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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]

Fairness is not foreign to competition law and fairness considerations are not new to it. However, the endemic uncertainty on its notion has traditionally made fairness unsuitable to act as a stand-alone applicable legal standard. Indeed, antitrust enforcers have usually been reluctant to engage with the unfairness of terms and conditions. Nonetheless, against the perceived undue corporate power and market concentration in the digital economy, fairness has recently gained center stage in the policy debate, especially in Europe where recent regulatory interventions have been declared to be aimed at promoting fairness in digital markets. Against this background, the article attempts to demonstrate that the vagueness and ambiguity associated with its meaning may make fairness particularly attractive to policy makers and that, accordingly, the revival of fairness risks being simply functional to grant them more discretion and room for intervention. JEL codes: K20, K21, L40, L50 [ABSTRACT FROM AUTHOR]

The article focuses on the antitrust enforcement debates surrounding vertical mergers, which involve combining firms or assets at different stages of the same supply chain. Topics include examining the role of agencies in U.S. merger enforcement, unique considerations for analyzing vertical mergers, tracing the history of vertical merger enforcement, critiquing current merger policy changes, analyzing potential process-based antitrust reform approaches.

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]

"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]

What is the legal basis for modern U.S. antitrust law? The Supreme Court has long rested its doctrinal stewardship of the Sherman Act on the notion that it is a “common-law statute,” with an implicit delegation to the Court to tinker with the metes and bounds of antitrust law as prudence requires. This Article interrogates the foundations of the “common-law statute” concept—and finds it lacking a solid foundation. Instead, this Article proposes that the Supreme Court’s Article III equity power is the better basis for understanding what has happened with antitrust—and what might happen with it in the future. [ABSTRACT FROM AUTHOR]

Through the rearview mirror of five state antitrust challenges, this Article provides a tour of state antitrust enforcement—from small cases brought by single states that made a splash, to cases so pivotal to antitrust practice that it seems as if there is nothing left unknown about them. The author discusses state challenges in Microsoft, Ovcon, Namenda, T-Mobile/Sprint, and Vyera, and provides a behind-the-scenes look at the impacts that these cases had on state enforcement. This Article also provides insights into how these cases affect current state antitrust litigation, and what observers might expect from the road ahead. [ABSTRACT FROM AUTHOR]

The Neo-Brandeisian movement seeks to unravel the bipartisan, decades-long consensus on antitrust enforcement premised on the consumer welfare standard. In recent years, seemingly disconnected developments signaled the coming attack on this consensus. A flood of changes from new FTC leadership beginning in 2021 confirmed that the consensus was under attack. These changes include policies meant to increase legal uncertainty around merger activity, consolidate power in the office of the Chair, and ignore the expertise of the FTC’s career staff. Many observers respect and analyze Neo-Brandeisian proposals as part of a sincere and coherent attempt to return the FTC to the early decades of antitrust enforcement. But research into political and economic theories reveals that the Neo-Brandeisian worldview draws heavily on historical concepts outside the antitrust field. [ABSTRACT FROM AUTHOR]

Lower courts have long struggled to interpret and apply the professional baseball antitrust exemption created by the Supreme Court. Some courts have interpreted the antitrust exemption broadly, and others have interpreted it very narrowly. Given the MLB's recent potentially anticompetitive behavior related to sports data, it could find itself facing an antitrust suit. This Note suggests that district courts should adopt a narrow interpretation of the baseball antitrust exemption and argues that even under the broadest interpretation of the baseball antitrust exemption, the actions of the MLB do not fall within the scope of the exemption. This Note also argues that the collection and distribution of sports data is an independent industry wholly collateral to the game of baseball and, therefore, outside the scope of the professional baseball antitrust exemption. [ABSTRACT FROM AUTHOR]

Contrary to common belief, large digital platforms that deal directly with consumers, such as Amazon, Apple, Facebook, and Google, are not "winner-take-all" firms. They must compete on the merits or otherwise rely on exclusionary practices to attain or maintain dominance, and this gives antitrust policy a role. While regulation may be appropriate in a few areas such as for consumer privacy, antitrust's firm-specific approach is more adept at addressing most threats to platform competition. When platforms exert their market power over other firms, liability may be apt, but remedies present another puzzle. For the several pending antitrust complaints against Google and Facebook, for instance, what should be the remedy if there is a violation? Breaking up large firms that benefit from extensive economies of scale and scope will injure consumers and most input suppliers, including the employees who supply labor. In many situations, a better approach would be to restructure management rather than assets, which would leave the platform intact as a production entity but make decisionmaking more competitive. A second option to breaking up firms would be to require interoperability--and in the information context, mandate the pooling of valuable information. These measures could promote competition and simultaneously increase the value of positive network effects. Finally, this Article examines another aspect of platforms--their acquisitions. For the most salient category of platform acquisitions of nascent firms, the greatest threat to competition comes from platforms' acquisitions of complements or differentiated technologies. Current merger-enforcement tools are ill suited to analyze this new variation on competitive harm. New approaches are required. [ABSTRACT FROM AUTHOR]

The article focuses on implications of prohibition and the history of the three-tier system of alcohol distribution and other laws related to the regulation of alcohol in the U.S. It mentions Wisconsin statutes that regulate the state's craft beer industry and proposes changes to remedy the anticompetitive implications caused by the state's current statutes. It also mentions state's beer industry are stifling competition and limiting the beer available to consumers throughout the country.

As in so many areas of law and politics in the United States, antitrust's center is at bay. On the right, it is besieged by those who would further limit its reach. On the left, it faces revisionists who propose significantly greater enforcement. One thing the two extremes share, however, is the denigration of the role of economics in antitrust analysis. Two of the Supreme Court's recent antitrust decisions at this writing reveal that economic analysis from the right no longer occupies the central role that it once had. On the left, some proposals display indifference to their economic impact on important participants in the economy. The antitrust laws speak of the conduct they prohibit in economic terms, such as "restraint of trade," "monopoly," and lessening of "competition." They do not embrace any particular economic ideology, such as the Chicago school or institutionalism. Nor do they require the use of any particular economic model, such as perfect competition or oligopoly. This openness gives policy makers a great deal of room, but it is not an invitation to economic nonsense. Further, economics should not be a tool for picking a winning interest group and then manipulating the doctrine to get that result. The Supreme Court's 2019 Apple decision slighted the economics of passedon consumer harm, a central component in analyzing private damages actions for more than forty years, and one that is critical to measuring competitive injury. In AmEx, the Court neglected the kind of transactional analysis that would have uncovered the true injuries in that case, defined the "relevant market" in such a way as to make that term economically incoherent, rejected a superior methodology for assessing power in favor of an inferior one, misunderstood completely the meaning and appropriate scope of free riding, and lost sight of the fact that marginal rather than total effects are central. Although the progressive wing of antitrust does a better job of identifying the problems that the competitive economy faces, some of its proposed solutions are calculated to make them worse. The pursuit of business concentration or bigness for its own sake will injure both consumers and labor far more than it benefits small business, who appear to be the intended beneficiaries. A proposal to forbid large platforms from selling their own products in competition with the products of others will harm both consumers and most small businesses, although it will benefit some large firms. When used correctly and without excessive ideology, economics is a powerful, neutral tool for helping people identify injuries to competition and appropriate fixes. Indeed, that is the first and best use of antitrust economics. Both extremes in this debate have ignored the first rule of rational antitrust policy: figure out who is getting hurt, and how. [ABSTRACT FROM AUTHOR]

Empirical findings that common ownership is associated with anticompetitive outcomes including higher prices raise questions about possible policy responses. This comment evaluates the major proposals, including antitrust enforcement against common owners, regulation of corporate governance, regulation of compensation of management of portfolio firms, regulation of capital market structure, and greater antitrust enforcement against portfolio firms. [ABSTRACT FROM AUTHOR]

This article argues that the evidence presented in several critiques of Azar, Schmalz, and Tecu's (AST) "airlines" paper does often not back the conclusion these studies draw. Specifically, widely circulated studies claiming that there are no anticompetitive effects of common ownership or that there is no evidence of it either do not attempt to refute AST's findings of anticompetitive effects in the U.S. airlines industry or in fact confirm the evidence by AST and even dispel valid concerns about AST's methodology. Focusing on Kennedy, O'Brien, Song, and Waehrer (KOSW), we note that their panel regressions using market-share-free indices of common ownership concentration confirm the positive correlation between common ownership concentration and price, which AST showed with a measure containing potentially endogenous market shares. We then examine the alternative empirical methods KOSW propose: (i) Their conclusion that estimates from a structural model show no evidence of anticompetitive effects is based on an estimation that discards 90% of the available data and therefore, at best, is only valid for that subsample; (ii) their structural model makes no economic sense because it produces a negative effect of route distance on marginal cost; and (iii) they construct an alternative version of the widely used BlackRock- Barclays Global Investors instrument that is arguably invalid. Even absent these methodological concerns, KOSW's structural estimates are so noisy that they do not in fact reject the hypothesis that common ownership concentration has a positive effect on prices. A more recent structural paper by Park and Seo has shown these concerns to be well-founded: using a different and larger subsample of AST's data and more standard estimation methods compared to KOSW, they estimate a positive effect of common ownership on prices, as well as a positive effect of route distance on cost. A lesson for future research—and readers of the literature—is to critically evaluate the conclusions drawn by studies in this field, including those that advertise themselves as providing evidence against the existence of anticompetitive effects of common ownership. [ABSTRACT FROM AUTHOR]

The insurance industry has long eluded the grasp of federal antitrust law, first by historical accident, then by congressional design when Congress enacted the McCarran-Ferguson Act of 1945. A provision of that statute provides the insurance industry an exemption from the majority of federal antitrust law. A key rationale for the exemption is that there is a need for information sharing in the industry, and without an exemption, various insurer practices would be subject to antitrust scrutiny. However, since 1945, advancements in machine learning have made it possible to use less data without estimation accuracy. In light of these developments, this Note argues that the insurance industry no longer needs its exemption. Moreover, without the exemption, in any potential antitrust action the rule of reason leaves breathing room for insurers so that when information sharing is truly necessary, insurers need not seriously worry about antitrust liability. [ABSTRACT FROM AUTHOR]

The proposal of the Data Act containing 'harmonised rules on fair access and use of data' was released on 23 February 2022. It is a horizontal framework for data access to unlock competition and innovation. The emerging Digital Agriculture sector is one of the non-personal data-driven industries that can be affected by this legislative intervention. Therefore, it is highly relevant to investigate the possible implications of the horizontal Data Act proposal from the sectoral perspective. This paper aims to map the prominent data access problems in this emerging sector, explain the needed solutions for the sectoral challenges, demonstrate what the Data Act brings, and discuss to what extent this horizontal framework is helpful to overcome the sectoral problems connected to the ambiguities on agricultural data access. Thus, this piece also identifies the remaining issues that may need to be addressed by a possible follow-up sectoral regulation and competition law. [ABSTRACT FROM AUTHOR]

The reigning antitrust paradigm has turned the notion of competition into a talisman, even as antitrust law in reality has functioned as a sorting mechanism to elevate one species of economic coordination and undermine others. Thus, the ideal state idea of competition and its companion, allocative efficiency, have been deployed to attack disfavored forms of economic coordination, both within antitrust and beyond. These include horizontal coordination beyond firm boundaries, democratic market coordination, and labor unions. Meanwhile, a very specific exception to the competitive order has been written into the law for one type of coordination, and one type only: that embodied by the traditionally organized, top-down business firm. [ABSTRACT FROM AUTHOR]

This article focuses on the principle of sincere cooperation in the antitrust enforcement field by analysing its two dimensions: the first one between public and private enforcement, the second one between the different actors of public enforcement. In particular, the article will consider, on the one hand, the cooperation between public enforcement by competition authorities (Commission and NCAs) and private enforcement by national courts envisaged by Regulation 1/2003 and by the Damages Directive and, on the other hand, the cooperation amongst competition authorities provided by Regulation 1/2003 and by the ECN+ Directive, with the aim of demonstrating how both dimensions of the principle of sincere cooperation play an essential role in order to ensure the efficiency and effectiveness of antitrust enforcement. [ABSTRACT FROM AUTHOR]

For a long time considered a fringe topic, of interest for developing and emergent economies, the question of inequality and poverty has recently taken center stage in mainstream competition law scholarship in the developed countries. Some of this literature deplores the current state of competition law, which has largely ignored this issue, and argues for a different paradigm that would actively engage with economic inequality and its causes. Taking a social contract perspective, and noting the hybrid nature of competition law, which is a tool of economic order, but also a form of social regulation, this study explores the main difficulty in enriching competition law with equity concerns: the economic foundations of mainstream competition law in welfare economics and the crucial separation of the economic efficiency dimension from that of distributive justice. It then examines alternative traditions in economic thought, which are more compatible with an egalitarian perspective. It then turns to the institutional question, exploring the various instruments that governments dispose in order to equalize, and the respective role of more conventional tools against inequality, such as taxation, concluding that the institutional argument against equity concerns in competition law does not stand serious scrutiny. It also critically engages with the argument that there is a trade-off between equality and efficiency, and again concludes that this argument does not stand serious scrutiny. The final part revisits the thorny question of what is to be equalized. Drawing on the idea of "complex equality," it presents the contours of a fairness-driven competition law. [ABSTRACT FROM AUTHOR]

This symposium began with a call for papers "reassessing the validity of the Chicago School's assumptions about competition and considering whether a more aggressive approach to antitrust enforcement is now warranted." That framing uncritically accepts the premises of antitrust's new populist movement:first, that "the Chicago School" marked an abrupt break from prior academic analysis of antitrust law, and second, that its adherents shared acommonpositive agenda fundamentally at odds with robust antitrust enforcement. Both of those premises are false. The Chicago School represented alogical continuation of the antitrust analysis developed over the preceding decades, and its members shared no positive doctrinal agenda. Instead, they shared acommitment only to promoting consumer interests by means of rigorous economics. Of course, that commitment influenced how the economics profession and antitrust policymakers thought, and progressive "post-Chicago" scholarship today shares the same commitment to consumer welfare and economic rigor. Such scholarship thus has farmore in common with Chicago School scholarship of the 1960s and 1970s than with today's populist movement, which abandons any coherent framework altogether. [ABSTRACT FROM AUTHOR]

This article argues that economic evaluations of optimal antitrust rules ought to fully recognize antitrust predictability as a relevant factor. It discusses the differences between the direct and indirect mechanism of preventing anticompetitive conduct and between the roles assumed by accuracy and predictability of antitrust adjudication within these mechanisms. While operation of the direct mechanism depends only on accuracy, the indirect mechanism in addition requires predictability to work well. Since a great majority of anticompetitive conduct is prevented indirectly rather than directly, predictability is indispensable for the overall effectiveness of antitrust. Consequently, economic evaluations of optimal antitrust rules need to search for the most effective attainable combination of accuracy and predictability, inevitably sacrificing some of the former for the sake of the latter in the process. [ABSTRACT FROM AUTHOR]

The resurrection of the free trade–fair trade debate at the international level parallels a renewed pressure to incorporate fairness considerations within domestic competition policies, originating from a perceived reduction in the level of competition in various industries. Both supporters and critics of notions of fairness, however, have failed to advance a normatively persuasive case in their favor, neglecting the multifaceted nature of fairness in the competition policy domain. In this article, we disaggregate and evaluate four specific notions of fairness that are pertinent to domestic markets: vertical fairness between producers and consumers, horizontal fairness on the demand side, horizontal fairness on the supply side, and procedural fairness. We defend a narrow dimension of horizontal fairness on the supply side consistent with efficiency goals and of procedural fairness in the enforcement of competition laws. We conclude by comparing the free trade–fair trade debate with the return of fairness in competition policy. [ABSTRACT FROM AUTHOR]

The author combines his antitrust background and his experience as a CEO in the jewelry industry to consider Barak Richman's book, Stateless Commerce, with its detailed description of the role of trust and reputation in the global diamond industry. Richman argues for rule of reason treatment to certain kinds of boycotts that reflect more efficient cooperative institutions made necessary by what he describes as "court failures." This article adds a retail perspective to an analysis based on earlier stages of the supply chain and further explores the relationship between trust and industry structure. [ABSTRACT FROM AUTHOR]

The article focuses on the Hipster Antitrust movement in the U.S., which refers to a progressive collection of proposals to revert antitrust back to its 1960 roots in order to solve social problems. Topics covered include the history of antitrust enforcement, the benefits of the consumer welfare approach, and the serious dangers of adopting the populist antitrust approach.

The article examines the Section 2 of the Sherman Act which prohibits monopolization, should act as a critical bulwark against patent holdup. Topics discussed include ways in which antitrust intervention confuse the Sherman Act's ends with its means; the protection offered by the act related to competitive process against efforts to corrupt or sabotage; and consumer welfare and the Sherman Act.

The antitrust world before 1890 looks barren when compared with today’s global antitrust industry. The most common antitrust laws in pre-modern societies condemned practices that had the perceived tendency to raise prices: forestalling, hoarding and price fixing. Enforcement was focused on retail markets and trade in essential foodstuffs, like grain. Laws intended to ensure fair prices are common throughout history. Rules prohibiting unfair or excessive prices raise the more general question of price controls in pre-industrial societies. The historical evidence is ambiguous. Laws prohibiting monopolistic or abusive conduct are less clearly evident than anti-cartel laws in pre-industrial societies, although a few references exist. Before the 20th century, courts and authorities lacked the tools of modern economic analysis, like mathematics-based theories of harm. This absence of modern economics meant that there was no clear distinction among “economic,” “social,” “moral” and “political” policy objectives. Laws concerning product quality, consumer fraud and misrepresentations are commonly found in pre-modern societies. Although consumer protection rules were based on notions of fair dealing and justice, the rules were consistent with modern economic notions of transaction cost efficiencies, asymmetric market information and imperfect market information. [ABSTRACT FROM AUTHOR]

EU competition law appears to interpret fairness in B2B trade relations as "equal opportunities to trade" for market actors. A positive and pragmatic inquiry into the relevant regulations, cases and doctrines support that approach. This contribution suggests a new definition for these practices under EU competition law. Accordingly, any trade practice representing supremacy in bargaining power - usually dominance - and distorting the equal opportunity to trade of one or more trading partners could be conceived as unfair trade practices (UTPs) under EU competition law. Thus, these practices restrict competition according to EU competition law. Indeed, the EU Commission, Parliament and many Member States have emphasized the restrictive effects of UTPs even when practised by non-dominant undertakings. UTPs could include all kinds of trade practices toward trading partners, regardless of the industry and environment in which they occur, whether online or offline. This definition can also relieve competition lawyers from inefficient exploitative/exclusionary abusive conduct divisions. [ABSTRACT FROM AUTHOR]

This paper suggests that the concept of market power under U.S. antitrust law can also be used in balancing the free exercise rights of a corporation or any for-profit business venture against the rights of individuals. Topics covered include development and current reach of corporate free exercise rights, background of U.S. antitrust law, role of market power in antitrust jurisprudence and a compromise approach to the problem of corporate free exercise rights using the market power concept.

The article focuses on the key developments in abuse of dominance enforcement in the European Union from November 2016-October 2017. Topics include the Intel ruling which clarifies the application of Article 102 or the Treaty on the Functioning of the European Union to exclusivity and rebates, and the EU's Google decision bringing abuse of dominance enforcement into new territory. It also discusses special rights and cooperation in antitrust cases.

The article argues how mergers of business firms may violate the antitrust laws when they threaten to lessen competition in the U.S. Topics discussed include general welfare and consumer welfare standards; the burden shifting framework in which the government or private plaintiff challenging a merger must first establish a prima facie case of illegality; and merger litigation under the Merger Guidelines.

The article examines antitrust law in the U.S. Topics discussed include goals of antitrust law such as dispersion of economic and political power; antitrust laws governance on the preservation of domestic control over critical resources, the survival of small businesses, integration of disparate economic systems, and American antitrust jurisprudence.

EU digital competition policy is in the process of a paradigmatic transformation. The main legal instrument, epitomising the rationale of the reform is the EU Digital Markets Act (DMA). This article conceptualises the broader theoretical foundations of EU digital competition policy and law, illustrating the developed hypotheses by examining the selected procedural novelties of the DMA. The main normative proposition, underpinning this article is that the emerging more proactive approach to digital markets reflects an objective socio-economic and political trend. This implies that the purified, inwards-oriented perception of competition policy will be gradually converting towards a more polycentric modality. An earlier version of this article has been awarded the prize by the Portuguese Competition Authority 2021 "Competition Policy Award for academic work in Competition Policy". [ABSTRACT FROM AUTHOR]

The article reports the U.S. Supreme Court's decision in the case "FTC v Actavis Inc" in which the court held that settlements are subject to antitrust scrutiny because of their potential to artificially extend the monopoly power conferred by a patent. It explores whether and how federal settlement privilege applies in antitrust litigation concerning reverse-payment agreements.

The article examines need of modification of the traditional dichotomous approach of quick look which courts embraced on issues related to Antitrust Law in the U.S. Topics discussed include the U.S. Supreme Court's decision in the case 'Northern Pacific Railway Co. v. United States;' ways in which quick look reflects a fundamental misunderstanding of the cost of implementing per se liability; and need of private, administrative, and judicial investments to implement the quick look.

The article examines the impact of the U.S. Supreme Court's decision in the case "Parker v. Brown" concerning the state-action immunity doctrine. Topics discussed include the decision's development and articulation in the case 'California Retail Liquor Dealers Association v. Mical Aluminum Inc.;' the court's opinion on Sherman Antitrust Act; and ability of a state or its agents to enforce the will of its legislature.