El 1 de junio de 2022 entró en vigor en el ordenamiento jurídico español el Reglamento (UE) 2022/720 de la Comisión de 10 de mayo de 2022 relativo a la aplicación del artículo 101, apartado 3, del ...Tratado de Funcionamiento de la Unión Europea a determinadas categorías de acuerdos verticales y prácticas concertadas. Este Reglamento sustituye al Reglamento 330/2010, el cual permitía que acuerdos de distribución que pudieran contener restricciones de competencia contrarias al artículo 101.1 TFUE pudieran quedar exentos de prohibición al cumplir los criterios que establecía el propio Reglamento y las Directrices que lo acompañaban. En la actualidad y hasta el 31 de mayo de 2034 el Reglamento clave para verificar si un contrato de distribución cumple con las normas del Derecho de la competencia europeo será el citado Reglamento (UE) 2022/720. El objetivo de este trabajo es el estudio de las novedades que presenta el Reglamento 2022/720 frente a su antecesor el Reglamento 330/2010.
Market definition is a specific and important tool used in European competition enforcement practice to identify boundaries of competition between undertakings; it is used both in antitrust and ...merger cases. The EU Market Definition Notice was adopted in 1997 in conditions of conventional markets with relatively stable market structures. With respect to recent development, especially digitalisation and globalisation of economy, the Commission launched the process of evaluation of the Notice in March 2020, and the revised notice has to be published in Q3 2023. Having in mind profound changes challenging various aspects of the original market definition, the article lists at first the most important features of digital economy, especially importance of innovation conditioning rapid changes of the market. Regarding the fact that the main principles of market definition were confirmed as sound until now, the short characteristics of the relevant market follow. The core part of the article aims to present and discuss different approaches to market definition, methods of market assessment included, taking into account the corresponding case law and legal writings reflecting digital circumstances making markets interconnected like never before. The article confronts also sometimes differing opinions of theory and practice in approach to market definition. Analysis is carried out with the ambition to find out whether it is possible – based on case specific approach of competition authorities – to draw general conclusions necessary for coherent conception of the revised market definition, or at least unifying recommendations for the legal practice for the sake of legal certainty. Outcomes of the analysis are summarised in the conclusion, in context with the draft market definition notice.
Abstract
‘Restrictions “By Object” After Generics, Lundbeck, and Budapest Bank: Are We Any Wiser Now?’ summarizes the CJEU’s jurisprudence on the question when an agreement or a concerted practice ...between undertakings restricts competition ‘by object’ and when ‘by effect’, Article 101(1) TFEU. It turns out that there are few certainties in this area. Instead, there is a bewildering array of standards for assessing the consequences of agreements on the relevant market. Time and again, it is unclear how ‘abstract’ or ‘concrete’ the assessment has to be. Not much more clarity comes from the recent judgments in Generics, Lundbeck, and Budapest Bank on patent settlement agreements and price fixing, respectively. Nevertheless, they contain the elements of a simple and comprehensive test that dispenses with the complications that have built up in the case law.
This article analyses the competition law related to abuse of a dominant market position using strategy of predatory pricing by undertakings in the European Union and, compares the same situation to ...the United States’ predatory pricing law. The purpose of this article is to survey predatory pricing as a phenomenon both within and outside the EU. Article is largely centered on the case of Valio, which is still awaiting final judgment from the Supreme Administrative Court of Finland. This case was chosen as it is extremely topical and has several unique features. The findings proved that undertakings who achieved their dominant position before the recession have significant advantage over smaller undertakings. However, they cannot necessarily afford to act on the same basis for long, which is why a model closer to that of the United States would be of benefit to control some behaviors of these undertakings. Bearing in mind that the Valio case is examined under EU law, it will be interesting to see if its judgement will be remembered as the ‘milk fallacy’ or if it will change the face of the case law as it currently stands.
In this article, I argue that the European financial market integration cannot be understood without the European Commission's gradual enforcement of supranational competition law for financial ...services. The conflict over the liberalization of public banks in Germany demonstrates how the Directorate General for Competition (DG COMP) deepened financial market integration through legal proceedings without the participation of the Council of Ministers. How could DG COMP prevail over the fierce resistance of Germany even though member states never intended for European law to have enough leverage to alter core elements of national financial systems? The article focuses on DG COMP's capacities for strategic action. DG COMP was able to enforce European competition rules for financial services, skilfully combining its legal competences with political strategies. The case illustrates that the regulatory integration of financial services in the EU is much more driven by supranational institutions than assumed by the bulk of the literature.
...where the Commission decides not to pursue cases after finding that the requirements of the Guidance are not met, this may not be possible to document if the Commission does so without taking a ...decision.5 Notably, it might not always be possible to pinpoint the impact of the Guidance due to other events taking place over the last decade, such as the creation of the office of the Chief Competition Economist and of the Economic Advisory Group on Competition Policy (EAGCP) in 2003, and more recently the appointment of a new European Commissioner for Competition and of a new Director-General for DG Competition (DG COMP) in 2010.6 Therefore, this article takes the Guidance and the Commission's decisional practice at face value in seeking to establish the link between the two to the extent this is possible by using the publicly available decisions. Where the case law is well established, the need for guidance could not have been very high in the first place. ...one is left wondering how necessary the Guidance was, given the way it was drafted in the first place.
Article 101(3) provides a defense for agreements, restrictive of competition in breach of Article 101(1), that create objective economic benefits.4 In April 2009, the Commission reviewed the first ...five years of Regulation 1/2003 and concluded that there had been "njo major difficulties" encountered with the direct application of Article 101 (3).5 Five years later, in July 2014, the Commission reported that "ftjhe EU competition rules have to a large extent become the 'law of the land' through-out the EU. A. Article 101 TFEU Article 101 has three paragraphs.13 Article 101(1) provides that agreements that have as their "object or effect" the restriction of competition are prohibited.14 It is well-established case law that the words "object or effect" in Article 101(1) are disjunctive, not conjunctive: if an agreement reveals a sufficient degree of harm to competition, it restricts competition by "object" and there is no need to examine its effects.15 Otherwise, the agreement will fall under Article 101(1) only if it can be shown in light of the particular facts of the case that the agreement has the effect of appreciably restricting competition.16 It is always possible, however, that an agreement that falls within Article 101(1) can benefit from the defense provided for in Article 101(3).
On 1 May 2015, FIFA introduced Article 18ter in the FIFA Regulations on the Status and Transfer of Players, thereby banning third-party ownership of players’ economic rights (TPO) in football. The ...decision to put a definitive end to the use of TPO in football is highly controversial, especially in countries where TPO is a mainstream financing mechanism for clubs such as Spain, Portugal and countries in South America. In fact, the Portuguese and Spanish football leagues launched a complaint in front of the European Commission, asking it to find the FIFA ban contrary to EU competition law. In order to debate the appropriateness of the TPO debate, the editors of the ASSER International Sports Law Blog organized its first Blog Symposium in April 2015. We received contributions from the complainant (the Spanish football league, LFP) and four renowned experts on TPO matters (Daniel Geey, Ariel Reck, Rafaelle Poli and Christian Duve). The contributions focused on different aspects of the functioning of TPO and on the impact and consequences of the ban.
Since these clauses arise primarily in the context of online retail platforms, they are also sometimes known as "platform MFNs" or "platform parities." ...we consider that it would be helpful to have ...greater policy clarity on the likely treatment of Broad Retail Price MFNs by antitrust authorities.
...Professor Akman notes that "in the area of prohibitions, the post-Guidance prohibitions make it difficult to assess the Guidance's success not least because there is hardly any reference to the ...Guidance therein. ...in Part III, I conclude with a word of caution: given the EU institutional context, and in particular the limited scope of judicial review in EU antitrust cases, the adoption of an unfettered effects-based analysis may afford the Commission too much latitude and, therefore, result in more Type I errors (i.e., false convictions).
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