scholarly journals Does the EU's Drive for Private Enforcement of Competition Law Have a Coherent Purpose?

2020 ◽  
Vol 37 (1) ◽  
pp. 153-168
Author(s):  
Andreas Stephan
Keyword(s):  
Competition Law ◽  
Major Influence ◽  
Private Enforcement ◽  
Competition Authority ◽  
Legal Systems ◽  
The European Union ◽  
National Competition ◽  
Competition Laws ◽  
Rapid Transition ◽  
National Competition Authority

The Competition Laws of the European Union (‘EU’) have been a major influence on countless jurisdictions around the world, but their strength as a public enforcement regime have always contrasted with a perceived absence of private enforcement. Private parties cannot bring an action for damages or injunctive relief before EU courts. They can only make a complaint to the European Commission or National Competition Authority, to investigate an infringement of competition law, on their behalf. Therefore, a party’s ability to recover damages falls on the national tort and civil liability rules of each Member State. Although most European legal systems can broadly be described as belonging to the civil law tradition, there are significant differences in procedure and legal culture when it comes to recovering damages. It is also important to remember that the EU has continued to grow in the last fifteen years, with the accession of ten new Member States in 2004, and a further three between 2007 and 2013. These include states that have made a rapid transition from centrally planned economies and Communist-era legal systems.

scholarly journals Cumulative Enforcement of European and National Competition Law and the Ne Bis In Idem Principle Case Comment to the Judgement of EU Court of Justice of 3 April 2019 Powszechny Zakład Ubezpieczeń na Życie S.A. v Prezes Urzędu Ochrony Konkurencji i Konsumentów (Case C-617/17)

2019 ◽  
Vol 12 (19) ◽  
pp. 231-243
Author(s):  
Mario Libertini
Keyword(s):  
Competition Law ◽  
Fundamental Rights ◽  
Competition Authority ◽  
The European Union ◽  
Court Of Justice ◽  
Ne Bis In Idem ◽  
National Competition ◽  
Charter Of Fundamental Rights ◽  
Article 50 ◽  
National Competition Authority

The judgement of EU Court of Justice in response to the request for a preliminary ruling by the Polish Supreme Court confirms that the principle of ne bis in idem, enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a national competition authority from fining an undertaking in a single decision for an infringement of national competition law and for an infringement of Article 82 EC (now Article 102 TFEU). In that regard it can be concluded that the judgement does not have anything new and is just a confirmation of settled case-law. Unfortunately, this case represents a lost opportunity to review the ‘double barrier’ doctrine and to clarify if the relationship between European and national competition law is one of ‘bilateral specialty’ or not.

scholarly journals EU LEGAL REGULATION OF COMPETITION IN INNOVATIVE MARKETS

2018 ◽  
pp. 25-35
Author(s):  
K. Smyrnova
Keyword(s):  
Competition Law ◽  
Legal Regulation ◽  
Evolutionary Development ◽  
Competition Authority ◽  
The European Union ◽  
Relevant Market ◽  
Dominant Position ◽  
Digital World ◽  
National Competition ◽  
Competition Laws

The digital world is highly dynamic. The only way of survival is to keep innovating, in some extend even invent a way (legal or illegal) to secure its position. As this new phenomenon becomes increasingly sophisticated, the need for laws to govern it becomes more poignant. In consequence, the European Union has taken various actions towards realizing this aim of regulating the digital platform horizon. The evolutionary development of active & passive selling through new electronic or other innovative means which is currently erases national borders leads to the comprehensive involvement of different national competition regimes. The competition authority has kept close scrutinizing on those firms in dominant position in their relevant market. Not only this, as the digital market is mostly multiple sided, the interaction between market are also taking care. However, the competition laws should adapt in the proactively to prevent the anti-competitive measures. The competition authority needs to have the anticipation on the dynamic evolution of competition in digital market and act proactively. Thus the most crucial aspect is to balance the innovative progress & the necessity to control on competition. This article examines how the nature and logic of competition law changes as authorities expand the time horizon that they consider in their prospective analysis.

scholarly journals The challenges of regulating and enforcing competition law (Bucharest 14-15 November 2019)

2019 ◽  
Vol 3 (2) ◽  
pp. 100-103
Author(s):  
Ondrej Blažo
Keyword(s):  
European Union ◽  
Competition Law ◽  
Scientific Conference ◽  
Competition Authority ◽  
The European Union ◽  
High Court ◽  
The United Kingdom ◽  
Court Of Justice ◽  
National Competition ◽  
National Competition Authority

On 14 – 15 November 2019, the Faculty of Law of the Bucharest University, particularly the Centre of Competition Law Studies, and the Competition Council of Romania co-organized the interna- tional scientific conference “The Challenges of Regulating and Enforcing Competition Law”. The conference’s scientific committee led by Adriana Almăşan put together senior scholars affiliated with universities of fourteen European countries (Belgium, Denmark, France, Germany, Greece, Hun- gary, Italy, the Netherlands, Portugal, Romania, Slovakia, Spain, Sweden and the United Kingdom), the judge of the General Court of the Court of Justice of the European Union and the president of the Competition Council of Romania (Romanian national competition authority) to discuss challenges and limits of substantive and procedural competition law. The conference was held in Aula Magna of the Bucharest University with more than 300 registered participants. The conference was split into the introductory panel, seven panels (not strictly focused only on one issue) and the conference was followed by the seminar for judges from the High Court of Cassation and Justice and the Courts of Appeal.

International scope of the Japanese Anti-monopoly Act in cross-border cartel cases: a Japanese approach to ‘extraterritorial application’

2019 ◽  
Author(s):  
Kazuaki Nishioka
Keyword(s):  
Supreme Court ◽  
Competition Law ◽  
Competition Authority ◽  
Competitive Effects ◽  
International Scope ◽  
Cross Border ◽  
The Supreme Court ◽  
National Competition ◽  
National Competition Authority ◽  
Competitive Activities

Abstract Most states have a national anti-trust or competition law to regulate anti-competitive activities. There is no doubt that, in purely domestic cases, where an anti-competitive activity and its anti-competitive effects have occurred within a state, that state’s national competition authority can regulate the activity by applying its competition law. For cross-border cases such as where anti-competitive activities are carried out abroad but have anti-competitive effects on the domestic or internal market of that state or region, it has been gradually accepted that a state can apply its competition law to the activities on the basis of the effects within its territory. However, it should be noted that states have approached such cases differently. In 2017, the Supreme Court of Japan first decided the international scope of the Japanese Anti-Monopoly Act (JAMA) in cross-border cartel cases and clarified that the JAMA could apply to anti-competitive activities conducted outside of Japan if the activities in question disturbed the free competition economic order of Japan. The court did not mention the effects doctrine or the territorial principle. This article examines on what grounds and how far the JAMA can and should apply to cross-border cartel cases by analysing the Supreme Court judgement.

scholarly journals Monetary Fines in EU Mergers: In Need for More Regulation

2019 ◽  
Vol 3 (1) ◽  
pp. 209-233
Author(s):  
Nora Memeti
Keyword(s):  
European Union ◽  
Competition Law ◽  
Equal Treatment ◽  
Competition Authority ◽  
The European Union ◽  
Legal Basis ◽  
First Case ◽  
The One ◽  
National Competition Authority ◽  
Total Turnover

Monetary fines represent an important instrument to address violations of Competition Law. The European Commission (EC) and the EU Courts have been primarily engaged in imposing fines in cases of breach of the first pillar, and have rarely dealt with cases of abuse based on the fining guidelines issued in accordance with Article 23(2) of Regulation 1/2003. Compared to the first two pillars, mergers have not received similar scholarly attention.1 2 Since 2017, the EC has expressed a growing interest in investigating and imposing significant fines to mergers and acquisitions in breach of procedural matters. Therefore this article addresses the application of Article 14 of the European Union Merger Regulation (EUMR) in imposing fines to mergers with European Union (EU) dimension. The EC decisions and EU Courts’ judgments related to fines on mergers in breach of procedural matters are discussed in four specific sections. The first section analyses article 14(1) of the EUMR, which empowers the EC to impose a fine of up to 1% of the total turnover in the preceding business year on undertakings for breach of procedural matters, including, among others, for providing incorrect or misleading information. This section will address the case of Facebook as the first case in which the EC imposed fines based on the new EUMR. In this case, although the undertakings mislead the EC, based on the offered cooperation, the Authority decided to reduce the fine. In addition, it is also important to address the legal basis applied by the EC in accepting the offered cooperation as a mitigating factor and whether this may develop into a guiding “precedent” in the future. The second section deals with five cases of violations of articles 4(1) and 7(1) EUMR related to fines prescribed in article 14(2) EUMR. With regards to four of them, judgments of EU Courts and decisions of the EC and National Competition Authority (NCA) are analysed. The fifth case, the one on Ernst and Young, provides for the first preliminary ruling on the notion of “gun-jumping”. The third section deals with Article 14(3) and the fining methods on mergers. By reviewing each of these five cases, it is important to address factors taken into consideration when imposing fines. An obvious deficiency is the absence of a legal basis, regardless of whether manifested in hard or soft law. Here it is relevant to inquire in what manner the EC imposes fines and why it occasionally mirrors the fining guidelines applicable to other pillars of EU Competition Law. The last point to be addressed is the one of policy and the need to balance EC discretional powers and relevant legal principles such as legal certainty, equal treatment, transparency, and consistency.3 The fourth section provides for concluding remarks.

scholarly journals Application of the Domestic and EU Antitrust Prohibitions: an analysis of the UK competition authority's enforcement practice

2019 ◽  
Author(s):  
Barry J Rodger
Keyword(s):  
Competition Law ◽  
Competition Authority ◽  
Data Set ◽  
Track Record ◽  
National Competition ◽  
Object Agreement ◽  
Central Pillar ◽  
National Competition Authority ◽  
The Uk ◽  
The Eu

Abstract This article makes a significant and original contribution to the literature on the enforcement practices of competition authorities by providing the first comprehensive account of the work of the UK National Competition Authority (The OFT and latterly the CMA) in its primary task of enforcing the EU and domestic antitrust prohibitions. A rigorous empirical study of the full 19 years of enforcement practice provides the only detailed analysis of this central pillar of UK competition law enforcement, based on a new data-set on the prohibition Case Outcomes in that period which provides information on the quantity of cases, competition law provisions applied and types of Case Outcome. The article identifies and explains the apparent focus to date on by-object agreement competition law infringements and reveals data on the fining record of the UK competition authority. The article also provides the first data and narrative on the enforcement of the EU antitrust prohibitions within the UK. Overall, the article reveals a disappointing track record by the UK competition authority in enforcing both the domestic and EU prohibitions, on an absolute and relative basis, in comparison with other leading EU MS NCAs, and provides an empirically-driven account which allows us to reflect on experience to date and inform enforcement practice for the future.

scholarly journals EU COMPETITION LAW ENFORCEMENT: IS BRUSSELS I SUITED TO DEALING WITH ALL THE CHALLENGES?

2012 ◽  
Vol 61 (1) ◽  
pp. 27-54 ◽  
Author(s):  
Mihail Danov
Keyword(s):  
Member State ◽  
International Law ◽  
Competition Law ◽  
State Court ◽  
Competition Authority ◽  
Private International Law ◽  
Eu Competition Law ◽  
National Competition ◽  
Recognition And Enforcement ◽  
National Competition Authority

AbstractThere are arguments indicating that Brussels I could be applicable to cross-border competition law proceedings before a National Competition Authority located in one Member State and private EU competition law proceedings before another Member State court. However, an analysis of the current private international law framework appears to indicate that Brussels I is not well suited to deal with the difficulties that could arise in this context. Given the fact that, in the new proposal for a regulation on jurisdiction and the recognition and enforcement of judgments there is no indication that special jurisdictional bases for competition law actions in the successor to Brussels I are on anyone's agenda, an option for a reform may be setting up a new and special regulation to be applicable with regard to EU competition law claims only.

Part II The Member State Reports on Transposition of the Directive, 10 Italy

2018 ◽  
Author(s):  
Lopopolo Susanna
Keyword(s):  
Member State ◽  
Competition Law ◽  
Competition Authority ◽  
Antitrust Law ◽  
Public Enforcement ◽  
Review Time ◽  
Law System ◽  
Joint And Several Liability ◽  
National Competition ◽  
National Competition Authority

This chapter focuses on the transposition of the Antitrust Damages Directive in Italy. It first considers the transposition procedure, with emphasis on the Italian competition law system and more specifically public enforcement of antitrust law under the Autorità Garante per la concorrenza ed il mercato (AGCM), before discussing the issue of the ‘topographic’ location of the implementing regulation within the current legal system. It then examines the substantive and temporal scope of Italy’s transposition measure, known as Legge Delega, as well as specific issues that arose during the transposition, including those relating to disclosure of evidence, penalties, the binding force of National Competition Authority (NCA) decisions and judicial review, time limitation rules, joint and several liability, parent company liability, the passing-on of overcharges, the use of AGCM expertise in quantifying damages, consensual resolution of disputes, collective redress, and the concentration of jurisdiction.

Part III The Legal Framework, 9 Damages

2020 ◽  
Author(s):  
Veljanovski Cento
Keyword(s):  
Legal Framework ◽  
Competition Authority ◽  
Legal Basis ◽  
Collective Actions ◽  
National Courts ◽  
National Competition ◽  
National Competition Authority ◽  
The Uk ◽  
The Right ◽  
Lost Profit

This chapter assesses damages actions for competition infringement. The Damages Directive sets out a common legal basis across the EU for the right of those harmed by a competition infringement to sue and quantification of damages. It has been transposed into the UK and incorporated as Schedule 8A of the Competition Act 1989. The Damages Directive gives the national courts the power to estimate the overcharge; requires the European Commission to issue guidelines on the quantification of overcharges and on ‘pass-on to’; and advises that the national courts can request assistance from a willing national competition authority where appropriate to determine quantum. In English law, the position is that damages are compensatory and aim to place the victim in the position they would have been had they not been injured so far as monetary compensation can. There are several heads or types of damages that have so far been claimed: overcharge damages; lost volume or lost profit damages; run-on damages; umbrella damages; cost-based damages; future losses, lost chance, and lost opportunity damages; and aggregate damages in collective actions.

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