This chapter focuses on the relationship between abuses of dominance and information-sharing as it arises from EU, Italian and US case-law. Firstly, it explains how informational monopolists (or super-dominant firms) may infringe competition law by three different forms of ‘informational abuses’: (i) through actual or constructive refusals to exchange information; (ii) through the misuse of information provided to public regulators performing pro-competitive regulatory procedures; and (iii) through collusion to provide misleading information (outside a regulatory procedure). Secondly, it points out that many cases on Article 102 TFEU (or national unilateral-conduct rules in other jurisdictions) are enforced by imposing complex behavioural remedies that mandate an exchange of information. Such behavioural remedies resemble much traditional regulation, as regards the rationale of intervention, the institutional resources employed (e.g., they require continuous monitoring of commitments, strong sectorial expertise and dedicated resources) and the powers exercised. As a consequence, the author calls them ‘para-regulatory’ remedies, thereby distinguishing them from pure, traditional regulatory interventions. In particular, these para-regulatory remedies can conflict not only with already existing information-based regulation, but also with the traditional suspicious approach that competition law applies when it comes to transparency and the enforcement of Article 101 TFEU on restrictive agreements.
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Sector-specific regulation has a long history and wide application. Despite this (and perhaps because of it), in recent years much regulation has been curtailed or criticized, with competition agencies taking the place of regulators in limiting industry giants and preventing abuse. This trend stems both from the disrepute affecting regulatory capture and the increasing belief in market forces and competition as sufficient constraints on problematic behaviour. While practitioners and scholars of competition law may applaud the increase of their purview, what often escapes attention is the price competition law pays in the process. Specialization and context-specific knowledge are being overlooked, while the broad rules of competition law are applied well beyond their true effectiveness. This chapter outlines the main justifications for preventing the expansion of competition law beyond its core domain, and the prices both policy and agencies pay as a result of this expansion. It is not merely the industry-specific application which suffers, but core concerns about the framework of competition policy and the rules and standards applied. Especially in today’s networked world, over-extending competition law might cause agency failure and dilution of expertise in a way that is harmful to core concerns.
As many have recently observed, competition law enforcement seems to be somehow merging into a form of market regulation. This is surely true as far as innovation is concerned. Indeed, competition law has progressively acquired the role of an IP ‘watchdog’, with the mission of curtailing the scope and use of IP rights in cases where their exploitation seems to worsen rather than promote innovation. This chapter argues that the shaping of a common core of guiding principles concerning the intersection of competition law and intellectual property rights in the area of unilateral practices has become a necessity considering that not only has the number of abusive practices involving the use of IPRs recently increased, but also that new kinds of practices have emerged, posing increasingly complex issues to analyse. Among such new practices, this work will focus on the conduct of so-called strategic patent filings, pursued by dominant firms for the purpose of keeping competitors off the market.
This chapter provides an analysis of the application of EU competition law to standard-setting by looking at case law under both Articles 101 and 102 TFEU. The aim of the chapter is to show that there is, and should be, a difference in competition-law treatment of standards and standard-setting conduct depending on whether the market exposed to the standard is plagued with network effects or not. For markets with network effects, collaboration to create standards is benign, even pro-competitive, while access to such standards, if covered by intellectual property rights, may, in exceptional circumstances, be granted under competition law. On the other hand, agreements to set standards for markets which do not display network effects should benefit from a heightened antitrust scrutiny, because these standard agreements may cause exclusionary anticompetitive effects.
Alexandr Svetlicinii and Marco Botta
The chapter analyses the pattern of enforcement of Art. 102 TFEU in network industries by the national competition authorities (NCAs) of the new and the EU Member States who candidate. The chapter concludes that while the European Commission has enforced Art. 102 TFEU in the context of its market liberalization agenda, the NCAs of the selected jurisdictions have enforced Art. 102 TFEU in order to protect final consumers. In particular, while the Commission has focused its enforcement on exclusionary conduct and adopted structural and behavioural remedies via commitment decisions, the NCAs of the selected jurisdictions have mainly sanctioned exploitative conduct, such as excessive pricing and unfair contractual conditions.
Rolf H. Weber
At the beginning of the worldwide triumph of the Internet and Internet-based services, many competition law authorities adopted a hands-off approach with regard to the Internet industry. Meanwhile, however, changes can be observed in this respect from a regulatory point of view. This chapter takes this opportunity to critically assess the recent developments in the Internet sector. After giving a general overview of the specific features of online markets and the different kinds of Internet businesses from the competition law perspective, the chapter undertakes a thorough examination and analysis of the recent regulatory approaches and the tendencies in politics and economics in relation to the Internet. On the basis of these theoretical findings, a practical approach is chosen by means of case studies on online sellers, search engines and social networks in order to illustrate possible risks caused by structural changes in the relevant Internet markets. These findings finally allow the designing of possible guidelines and new perspectives for competition regulation in the future.
The chapter explores the question of how best to increase the effectiveness of advocacy activities in order to improve competition-friendly regulation, an objective which is shared both by regulators and competition authorities. In this framework, three tools are analysed and compared: the use of competition concepts in rule-making, traditional advocacy interventions and competition impact assessment. The chapter concludes that (ex ante and ex post) competition impact assessment might be considered a new advocacy tool and the most effective among them. Its effectiveness is related to the intrinsic characteristic of this tool, which is used before a formal rule-making procedure is opened: it is based on the economic analysis, and always takes into consideration the option not to intervene through regulation. However, the effectiveness of competition impact assessment depends on some procedural choices (e.g. only important rules with a potential significant impact on competition should be considered) and on the condition that it is not used in a ritualistic way. The chapter also underlines that the involvement of competition authorities might increase the effectiveness of competition assessment (e.g. by enhancing the robustness of the economic analysis and therefore addressing the above-mentioned risk of a ritualistic approach), even though some issues remain unsolved, one of the most important being how best to balance the role of regulators and competition authorities.
Tamar Indig and Michal S. Gal
In the past two decades the number of jurisdictions which have empowered their competition authorities to engage in market inquiries (MIs) has grown substantially. Although jurisdictions differ in the scope and procedure adopted for such studies, they all share an important common trait: the attempt to allocate the roots of limited competition in the studied market. Market studies differ from traditional competition law tools in their triggers, range, object, and the level of pro-activity of the competition authority. They are not triggered by a suspicion of anti-competitive conduct of specific firms, but rather allow the authority to use a broad prism which focuses on a wider set of potential obstacles to competition, including the authority’s own past conduct, in order to find ways to enhance competition. MIs entail many advantages. Yet bestowing this power upon a competition authority is not self-explanatory. Furthermore, it is far from costless. Beyond the direct costs imposed on both the authority and market participants, MIs often carry less tangible price tags. They raise a host of constitutional, democratic and practical issues that have not been thoroughly studied as of yet, and these are the focus of this chapter. In examining these issues, the chapter builds, inter alia, on the recent administrative law literature which focuses on multi-agency interactions. Accordingly, this chapter seeks to provide a synergetic analysis of MIs for the benefit of policymakers.
Competition and regulation are typically seen as alternative disciplining forces on market actors. On this view, the more competitive a market is, the less need there is for ex ante regulation of competition, and the competition law enforcement that occurs ex post is regarded as less information-intensive disciplining mechanisms. EU liberalization legislation in the network service industries, such as telecommunications, envisages that regulation will play a lesser role as competitive rivalry increases over time. In light of such a view of the division of regulatory labour, it may seem surprising that the interventions of competition enforcers both in the US and the EU have increasingly been characterized as regulatory in their goals and implementation techniques. The chapter argues that the transition to an effects-based competition policy with a focus on concrete case-based theories of harm has led competition decision-makers to implement problem-solving remedial techniques that blur the distinction between ex ante and ex post intervention by allowing for learning and remedial adjustment in the course of implementation. Both the modalities of learning between competition authorities that are part of the European Competition Network and the growing use of commitment-based remedies at EU and national level may be viewed through that analytical prism. Finally, it is argued that we should be slow to assimilate these techniques to regulation, as they may in fact offer the possibility for overcoming the limitations of both the legal and the technocratic paradigms of competition policy.