scholarly journals The Evolution of Classical Evaluation Standards in Competition Law: The Legal Assessment of Tying in View of Challenges Raised by Digital Markets

2021 ◽  
pp. 113-139
Author(s):  
Mateusz Musielak
Keyword(s):  
Technological Development ◽  
Competition Law ◽  
Case Law ◽  
Legal Framework ◽  
Evaluation Standards ◽  
Dominant Position ◽  
Legal Assessment ◽  
Customer Group ◽  
Type Of Abuse ◽  
Modern Tool

This paper provides a detailed review of evaluation standards for the legal assessment of tying. This practice, which constitutes an abuse of a dominant position, is a significant breach of competition law. The mechanism of this type of abuse is based on taking advantage of market power in the supply of one product to create packed offerings capable of precluding competition from superior rival solutions. Tying occurs when one product, the “tying product”, is sold only with another product, the “tied product”. In the prevailing number of cases, tying serves to consolidate the company’s dominant position on the tied product market, which usually aims to share the tying product’s large customer group with the less-desired product. However, tying is not illegal per se. In many cases, it does not lead to any anti-competitive concerns, and might be beneficial for consumers. This is why each assessment of this conduct must be carefully evaluated with special attention given to the effects, in accordance with the generally applied effect-based approach, and also potential efficiencies. An analysis of the case-law and literature reveals the basic mechanisms for conducting a legal assessment of tying. However, the use of these mechanisms will not be possible without their adaptation to the ongoing changes caused by technological development. Digital markets not only generate incremental revenues, but are also the sources of new or unusual legal arrangements. It will more frequently be the case that existing provisions will not be able to address every new practice accurately without new acts. The Digital Markets Act aims to adapt the existing legal framework to contemporary market realities and to become a modern tool for enforcing competition law rules on digital markets. The European Commission is seeking to broaden its powers to intervene at the earliest possible stage, before an undertaking affects the competition on a market.

Employees' Protection

2018 ◽  
pp. 1133-1152
Author(s):  
Chrysi Chrysochou ◽  
Ioannis Iglezakis
Keyword(s):  
Data Protection ◽  
General Framework ◽  
Case Law ◽  
Legal Framework ◽  
Smart Devices ◽  
Dominant Position ◽  
Digital Workplace ◽  
Surveillance Technology ◽  
Workplace Surveillance

This chapter describes the conflict between employers' legitimate rights and employees' right to privacy and data protection as a result of the shift in workplace surveillance from a non-digital to a technologically advanced one. Section 1 describes the transition from non-digital workplace surveillance to an Internet-centred one, where “smart” devices are in a dominant position. Section 2 focuses on the legal framework (supranational and national legislation and case law) of workplace surveillance. In section 3, one case study regarding wearable technology and the law is carried out to prove that national and European legislation are not adequate to deal with all issues and ambiguities arising from the use of novel surveillance technology at work. The chapter concludes by noting that the adoption of sector specific legislation for employees' protection is necessary, but it would be incomplete without a general framework adopting modern instruments of data protection.

8. Competition, the State, and Public Undertakings: Article 106 TFEU

2019 ◽  
pp. 582-641
Author(s):  
Alison Jones ◽  
Brenda Sufrin ◽  
Niamh Dunne
Keyword(s):  
Direct Effect ◽  
Competition Law ◽  
Case Law ◽  
State Aid ◽  
The State ◽  
Economic Interest ◽  
Inequality Of Opportunity ◽  
Dominant Position ◽  
Privileged Position ◽  
General Economic Interest

This chapter examines how competition law applies to the actions of the State when it intervenes in the market through undertakings which it controls or owns or which it places in a privileged position. The discussion includes the principle of Union loyalty in Article 4(3) TEU; Article 106(1); Article 106(2); and the Commission’s supervisory and policing powers in Article 106(3). Article 106(1) is a prohibition addressed to Member States against enacting or maintaining in force any measure in relation to public undertakings or undertakings to which they have granted special or exclusive rights which are contrary to the Treaty rules. The chapter discusses what is meant by ‘public undertakings’ and ‘special or exclusive rights’ and examines in the light of the case law what measures are forbidden by Article 106(1), including those involving the cumulation of rights, the extension of a dominant position from one market to another, and the creation of situations of inequality of opportunity. Article 106(2) gives a limited derogation from Article 106(2) to undertakings entrusted with the operation of services of general economic interest (SGEIs). The chapter discusses the concept of ‘services of general economic interest’ and examines the cases in which the derogation has been applied or not applied, including the application of Article 106(2) to compensation for the provision of SGEIs which constitutes State aid. The chapter also considers Article 106(3) and the question of the direct effect of Article 106(1) and (2).

scholarly journals Information exchanges between competitors from a competition law perspective – the problem of premature exchanges of sensitive information in the context of merger control (Gun Jumping)

2018 ◽  
Vol 4 (1) ◽  
pp. 78-101
Author(s):  
Nuno Calaim Lourenço
Keyword(s):  
Specific Problem ◽  
Competition Law ◽  
Case Law ◽  
Legal Framework ◽  
Sensitive Information ◽  
Due Diligence ◽  
Market Transparency ◽  
Court Of Justice ◽  
European Court ◽  
Competition Rules

The topic of information exchanges between competing undertakings is central to competition law. These are practices that enhance market transparency and, as such, can generate significant efficiencies. However, they can also give rise to serious competition concerns, often because they afford competitors the possibility of reaching focal points of coordination. The analysis of information exchanges has traditionally taken place in the context of the legal framework that prohibits cartels. This article reviews, at first, the approach taken in Europe by competition authorities and courts, firmly grounded in the Commission Guidelines and in the most recent case law of the European Court of Justice. After discussing the relevant legal framework and the main criteria for the assessment of information exchanges in detail, the article elaborates on the specific problem that premature exchanges of information between competitors can create in the context of a merger transaction. As the competitors that they are, at least until closing of the deal, it is essential that contracting parties ensure that their due diligence exercise and the planning of the integration of their businesses are carried out in a manner that is consistent with competition rules, avoiding behaviour that can be interpreted as gun-jumping or as a cartel practice and, as a consequence, financial penalties and judicial claims.

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.

Employees' Protection

2017 ◽  
pp. 951-970
Author(s):  
Chrysi Chrysochou ◽  
Ioannis Iglezakis
Keyword(s):  
Data Protection ◽  
General Framework ◽  
Case Law ◽  
Legal Framework ◽  
Smart Devices ◽  
Dominant Position ◽  
Digital Workplace ◽  
Surveillance Technology ◽  
Workplace Surveillance

This chapter describes the conflict between employers' legitimate rights and employees' right to privacy and data protection as a result of the shift in workplace surveillance from a non-digital to a technologically advanced one. Section 1 describes the transition from non-digital workplace surveillance to an Internet-centred one, where “smart” devices are in a dominant position. Section 2 focuses on the legal framework (supranational and national legislation and case law) of workplace surveillance. In section 3, one case study regarding wearable technology and the law is carried out to prove that national and European legislation are not adequate to deal with all issues and ambiguities arising from the use of novel surveillance technology at work. The chapter concludes by noting that the adoption of sector specific legislation for employees' protection is necessary, but it would be incomplete without a general framework adopting modern instruments of data protection.

scholarly journals Online legal platforms – the beginning of the 4.0 law practice?

2019 ◽  
Vol 5 (2) ◽  
pp. 43-62
Author(s):  
Pedro Petiz Viana
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Legal Framework ◽  
Regulatory Framework ◽  
Legal Services ◽  
Competition Authority ◽  
Legislative Reform ◽  
Online Platforms ◽  
Bar Association ◽  
Recent Project

The 4.0 revolution has reached the legal services industry. New online platforms are emerging to connect clients and lawyers, while also providing new and innovative legal services. Nonetheless, several questions arise regarding these new businesses: How do they fare under the Portuguese regulatory framework? Is there a need for legislative reform? And how are Bar Associations dealing with this new reality? In order to answer these questions, we analyze the characteristics of online legal platforms and their compliance with the statutes of the Portuguese Bar Association and National Law. Secondly, we examine the prohibition by the Portuguese Bar Association of online intermediation platforms, taking into consideration the ECJ’s case law related to professional orders and the EU’s competition law. Thirdly, we study the national legal framework of legal services in light of OECD’s Competition Assessment Review of Portugal. Lastly, we present the recent project by the Portuguese Competition Authority and note its similarities with the ECJ’s case law.

Employees' Protection

2019 ◽  
pp. 1329-1348
Author(s):  
Chrysi Chrysochou ◽  
Ioannis Iglezakis
Keyword(s):  
Data Protection ◽  
General Framework ◽  
Case Law ◽  
Legal Framework ◽  
Smart Devices ◽  
Dominant Position ◽  
Digital Workplace ◽  
Surveillance Technology ◽  
Workplace Surveillance

This chapter describes the conflict between employers' legitimate rights and employees' right to privacy and data protection as a result of the shift in workplace surveillance from a non-digital to a technologically advanced one. Section 1 describes the transition from non-digital workplace surveillance to an Internet-centred one, where “smart” devices are in a dominant position. Section 2 focuses on the legal framework (supranational and national legislation and case law) of workplace surveillance. In section 3, one case study regarding wearable technology and the law is carried out to prove that national and European legislation are not adequate to deal with all issues and ambiguities arising from the use of novel surveillance technology at work. The chapter concludes by noting that the adoption of sector specific legislation for employees' protection is necessary, but it would be incomplete without a general framework adopting modern instruments of data protection.

Employees' Protection

2016 ◽  
pp. 206-233
Author(s):  
Chrysi Chrysochou ◽  
Ioannis Iglezakis
Keyword(s):  
Data Protection ◽  
General Framework ◽  
Case Law ◽  
Legal Framework ◽  
Smart Devices ◽  
Dominant Position ◽  
Digital Workplace ◽  
Surveillance Technology ◽  
Workplace Surveillance

This chapter describes the conflict between employers' legitimate rights and employees' right to privacy and data protection as a result of the shift in workplace surveillance from a non-digital to a technologically advanced one. Section 1 describes the transition from non-digital workplace surveillance to an Internet-centred one, where “smart” devices are in a dominant position. Section 2 focuses on the legal framework (supranational and national legislation and case law) of workplace surveillance. In section 3, one case study regarding wearable technology and the law is carried out to prove that national and European legislation are not adequate to deal with all issues and ambiguities arising from the use of novel surveillance technology at work. The chapter concludes by noting that the adoption of sector specific legislation for employees' protection is necessary, but it would be incomplete without a general framework adopting modern instruments of data protection.

Competition law enforcement on digital markets—lessons from recent EU case law

2019 ◽  
Vol 7 (2) ◽  
pp. 249-278
Author(s):  
Adrian Kuenzler
Keyword(s):  
Law Enforcement ◽  
Competition Law ◽  
Case Law ◽  
Legal Framework ◽  
Theoretical Background ◽  
Digital Economy ◽  
Competition Law Enforcement ◽  
Court Of Justice ◽  
Policy Goals ◽  
The Way

Abstract This article is set against the Court of Justice of the European Union’s (CJEU) decisions in Pierre Fabre and Coty Germany GmbH, observing that in the digital economy, price is no longer the sole important parameter of competition and that competition law therefore has to reconstruct the theoretical background required to explain the tensions contained in the design of concentrated marketplaces. As the CJEU’s approach taken in Pierre Fabre and Coty shows, competition authorities and courts also need to consider the market’s distinct psychological properties when they contemplate the legal framework that governs it. The article thus explains the CJEU’s decisions not against the well-known debate about inter- and intrabrand competition but with reference to the notion of creating distinct types of ‘variety’ in the marketplace so as to enable consumers to choose not just between the alternative options that they face but also to enable them to make decisions that will shape the manner in which they think about whether they should consider alternative options at all. The article’s findings aim to advance debates about the overarching policy goals of the way in which digital markets ought to be regulated.

A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

2018 ◽  
Vol 5 (2) ◽  
pp. 199 ◽  
Author(s):  
Wojciech Paweł SZYDŁO
Keyword(s):  
Crude Oil ◽  
Competition Law ◽  
Eu Law ◽  
The European Union ◽  
Dominant Position ◽  
Oil Companies ◽  
Effective Competition ◽  
Oil Pipelines ◽  
Transfer Services ◽  
The Eu

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law.  Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law.  Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

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