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The European Super League case has been widely discussed by EU regulators, football associations, clubs, players, supporters and legal practitioners. This article intends to explore the legal reasoning of the Court of Justice regarding the intervention of EU competition law in football governance in this case. This article accordingly analyses the interpretation of the rules and exemptions stipulated in Articles 101 (1) and 102 of the Treaty on the Functioning of the European Union, and gives comments on the antitrust assessment by the Court of Justice regarding the common rules of prior approval and sanctions. It follows that the Court of Justice stressed the importance of transparent, objective and non-discriminatory procedures in the rule-making of football associations and saw this as a significant condition for the enforcement of EU competition law and antitrust exemption. [ABSTRACT FROM AUTHOR]

The document examines challenges and innovations in telecommunications law, focusing on the European context. It highlights the importance of asymmetric regulation and ex ante identification of enterprises with substantial market power. The 2018 European Electronic Communications Code introduces pivotal changes, including co-investment agreements (Art. 76), aiming to foster cost and risk sharing among operators, benefiting smaller enterprises. Such agreements respond to the need for sustainable competition. Art. 72 introduces a new obligation: access to civil engineering infrastructures. This obligation can extend beyond the traditional market if necessary and proportionate to achieve competition and unhindered access objectives. The document emphasizes the regulations' efforts to balance the interests of economic operators and consumers, promoting competition and innovation in the telecommunications sector. [ABSTRACT FROM AUTHOR]

Who should be liable for competition law infringements? While the answer should be, in theory, a simple application of the personal liability principle – the infringer pays – the corporate changes that an infringer may undergo in the years necessary to come to an imputation of the infringement make the matter, in practice, significantly more complex. In this article, we first investigate the core of the antitrust liability theories, all to be traced back to the fundamental concept of undertaking, which constitutes their indispensable theoretical background. Then, we will try to provide an answer to the question, by analyzing, on the basis of the case-law, the multifaceted and colourful applications of antitrust liability theories to M&A transactions involving antitrust infringers. Lastly, we lay out practical suggestions which may be useful for companies to minimize the risks of being left with antitrust liability as a result of corporate transactions. [ABSTRACT FROM AUTHOR]

This paper builds on Khan's work on Amazon by transferring her normative framework to Apple. It explores the company's anti-competitive business practices, main antitrust concerns, and the currently proposed reform measures from an innovative business ethics and law (i.e., ordoliberal) perspective. The paper argues that one of the key issues with Apple is the company's closed ecosystem combined with its role as an internet gatekeeper. The E.U.'s Digital Markets Act, which aims to open Apple's ecosystem – via data portability, interoperability, and multi-homing requirements – is a necessary step in the right direction. Yet, it is insufficient to prevent the lock-in effects of a 'walled product garden' and ensure complete device and platform neutrality. That is, additional steps must be taken to overcome Apple's dual role as a platform operator and service provider and inhibit the company from engaging in anti-competitive business conduct. [ABSTRACT FROM AUTHOR]

Cloud computing services ("cloud services") have attracted the scrutiny of antitrust authorities around the world. Relying in part on data from AWS, we assess the economic impact of measures within the European Commission's proposed Data Act (with parallels in France, the UK and elsewhere): namely, requiring cloud services providers to phase out data transfer-out fees, offer functionally equivalent services and publish open interfaces to facilitate switching and multi-clouding. The paper comes to three main conclusions. First, there is no clear evidence of market failure in cloud services. Second, a ban on data transfer-out fees will likely lead to unintended consequences, mainly price increases due to excessive levels of data transfer-out when customers do not internalize the costly nature of data transfers. We show how this could materialize using AWS data. Third, requirements to standardize cloud services carry a serious risk of dampening cloud services providers' incentives to innovate. [ABSTRACT FROM AUTHOR]

Counterfactual analysis, which compares the competitive situation prevailing with and without the allegedly abusive behaviour, is nowadays regarded the lynchpin of an effects-based approach to the analysis of dominant firm conduct under Article 102 TFEU. This article draws on the recent Qualcomm ruling by the General Court of the European Union to critically reflect on the use and requirement of counterfactual analysis in abuse of dominance cases. It argues that Qualcomm offers two lessons on the role of the counterfactual analysis in modern competition law. First, it shows that counterfactual analysis is vulnerable to under-inclusiveness and type II errors when it ignores the problem of concurrent causes of foreclosure effects, disregards standard economic analysis of exclusivity rebates, and remains oblivious to dynamic competition. Second, Qualcomm sheds light on the intricate relationship between the counterfactual analysis and the requisite standard of harm for finding anticompetitive effects under Article 102 TFEU. In limiting the relevant counterfactual scenarios to a very narrow set of actual or nearby likely worlds, Qualcomm is but the last indication of a much more profound transformation of Article 102 TFEU: the transition from a capability to a balance of probabilities or beyond reasonable doubt standard of harm. [ABSTRACT FROM AUTHOR]

We analyse the competitive effects of the centralised sale of football media rights in Europe, focusing on the "Big Five" countries (England, France, Germany, Italy, Spain). Contrary to the findings of European competition authorities, we consider that there are arguments in favour of the relevant market for domestic media rights being club- or even match-specific. This raises the question of what competition is restricted by the centralised sale if the rights on offer have limited or no substitutability. We conclude that the centralised sale of media rights is unlikely to be anticompetitive and may have procompetitive effects if the media rights of different clubs are complementary instead of substitutable. In addition, there may be efficiency gains from the bundling of media rights. Under a club or match-specific market definition, a no-single-buyer rule likely reduces the benefits from the centralised sale and may harm consumers. [ABSTRACT FROM AUTHOR]

Tailored data-driven "Digital Agriculture" solutions bring about many benefits. However, there are also challenges related to complicated data access needs in the farm-to-fork chain. Farm-specific data are mostly locked in by the first-mover companies. This prevents farmers from switching to a better or cheaper alternative. This also hinders agricultural data-driven innovation due to unanswered access seekers. Moreover, already powerful players build exclusive data exchange clusters that further exclude small rivals and other access seekers. Also, upstream input producers have exclusive control over their products' performance data, which generates critical advantages for their downstream data-driven services. These conditions endanger the digital agriculture sector and bring about the risk of reflection of the oligopolistic upstream players in this new sector. This paper explores the adequacy of EU competition law enforcement to address the ag-data access-related concerns – hoping to contribute to the sectoral literature that is currently dominated by regulation-centred discussions. [ABSTRACT FROM AUTHOR]

The European Commission has central authority over the European Union's merger control. It is therefore responsible for making important merger decisions that are bound to affect vast markets and EU and non-EU market players, with significant implications for wider economic, political, and societal segments. These decisions are often informed by theoretical and ideational insights from various schools of competition analysis and economic theories, or they are guided by non-economic objectives. This article analyzes merger cases cleared under the current European Union Merger Regulation (EUMR) in an attempt to reveal whether the following insights underpin the Commission's merger control: the Chicago School, Harvard School, Freiburg School, and considerations for Single Market integration. The analysis is conducted by employing an exponential random graph model (ERGM) approach. [ABSTRACT FROM AUTHOR]

So far, there have been several studies conducted on the subject of automotive cartels, and the majority of the studies you see focus exclusively on cartels. Collusion in the automotive industry was relatively uncommon in the past. However, due to the increasing level of competition in this industry, auto manufacturers are increasingly colluding in a number of areas to survive. The Scania cartel case provided us with a clearer understanding of the phenomenon of automotive cartels, as well as how EU competition law is applied to cartel member's violations and how the European Commission approaches complex infringements. Due to this case, it becomes apparent that there are many legal loopholes within the private enforcement sector, and that victims also face a number of challenges when seeking damages from auto manufacturers. [ABSTRACT FROM AUTHOR]

The aim of this article is to examine the role that expert knowledge plays in the Commission's decisions concerning digital economy. I propose a typology of functions served by these types of sources based on an analysis of references in the Commission's decisions against Google: first, providing evidence about the history of technological development and the changes on digital markets; second, explaining the way digital technologies and markets work; third, justifying authoritative claims about digital technologies and digital markets' characteristics; and fourth, illustrating the story with data on the usage of digital technologies and the shape of digital markets. While these types of sources are important in building "the body of evidence" which helps the Commission to tell the story of competition harm in the area of digital economy, there are situations in which their quality raises concerns in the light of the requirements for evidence. [ABSTRACT FROM AUTHOR]

Antitrust and free speech may seem to have little in common. Yet, they may start interacting more often as Big Tech undertakings might have incentives to coordinate their content moderation policies and collectively suppress unwanted information. Such coordination might be desirable, but in some cases it may lead to antitrust and free speech concerns. Against this backdrop, the article attempts to provide a framework to analyse this type of cases from the point of view of European Union competition law. It identifies five types of agreements that may be entered into by undertakings and provides outlines on possible ways of approaching them. It concludes that while content moderation is often seen as a free speech issue, antitrust should not shrug off such concerns as out of its scope. Yet, it also suggests that these types of cases are not straightforward and that both more research and vigilance on the part of antitrust authorities might be advisable. [ABSTRACT FROM AUTHOR]

Antitrust cases related to privacy are on the agenda of many competition authorities, including Europe and the United States. Antitrust and privacy is thus "one of the big topics of the year", as stated by the former President of the French competition authority. While some antitrust cases concern a reduction in privacy protection, others concern an increase in privacy protection. In other words, user privacy can decrease or increase due to alleged anticompetitive practices. An antitrust privacy dilemma? From a law and economics standpoint, the paper solves this dilemma and proposes a new way of resolving antitrust cases related to privacy. Section 2 analyses the dilemma. It proposes an analytical framework. Section 3 proposes a new way of resolving cases. It suggests a coordinated participative approach with competition and non-competition regulators and stakeholders to address competition and privacy concerns with tailored remedies to what is necessary without eliminating pro-privacy effects. [ABSTRACT FROM AUTHOR]

The CK Telecoms judgement shed the light on the difficulties to apprehend unilateral effects, aka insufficient individual rivalry, in the context of a merger. This paper examines the overall European competition law framework applicable to these effects. After underlining the difficulties related to their apprehension by the competition authorities, the adequacy of the solely ex ante-based European competition regime will be assessed as well as the use of the New Competition Tool as an option to solve the identified drawbacks. [ABSTRACT FROM AUTHOR]

The Digital Markets Act (DMA), an EU Regulation establishing obligations for gatekeeper platforms in order to protect fairness and contestability in digital markets, will soon start to apply. In addition to the DMA, other (EU and national) instruments regulate platform conduct. Though the DMA explicitly provides that it will apply without prejudice to those other instruments, it is doubted whether it will merely complement them. In certain cases, the DMA may qualify as lex specialis, thereby prevailing over other regulations. In other cases, based on the principle of supremacy, the DMA may override national instruments that pursue legitimate interests other than fairness and contestability. There may also be occasions where the DMA may render certain tools devoid of purpose when this was not the intention of the legislator. In all the above cases, the DMA would not complement (but could possibly endanger) the effectiveness of the existing regime. Given the avalanche of legislative proposals for platforms, addressing potential conflicts between the DMA and other rules is essential to protect legal certainty and to ensure that the regulatory regime that governs harmful platform conduct reaches its full potential. [ABSTRACT FROM AUTHOR]

This article focuses on the interactions between the Digital Markets Act (DMA) and the laws and competition frameworks of Member States. Specifically, the article sets out three different interpretations on the text of articles 1 (5) and (6) of the DMA, which govern interactions between the DMA and national law and competition policy. The article identifies a narrow, broader, and broadest interpretation of the legal interests protected under the DMA. Each interpretation creates different harmonization effects. The article argues that the narrow and broader interpretations allow for significant divergence between national rules, creating the risk of regulatory fragmentation. The broadest interpretation would allow competition authorities and courts to weigh the interests protected in the DMA against national interests and create greater convergence of laws and competition policy in the Digital Single Market. The article also proposes ways forward for the implementation and enforcement of the DMA and national competition laws. [ABSTRACT FROM AUTHOR]

On 18 July 2022, the Council gave its final approval of the Digital Market Act's final text. Notwithstanding the amendments following the initial proposal published by the European Commission on 15 December 2020, the main objectives of the DMA have remained untouched and separate from the objectives pursued by competition rules. In the interim, the Court of Justice of the European Union (CJEU) issued its preliminary rulings on the bpost and Nordzucker cases, with particularly relevant consequences concerning the application of the double jeopardy principle. The potential remedies and obligations imposed on the main digital platforms both under Articles 5 to 7 of the DMA and under competition law rules will overlap and create a risk of incoherent enforcement, especially on the side of the European Commission. Against this background, the paper strives to draw out the narrow enforcement gap left for competition authorities. In addition, the paper highlights a number of alternatives open to competition authorities when enforcing competition law rules on digital markets, namely the segmentation of its enforcement efforts depending on the type of service concerned in each case. [ABSTRACT FROM AUTHOR]

The recently adopted Digital Markets Act (henceforth: DMA) addresses the behaviour of so-called gatekeepers by imposing a list of prohibitions and obligations on these platforms. Despite the potential of the initiative, it remains questionable how the DMA fits in the regulatory landscape. The DMA is – at least formally – not a competition law instrument but also differs from sector-specific regulation. This begs the question of how the DMA fits in the broader regulatory context. This paper aims to address this issue by assessing to what extent the DMA is different from "traditional" competition law and sector-specific regulation respectively. The unclarities regarding the position of the DMA in the broader regulatory context result in various difficulties, amongst others relating to the institutional set-up. The second part of this paper addresses these institutional difficulties resulting from the concurrent application of the DMA and "traditional" EU competition law. [ABSTRACT FROM AUTHOR]

In July 2022 the European Council gave final approval to new regulation of digital markets. This specifically addresses the main concerns raised by the business behaviour of operators of core services in their gatekeeping positions. The list of core services was extended during revisions. In this article, I address the question of whether the inclusion of virtual assistants into the list of core services was the right decision. Overall, this paper argues that (i) virtual assistants as gatekeepers for consumption should be listed among core services, (ii) some of the Digital Markets Act's obligations need to be adopted to fit the specifics of virtual assistants, (iii) there are two relevant dimensions of power which should be considered in competition policy and regulation analysis: market power on virtual assistants' market and the ecosystem of related markets (cross-market integration criterion), (iv) the growth of new gatekeepers should be prevented, among other means by stricter merger control. [ABSTRACT FROM AUTHOR]

Overseeing digital gatekeepers through ex post competition law is too slow and too complicated to prevent serious exclusionary and exploitative harm. To provide greater contestability and fairness in digital markets, new European laws introduce complementary ex ante pro-competitive regulation. Differing forms of intellectual property innovation are crucial for the increasing digitization of markets, particularly involving the Internet of Things. When intellectual property "gatekeepers" thwart willing implementers' access to standards by seeking injunctions, ex post competition law enforcement is too slow and complicated to prevent serious exclusionary and exploitative harm. Ex ante regulation could ensure re-instatement of the pro-competitive promise of FRAND access that ensures fair, contestable and innovative markets. [ABSTRACT FROM AUTHOR]

In the Google Shopping judgment, the General Court refers to Google's super-dominance and with it its stronger obligation not to allow its behaviour to impair effective competition. The concept of super-dominance suggests that certain conduct could breach Article 102 TFEU only when adopted by super-dominant undertakings, but it remains uncertain how exactly it contributes to finding an abuse. The aim of this paper is to analyze the Google Shopping judgment in relation to the concept of super-dominance. We explore how the concept has evolved in the case-law and what role it has played when establishing an abuse of dominance and analyze whether reliance on super-dominance in the case law is consistent with the effects-based approach. Finally, we examine how Google Shopping fits with the evolution of super-dominance in the case law and the effects-based approach and what it means for the regulation of digital gatekeepers going forward. [ABSTRACT FROM AUTHOR]

Sustainable development is today a guiding objective of the EU. This article therefore analyses if and how it can be integrated in competition law and more specifically in the antitrust rules of art. 101 TFEU. This paper first explains the legal background of sustainable development, its economic, social and environmental dimensions on the international scene and highlights its enshrinement in the EU treaties. It then focuses on its environmental dimension and identifies three routes to integration in EU competition law: (i) the agreements not restricting competition while protecting the environment; (ii) the objective necessity route whereby agreements whose restrictions on competition are objectively justified and proportionate make them fall outside of the scope of art. 101 TFEU; (iii) and the exemption route of art. 101 (3) TFEU. This article analyses each of these routes and puts forward the legal points requiring clarifications or modifications in this regard. [ABSTRACT FROM AUTHOR]

"Self-preferencing" refers to a conduct of a large provider of core platform services which consists in favouring one's own products and services over those offered by competitors on the same platform. Drawing on the experience acquired through its various antitrust investigations into the conducts of Big Tech, the European Commission, in its its "proposal for the Digital Market Act", has put forward the concept of "gatekeeper". If adopted, this regulatory instrument which aims at ensuring fairness and transparency in the EU digital markets, would enable the Commission to qualify as such any large core platform service on the basis of narrowly defined objectives criteria and submit it to a set of prohibitions and obligations. By opting for such an approach, the Commission would be able to switch from an ex-post assessment of a gatekeepers' self-preferencing practices to an ex-ante one. [ABSTRACT FROM AUTHOR]

The case for a greener antitrust is weak and flawed. It is largely abstract, hypothetical, legalistic, somewhat emotive and lacks supporting evidence. Its proponents claim that the European Commission's enforcement of Article 101 TFEU blocks efficient industry-initiated cooperation to improve sustainability. But as is shown, this more permissive approach will lead to increased market power, supra-competitive prices and greater industry profits, and is unlikely to achieve greater investment in and the faster adoption of green technologies than competition. [ABSTRACT FROM AUTHOR]

Exclusionary innovation poses a bigger threat to competition in digital platform markets than in other innovation markets given the relevance of data-driven network effects as well as the strong incentive and ability of digital platforms to pursue an envelopment strategy. This paper advocates a theory of harm called "platform-wide exclusionary innovation" which applies to conduct that plausibly creates short-term consumer benefit but is more likely to foreclose rivals and therefore reduce technological progress in the long run. This theory of harm can help to explain Google's conduct that the European Commission condemned in its three decisions against Google between 2017 and 2019. Due to interconnections between Google's practices in the three cases this article assesses whether they may be considered jointly for the purpose of finding of an infringement of Article 102 TFEU or under the proposed Digital Markets Act. [ABSTRACT FROM AUTHOR]

Damage quantification in antitrust cases typically revolves around overcharge and pass-on estimation. In vertical industry structures, both measures crucially depend on contract structure, with linear and two-part tariffs being the most common contract types. While most of the damages literature focuses on linear contracts, two-part tariffs are mostly neglected. We discuss implications of tariff structure for damage quantification, highlight common pitfalls and propose practical solutions in damage assessment when two-part tariffs are present. [ABSTRACT FROM AUTHOR]

This paper presents an alternative to the workhorse linear OLS regression model when predicting "but-for" prices in cartel damage estimation. By replicating the dataset from a prominent Vitamin C antitrust case of price-fixing, I show that a supervized machine learning algorithm achieves more accurate predictions of prices based on cross-validated out-of-sample testing than the OLS model applied by the court expert. The machine learning algorithm is therefore better suited in this case to predict prices for the counterfactual scenario that no cartel existed, and to calculate damages based on those predictions. I find that the machine learning algorithm p redicts damages that are 14% lower than those predicted by the court expert's OLS model. Given that millions of dollars are usually at stake in cartel litigation cases, it is recommended that machine learning algorithms should be in the toolbox of practitioners attempting to derive the most accurate estimate of cartel-related damages. [ABSTRACT FROM AUTHOR]

We draw parallels between the pandemic and foreclosure in network industries by applying "Susceptible, Infected, Recovered" (SIR) modelling to an antitrust setting. We consider a digital service seeking to grow into an addressable market occupied by an incumbent platform. The entrant can grow organically, but amassing more users allows it to spread faster as users invite friends or generate content increasing its attractiveness. We consider the impact of the incumbent taking steps (e.g. reducing interoperability) to make the entrant "less infectious" with three main implications for antitrust policy: conduct may have large effects even if the targeted service continues to grow; conduct is most effective when applied against nascent services before they can harness netwrok effects; and conduct can have non-linear effects, with the most "viral" services continuing to grow while others are eliminated. Each result has parallels with the experience of the pandemic and implications for innovation incentives. [ABSTRACT FROM AUTHOR]

While the initiatives in various jurisdictions to impose ex ante regulation on "digital gatekeepers" – large online platforms that are necessary intermediaries between business users and their customers – have attracted considerable attention, the purpose of this paper is to contribute to the debate on the equally important need to strengthen effective antitrust enforcement in digital markets. The focus is on possible adjustments to the current competition law framework on unilateral conduct. The paper examines four proposals. First, it argues in favour of revisiting the error-cost framework and considering the introduction of presumptions of anticompetitiveness in limited circumstances. Second, it makes the case that competition authorities should make greater use of restorative remedies to reinject lost competition in the market. Third, it discusses the need for greater focus on harms to quality and innovation. Fourth, it argues that when competition has been irreparably harmed, EU competition authorities should consider exploitative cases. [ABSTRACT FROM AUTHOR]

This paper examines the role and meaning of the concept of "fairness" in the application of European competition law, and in particular of Art, 102 of TFEU, It argues that, with its emphasis on firms competing on the bases of their superior performance, the paradigm of competition on the merits may well be considered a reference for the definition of whether a conduct by a dominant undertaking may be considered "fair". The paper finds support for this in the case law of the European Courts and the Commission, as well as in the legal constructions characterizing EU jurisprudence, such as the "special responsibility" of a dominant firm and the "essential facility" doctrine. This view of fairness is also at the bases of the application of art. 102 through the different issues posed by the development of data based digital economy; the paper also argues that such a view helps clarifying the criteria to be used when applying the principles set by the European Courts with respect to the application of art. 102 to excessive prices. [ABSTRACT FROM AUTHOR]

Google, Apple, Facebook and Amazon (the "GAFAs") have been slow to disrupt the financial services sector, but they are likely to do so in the coming years by using their control of important customer access points such as mobile operating systems, search engines, app stores, and marketplaces. This paper discusses these issues in the context of competition law enforcement and the emerging UK and EU regulatory regimes aiming to curb the GAFAs' market power. The new rules can ensure that consumers will benefit from the innovations of the GAFAs and others without suffering the long-run effects of their further accumulation of market power. The new rules can ensure that the GAFAs do not benefit from an asymmetry of regulatory obligations compared to their financial services competitors, and that the GAFAs cannot leverage their market power from core activities into financial services whereby their financial services competitors are hindered in reacting. [ABSTRACT FROM AUTHOR]

European soccer clubs tend to spend beyond their revenues, causing disruptions in their finances. To minimize these disruptions, UEFA enacted the Financial Fair Play Regulations (FFP). FFP achieves its objectives through the "break-even" requirement, which prohibits clubs from spending beyond their revenues. This article argues that FFP violates Articles 101 and 102 TFEU. While there has been scholarly interest in FFP's incompatibility with competition law, the focus has been on Article 101. In addition to contributing to the scholarship on FFP's violation of Article 101, this article presents arguments on how FFP violates Article 102. This article then explores UEFA's interactions with European regulators as a backdrop for explaining why regulators have failed to address FFP's violation of Articles 101 and 102. This article concludes by arguing that a change to FFP is imminent and suggests a novel method through which UEFA can maintain FFP's objectives while complying with competition law. [ABSTRACT FROM AUTHOR]

The paper analyses the legality of online sales bans in selective distribution agreements in the EU, focusing on the "luxury brand image" justification as per the CJEU judgements and the decisions of the EC and national competition authorities. The paper questions the criteria for determining what constitutes a luxury trademark, and whether it is fair to distinguish (or even discriminate) between luxury and non-luxury trademarks, considering that both should have effective control and choice of the distribution of their goods. The paper concludes that the success of the selective distribution system depends on the effective control the trademark owner exercises over it, irrespective of whether or not it is covered by the aura of luxury. The non-luxury brands currently may justify their restrictions on sales on third party platforms under the unfair competition grounds. The selective distribution system should aim at protecting trademark image, which may not necessarily be luxury. [ABSTRACT FROM AUTHOR]

The European Commission has recently begun to reflect on whether competition law is a barrier to the formation of collective labour agreements between industry and atypical workers. The policy focus to date has been on whether and how to extend the antitrust labour exemptions to certain classes of atypical worker. This paper shows how efforts in this direction in the Netherlands and Ireland have revealed that this is a tricky path to pursue. As a result, the paper proposes four additional approaches: three of these indicate that even if atypical workers are treated as undertakings and collective bargains between them and employers fall to be assessed under competition law, many agreements will unlikely have anticompetitive effects and for those that may do so, exemptions are possible. A fifth approach is that active antitrust enforcement against employers imposing unfair terms on atypical workers may function to solve some of the concerns that collective bargaining seeks to address. [ABSTRACT FROM AUTHOR]

Now a multi-billion-dollar industry, online advertising is what funds free online content. At the core of this industry lies the ability to track users through various technical means, such as cookies, which has sparked privacy concerns, and is thus subject to a growing body of regulation. But the most important rules around tracking seem to come from a handful of large platforms who have assumed the role of a de facto privacy regulator. In this paper we explore in detail Google's decision to phase out support for third-party cookies on Chrome, accompanied by a set of proposals known as the Privacy Sandbox proposals. We query whether this decision raises any antitrust concerns – and if so, how they can be reconciled with the objective of privacy. At a conceptual level, we use this opportunity to reflect on the relationship between competition law and privacy and the trade-offs regulators may have to make. [ABSTRACT FROM AUTHOR]

This paper investigates what role fundamental rights can play in the interpretation of EU antitrust law, in particular Art. 102 TFEU. It spells out the difficulties that derive from the fact that antitrust law and fundamental rights are of equal ranking in the EU legal order. It concludes that nevertheless as a matter of systemic and teleological interpretation, EU antitrust law is open for fundamental rights considerations. However, recourse to fundamental rights should be taken only when companies possess regulatory power. This approach sheds light on social media platforms' recent increased engagement in content moderation. It suggests that for dominant platforms with regulatory power, any discrimination based on political beliefs is prima facie abusive behaviour under Art. 102 TFEU. However, such conduct may be justified by the pursuit of legitimate goals and companies should be granted a wide margin of appreciation in that regard. [ABSTRACT FROM AUTHOR]

There is no simple prescription for defining the relevant product market for pharmaceuticals. As price is usually the key variable, the price inelastic demand for pharmaceuticals complicates the market definition process. It unsurprising then that when, as in relation to pharmaceuticals, demand is relatively price inelastic the process of defining the product dimension of a market is more complex. In relation to pharmaceuticals, the question is therefore whether a change in some other variable would cause substitution and so constrain decision-making and, if so, how to best identify such constraints. By reference to approaches adopted in several key cases, this article considers alternative approaches that can be used to identify the product dimension of pharmaceutical markets, including the use of natural events/experiments, the use of consumption data as well as qualitative indicators. The article concludes with a suggested alternative approach based on functionality, response to product quality variation and context. [ABSTRACT FROM AUTHOR]

The Competition Commission of India's (CCI) journey with "control" has been the subject of much discussion in Indian competition law circles. As we witness an increase in reliance on technology as well as a consolidation in conventional industries, both catalyzed by the Covid-19 pandemic, there is a marked increase of activity in the Indian merger market. It is therefore crucial for businesses contemplating mergers and acquisitions, to have a clear sense of the hurdles they need to cross, particularly if the merger activity in question falls in the same or a related industry. The CCI would thus need to provide clarity on what constitutes control, and when transacting parties should approach the CCI. The CCI must also be transparent about control transactions resulting in anti-competitive effects. This paper proposes that the CCI provide guidance on what amounts to control, from the perspectives of both notifiability and competitive effects, to resolve the CCI's control quandary. [ABSTRACT FROM AUTHOR]

The "competitive strength" of a company in the digital economy is becoming increasingly more reliant on the data it has at its disposal. As such, personal data has been described as "the new oil of the internet and the new currency of the digital world". The emergence of personal data as "currency" has reinvigorated the development of privacy and consumer protection laws However, competition law has sought to maintain a strict level of separation between what falls within the "scope" of antitrust enforcement and matters deemed "wholly or partially" unrelated to competition. In highlighting the anti-competitive effects created by the vast databases of personal and often sensitive information (Big Data) being acquired by today's dominant internet platforms. this paper seeks to argue that a more refined and comprehensive analysis of the competitive effects of data in merger review is lacking and is required as a matter of urgency. [ABSTRACT FROM AUTHOR]

We present an economic model of competition in the ad tech "stack". We use this model to understand how the complex web of conducts implemented by Google – and under scrutiny by both U.S. and European antitrust enforcers – can be rationalized as a profit-maximizing, exclusionary strategy. We show how vertical integration, linking of services across the stack and the use of complex auction models increases incentive and ability to foreclose rivals and why there might be incentives to limit data and ID sharing so as to undermine rival intermediaries. We show how these conducts can have negative effects on consumer welfare via an increase in the prices paid by online advertisers and a decline in incentives to invest in producing content. We discuss also the level of "take rate" charged by different intermediaries and explain how differences in the ability to price discriminate undermines the relevance of such comparisons. [ABSTRACT FROM AUTHOR]

Aiming at lowering false positive errors (type I error), antitrust enforcement in the digital sector may have neglected false negative errors (type II error), notably due to the assessment of uncertainty, as a probability of occurrence of harm and as a consequence of the incredible dynamics of these markets. [ABSTRACT FROM AUTHOR]

The focus of this piece lies with extraterritorial jurisdiction in the context of the application of the EU competition provisions. Whereas the doctrine of effects has been established in the context of US antitrust law more than 50 years ago, it has not been until recently that the ECJ confirmed such an approach for the establishment of the jurisdiction of the EU competition provisions in its judgement in Intel. However, the latter decision has not been without criticism, as the ECJ put together different sets of abusive conduct and assessed Intel's behaviour in its entirety. For that reason, also conduct with an arguably very tenuous link to the EU/EEA, that is, behaviour between Intel in the US and Lenovo in China was considered in the Court's judgement. Hence, this article aims to critically analyse the ECJ's decision, also taking into account the first-instance ruling of the General Court as well as the AG opinion. It will conclude that considering other concepts developed in the context of the competition provisions, the ECJ's reasoning seems sound. Furthermore, the adoption of the qualified effects test seems also welcome in order to meet the challenges imposed by our global economy and digital markets. [ABSTRACT FROM AUTHOR]

Thinking in terms of supply chains, a crux with a view to antitrust damages is the fact that calculations (of market participants and hence also within legal proceedings) do not stop at the bilateral trader relation but go beyond this two-sided interaction. More often than not victims of antitrust violations pass-on part or all of the harm, to the next level in the supply chain. Under certain conditions this is beneficial for the victim and has to be subtracted from the original amount of damage. Legal benchmarks apply and economics knowledge is of the essence. Focussing on damage stemming from a cartel agreement this paper will first sketch the economic conditions for passing-on. Next, a comparative analysis of recent jurisprudence on passing-on in three jurisdictions (Germany, the Netherlands and Spain) is carried out. It can overall be shown that to successfully tackle cartel cases involving passing-on the potential of an interdisciplinary approach between law and economics needs to be exploited far more than it is currently done. [ABSTRACT FROM AUTHOR]

The degradation of consumer data privacy in the digital environment causes objective detriment to consumers and undermines the competitive process. Consumers are frequently unaware of the extent to which their personal data is collected and disclosed, and purposes for which it is used. A key reason is that firms often understate and obscure their actual data practices, preventing consumers from making informed choices. This article defines, and provides examples of, "concealed data practices", which create objective costs and detriments for consumers, making them more susceptible to criminal activity, discrimination, exclusion, manipulation and humiliation. Aside from consumer protection and privacy regulatory responses, these practices should be of critical concern to competition authorities given their role in chilling privacy competition; preserving substantial market power by means other than superior efficiency; and deepening information asymmetries and imbalances in bargaining power. The article outlines five ways competition authorities should take account of these factors. [ABSTRACT FROM AUTHOR]

Major digital platforms (MDPs) such as App Store, Amazon e-commerce site, Google search engine, or Facebook have increasingly shown their significance in our daily lives. The convenience they bring, nonetheless, may distract us from noticing how they are capable of executing their powers to influence different markets or even politics on a global scale. While competition (antitrust) law struggles to deal with the advanced, cutting-edge nature of MDPs, some scholars and antitrust authorities have conceived of applying FRAND (or a quasi-FRAND model), which has proved considerably successful in the field of telecommunication standardization, as a regulatory measure to control unprecedented powers of MDPs. Having said that, to that end, certain complicated policy and technical issues must be analyzed and addressed thoroughly. [ABSTRACT FROM AUTHOR]

This paper focuses on the "burning debate" of whether competition law and data protection could go: "hand in hand". More accurately, whether a breach of data protection law could be considered a breach of competition law and serve as a tool to define that a dominant company abused its dominant position in digital markets. Notably, the recent preliminary finding in the favour of dual proceedings was brought by Bundeskartellamt in the Facebook case but the "too harsh" decision by the Düsseldorf Higher Regional Court created additional confusion and contradicted Bundeskartellamt's approach. However, the twist happened this week when the German Federal Supreme Court has ruled in favour of Bundeskartellamt. The position of the author is in favour of the need for dual proceedings. A breach of data protection can be considered a breach of competition rules only if a cogent theory of harm based on solid evidence proves that competition is harmed. [ABSTRACT FROM AUTHOR]

As algorithmic pricing becomes more widespread, the discussion about the extent to which the use of algorithms results in an increase of collusion also intensifies. While some scholars argue that algorithms are able to collude on their own (algorithmic collusion), others claim that only the use of code to enforce collusion (collusion by code) is a serious threat. In this paper, we discuss both scenarios as well as the conditions under which collusion is likely to occur. As detection and prosecution seems rather challenging, we also discuss possible remedies. These include statistical analyses of market data, an increase in trained staff for competition authorities or even a general ban of specific classes of pricing algorithms. While current competition law seems to be prepared to tackle current issues, it might be adapted for possible future challenges, in case that autonomous algorithms become greater concerns in the future. [ABSTRACT FROM AUTHOR]

The European Commission is looking for new tools to enforce competition law faster and more effectively. In this context, the article explores interim measures. These allow the Commission to intervene when the anticompetitive harm must be addressed quickly. Although the antitrust community generally encourages the Commission to use interim measures more frequently, there is room to discuss how to make them sharper. For this purpose, this article studies whether there is any obstacle that may be impeding the Commission from using interim measures and explores aspects that can be reformed to enhance the effectiveness of this tool. The conclusion is that, while there is no need to make any fundamental change for the Commission to use interim measures, three aspects can be amended: the standard of "irreparable damage", the notion of victims, and the procedure. For each of them, the article offers two options for reform drawing from other jurisdictions. [ABSTRACT FROM AUTHOR]

This paper studies whether mergers may lead to partial collusion where some firms collude and some firms behave competitively. Such mergers have the potential to induce simultaneous coordinated and non-coordinated effects. We use a Bertrand-Edgeworth model with heterogeneous discount factors to derive conditions for profitable and stable collusion and provide a numerical example. Mergers that change the market structure in a way such that maverick firms are eliminated or a set of firms reach a critical share in total capacity can lead to partial collusion. [ABSTRACT FROM AUTHOR]

Inspired by Case C-435/18 Otis and Others, this article examines central issues raised in Otis and Others, such as who can claim compensation, what harm is genuinely relevant, and the issue of causation. The Court of Justice of the European Union relies on the principle of full effectiveness of EU competition law to ensure that all causally relevant harm is actionable, and thus achieves a very broad protection of the right to full compensation. As a result, in cases involving both competition law and other legal areas, such as contract law and tort law, EU law and CJEU caselaw apply instead of national law and national caselaw. The increasing and problematic dependence on the principle of full effectiveness may develop damages actions for competition law infringements as an independent category of tort governed by a highly specialized set of rules. [ABSTRACT FROM AUTHOR]