Antitrust and Trade Regulation Commons^™

Bond Issue Agent, Tomasz Sójka, Adrian Rycerski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article presents the matter of the obligation of the issue agent to participate in the process of issuing bonds, mortgage bonds and investment certificates issued by a private closed-end investment fund. This is a novum introduced to the Polish capital market law pursuant to the Act of 9.11.2018 amending certain acts in connection with the strengthening of supervision over the financial market and investor protection in this market, directly affecting the shape of the basic institutions of the Act of 15.1.2015 on bonds.

What Do Chinese Clients Want?, Ji Li, Wei Zhang

Research Collection Yong Pung How School Of Law

The world’s two largest economies are locked in an escalating trade war, and caught in the crossfire are hundreds of Chinese multinational companies (MNCs) that have made substantial U.S. investments. Facing heightened legal risks in a less hospitable environment, the Chinese MNCs increasingly depend on local lawyers. Yet, their purchase of U.S. legal service, a topic of both practical and theoretical importance, has received little attention. To fill the gap, this article empirically investigates how Chinese companies in the United States select their U.S. legal counsel. By analyzing a unique dataset, the article finds that Chinese MNC managers uniformly prioritize …

American Oligarchy: How The Enfeebling Of Antitrust Law Corrodes The Republic, Zachariah Foge

The Journal of Business, Entrepreneurship & the Law

In this note, I will argue that the current antitrust framework is misguided and based on erroneous legal and economic theories originating from the Chicago School. I will argue that the neoclassical approach is not only wrong when examining the legislative intent of Congress but is also in contravention with the policy goals and foundational principles of antitrust law. Furthermore, I will argue that the Chicago School’s narrow, outcome-based view of antitrust is ill-equipped to deal with the demands of the twenty-first century and especially with the online marketplace. The tech giants are unprecedented in their scale, and the online …

The Rule Of Reason, Herbert Hovenkamp

Florida Law Review

Antitrust’s rule of reason was born out of a thirty-year Supreme Court debate concerning the legality of multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.

This Article provides a litigation field guide for antitrust claims under the rule of reason—or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up to the point of summary judgment, the …

Antitrust In Digital Markets, John M. Newman

Vanderbilt Law Review

Antitrust law has largely failed to address the challenges posed by digital markets. At the turn of the millennium, the antitrust enterprise engaged in intense debate over whether antitrust doctrine, much of it developed during a bygone era of smokestack industries, could or should evolve to address digital markets. Eventually, a consensus emerged: although the basic doctrine is supple enough to apply to new technologies, courts and enforcers should adopt a defendant-friendly, hands-off approach.

But this pro-defendant position is deeply-and dangerously-flawed. Economic theory, empirical research, and extant judicial and regulatory authority all contradict the prevailing views regarding power, conduct, and …

The Future Of Dairy Cooperatives In The Modern Marketplace: Redeveloping The Capper-Volstead Act, Sarah K. Phillips

Dickinson Law Review (2017-Present)

Agriculture plays a fundamental role in the U.S. economy as a multibillion-dollar industry that feeds people all over the world. However, over the past decade, the dairy industry in particular has changed from a reliable sector of the greater agricultural industry into an unsettled, politically-charged, and fractured group. Dairy farmers’ consistently receiving low milk prices has facilitated this divide. Tired of being ignored and underpaid, dairy farmers are demanding change in the current dairy market structure.

Federal Milk Marketing Orders and a variety of statutes regulate the dairy industry, but the 1922 Capper-Volstead Act remains the most notable piece of …

Ecosystem Competition And The Antitrust Laws, Daniel A. Crane

Articles

Conventional antitrust norms analyze market power—as a stepping stone to anticompetitive effects and, hence, prohibited conduct—from the perspective of product substitutability. Two goods or services are said to compete with one another when they are reasonably interchangeable from the perspective of consumers, or to put it in more formal economic terms, when there is cross-elasticity of demand between them. Conversely, when two goods or services are not reasonably interchangeable, they are not horizontally related and are said not to compete with one another. Since a concern over horizontal agreements and horizontal effects dominate antitrust—courts even analyze vertical agreement or merger …

Amazon And Platform Antitrust, Ben Bloodstein

Fordham Law Review

With its decision in Ohio v. American Express, the U.S. Supreme Court for the first time embraced the recently developed, yet increasingly prolific, concept of the two-sided platform. Through advances in technology, platforms, which serve as intermediaries allowing two groups to transact, are increasingly ubiquitous, and many of the biggest tech companies operate in this fashion. Amazon Marketplace, for example, provides a platform for third-party vendors to sell directly to consumers through Amazon’s web and mobile interfaces. At the same time that platforms and their scholarship have evolved, a burgeoning antitrust movement has also developed which focuses on the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Binding Effects Of Soft Law. Some Remarks From The Eu Competition Law Perspective, Agnieszka Chudyba

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The use of EU soft law raises many doubts. On the one hand, the question is whether the legality of soft law acts may be challenged before the European courts. On the other hand, one may wonder to what extent the EU and national institutions should be bound by soft law instruments. The author focuses on this second issue. Firstly, she examines the so-called selfbinding effect of EU soft law as well as its enforcement by the EU courts. Secondly, the author examines whether this binding effect of soft law may be observed at the national level. Competition law is …

Broad Rewarding By The Ec And Occp Of Undertakings’ Cooperation Within The Proceedings Concerning Competition Law Infringements, Agata Zawłocka-Turno

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The Article presents recent decisional practice of EC showing the tendency to broad rewarding of undertakings’ cooperation with the authorities outside existing procedures of leniency, settlements and commitment decisions. It also presents OCCP’s approach in this respect. Furthermore it assess, whether the broad use of negotiated approach to the enforcement of competition law does not raise risks for the effectiveness of its enforcement.

Improvement Of Supply Security By Regional Energy Systems, Rafał Dzikowski, Władysław Mielczarski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The power supply systems used to operate as centralized systems where large power stations supplied electric energy via high voltage transmission networks and middle voltage distribution grids to fi nal energy users. Emerging of new technologies, in particular, renewable energy plants, and the activation of energy customers, who are able not only to shape their power profi les but also to produce electricity, have radically changed the modus operandi of power supply systems, allowing for the improvement of power supply security. The paper is focused on presenting existing power systems pointing out the new rules of power system operation that …

Impact Of The Mifid Ii Directive On The Risk Of Operation Of Energy Sector Companies In Poland, Paweł Hawranek, Dariusz Michalski, Daniel Borkowski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The introduction of the MiFID II Directive required the implementation of this EU act into the Polish legal order, taking into account some of its specifi cs. However, the Directive was not implemented before of transposition date. Lack of implementation caused the occurrence of regulatory risk on the side of energy companies involved in the wholesale market, related to the lack of certainty as to the fi nal shape of the implementation. The time of the vacatio legis of the directive, instead of adapting the structure of enterprises, was used to wait for the introduction of implementing regulations. As a …

The Control Of Certain Investment Act As A Mechanism Ensuring Energy Safety, Michał Bałdowski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In 2015 the Polish Parliament enacted the Control of Certain Investment Act (the Act), which introduces a special legal regime regulating the acquisition of shares, enterprise or organized parts of an enterprise, of businesses entered on the list of protected companies. The main goal of this regulation is to introduce administrative law mechanisms which protect companies of a strategic importance to national safety against hostile takeovers conducted by foreign entities. In the current legislative status, half of the protected companies pursuant to the Act are companies operating in the energy sector or closely related sectors. Therefore, the supervision over the …

Security And Regulation Of The Energy Market – The International Academic Conference, Łódź, 23–34.05.2019, Maciej Groblewski, Michał Pater, Wiktoria Pogorzała, Michał Pytkowski, Michał Wielec

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The International Academic Conference, Łódź, 23–34.05.2019

The Introduction Of The Compliance Programme As A Mitigating Circumstance In The Light Of The Guidelines Of The Italian Competition Authority (Autorita’ Garante Della Concorrenza E Del Mercato), Grzegorz Materna

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article’s aim is to present the approach of the Italian competition authority (Autorita ‘Garante della Concorrenza e del Mercato) to the competition compliance programs introduced by undertakings. In this regards the Authority’s recent case law and its new “Guidelines on antitrust compliance “ are presented. They provide that under certain conditions undertakings that infringed antitrust rules can apply for reduction of the fi nancial penalty imposed by the Italian competition authority. Thus, Autorita ‘Garante della Concorrenza e del Mercato recognizes that rewarding undertakings’ law enforcement efforts, even if the infringement has occurred, encourages them to engage resources in preventing …

Network Connection Agreements In The Heating Sector: Competition And Consumer Law Issues, Jarosław Sroczyński, Agnieszka Staszek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article presents the issue of concluding contracts for the connection to the heating network from the perspective of competition and consumer protection law. The obligations of heating enterprises were discussed, primarily the obligation to connect new customers to the heating network. The key issue presented in the article is risk distribution between the heating company and the connected entity, if the original intentions of the investor, in particular the developer, prove to be impracticable. Excessive protection of the heating enterprise against such a circumstance may result in an allegation of abuse of a dominant position; an attempt to transfer …

Application For Certifi Cation Of A Capacity Market Entity For The Main Auction And Additional Auctions, Marcin Kraśniewski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The subject matter of this paper is the application for certifi cation of a capacity market entity for the main auction and additional auctions referred to in the Act on the capacity market. First of all, the personal scope of the application is discussed. Presented next is the substantive scope of the application. This part includes an analysis of the legal nature of the Capacity Market Regulations, and their position in the hierarchy of legal acts, as well as a presentation of individual elements of the application for certifi cation (content). Furthermore, particular attention is paid to the issue of …

Obligations Of Electricity And Gas Distribution System Operators With Respect To The Development Of Public Road Transport Recharging Infrastructure, Jarosław Greser

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article regards the issue of the construction of an infrastructure indispensable for increasing the number of vehicles using alternative fuels. Pursuant to the lawmaker’s decision, the key role in the fulfi llment of this duty will be played by electricity and gas distribution system operators, who will be responsible for the construction of the number of points indicated in the bill. Simultaneously, the localization of these points will be decided by other entities, such as municipalities, the General Director for National Roads and Motorways or harbor administrators. The obligations of DSO with respect to the preparation of plans and …

Gdpr And The Process Of Changing The Electricity Seller And Irregularities Associated With It, Paweł K. Domagała

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The subject of the study presents the procedure of changing the electricity seller in Poland. Since 2007, permanent increases in the number of changes of electricity sellers have been observed. The abovementioned is both an opportunity and a threat for consumers. Therefore, this study will describe the practices of electricity sellers, which breach collective interests of consumers. The second part of the study presents solutions contained in the General Data Protection Regulation (GDPR) in the context of the conclusion and performance of the contract for the sale of electricity. The way in which EU regulation can contribute to the increase …

Imposing Taxes On Wind Farms, Mateusz Czuba, Michał Wielec

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The main goal of the paper is to show all of the tax duties connected with the production of energy from wind in Poland. Producing electricity from wind is one of the most popular ways to produce energy from renewable sources of energy in Poland. Tax law linked to this kind of energy manufacturing is elaborate and still changing. The article is an attempt to describe all tax duties which are imposed on wind farm owners. The paper concentrates mainly on three of the most often appearing taxes: the excise tax, the property tax, and electricity taxation from micro-installation.

About The Need Of Transition Of The President Of The Office Of Competition And Consumer Protection Into A Collegiate Competition Authority, Paweł Podrecki, Mateusz Mroczek, Katarzyna Menszig-Wiese

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Taking into account the approaching 30th anniversary of the establishment of a modern competition protection system in Poland, based on a one-man central administrative body – the President of the Offi ce of Competition and Consumer Protection, the authors of the article want to start anew and join to the debate on institutional form of the Polish competition authority. This article briefl y summarizes the discussions conducted by representatives of jurisprudence on the issue. The authors also identify the most important defi cits of the current institutional model – primarily in the light of human rights protection standards and the …

The New Support Instruments Of Electricity Generation Based On A Fixed Purchase Price-Selected Issues, Marcin Trupkiewicz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The legal analysis conducted in this article of Polish provisions under the Renewable Energy Sources Act makes it possible to indicate that the legislator predicted the new instruments of support the RES. These instruments are addressed only to entrepreneurs who produce electricity from certain types of RES (agricultural biogas, landfi ll biogas, biogas from sewage treatment plants, other biogas and hydropower). The essence of these instruments is to base them on the use of a fi xed purchase price, which creates two independent and separate mechanisms enabling the transfer of public aid for the production of electricity from RES. The …

Decision To Suspend The Use Of A Large Combustion Plant – Weighing Of Public And Private Interest, Wiktoria Pogorzała, Michał Pytkowski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The purpose of the article is to analyze to what extent and whose interest should the environmental protection inspection body be guided by when deciding to suspend the use of a large combustion plant installation. Only proceedings based on Article 367 EPL, due to the fact that the optional nature of this proceeding, combined with the possibility of setting an additional deadline to remove violations only at the request of a party, raises doubts of the authors of this article regarding the weighing of public and private interests. In the analyzed proceedings, the public interest manifested in the obligation to …

On The Effectiveness Of Antitrust Enforcement In Relation To Vertical Infringements. A Comment On The 15 February 2019 Judgement Of The Polish Supreme Court, Case I Nsk 10/18 (Anyro), Jan Polański

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article constitutes a comment on a judgement delivered by the Polish Supreme Court. In the judgement the Supreme Court took a negative stance in relation to a Court of Appeals ruling which had set aside an infringement decision issued by the Polish Competition Authority concerning price collusion in the market for watches. In the judgement, the Supreme Court presented its position in relation to three important issues: the determination of the parties to anticompetitive agreements and the addressees of infringement decisions, the defi nition of relevant market, and establishing ‘by object’ infringements. In relation to each of the aforementioned …

In Search Of The Optimal Lawmaker. Some Dilemmas Of Regulation And Deregulation From The Perspective Of Law And Economics, Mariusz J. Golecki

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This paper presents various concepts of regulation, presented within the broad stream of neo-institutional economics. The purpose of the article is to attempt to answer the question why and how contemporary regulatory theory can and should take into account the characteristics of institutions involved in the process of law-making and applying the law. Such an analysis may constitute a starting point to outline of an integral model of regulation and deregulation, taking into account the complementary nature of legislative, executive and judicial powers.

‘Service’ On Infrastructural Markets Of Fuel And Energy In The Light Of The Freedom Of Establishment And The Freedom To Provide Services, Zdzisław Muras

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The aim of this paper is to provide an insight into doubts arising in the practice of applying the law related to the scope of the concept of ‘service’ in energy infrastructure markets with regard to European and national regulations. The concept of services in the context of the general economic interest was also considered. The author, having conducted a broad query on the subject literature and case law, attempted to develop the most explicit approach to the outlined study subject. Proper classifi cation of a given activity as a service or business activity is not only of a theoretical …

Exemption From The Utilities Directive – Brief Overview Of Eu Law And Case Law, Ignacio Herrera-Anchustegui, Marcin Kraśniewski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This paper presents the existing practice regarding the granting of exemptions from Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC in relation to entities from the energy sector. In that regard, there is a noticeable growth in the number of positive decisions of the Commission. The authors anticipate that over time individual exemptions from the Utilities Directive will lead to the exemption of the entire energy sector or its signifi cant part from the EU’s public …

Legal Status Of Electric Scooters And Their Users – Proposed Solutions And Models Abroad, Maciej Groblewski, Michał Pater

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The growing popularity of electric scooters and other personal means of transport, as well as their progressive and massive impact, means that the law must regulate the condition of electric scooters, their users, rules of use and safety problems. This issue has not yet been regulated in Polish law. Social and technological requirements as well as the increasing scale of investment in electromobility have contributed to legislative action. In pursuit of the expectations of modern business trading and social behavior, the Ministry of Infrastructure has developed a draft act of 30 July 2019 amending the act on road traffi c …

One, Three And Two, And Independent Will Be You… On The Necessity Of The Wider Analysis Of Independence Of Polish National Competition Authority In The Light Of Ecn+ Directive, Małgorzata Kozak

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article is an attempt to analyze the issue of assuring the independence of competition authorities in connection with the adoption of Directive 2019/1. It analyzes: the independence in the context of the authority functions, components and boundaries of the concept itself (accountability and transparency) and how the Directive 2019/1 and attempts to implement it so far in Poland (still at the stage of a draft) carry out the postulates made by academia. The author indicates that shaping the independence of a competition authority cannot be made in isolation from the objectives and functions performed by that authority, and in …