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Fernando Castillo de la Torre and Eric Gippini Fournier

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Patrick Actis Perinetto and Mel Marquis

This chapter examines the approaches of the Italian National Competition Authority (NCA) and the Italian courts when applying the prohibition against abuse of dominance in industries governed by sector-specific regulation (specifically, telecoms, rail transport and pharmaceuticals). On the basis of decisional practice and case law, certain trends seem to emerge. At the level of enforcement by the authority, there appears to be little hesitation to apply competition law, notwithstanding the existence of regulation and regulatory authorities whose task is often, even if technically on different grounds, to resolve the same behavioural issues that are the object of the NCA’s interventions. This consistent and even predictable enforcement trend across different sectors contrasts, however, with the more variable approach of the Italian courts. The courts have in some cases accepted the NCA’s interventions but have rejected others. The chapter traces these developments and attempts to explain the different approaches of the different institutions (regulatory authorities, the NCA and the courts) across the different regulated sectors. Keywords: Italian NCA; Italian courts; pharmaceuticals; rail transport; regulation of network industries; regulatory authorities; telecommunications

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Christian Koenig and Bernhard von Wendland

The instruments of general (non-sector-specific) competition law are insufficient to liberalise traditionally monopolistic or state industries and to ensure sustainable competitive access to liberalised markets. Here, EU sector-specific directives and regulations, inter alia, in the fields of telecommunications, gas, electricity, postal services and railway network infrastructure have created a harmonised ex-ante access regime. Under these rules, national regulatory authorities are empowered to monitor network access conditions and terms of use and to approve compensation access fees for use of the incumbent’s network. The monopolistic legacy of network industries may still be, at least in part, structurally distortive to competition. Good regulation protects new market entrants and enables service-based competition where bottlenecks impede facility-based competition. In this respect, regulation facilitates market dynamics. Financial market regulation, by contrast, safeguards economic stability and effectiveness of supervision through a seismic system to detect systemic dangers and to react ex ante. Keywords: financial markets, network industries, regulatory authorities, sector-specific regulation

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Christian Koenig and Bernhard von Wendland

State aid and public procurement can combat market failures but can also distort competition and thereby undermine sustainable wealth. In the EU’s Social Market Economy, state aid is allowed if it is targeted at social-welfare objectives. That desired steering effect is obvious from so-called common state-aid assessment principles that the European Commission applies. Public procurement can create tremendous innovative potential but it can also protect national industries from competitive pressure, at the expense of the taxpayer. EU supranational public procurement directives provide for competitive procedural formats to avoid harm. EU Member States might use ‘Pre-commercial procurement’ of R & D-services and public-private ‘innovation partnerships’ to give some suppliers selective preferential treatment that distorts competition. EU state aid rules are the sole instrument that prevents national legislators from harmful demand side measures that prioritise innovation over the functioning of the internal market. Keywords: crowding-out of private investment, distortion of private incentives, foreclosure of markets, inclusiveness, industrial policy, Social Market Economy, sustainability, risk finance aid, maritime transport aid

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Giorgio Monti

It is common for scholars to look to judgments of the EU courts and to soft law to determine the scope of Article 102 TFEU. National courts of Member States in the EU also make extensive reference to the case law of the European courts in their judgments, as successive reviews confirm. In this chapter, a set of possible sources that allow us to see the use made of Article 102 is explored, and how far they may also be examined as sources of understanding Article 102. First, commitment decisions are examined: while these are not fully reasoned they contain sufficient information to teach us about theories of harm to allow us to say more about the possible reach of Article 102. Second, the chapter assesses the soft law adopted by the EU Commission, in particular the Guidance Paper on Article 102. It is suggested that the Guidance Paper is not irrelevant as a source of law, and that it may serve as a helpful restatement of certain aspects of the case law, but that certain passages should not be treated as sources of law. The key argument developed in the chapter is that national courts should interpret Article 102 in a dynamic manner. This is exemplified by the approach of the Court of Justice of the European Union (CJEU) and also by the approach taken by the courts in England and Wales. The case law from this jurisdiction also shows the benefits of what is termed here ‘critical deference’ to the judgments of the European courts. This approach affords the optimal method for developing EU competition law because it empowers courts at all levels to develop the law incrementally. Keywords: commitment decisions; Guidance Paper on Article 102; courts of England and Wales; CJEU

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Richard Whish

This chapter analyses the recent cases of standalone actions for breaches of Article 102 TFEU in the UK courts. During the past few years, the UK Competition and Market Authority (CMA, formerly the Office for Fair Trade) and the sectoral regulators have adopted few decisions finding an infringement of Article 102 TFEU or its UK equivalent. On three recent occasions (i.e. Purple Parking v Heathrow Airport, Arriva v Luton Airport and Dahabshiil v Barclays Bank) firms have gone straight to court claiming to be the victim of abusive behaviours, rather than submitting a complaint to the CMA/OFT. Thus, the chapter analyses the recent trend in the increase in the number of standalone actions for breaches of Article 102 TFEU in the UK. Keywords: private enforcement; standalone claims; UK Competition and Market Authority; courts of England and Wales

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Christian Koenig and Bernhard von Wendland

This chapter discusses the relation between the EU’s internal market objectives and the World Trade Organization’s (WTO) global trade objectives. While the EU has a common vision that allows public market intervention if it has a real incentive effect, tackles market failures and is proportionate, WTO subsidy control is based on complaints and retaliation, and transparency cannot be enforced. Therefore, the EU is better prepared for the economic challenges of global competition than are single nations or trade-focused alliances. Loosening EU state aid rules, to enable Member States to ‘match’ state aid granted abroad, would torpedo the internal market from within. In order to enhance global subsidy transparency, the EU should not only project its values in bilateral and multilateral agreements but also should advocate for transparency provisions. The EU’s alleged weakness, namely its commitment to controlling Member State aid, is in fact its strength, because Member State interventions are thereby bound to redistribute wealth for common sustainable development objectives. Keywords: Doha Round, General Agreement on Tariffs and Trade (GATT), global competition, matching aid, subsidies and countervailing measures, subsidy race, trade policy, transparency, WTO

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Christian Koenig and Bernhard von Wendland

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Florian Schuhmacher

Austria and Germany both have provisions on the abuse of dominance that incorporate the principles of the abuse of dominance under Article 102 TFEU. However, both national laws differ from the European provision in respect to the finding of dominance. Both national laws contain legal presumptions for dominance shifting the burden of proof to the defendant. The presumptions apply to single and collective dominance. The chapter analyses theses presumptions conceptually and how they are applied in practice in the jurisprudence of the German and Austrian courts, as well as in the decisions of the Austrian and German National Competition Authorities (NCAs). Keywords: presumption of dominance; market share; Section 18 GWB; Section 4 Austrian Kartellgesetz

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Pier Luigi Parcu, Giorgio Monti and Marco Botta