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Marković-Bajalović, Dijana. "The EU institutional model of competition law enforcement evisited: How much rule of law suffices?" Pravni zapisi 13, no. 2 (2022): 500–535. http://dx.doi.org/10.5937/pravzap0-40075.
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The EU model of competition law enforcement has been criticized by many authors ever since antitrust provisions in the EEC Treaty became effective. The fundamental contradiction between the high level of fines threatened (and often imposed) for antitrust violations and the administrative, inquisitorial procedure for investigating antitrust offences and imposing sanctions has principally inspired the critics. The compatibility of the EU model with Article 6 of the European Convention on Human Rights (the ECHR) was disputed, instigating the EU institutions to take steps to improve the institutional and procedural framework for applying competition rules. This process has not been completed yet. Directive 2019/1 raised additional controversies regarding the compliance of variegated national enforcement models with the rule of law. This article aims to analyze the genesis of the competition enforcement model in the EU, which materialized mainly through the EU secondary legislation and ECJ case law. We evaluate the EU model against the enforcement system imagined by the Ordoliberal school of thought and, secondly, against administrative models existing in two "old" Member States, in which the rule of law has deeply rooted - France and Germany. We conclude by identifying the most cumbersome deficiencies of the EU model and proposing possible solutions for eliminating them.
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Wurmnest, Wolfgang. "A New Era for Private Antitrust Litigation in Germany? A Critical Appraisal of the Modernized Law against Restraints of Competition." German Law Journal 6, no. 8 (August 1, 2005): 1173–89. http://dx.doi.org/10.1017/s2071832200014218.
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On July 1st, 2005, the 7th Amendment to the Law against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) became effective. The modernization of the GWB was indispensable in bringing German law in line with Regulation (EC) No. 1/2003. Regulation 1/2003 decentralized the enforcement of EC competition rules and aimed to pave the way for effective private antitrust litigation in Europe. Thus far, private parties have invoked Art. 81 and 82 EC Treaty primarily as shield by arguing that certain agreements were void. Only in very few instances were those rules used as sword to sue infringers for injunctive relief or damages. To stimulate private enforcement, Regulation 1/2003 inter alia abolished the European Commission's exclusive power to exempt practices which are prohibited pursuant to Art. 81 (1) EC Treaty and entitled national competition authorities and courts to apply Art. 81 (3) EC Treaty. Moreover, it empowered the European Commission to make written submissions in antitrust cases pending before national courts. In line with the new European approach, the German legislature has overhauled the hitherto existing rules of German competition law considerably. This article will briefly describe the general changes brought by the reform and take a closer look at the amended rules relating to private antitrust litigation before German courts.
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Gerber, David J., and John O. Haley. "Antitrust in Germany and Japan, the First Fifty Years, 1947-1998." American Journal of Comparative Law 52, no. 2 (2004): 501. http://dx.doi.org/10.2307/4144460.
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Chukurov, D., and N. Kobadze. "Overview of latest amendmentsto the competition law of Germany." Russian competition law and economy, no. 1 (March 30, 2018): 70–76. http://dx.doi.org/10.32686/2542-0259-2018-1-70-76.
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Over the past 20 years, the Act against Restraints of Competition in Germany has been repeatedly adapted to changing market conditions. In particular, the guidance from the European Union has led to extensive reforms. This article is dedicated to the ninth and most recent amendment dated 09.03.2017, which was accompanied by a vivid politi- cal debate. The amendment is primarily a response to the progressive digitalization of markets. Thus, the competition law of Germany becomes the first regime in the world to provide rules for the digital economy.In addition, the amendment provides for significant changes regarding the imposition of antitrust penalties, actions for damages and ministerial approval of mergers. In the case of damages claims, the reason for the amendment was the transposition of European Direc- tive No. 2014/104/EU. Generally, the legislator addressed the shortcomings, which arose during the practical application of the law. This article provides an overview of the signifi- cant modifications to the Act against Restraints of Competition in Germany, in view of its latest amendment, and considers the legal consequences of those modifications.
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Davidow, Joel. "Recent Developments in US Antitrust." World Competition 28, Issue 3 (September 1, 2005): 299–312. http://dx.doi.org/10.54648/woco2005019.
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A major issue for US antitrust enforcement in the last year or so has been how to achieve maximum detection and deterrence of cartels, even at the cost of weakening certain sanctions. Thus, new legislation protects first-to-confess price fixers from criminal penalties and from trebling of damages owed to customers. To the same end, US enforcement agencies have sought to cut back the ability of foreign victims of the non-US aspects of worldwide cartels to obtain damage relief in American courts. This approach has been justified primarily as facilitating the operation of leniency policies by decreasing the scope, or uncertainty, of the private damage action consequences of confession. Closing US courts to foreign victims has also been justified in terms of the expressed wishes of the US allies (e.g. Germany, Japan, Canada) to fashion their own private remedy policies for their residents. In merger enforcement, trends are steady, but many litigated merger cases were decided against the Government, which could not always support its theories of probable consumer injury with hard facts. Cases involving misuse of intellectual property continue to be aggressively fought, particularly where dubious means are used to enshrine a patented invention as part of an industry standard. US efforts toward international cooperation and harmonisation have had a steady pattern of achievement, but some difficult issues of policy and practice seem intractable, particularly centralisation of merger control and harmonisation of approaches to private remedies.
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Botta, Marco, and Klaus Wiedemann. "The Interaction of EU Competition, Consumer, and Data Protection Law in the Digital Economy: The Regulatory Dilemma in the Facebook Odyssey*." Antitrust Bulletin 64, no. 3 (July 25, 2019): 428–46. http://dx.doi.org/10.1177/0003603x19863590.
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This article analyzes the interaction of EU competition, consumer and data protection law in the digital economy. We compare the objectives, rules and enforcement structures of these legal regimes, and we discuss market failures that justify regulatory intervention in digital markets. In particular, the Facebook investigations in Germany and Italy are selected as a case study. The Bundeskartellamt’s investigations are remarkable, being the first in which an exploitative abuse of dominance involving a digital platform has been decided under competition law. These we compare with their Italian counterpart, where the AGCM has recently sanctioned Facebook for behavior similar to that investigated in Germany. Yet, the Italian case has been decided under consumer, rather than competition law. This shows the regulatory dilemma faced by European antitrust authorities, which are currently struggling to find a solution to the market failures arising in digital markets.
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Arroyo Aparicio, Alicia. "Productos de lujo y distribución a través de plataformas de internet desde el Derecho Europeo de la Competencia (TJUE C-230/16, Asunto Coty) = Luxury products and distribution through internet platforms from the European Competition Law (ECJ C-230/16, Coty Case)." CUADERNOS DE DERECHO TRANSNACIONAL 11, no. 1 (March 11, 2019): 663. http://dx.doi.org/10.20318/cdt.2019.4637.
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Resumen: Este estudio analiza la jurisprudencia del TJUE referida a los acuerdos de distribución selectiva de productos cosméticos de lujo y la compatibilidad de la restricción de las ventas de esos productos a través de plataformas de internet (on line) con el Derecho protector de la libre competencia de la UE. Se tiene en cuenta en particular la Sentencia de 6 de diciembre de 2017, Asunto Coty Germany GbmH c. Parfümerie Akzente GmbH, si bien se observa la jurisprudencia en general así como desde la recaída en el Asunto Metro hasta dicha sentencia. Tres cuestiones son destacadas: distribución selectiva y Derecho de la Competencia; la compatibilidad de la prohibición de comercializar en plataformas de internet –“amazon.de” es la plataforma concreta del Asunto Coty– y la interconexión con el Derecho de marcas.Palabras clave: distribución selectiva, plataformas de venta en internet, productos de lujo, Derecho de la Competencia, Asunto Coty.Abstract: This study analyzes EJC Case Law referring to the selective distribution agreements of luxury cosmetic products and the compatibility of the restriction of sales of these products through online platforms, under the perspective of Antitrust European Law. In particular, the Judgment of December 6, 2017, Coty Germany GbmH c. Parfümerie Akzente GmbH is considered, but also it is important to take into account the evolution from Metro Case to Coty. Three issues are highlighted: selective distribution and Competition Law, compatibility of the prohibition to market on internet platforms - “amazon.de” was the specific platform in Coty- Case and the interconnection with the Trademarks Law.Keywords: selective distribution, on line sales and platform bans, Antitrust Law, Coty Case.
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Möschel, Wernhard. "Use of Economic Evidence in Antitrust Litigation in the Federal Republic of Germany." Antitrust Bulletin 32, no. 2 (June 1987): 523–50. http://dx.doi.org/10.1177/0003603x8703200208.
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Wolski, Dominik. "The Principle of Liability in Private Antitrust Enforcement in Selected European States in Light of the Implementation of the Damages Directive into the Polish Legal System." Yearbook of Antitrust and Regulatory Studies 9, no. 14 (2016): 69–95. http://dx.doi.org/10.7172/1689-9024.yars.2016.9.14.3.
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In the vast majority of European countries, private antitrust enforcement falls under general rules of civil law. One of the issues to be discussed in relation to this type of litigation is the principle of liability, which exists in the given legal system, and its presumed impact on private enforcement. This problem has been debated in the course of the implementation works on the Damages Directive into the Polish legal system. A discussion on the principle of liability has taken place at least twice in this context. First, the issue was considered by the Civil Law Codification Commission and expressed in its Assumptions behind the Draft Act on complaints for damages caused by the breach of competition law. Subsequently, the principle of liability was assessed again at the reconciliation conference held at the Ministry of Justice. This is but a part of a broader discussion about the relationship between the rule of liability existing in national laws being applied to private enforcement cases and EU law as well as limitations arising from the latter. After outlining this interplay, the paper will briefly introduce solutions adopted with respect to the principle of liability in the context of private enforcement in selected European countries. The selection is not random, despite the fact that a limited number of countries has been analysed – eight including Poland. These include the most advanced EU Member States when it comes to private antitrust enforcement (such as the UK, Germany or the Netherlands), along with less developed examples (such as Italy or France), and even underdeveloped countries when it comes to the number and popularity of private antitrust litigations (such as Lithuania and Poland). This sort of analysis paints a relatively comprehensive picture of the adopted solutions in relation to the principles of liability governing private enforcement cases in Europe. The same is true for the issue of the burden of proof and presumptions/binding power in civil proceedings of decisions issued by competition authorities. Furthermore, what seemed to be crucial for the drafters of the Damages Directive, this sort of analysis makes it possible to formulate certain conclusions with respect to the relationship between the effectiveness of private enforcement in a given State and the adopted principle of liability. The final conclusions understandably focus on the Polish example, that is, the implementation of the Damages Directive into the Polish legal system.
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Suyawan, Meirani, and Kurnia Togar Pandapotan Tanjung. "ON PROPOSAL TO REGULATE ABUSE OF SUPERIOR BARGAINING POSITION: LESSONS FROM OTHER JURISDICTIONS." Jurnal Hukum & Pembangunan 50, no. 1 (July 13, 2020): 145. http://dx.doi.org/10.21143/jhp.vol50.no1.2487.
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The latest version of the draft bill regarding Law on the Prohibition of Monopolistic Practices and Unfair Business Competition has added new arrangements about the abuse of a superior bargaining position. The new law proposal which is intended to amend existing Indonesian competition law (Law Number 5 Year 1999) stipulates that any business actor is prohibited from abuse its superior bargaining position within a partnership agreement with other less dominant entities. Under Law Number 20 Year 2008 on Micro, Small and Medium Enterprises, a partnership agreement means any agreement made between micro, small and medium enterprises and large enterprises like state or privately owned national businesses, joint ventures and foreign businesses that conduct economic activities in Indonesia. For example under the Indonesian Minister of State-Owned Enterprises (SoE) Regulation No. 7 of 2015, the SoE is obligated to arrange a business partnership agreement with small scale enterprise. Unlike the arrangements on abuse of dominant position which requires the establishment of monopoly power or dominance in a relevant market, the abuse of superior bargaining position may exist without market power and only required competition authority to detect whether there is any exploitation by the counterparty in a relatively stronger bargaining position. Such a condition makes many antitrust experts or economists question the relevancy of regulating abuse of superior bargaining position under competition law. However, several jurisdictions –Japan, Korea, Taiwan, France, and Germany- have regulated the abuse of superior bargaining position under their national competition laws
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Wang, Yuhui, and Shahzada Aamir Mushtaq. "Implications of the Digital Economy on Merger Control in Pakistan and China: Policy Implications for Pakistan." Journal of Politics and Law 15, no. 1 (December 12, 2021): 40. http://dx.doi.org/10.5539/jpl.v15n1p40.
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The rise of the digital economy has challenged the foundation of competition law frameworks the world over. Today, the antitrust doctrine finds itself confronting a new economy; an econo-my wherein data acts as a currency, markets are without prices, market collisions are based on algorithms, and the market is ‘infinite’. Several jurisdictions such as Germany, Austria, and China have developed new regulations or amended existing legislations to confront the chal-lenges presented by the digital economy. A dearth of theoretical and empirical literature has evaluated whether digital markets are so fundamentally different as to require a different set of rules. Of specific interest to this paper is whether current competition rules are sufficient to deal with mergers and acquisitions (M&As) in digital markets. This paper assesses M&A regulations in China and Pakistan in light of the new digital economy. Expert interviews were conducted using semi-structured interviews to investigate the comparisons between Pakistan’s and China’s merger control regimes. The findings indicate that China’s merger control regulations are better adopted for the digital economy than Pakistani’s. It also sets out the policy implications for competition policy makers in Pakistan.
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Jaremba, Urszula, and Laura Lalikova. "Effectiveness of Private Enforcement of European Competition Law in Case of Passing-on of Overcharges: Implementation of Antitrust Damages Directive in Germany, France, and Ireland." Journal of European Competition Law & Practice 9, no. 4 (February 21, 2018): 226–36. http://dx.doi.org/10.1093/jeclap/lpy011.
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Crane, Daniel. "Fascism and Monopoly." Michigan Law Review, no. 118.7 (2020): 1315. http://dx.doi.org/10.36644/mlr.118.7.fascism.
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The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Branch, this Article assesses the historical record on the role of industrial concentration in facilitating Nazism. It finds compelling evidence that, while German big business principally did not support Hitler before he won the chancellorship in 1933, the extreme concentration of market power during the Weimar period enabled Hitler to seize and consolidate totalitarian power through a variety of mechanisms. Hence, the German experience with Nazism lends support to the idea that extreme concentration of economic power enables extreme concentration of political power. However, most of the conduct that created the radical economic concentration of the Weimar period would be unlawful under contemporary antitrust principles, which casts doubt on claims that a significant shift in antitrust enforcement is necessary to forestall antidemocratic forces.
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Markert, Kurt E. "German Antitrust Law and the Internationalization of Markets." World Competition 13, Issue 3 (March 1, 1990): 23–51. http://dx.doi.org/10.54648/woco1989014.
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Fiebig, Andre, and David Gerber. "The Causes and Consequences of the Neo-Brandeisian Antitrust Movement in the United States." Zeitschrift für Wettbewerbsrecht 19, no. 4 (December 8, 2021): 460–86. http://dx.doi.org/10.15375/zwer-2021-0405.
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Abstract The recent appointments of Timothy Wu as Special Assistant to the U.S. President for Technology and Competition Policy and Lina Khan, a member of the U.S. Federal Trade Commission, two prominent advocates for a fundamental shift in U.S. antitrust policy, and the introduction of federal and state legislation to change how antitrust is applied signal a realistic possibility of a fundamental change of direction in the course of U.S. antitrust. The shift advocated by these self-described “Brandeisians” goes beyond the reform proposals advocated by the Post-Chicago School movement. Whereas the Post-Chicago School movement, which was based primarily on industrial organization theory, advocated for change while recognizing the primacy of economic theory in the application of antitrust law, the Neo-Brandeisians argue that economic considerations should only be part of the substantive antitrust analysis and not necessarily the determinative factor. For many Europeans, and in particular Germans familiar with legal history, the ideas advanced by the Neo-Brandeisians will be familiar. Louis Brandeis, whose writings and opinions serve as the intellectual compass of the Neo-Brandeisians, was himself influenced by the Freirechtsbewegung and their skepticism of a wertfreie jurisprudence. Borrowing from post-modernist philosophy, the Neo-Brandeisians recognize that the dominant legal doctrines reflect the prevailing power structures in society. In their view, the fact that U.S. antitrust law relies heavily on economic theory does not allow it to claim value neutrality. The more radical members of this movement consequently argue that other values beyond economics should be considered in the application of U.S. antitrust law by the courts and antitrust agencies. In this article we attempt to introduce this movement to a European audience and assess its possible impact on the direction of U.S. antitrust.
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Gerber, David J., and James Maxeiner. "Policy and Methods in German and American Antitrust Law." American Journal of Comparative Law 36, no. 3 (1988): 567. http://dx.doi.org/10.2307/840348.
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ChiriŢĂ, Anca Daniela. "The Analysis of Market Dominance and Restrictive Practices Under German Antitrust Law in Light of EC Antitrust Law." European Competition Journal 4, no. 2 (December 2008): 415–41. http://dx.doi.org/10.5235/ecj.v4n2.415.
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Witt, Anne C. "Excessive Data Collection as a Form of Anticompetitive Conduct: The German Facebook Case." Antitrust Bulletin 66, no. 2 (March 10, 2021): 276–307. http://dx.doi.org/10.1177/0003603x21997028.
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In a high-profile decision of February 6, 2019, the German Federal Cartel Office prohibited Facebook’s data collection policy as an abuse of dominance for infringing its users’ constitutional right to privacy. The case triggered a remarkable interinstitutional dispute between the key players in German competition law. Conflicting rulings by the Düsseldorf Higher Regional Court and the German Federal Court of Justice further illustrate how deeply divided the antitrust community is on the role of competition law in regulating excessive data collection and other novel types of harm caused by dominant digital platforms. This contribution discusses the original prohibition decision, the ensuing court orders, and legislative reform proposals in the broader context of European Union and U.S. competition law.
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Wörsdörfer, Manuel. "Digital Platforms and Competition Policy: A Business-Ethical Assessment." Journal for Markets and Ethics 9, no. 2 (December 1, 2021): 97–119. http://dx.doi.org/10.2478/jome-2021-0007.
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Abstract The debate around ‘big tech’ and competition law and policy has gained traction over the past few years – not least because of the various ongoing antitrust investigations in China, Europe, and the U.S. This paper builds on the renewed interest in the topic and discusses the key characteristics of digital markets, the business models and strategies of major tech platforms such as Amazon, Apple, Facebook, and Google, and the corresponding antitrust issues. It does so by utilizing a distinct business ethics perspective, i.e., ordoliberalism. By doing so, the paper not only aims to enrich the current debate on big tech and antitrust; it also intends to illustrate the continuing relevance and importance of ‘German neoliberalism’ in the 21st century.
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Colangelo, Giuseppe. "Antitrust Über Alles. Whither Competition Law after Facebook?" World Competition 42, Issue 3 (September 1, 2019): 355–76. http://dx.doi.org/10.54648/woco2019020.
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After a three-year investigation the German Competition Authority (GCA) found Facebook’s data policy to be abusive. In its assessment the authority stated that, by making the use of its social-networking service conditional upon users granting extensive permission to collect and process their personal data, Facebook unlawfully exploited its dominant position in the German market for social networks. Hence, the GCA has found a way – uniquely German-specific – to limit Facebook’s ability to gather, combine, and analyse data. In order to achieve this, it has acted as a self-appointed enforcer of data protection rules, establishing a violation previously undetected by any data protection authority and placing a ‘special privacy responsibility’ on dominant firms.
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Chawla, Twinkle, and Ruchi Verma. "Pay for Delay Agreements: Antitrust Watch Intensifies." Journal of National Law University Delhi 5, no. 1 (July 2018): 22–39. http://dx.doi.org/10.1177/2277401718787952.
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The pharmaceutical sector has constantly endeavoured to balance its dual objectives of promoting state-of-art innovation and achieving affordable healthcare for all. The contrasting aims are also germane to the inevitable conflict between the competition law and the patent law with respect to this sector. Reverse payment settlement is one such concept that lies at the cross-section of these two legislations and strangely offers an uncanny mechanism where extreme partisans (i.e., innovator and generics) become comrades, thereby prodding genuine concerns and exposing legal vulnerabilities of such agreements. Against this backdrop, this article seeks to examine the growing undercurrent re reverse payment settlement agreements from a competition law perspective. In an attempt to harmonize the conflicting policy objectives, it will study the interplay between patent law and competition law by placing reliance on the approach followed by other jurisdictions. Further, this article will also assess whether reverse payment settlement agreements fall within the statutory construct of the Competition Act, 2002 and whether the Competition Commission of India (“CCI”) can assert its jurisdiction over such agreements. An attempt is also made to outline the approach which the CCI could adopt, bearing in mind the importance of ensuring exclusivity as an incentive for innovation.
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Zografos, Alexandros S. "The SEP Holders Guide to the Antitrust Galaxy: FRAND and Injunctions." World Competition 37, Issue 1 (March 1, 2014): 53–68. http://dx.doi.org/10.54648/woco2014004.
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Standardization has proven to be a source of considerable benefits but for antitrust it can be a field laden with dangers. Recent Article 102 TFEU investigations related to standard-setting focus on the issue of availability of injunctive relief for FRAND-encumbered SEPs and compatibility of such litigation with antitrust rules on unilateral behaviour. The heterogeneity, which characterizes the outcome of these probes across jurisdictions reflects the diversity of opinions found in academic scholarship. This notwithstanding, there is consensus that the concept of the willing licensee is decisive in this regard, while public interest considerations can play an equally crucial role. A German reference for a CJEU preliminary ruling sought guidance regarding the appropriate legal standard for such cases. SEP holders appear creative as to their lines of defence against Commission allegations, but past antitrust practice vis-à-vis dominant pioneers indicates that the avenue of offering legally binding commitments is an option that merits consideration.
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Pfeiffer, Roberto Augusto Castellanos. "Digital Economy, Big Data and Competition Law." Market and Competition Law Review 3, no. 1 (April 1, 2019): 53–89. http://dx.doi.org/10.7559/mclawreview.2019.315.
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Big data has a very important role in the digital economy, because firms have accurate tools to collect, store, analyse, treat, monetise and disseminate voluminous amounts of data. Companies have been improving their revenues with information about the behaviour, preferences, needs, expectations, desires and evaluations of their consumers. In this sense, data could be considered as a productive input. The article focuses on the current discussion regarding the possible use of competition law and policy to address privacy concerns related to big data companies. The most traditional and powerful tool to deal with privacy concerns is personal data protection law. Notwithstanding, the article examines whether competition law should play an important role in data-driven markets where privacy is a key factor. The article suggests a new approach to the following antitrust concepts in cases related to big data platforms: assessment of market power, merger notification thresholds, measurement of merger effects on consumer privacy, and investigation of abuse of dominant position. In this context, the article analyses decisions of competition agencies which reviewed mergers in big data-driven markets, such as Google/DoubleClick, Facebook/ WhatsApp and Microsoft/LinkedIn. It also reviews investigations of alleged abuse of dominant position associated with big data, in particular the proceeding opened by the Bundeskartellamt against Facebook, in which the German antitrust authority prohibited the data processing policy imposed by Facebook on its users. The article concludes that it is important to harmonise the enforcement of competition, consumer and data protection polices in order to choose the proper way to protect the users of dominant platforms, maximising the benefits of the data-driven economy.
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Iaia, Vincenzo. "The Strengthening Liaison between Data Protection, Antitrust and Consumer Law in the German and Italian Big Data-Driven Economies." Białostockie Studia Prawnicze 26, no. 5 (December 1, 2021): 63–74. http://dx.doi.org/10.15290/bsp.2021.26.05.04.
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Abstract Nowadays, personal data represent a strategic asset for companies as they can significantly influence their market position. Indeed, the issues arising from the management of large amounts of data (so-called big data) are not only relevant for data protection authorities, since this practice has also induced the intervention of competition and consumer protection authorities. The digital economy has enhanced new forms of abuses of dominant position and unfair practices, which can be performed via the handling of big data. This paper starts by analysing the German antitrust authority vs Facebook decision in which the big-tech platform was sanctioned for having performed an exploitative abuse of dominant position through its data management strategy. Then, it focuses on the Italian antitrust authority vs WhatsApp decision, where WhatsApp was deemed responsible for unfair and aggressive practices aimed at extracting users’ consent for data-sharing purposes. These two remarkable cases will be compared and further discussed, outlining the need to rethink the strengthening interplay between data protection, competition and consumer law, as it will entail a closer contact of the respective authorities to ensure the sustainability of digital markets.
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Klees, Andreas M. "Breaking the Habits: The German Competition Law after the 7th Amendment to the Act against Restraints of Competition (GWB)." German Law Journal 7, no. 4 (April 1, 2006): 399–419. http://dx.doi.org/10.1017/s2071832200004740.
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The amended German Act against restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) has been in force since 1 July 2005. After a long and controversial debate, including a mediation procedure between the Bundestag (Lower House of the German Federal Parliament) and the Bundesrat (Upper House of the German Federal Parliament), and two and a half years after the adoption of Regulation No. 1/2003 in December 2002 the 7th Amendment to the Law against restraints of Competition was finally adopted in June 2005. Interestingly, the delay in passing the 7th Amendment – more than one year after Regulation No.1 came in force – was not so much caused by the fundamental changes that had become necessary in the light of Regulation No. 1. Rather, it was caused by those changes which did not become part of it: the proposed reform of merger control in the newspaper industry. Nonetheless, the latest amendment of the German competition law brought a greater number of fundamental changes than the six previous amendments adopted between 1958 and 1998. More specifically, the 7th Amendment abolished numerous specialties of the German antitrust law, which had been cultivated during previous decades. At the same time, it pointed to the increasing “Europeanization” (or, in other words, the decreasing relevance) of the national competition law that primarily covers the rules regarding anti-competitive agreements, decisions and concerted practices and is likely to extend to other areas in the future, such as unilateral conduct and merger control.
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Sadowska, Malgorzata. "Energy Liberalization in Antitrust Straitjacket: A Plant Too Far?" World Competition 34, Issue 3 (September 1, 2011): 449–76. http://dx.doi.org/10.54648/woco2011037.
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The European Commission (EC) has launched a number of antitrust investigations against the major energy incumbents in the aftermath of the energy sector inquiry. Most of them have already been settled under Article 9 of the EC Regulation 1/2003 and the undertakings offered far-reaching, sometimes structural, commitments. This article studies the 2008 investigation into price manipulation in the German electricity wholesale market. In spite of no convincing evidence and flaws in the assessment, the Commission was able to negotiate from E.ON substantial capacity divestments. The Commission is straightforward about using antitrust rules to open up energy markets. Sector inquiries, commitment procedure, and structural remedies allow for a quick intervention and flexible problem-solving and bring about decisive changes in the energy market setting. However, harnessing antitrust for the purpose of energy liberalization policy has an adverse impact on competition enforcement itself. First, it leads to a number of 'weak' cases, based on far-fetched arguments. Second, it results in remedies that are not tailored to the abuse at issue but are in line with a wider objective of energy market liberalization and, as an outcome of negotiations, further swayed by the firm's own interest in the ultimate shape of the commitment package.
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Frank, Lior. "Boundedly Rational Users and the Fable of Break-Ups: Why Breaking-Up Big Tech Companies Probably Will Not Promote Competition from Behavioural Economics Perspective." World Competition 43, Issue 3 (September 1, 2020): 373–84. http://dx.doi.org/10.54648/woco2020019.
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The disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany’s implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany’s implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future. antitrust, competition law, big tech companies, behavioural economics, bounded rationality, digital economy, brand name, platform and merger breakups, market power, remedies.
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Wils, Wouter P. J. "Independence of Competition Authorities: The Example of the EU and Its Member States." World Competition 42, Issue 2 (June 1, 2019): 149–69. http://dx.doi.org/10.54648/woco2019012.
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At the end of 2018, the European Parliament and Council adopted Directive (EU) 2019/1, often referred to as the ‘ECN Directive’, which, among other things, contains provisions ensuring the independence of the competition authorities of the EU Member States (national competition authorities or NCAs), which are, together with the European Commission, responsible for the enforcement of the EU antitrust rules laid down in Articles 101 and 102 TFEU. In early 2019, the European Commission visibly showed its own independence by prohibiting Siemens’ takeover of Alstom’s rail transport business, a proposed merger publicly backed by the German and French governments. This article gives an overview of the independence guarantees in EU law and discusses more in general the notion of independence of competition authorities and its rationale.
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Koos, Stefan. "Artifical Intelligence as Disruption Factor in the Civil Law: Impact of the use of Artifical Intelligence in Liability, Contracting, Competition Law and Consumer Protection with Particular Reference to the German and Indonesian Legal Situation." Yuridika 36, no. 1 (January 1, 2021): 235. http://dx.doi.org/10.20473/ydk.v36i1.24033.
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The Article describes the impact of artificial intelligence in different areas of the civil law, namely tort law, contract law, antitrust law and consumer protection law. It shows that the use of artificial intelligence already leads to legal constellations, which cannot longer easily subsumized under elementary terms of the civil law and therefore cause a real disruption in the civil law. Terms, which are based on a freedom concept of the subjective rights of the actors, such as private autonomy and contractual will not fit anymore to the activity of artificial intelligence systems the more those systems are able to act independant of human actors. Similar applies to terms which are referring to the freedom of decision like the market behaviour in the competition law. The article discusses several solution approaches, such as personification approches, agent-principal approaches and the definition of new categories of market and contractual acting. In the consumer protection the special focus in the future legal development will be on the problem how to achieve adequate, though not overflowing, transparency for consumers, especially regarding the combination of big data and algorithms.
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Friederiszick, H. W., and L. H. Roller. "QUANTIFICATION OF HARM IN DAMAGES ACTIONS FOR ANTITRUST INFRINGEMENTS: INSIGHTS FROM GERMAN CARTEL CASES." Journal of Competition Law and Economics 6, no. 3 (July 30, 2010): 595–618. http://dx.doi.org/10.1093/joclec/nhq008.
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Kühne, Gunther. "Incremental Regulatory Reform and Antitrust Law in the Energy Sector: the German “Middle of the Road” Approach." Journal of Energy & Natural Resources Law 14, no. 1 (February 1996): 76–87. http://dx.doi.org/10.1080/02646811.1996.11433050.
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Mackiewicz, Marta. "The Condition of Fault in Private Enforcement of Competition Law – a Comparative Analysis of U.S. v. Polish and European Approach." Yearbook of Antitrust and Regulatory Studies 12, no. 21 (2020): 71–97. http://dx.doi.org/10.7172/1689-9024.yars.2020.13.21.3.
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The purpose of the Polish Act on Claims for Damages for Remedying the Damage Caused by Infringements of Competition Law, based on and implementing EU law – the Damages Directive, was to enable undertakings to effectively use private enforcement of their damages claims from competition law offenders. Infringement of competition law is classified as a tort according to the said Act on Claims. Therefore, the Act on Claims refers to tort liability rules. The conditions of classic tort liability in domestic law do not have exactly the same dogmatic meaning and scope as the conditions of public or private liability for the infringements of domestic and EU competition law. In practice, their application by national courts may rise many questions regarding conformity between domestic and EU law. This paper aims to analyse one of the key conditions of tort liability, that is, the fault of both the undertaking – the offenders, as well as the fault of their governing bodies and officers. If one were to understand the notion of fault within the limits laid down by civil law, and follow the literal wording of the Polish Civil Code’s provisions referring to the fault condition, the efficiency of private enforcement of damage claims arising from infringements of competition law would be doubtful. Therefore, the aim of this paper is to provide the readers with such an interpretation of the notion of fault, as a condition of liability of undertakings, that the legislative purpose of the Act on Claims is achieved and that the principles of efficiency and equivalence of the EU law are observed. In order to present a comprehensive picture, this paper will also discuss the case law of the CJEU concerning ‘anti-trust fault’, accompanied by a comparative analysis of the German and French approach to the fault condition as well as United States antitrust laws in the same area.
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Hawk, Barry E. "Policy and Methods in German and American Antitrust Law: A Comparative Study. By James Maxeiner. New York, Westport and London: Praeger Publishers, 1986. Pp. xiii, 174. Index. $37.50." American Journal of International Law 82, no. 1 (January 1988): 208–14. http://dx.doi.org/10.2307/2202905.
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V. V., Serediuk. "The role and purpose of the state in the currents of neoliberalism." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 213–19. http://dx.doi.org/10.33663/2524-017x-2020-11-38.
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The article reveals the theses of neoliberalism - a complex philosophical and scientific course, as well as social practices concerning a new understanding of the role and purpose of the state in the twentieth century. The results of the study are based on an analysis of the works of representatives of German and American neoliberalism. The strong role of the state in the economic sphere, as well as the humanitarian, social and security purpose of the state are described. Neoliberalism was formed in the fields of economics, political science, jurisprudence, international law, philosophy as scientific fields of knowledge and embodied in the economic, social and cultural policy of Western democracies, including the reflection of its doctrinal provisions in the constitutions of European states. Therefore, neoliberalism can be defined as a set of doctrinal currents and social practices, characterized by economic, political, legal and ideological components. Representatives of neoliberalism tried to redefine the role, significance and tasks of the state according to the interwar and postwar economic and political conditions. At the same time, their ideas concerned individual rights and freedoms, the legal social order, as well as the worldview and methodological foundations on which all currents of neoliberalism were based. In August 1938, a conference of neoliberal economists, known as the Lippmann Colloquium, was held in Paris, at which a new concept of the state was essentially formulated. It consisted of the following provisions. First, the state must determine the system of rules within which economic activity is formed, and guarantee their implementation. Secondly, it was recognized at the conference that the market mechanism does not provide automatic self-regulation and balance, and therefore requires some government intervention.The third provision of the conference established that the state had to take only those measures that would ensure the support of free competition. Fourth, the restriction of monopolies was recognized. This idea underlies at the basis of antitrust laws in USA. The fifth point of neoliberalism was the limited intervention of the state in economic relations. It was allowed only temporarily and in cases when the flexibility of supply and demand was violated and the balance on the basis of the price mechanism was lost. The state should not set the price on the market, but should influence the magnitude of supply or demand, thus equalizing prices and preventing sharp fluctuations. As a result, the state in neoliberalism has a strong influence on the economic system by eliminating market monopolies, ensuring free competition, regulating excess supply and demand. Also, one of the leading roles of the state is to carry out activities that do not provide profit in the near future (humanitarian, scientific, medical, environmental spheres). Having created conditions for sustainable economic development, the state has to embody social and security tasks. Keywords: neoliberalism, state, role, order, intervention, economy, law, peace, security, humanitarian and social tasks.
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Deutscher, Elias. "Reshaping Digital Competition: The New Platform Regulations and the Future of Modern Antitrust." Antitrust Bulletin, April 19, 2022, 0003603X2210827. http://dx.doi.org/10.1177/0003603x221082742.
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This article reflects on the way in which the new initiatives to regulate powerful online platforms in the European Union, the United States, the United Kingdom, and Germany challenge well-established fundamentals of modern antitrust and thereby reshape the future of competition law. It shows that the new platform regulations set in motion a profound transformation of modern antitrust law that operates along four parameters. First, the new platform regulations unsettle the long-standing baseline assumption that the maximization of consumer welfare constitutes competition law’s core mission. Second, the new instruments repudiate the orthodox understanding of error costs that advocates under-enforcement as the optimal standard of intervention in innovation-driven markets. Third, by relying primarily on rule-like presumptions as legal commands to regulate digital competition, the new platform regulations reverse the trend toward an increasingly inductive mode of analysis that characterized modern antitrust under the “more economic” or “effects-based” approach. Fourth, the new platform regulations also fundamentally diverge from a purely probabilistic standard of proof which requires the showing that impugned conduct is more likely than not to cause anticompetitive harm. The reconfiguration of modern antitrust along these four vectors, the article concludes, foreshadows a new, more inclusive model of innovation and growth in digital markets.
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Eckel, Philipp. "Rechtsvergleichende Einordnung von Preisschirmeffekten (Umbrella Pricing) in das Kartellschadensersatzrecht." Kölner Schrift zum Wirtschaftsrecht 6, no. 4 (January 1, 2015). http://dx.doi.org/10.9785/kszw-2015-0407.
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Der Beitrag gibt einen Überblick über die Frage der schadensersatzrechtlichen Ersetzbarkeit von Preisschirmschäden nach der Entscheidung des EuGH in der Rs. „Kone“ und würdigt kritisch die Reaktionen in der deutsch- und englischsprachigen Literatur auf das Urteil, indem u.a. das Erfordernis eines zweigliedrigen Zurechnungstatbestandes mit einer doppelten Vermutungsregel betont und die Behandlung der Kronzeugenregelungen durch den Gerichtshof abgelehnt werden. Rechtsvergleichend wird aufgezeigt, dass einige Erfahrungswerte aus Rechtsprechung und Literatur zum US-amerikanischen Antitrust Law auch für die unionsrechtliche Beurteilung von umbrella pricing fruchtbar gemacht werden können und dass sich die Anforderungen des EuGH unter Berücksichtigung der bisherigen nationalen Praxis zu Preisschirmeffekten ohne weiteres in das nationale Kartelldeliktsrecht des Vereinigten Königreichs und Österreichs implementieren lassen. Die Abhandlung schließt mit einer ausführlichen Einordnung des EuGH-Urteils in das deutsche Schadensrecht unter Berücksichtigung der bisherigen BGH-Rechtsprechung und argumentiert für eine Berücksichtigung von Preisschirmeffekten über den identischen relevanten Markt hinaus. Umbrella Pricing after the ECJ’s decision in „Kone“: A comparative analysis and classification into the German tort law This paper provides an overview of the requirements of compensation of umbrella damages according to the ECJ’s decision in „Kone“ and comments critically on the reactions on this decision in German and Englishspeaking literature stressing the imperative of a two-part causation-requirement and criticising the ECJ’s argument about the leniency programme. A comparative analysis shows that assessment under European Law may benefit from the jurisprudence and literature in US Antitrust Law and that the requirements stated in „Kone“ can be implemented into the national tort laws of the United Kingdom and Austria without further problems. The paper ends with a detailed classification of the principles established in „Kone“ into the German tort law considering the previous national jurisprudence and argues in favour of the compensation of umbrella damages from neighbouring markets.
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Buxbaum, Hannah L. "German Legal Culture and the Globalization of Competition Law: A Historical Perspective on the Expansion of Private Antitrust Enforcement." Issues in Legal Scholarship 6, no. 2 (January 4, 2006). http://dx.doi.org/10.2202/1539-8323.1084.
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