The European Court of Justice and the More Economic Approach to EU Competition Law—Is the Tide Turning?

2019 ◽  
Vol 64 (2) ◽  
pp. 172-213 ◽  
Author(s):  
Anne C. Witt
Keyword(s):  
Competition Law ◽  
Consumer Welfare ◽  
European Court Of Justice ◽  
Economic Approach ◽  
Court Of Justice ◽  
European Court ◽  
Eu Competition Law ◽  
Eu Competition Policy ◽  
Legal Concepts ◽  
More Economic Approach

In the late 1990s, the European Commission embarked on a mission to bring EU competition policy more into line with contemporary economic theory. Over a period of ten years, it systematically revised key legal concepts of all three pillars of EU competition law. Most importantly, it adopted the consumer welfare aim, revised its understanding of competitive harm and countervailing effects accordingly, and committed itself to carrying out more in-depth assessments of the investigated conduct’s effects instead of relying on form-based presumptions of illegality. Initially, many tenets of the more economic approach were in conflict with the case law of the European Court of Justice, which had a broader understanding of the aims of EU competition law. However, after a few initial set-backs for the Commission, several recent judgments in cases such as MEO, Intel, Post Danmark I, and Cartes Bancaires suggest that the Court’s understanding of EU competition law is evolving and that it is willing to embrace at least a few of the Commission’s revised principles. In particular, it is adopting a more effects-based approach to assessing business conduct and is cautiously curbing its former concept of harm in exclusionary situations. At the same time, however, it continues to adhere to many of its former freedom- and fairness-based principles, so that a number of uncertainties and inconsistencies remain.

The “essential facilities” doctrine in ec competition law

1999 ◽  
Vol 58 (3) ◽  
pp. 461-499
Author(s):  
Albertina Albors-Llorens
Keyword(s):  
Competition Law ◽  
European Court Of Justice ◽  
Commission Decision ◽  
Court Of Justice ◽  
Essential Facility ◽  
European Court ◽  
Ec Competition Law

INOscar Bronner GmbH&Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH&Co. KG and others (Case C-7/97, [1999] 4 C.M.L.R. 112), the European Court of Justice has clarified the scope of the application of the “essential facilities” doctrine to EC competition law. The Commission defined an “essential facility” as a “facility or infrastructure without access to which competitors cannot provide services to their customers” (B&I Line plc v. Sealink Harbours Ltd., Commission Decision of 11 June 1992, [1992] 5 C.M.L.R. 255 at paragraph 41). Under the doctrine, a dominant undertaking that owns or controls such a facility and refuses, without an objective justification, to make it available to competitors–or makes it available on discriminatory terms–abuses its position of dominance.

scholarly journals Generalities on legal regulation of cartel agreements

2021 ◽  
pp. 92-99
Author(s):  
Dumitrita Bologan ◽  
Keyword(s):  
Great Britain ◽  
Competition Law ◽  
Legal Regulation ◽  
European Court Of Justice ◽  
Academic Environment ◽  
European Directives ◽  
Republic Of Moldova ◽  
Court Of Justice ◽  
European Court ◽  
The Republic

This article provides an overview of the evolution of competition and competition law, both in the Republic of Moldova and in some European and US countries. Also, the paper crystallizes the conceptual approaches on cartels and offers an analysis of the doctrine of the Republic of Moldova, Romania, Russia, France, Germany, USA, Great Britain regarding cartel agreements. Following the analysis carried out in this paper, it was observed that the contribution of foreign academics in the field of defining and classifying cartel agreements is substantial, and the jurisprudence of the European Commission and the European Court of Justice has served as a source of inspiration and progress for the academic environment, as well as for the development of competition on the market. Although in the Republic of Moldova there is limited research in the field of cartel agreements, it is gratifying that the legislation is harmonized with European directives, and the doctrine is developed starting from the most important international research in the field of protection of competition.

scholarly journals Compulsory membership of pension schemes and the free movement of services in the EU

2017 ◽  
Vol 19 (2) ◽  
pp. 118-140 ◽  
Author(s):  
Hans van Meerten ◽  
Elmar Schmidt
Keyword(s):  
The Netherlands ◽  
Competition Law ◽  
Pension Funds ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
Pension Schemes ◽  
European Court ◽  
Indirect Discrimination ◽  
Mandatory Participation ◽  
The Eu

Mandatory pension participation in the Netherlands is currently under review. This article examines the manner in which the system of mandatory participation in sectoral pension funds is presently organised as well as future proposals from the perspective of the freedom to provide services. It also briefly reviews mandatory participation in Belgium, Denmark, Germany, France and Sweden and asks whether it constitutes a barrier to the freedom enshrined in Article 56 TFEU. Restrictions of this freedom in the field of mandatory participation are too easily excused in the Netherlands by pointing to decisions by the European Court of Justice (ECJ) in which it judged the system to be permissible. These decisions, however, were made from the perspective of competition law, and not on the basis of Article 56 TFEU. Grounds for justifying restrictions to this freedom exist, although different justifications are available for direct and indirect discrimination. The article questions how mandatory participation in the Member States considered in this article fare from this perspective?

The Law and Economics of Excessive and Unfair Pricing:: A Review and a Proposal

2018 ◽  
Vol 63 (4) ◽  
pp. 399-430
Author(s):  
Peter Davis ◽  
Vivek Mani
Keyword(s):  
Law And Economics ◽  
Economic Value ◽  
European Court Of Justice ◽  
Economic Approach ◽  
The European Union ◽  
Economic Costs ◽  
Dominant Firm ◽  
Court Of Justice ◽  
European Court ◽  
The Law

The law on excessive pricing by a dominant firm derives from Article 102 of the Treaty on the Functioning of the European Union (TFEU), considered in the United Brands (UB) decision by the European Court of Justice (ECJ). The UB decision described a test that requires an assessment of whether prices are excessive to the point of being unfair in the sense that it has no reasonable relation to economic value of the product supplied (either in itself or in comparison to other products). In this article, we describe a coherent microeconomic framework for understanding the proper relationships between price, economic costs, and economic value. In particular, we propose an economic approach, which we believe courts should adopt to help structure their consideration of allegations of excessive and unfair pricing. While the economics can be very helpful in structuring analysis under both limbs of the UB test, it also makes clear that ultimately judges will need to make a judgment about what is, and what is not, fair pricing by a dominant firm.

scholarly journals The indirect route of securing interest of consumers and competitors under the EU competition law

2020 ◽  
pp. 1-10
Author(s):  
Krusha Bhatt
Keyword(s):  
European Court Of Justice ◽  
Competitive Market ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Eu Competition Law ◽  
Object Effect ◽  
Competition Rules ◽  
Indirect Route ◽  
The Eu

The theme of the present article is to deliver the notion that in order to enforce competition rules which, are aimed at maintaining a balance between profitability of the competitors and welfare of the consumers, the crucial aspect in attainting it is a healthy competitive market. Therefore, an attempt is made to analyses the role and practice of the European Courts and the Commission in protecting the structure of the competitive market as a means to secure the interests of the consumers and competitors. To convey the notion of the paper, sustenance from one of the imperative decisions given by the European Court of Justice purporting the predominant idea has been taken from the case of GlaxoSmithKline v Commission1 and other relevant cases from the locales of Article 101 coupled with Article 102 of the Treaty on the Functioning of the European Union. The idea is to critically discuss the rationale of the decision delivered by the hierarchy of courts, the object-effect dichotomy under Article 101(1) for apprehending anti- competitive conduct, and to reflect upon the Commission guidelines.

The Interface Between Competition Law and Private Law: Article 81, Illegality and Unjustified Enrichment

2002 ◽  
Vol 6 (2) ◽  
pp. 217-243
Author(s):  
Barry J Rodger
Keyword(s):  
Competition Law ◽  
Case Law ◽  
European Court Of Justice ◽  
General Question ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Competition Rules ◽  
Unjustified Enrichment ◽  
Court Of Appeal

Private enforcement through private party litigation is to play a central role in the enforcement of the European Community competition rules. However, there has so far been little case-law in the national courts to explore in detail the range of issues concerning the award of remedies for breach of the competition rules, principally arts 81 and 82 of the EC Treaty. This article considers the particular position of a cocontractor seeking to claim damages in unjustified enrichment in respect of a contract which is prohibited by art 81 and illegal. The Scots law position on the general question of recovery of damages with regard to an illegal contract is discussed, together with some recent English cases involving a breach of art 81. The article looks at the development of Community jurisprudence laying down the requirement for national courts to provide legal redress and to ensure the effectiveness of Community law. Finally, it considers the recent ruling by the European Court of Justice in Courage v Crehan on a reference from the Court of Appeal.

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