices. It provides an in-depth doctrinal and normative commentary of the case law with the aim of establishing an intellectually robust and practically workable analytical framework for abuse of dominance.

Is “Privacy” a Means to Protect the Competition or Advance Objectives of Innovation and Consumer Welfare?

2020 ◽  
pp. 106-124
Author(s):  
Arletta Gorecka
Keyword(s):  
Competitive Equilibrium ◽  
Competition Law ◽  
Consumer Welfare ◽  
Multidimensional Approach ◽  
Privacy Concerns ◽  
Eu Member States ◽  
Eu Competition Law ◽  
The Impact ◽  
The Relationship ◽  
The Eu

The relationship between competition law and privacy is still seen as problematic with academics and professionals trying to adequately assess the impact of privacy on the competition law sphere. The chapter looks at the legal development of the EU merger proceedings to conclude that EU competition law is based on the prevailing approach and assesses decisions involving data through the spectrum of keeping a competitive equilibrium in hypothetical markets. Secondly, it considers the legal developments in the EU Member States' practice, which acknowledges the apparent intersection between the phenomena of competition law and privacy. This chapter attempts to propose that privacy concerns appear to hold a multidimensional approach on competition legal regime; nevertheless, it does not result in the need of legal changes within the remits of competition law, as the privacy concerns are already protected by the data protection and consumer protection law.

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