The Interaction Between Public and Private Enforcement of EU Competition Law: a Case Study of the Swedish Booking Cases

This article studies the private enforcement conducted in Visita v Booking from the perspective of the interaction between public and private enforcement of competition law. This case concerned the question whether the narrow MFN clauses maintained by Booking were contrary to Article 101 TFEU and could therefore be prohibited by a Swedish court. The focus of this article is placed on the assessment carried out by the Swedish courts to determine whether the MFN clauses were restrictive of competition by effect and on the standard of proof attached to the claimant in this regard. With regard to the interaction between public and private enforcement, Visita v. Booking is viewed as an illustration of the increased complexity of competition policy, in particular were novel practices are at issue

Anticompetitive Patent Settlements – Where Are We Ten Years After the European Commission’s Pharmaceutical Inquiry?

In 2009, the European Commission published a final report on its market inquiry into the pharmaceutical sector. The report revealed the authority’s concerns regarding market practices of pharmaceutical originator companies aimed at delaying the market entry of cheaper generic pharmaceutical products. One of the delaying practices identified by the European Commission were patent settlements between an originator and a generic company including: (i) a value transfer from the originator to a generic company, and (ii) an obligation of a generic company not to enter the market. These patent settlements were called pay-for-delay agreements since the payment was allegedly made in exchange for the non-market entry obligation. The European Commission continued the investigation of patent settlements by its continuous monitoring. It also initiated antitrust proceedings that terminated with huge fines imposed on pharmaceutical companies. The appeals are now pending before the EU courts. Ten years after the publication of the final report on the market inquiry, this article aims to summarise the development of the case law and provide its critical analysis. The article focuses on the analysis of pay-for-delay agreements as infringements of Article 101 TFEU only and does not consider the conclusion of these agreements as an abuse of a dominant position.

The Condition of Fault in Private Enforcement of Competition Law – a Comparative Analysis of U.S. v. Polish and European Approach

The purpose of the Polish Act on Claims for Damages for Remedying the Damage Caused by Infringements of Competition Law, based on and implementing EU law – the Damages Directive, was to enable undertakings to effectively use private enforcement of their damages claims from competition law offenders. Infringement of competition law is classified as a tort according to the said Act on Claims. Therefore, the Act on Claims refers to tort liability rules. The conditions of classic tort liability in domestic law do not have exactly the same dogmatic meaning and scope as the conditions of public or private liability for the infringements of domestic and EU competition law. In practice, their application by national courts may rise many questions regarding conformity between domestic and EU law. This paper aims to analyse one of the key conditions of tort liability, that is, the fault of both the undertaking – the offenders, as well as the fault of their governing bodies and officers. If one were to understand the notion of fault within the limits laid down by civil law, and follow the literal wording of the Polish Civil Code’s provisions referring to the fault condition, the efficiency of private enforcement of damage claims arising from infringements of competition law would be doubtful. Therefore, the aim of this paper is to provide the readers with such an interpretation of the notion of fault, as a condition of liability of undertakings, that the legislative purpose of the Act on Claims is achieved and that the principles of efficiency and equivalence of the EU law are observed. In order to present a comprehensive picture, this paper will also discuss the case law of the CJEU concerning ‘anti-trust fault’, accompanied by a comparative analysis of the German and French approach to the fault condition as well as United States antitrust laws in the same area.

Abuse of Dominance in the Case-law of the Hungarian Competition Authority – a Historical Overview

This paper provides a historical overview of the case-law and practices applied by the Hungarian Competition Authority (HCA) in abuse of dominance cases. The paper is co-written by practitioners of complementing antitrust fields, which ensures that both legal and economic considerations are explored. The paper identifies the unique characteristics of Hungarian legislation and case-law and critically evaluates them in light of EU competition law and economics principles. We analyse (i) the reasons for the high number of exploitative cases before 2010, (ii) the general principles applied by the HCA in exclusionary cases, (iii) the cost allocation assessments in dominance cases, and (iv) the issue of significant market power of retailers. The general starting point is that, judging by the number of dominance investigations, there is less antitrust enforcement by the HCA in recent years. However, the article concludes that less enforcement does not mean weaker enforcement. In fact, the quality of dominance cases, considering both legal and economic aspects, has increased over time. This tendency has also led to higher legal certainty in Hungary, which is beneficial for market players. Stronger criticism is only formulated against the concept of significant market power of retailers.

Into the Grey Zone. What Do We (Don’t) Know About Types of Concentrations Between Undertakings Under EU law After Austria Asphalt?

In Austria Asphalt, the Court of Justice issued the first preliminary ruling related to the EU merger control regime. In Advocate General Kokott’s words, the Austrian Supreme Court asked the Court of Justice to answer the fundamental question of what constitutes a concentration between undertakings within Article 3 of the EUMR. The Court of Justice held that Article 3 of the EUMR must be interpreted as meaning that a concentration is deemed to arise upon a change in the form of control of an existing undertaking which, previously exclusive, becomes joint only if the joint venture created by such a transaction performs on a lasting basis all the functions of an autonomous economic entity. Although the ruling was rendered in the context of a specific transaction scenario, the underlying reasoning could shed new light on how to assess transactions that fall between acquisition of control and creation of a joint venture. However, this reasoning is incompliant with the purposes and economic foundations of the EU merger control regime. This can be proven both in relation to the transaction scenario directly covered by the question for a preliminary ruling and, if extrapolated, in relation to other transaction scenarios.

Designing Pro-Competitive Research Data Pools: Which EU Competition Remedies for Research Data Silos in Digital Markets?

The study moves from the assumption that the sharing of data can – under specific circumstances – give rise to anticompetitive aggregations of research-valuable data in the form of closed data silos. It addresses the question whether and how competition remedies available under EU law can be used for the design of pro-competitive data pools in digital markets. Interesting suggestions for these purposes are given by the recent enforcement policies enacted by the European Commission in high technology innovation markets. Although aimed at restoring very different anticompetitive conducts, these remedies nonetheless appear to share the common function of opening up established innovation alliances for the transfer of research-valuable information assets to external competing parties. Against this backdrop, the suitability of such information-based remedies in the context of digital markets is questioned. The study ultimately puts forward the opportunity of a close collaboration between competition and data protection authorities for a joint governance of data sharing remedies.

Regulating Unfair Trading Practices in the EU Agri-food Supply Chain: a Case of Counterproductive Regulation?

Unfair trading practices (UTPs) imposed by parties with superior power in the context of a vertical relationship are an issue at the periphery of competition law, private law, and, sometimes, sectoral regulation. For a long time, the mainstream competition law approach has been to relegate such issues to other areas of law and regulation. In the EU, where complaints about the prevalence of such practices in the agricultural and food supply chain have been voiced for decades, the approach of the European Commission has been to pursue a strict separation between competition issues and fair-trading issues. This article questions the reasonableness of such a strict division of labour. Taking the sum of various initiatives undertaken to regulate UTPs in the agri-food supply chain as a case study, it argues that the effect of limiting competition law enforcement on this issue has been counterproductive. The article firstly explains the background of the problem and the issue of UTPs in the agri-food supply chain. Secondly, it maps the various legislative developments which have taken place at the EU Member State level. Thirdly, by referring to Grabosky’s (1995) regulatory studies typology of counterproductive regulation, the article focuses attention on some of the perverse side effects which arise when regulation of power imbalances and UTPs occurs at the national level in the context of an integrated market like the EU. In light of the analysis, it expresses doubt that these pitfalls will be fully corrected by Directive 2019/633 on UTPs in the food supply chain. The conclusion is that national legislative developments have not been able to make up for the lack of supra-national enforcement of EU competition law on this issue and have possibly even exacerbated the problem at hand. The article concludes that supranational competition law enforcement can play a key role in addressing the fundamental problems underlying business-to-business unfair trading practices. It argues that this role cannot be played by other instruments in the context of an integrated market with multi-level governance. This article shows that while competition law may not be capable of solving all the problems with UTPs, it remains indispensable in safeguarding the proper functioning of the internal market as well as the interests of consumers and taxpayers.

Dawn Raids and the Role of Forensic IT in Antitrust Investigations

While digital markets attract much attention of the antitrust community, important developments also take place in relation to the way antitrust investigations are handled and evidence is preserved. More and more enforcement actions of antitrust authorities rely on the ability to find and preserve digital evidence of an illegal activity. This article focuses on recent case law developments in relation to the approach to forensic IT in antitrust enforcement and investigates whether enough leeway is left to the antitrust authorities to properly discharge their powers. The article focuses on the procedural developments at the EU level and in one EU national jurisdiction, i.e. Poland. The article concludes that the current approach to forensics in antitrust does not allow to use available capabilities to a full extent. A proposal is made for an alternative approach, which would benefit effective antitrust enforcement and due process.

A Definition of Digital Markets by the Slovak Antimonopoly Office – Has the Boat to Digitalisation Already Sailed?

Digitalisation has brought new legal challenges even to competition law. The traditional SSNIP test used by competition authorities does not work with online markets, where services or products are made available to consumers free of charge. This paper analyses some aspects of zero-price markets and their assessment from the point of view of European competition authority and from the point of view of the Slovak Antimonopoly Office.

Is Selective Distribution Possible on the Internet? On Restrictions of Online Search Advertising and Online Sales in the Guess Case

This comment discusses the case AT.4028 of 17 December 2018, where the European Commission imposed a fine of 39.8 million Euro on clothing company Guess for several restrictive provisions in agreements with its distributors in the EEA, including restrictions of online search advertising and online sales. The case demonstrates that e-commerce leads to disintermediation within the supply chain, which in turn leads to tensions between the manufacturer of branded products and authorized distributors operating in a selective distribution system. The case does not provide, however, much practical guidance on how to align online and offline channels into one distribution system supporting a prestigious image of branded products. Therefore, an example of a distribution system integrating online and offline sales from the practice of the Australian Competition and Consumer Commission is presented.