Algorithmic Collusion and Australian Competition Law: Trouble Ahead for the National Electricity Market?

This article explores the interaction between the National Electricity Law and potential algorithmic collusion in the National Electricity Market (‘NEM’). Reviewing the current state of Australian competition law, this article concludes that the law does not prohibit algorithmic collusion in the NEM, even though such collusion has serious ramifications for Australian consumers. Despite recent hesitancy to addressing algorithmic collusion, this article argues we cannot afford to ‘wait and see’ and proposes nuanced solutions that appropriately address algorithmic collusion in the NEM. These solutions include a notification regime, a reduction in bidding transparency, and a novel definition to ‘concerted practice’ that would ensure competition law captures tacit and autonomous algorithmic collusion. More generally, the approach in this article highlights the need for market-specific analysis of algorithmic collusion, particularly as the competitive impact of using algorithmic technology depends on the circumstances in which the algorithm is deployed.

14. Horizontal agreements (2): oligopoly, tacit collusion and collective dominance

Oligopoly exists where a few firms between them supply all or most of the goods or services on a market without any of them having a clear ascendancy over the others. The purpose of this chapter is to examine whether oligopoly presents a particular problem for competition policy and, if so, how that problem should be overcome. The chapter discusses the theory of oligopolistic interdependence and how oligopolies can lead to a well-known problem for competition law and policy: oligopolists are able, by virtue of the characteristics of the market, to behave in a parallel manner and to derive benefits from their collective market power without, or without necessarily, entering into an agreement or concerted practice of the kind generally prohibited by competition law. This phenomenon is known in economics as ‘tacit collusion’ and is the result of each firm’s individual and rational response to market conditions. The chapter identifies possible ways of dealing with the ‘oligopoly problem’, before considering the extent to which Articles 101 and 102 can be used to address that problem. The chapter also discusses UK law and, in particular, the possible use of the market investigations to address market failure that may arise in oligopolies.

14. Competition law and policy

This chapter examines the law and policy on competition in the European Union. It discusses the economic theories underpinning competition protection and the way economic theory is applied in legal and policy decisions. The chapter analyses the scope and effect of Articles 101 and 102 TFEU and the relationship between the two provisions. Concerted practice, dominant position and abuse are defined, and the exceptions to the rules in Article 101 are outlined. This is followed by discussions of the application and enforcement of EU competition law and merger control. State aid and services in the general economic interest are also considered. The role of the consumer and consumer protection are considered throughout.

Concerted practice enforcement in Russia: How judicial review shapes the standards of evidence and number of enforcement targets

A judicial review of the infringement decisions of the competition authority substantially affects the standard of evidence in competition enforcement as well as the structure of cases that the competition authority takes. Enforcement against concerted practice in Russia represents a case-study of interaction between commercial courts of first instance, the Highest Court, the competition authority as enforcer, market participants and the legislator to influence the standards of liability under investigation of concerted practice. We examine the judicial review of infringement decisions on concerted practice and track the evolution of legal definition and sufficiency of evidence in such cases. We show, first, that in Russian enforcement, the ability of the Highest Court to influence the criteria of first instance courts is limited (in contrast to the ability of the first instance court to influence the strategy of enforcement by the competition authority). Second, the increase in the burden of proof motivates the competition authority to refrain from an investigation of concerted practice, in accordance with the prediction of the model of the selection of enforcement target by reputation-maximizing authority.

27. Competition Law: Article 101

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. EU competition law covers anti-competitive agreements between firms, abuse of a dominant position, and mergers. Article 101 TFEU is the principal vehicle for the control of anti-competitive agreements. This chapter examines its key features. These include: the meaning given to the terms agreement and concerted practice; the relationship between Article 101(1) and (3); the extent to which economic analysis does and should take place within Article 101(1); and the interpretation accorded to Article 101(3), including whether non-economic factors can be taken into account. The discussion then shifts to more detailed examination of vertical agreements, followed by an outline of the reform of the enforcement regime for Articles 101 and 102. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit.

27. Competition Law: Article 101

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. EU competition law covers anti-competitive agreements between firms, abuse of a dominant position, and mergers. Article 101 TFEU is the principal vehicle for the control of anti-competitive agreements. This chapter examines its key features. These include: the meaning given to the terms agreement and concerted practice; the relationship between Article 101(1) and (3); the extent to which economic analysis does and should take place within Article 101(1); and the interpretation accorded to Article 101(3), including whether non-economic factors can be taken into account. The discussion then shifts to more detailed examination of vertical agreements, followed by an outline of the reform of the enforcement regime for Articles 101 and 102. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit.

1 Introduction

This introductory chapter provides an overview of cartel damages. The Damages Directive 2014/104/EU Article 2(14) defines a cartel as ‘an agreement or concerted practice between two or more competitors aimed at coordinating their competitive behaviour on the market or influencing the relevant parameters of competition’. Not only do cartels harm their customers and suppliers, they restrict and distort competition as well as markets, and retard economic growth, productivity, and product innovation. As such, a cartel is illegal under Article 101 TFEU and in the UK is a Chapter I Prohibition under the Competition Act 1998. Indeed, competition authorities around the world are cracking down on cartels. In the last two decades, the European Commission has focused on cartels, imposing heavy fines and encouraging those who have been harmed to sue for damages. The UK, Ireland, Australia, and other countries have followed the US by making price-fixing a criminal offence and have jailed and disqualified directors. This chapter then considers the implications of Brexit for competition law and private damages actions.

Die kartellrechtliche Beurteilung von Preisgleitklauseln als Ausprägung von Hub & Spoke Verhältnissen

This dissertation is devoted to assessing price adjustment clauses in European competition law. In practice, such clauses often require the disclosure of sensitive market information by competitors to a common contractual partner. This disclosure of information can be a form of hub-and-spoke collusion. The extent to which a price adjustment clause falls under the prohibition of cartels in Art. 101 of the TFEU, and thus whether an agreement without any contact between competitors is possible, depends in particular on the definition of a concerted practice. Whether accidental and unintentional participation in the exchange of information should also fall within the scope of Art. 101 (1) of the TFEU is subject to discussion. The author argues for a nuanced assessment of conscious and unconscious indirect information exchange.

4. Article 101 TFEU: The Elements

This chapter discusses the text and scheme of Article 101 which prohibits agreements, decisions and concerted practices which restrict competition and may affect trade between Member States. It explains the terms employed in Article 101(1) and how they are interpreted and applied. This entails a discussion of the meaning of ‘undertaking’ and ‘association of undertakings’, including the concepts of ‘economic activities’ and of a ‘single economic entity’; the meaning of ‘agreement’ including the coverage of both horizontal and vertical agreements; the meaning of ‘concerted practice’; the meaning of ‘decisions by associations of undertakings’; the application of Article 101(1) to complex arrangements and single continuous infringements; and the meaning of an appreciable effect on trade between Member States.

12 Factual Evidence

This chapter examines the use of factual evidence in cases involving a breach of competition rules. Potential sources of factual evidence range from the evidence of witnesses to statements of case and application notices supported by a statement of truth, contemporaneous documents, affidavits, and the admissions of other parties to the alleged anti-competitive agreement or concerted practice. The chapter first provides an overview of factual evidence used in High Court proceedings, including witness evidence and sources other than witness statements, as well as the formal requirements for witness statements. It then explores issues such as confidentiality, hearsay notices, witness summaries and summons, video links, depositions, and letters of request. It also discusses the use of factual evidence in Competition Appeal Tribunal (CAT) proceedings, focusing on issues such as admissibility and the admission or exclusion of fresh evidence.