Antitrust and Trade Regulation Commons^™

Neobrandisianism And The Political Content Of Antitrust, Jan Polański

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

The rise of Big Tech reinvigorated the debate on the role of antitrust enforcement. While in Europe antitrust authorities have taken an active stance on policing the actions of Big Tech, in the United States the emergence of the digital giants provided a platform to voice concerns over the philosophy underlying modern antitrust. The prevailing view that antitrust should become more and more economic and less ‘political’ has been questioned by the supporters of the New Brandeis Movement, who argue that ‘antitrust is dead’. According to Neo-Brandisians, for antitrust to be reborn, a fundamental change in the perception of antitrust …

The Omega Man Or The Isolation Of U.S. Antitrust Law, Spencer Weber Waller

Faculty Publications & Other Works

There is a classic science fiction novel and film that present a metaphor for the isolation of United States antitrust law in the current global context. Richard Mathiesson's 1954 classic science fiction novel, I am Legend, and the later 1971 film released under the name of The Omega Man starring Charleton Heston, both deal with the fate of Robert Neville, a survivor of a world-wide pandemic who believes he is the last man on Earth.

While I am Legend and The Omega Man are obviously works of fantasy, it nonetheless has resonance for contemporary antitrust debate and discourse. United States …

Distribution Models Of Electronic Contents On The Example Of E-Books, Wojciech Łyszczarz

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

E-books can be distributed via Internet platforms according to two principal models. On one hand, a wholesale model can be applied, where e-books are sold to retailers at a wholesale price for further re-sale, the retail prices of which are freely set by the retailers. On the other hand, an agency model can be used, where the retailer acts as an intermediary in e-book sales and charges a commission from the publisher. Experiences of the US and European competition authorities show that application or change of the distribution model can have negative consequences in the area of competition law. This …

Antitrust And Democracy, Spencer Weber Waller

Faculty Publications & Other Works

Our solution of the anti-monopoly problems must be in terms of our ideals-- the ideals of political and economic democracy. We want no economic or political dictatorship imposed upon us either by the government or by big business. We want no system of detailed regulation of prices by the government nor price fixing by private interests. We do not want bureaucracy or regimentation of any kind, but we will prefer governmental to private bureaucracy and regimentation, if we have to make such a choice. We cannot permit private corporations to be private governments. We must keep our economic system under …

Will Competition Law Solve The Vendor Lock-In Problem In The B2b Software Sector?, Piotr Semeniuk

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

Competition law is increasingly being used (so far, mainly in the US) in order to prevent the vendor lock-in problem in the B2B software sector. International academia also calls for increased activities of competition authorities in addressing vendor lock-in problems. Some business practices and contractual clauses applied by vendors in their Polish IT contracts could also be classified as an anticompetitive practice (e.g. exclusivities, tying, bundling, loyalty rebates, refusals to grant a license or to grant access to information on interoperability). Competition law in the world of IT contracts can supply buyers or competitors with arguments to challenge some of …

Violation Of Data Protection Law As An Abuse Of A Dominant Position? The Bundeskartellamt’S Proceedings Against Facebook, Iga Małobęcka-Szwast

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

The article attempts to assess the main assumptions of the proceedings initiated in March 2016 by the Bundeskartellamt, the German competition authority, against Facebook, and thus answer the question whether an infringement of data protection law may constitute an abuse of a dominant position under EU competition law. In the wider perspective, the proceedings conducted by the Bundeskartellamt also raise important questions regarding the relationship between competition law and data protection law, including data protection issues in competition law, as well as the competences of antitrust authorities to assess breaches of data protection law.

Agreements Between Airports And Carriers In The Light Of Eu Competition Law, Jakub Kociubiński

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

Agreements between airports and carriers, similarly to all vertical agreements, can cause harm to the market, primarily when the balance between the undertakings concerned is disturbed and dependence emerges. In air transport, such relationships have been considered largely through the lens of State aid law, since the subsidization of airports makes its activities imputable to the State. Recourse to competition law – namely Articles 101 and 102 TFEU – should be perceived as an alternative, required in the light of the gradual withdrawal of State funding for airport operations. This paper provides an overview of the anticompetitive mechanism highlighted above, …

Taking Antitrust Away From The Courts, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of …

Online Tour Booking Software As A Mechanism Of Coordinated Anti-Competitive Activities, Case Comment To The Judgment Of The Court Of Justice Of The European Union Of 21 January 2016 In Case C-74/14 Eturas Uab V. Lithuanian Competition Authority, Aleksandra Dziurkowska

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

The reviewed court judgment addresses the issue of algorithmic pricing, which is of major importance especially in the current digital age. In the investigated case, the liability for infringing competition law was also assigned to a third party (software provider) active on a different market than the travel agencies (original competitors). However, this issue is not further investigated by CJEU. In its judgment, the court emphasizes also the grounds for applying the principle of the presumption of innocence to anti-trust proceedings.

Trade Associations, Information Exchange, And Cartels, Spencer Weber Waller

Faculty Publications & Other Works

Trade associations can play a procompetitive role in an economy but, as an association of actual and potential competitors, can also raise important competition law issues that must be addressed carefully by legal counsel. This Issue Paper presents a hypothetical problem that illustrates many of the issues that counsel can confront in representing a trade association, its members, or company executives. The Issue Paper raises many of the issues from a United States' perspective with occasional comparative examples from other jurisdictions. Carefully consider how your jurisdiction would, and should, address these all too real issues. In thinking about the …

Consumer Protection In The Internet – The Case Of Free Services Offered By Internet Platforms, Iga Małobęcka

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

Global internet platforms, such as Google, Facebook, Amazon or Linkedin, increasingly offer consumers free of charge services. Such services, however, are only seemingly free – consumers pay for their use with their own data. The problem with such seemingly free services lies, inter alia, in the lack of reliable and complete information about all elements of the agreement. Hence, consumers are being misled as to the actual remuneration for such services, as well as further use of their data by the internet platforms and other entities. This article analyzes possible ways of a legal classification of such practices of internet …

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

UF Law Faculty Publications

Antitrust is an important area of law and policy for most companies in the world. Having divergent rules across antitrust systems means that the same economic behavior may be treated differently depending on the jurisdiction, leading to disparate outcomes in which one jurisdiction finds illegal behavior (but the other does not) when the underlying behavior may be pro-competitive. This disparate set of outcomes creates a world in which the most stringent antitrust system may produce the global standard. As a result, if the antitrust rules applied are too rigid, they threaten to hurt consumers not merely in the jurisdiction where …

Consumer Interest Criterion In Competition Cases In Air Transport – On The Need Of A Definition, Jakub Kociubiński

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

This article seeks to contribute to the discussion that surrounds the European Commission’s Aviation Strategy for Europe issued in 2015. The Strategy was heralded as an attempt to create a comprehensive regulatory framework for the air transport sector. The paper focuses on the “consumer interest” criterion, as one of the factors taken into account in antitrust and merger cases. The presented line of inquiry postulates the creation of a cohesive interpretation standard of “consumer welfare” for both antitrust and merger control proceedings and advocates its inclusion into the newly-created aviation strategy.

Arbitration And Competition Law – In Response To Dr Tomasz Bagdziński, Szymon Syp

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

The present article is a response to a polemical article written by Tomasz Bagdziński entitled: Arbitration and competition law – a voice in the debate in relation to an article entitled Arbitration and competition law – a selected theoretical and practical issues. In this paper, the Author focuses on two issues: the redress mechanism in cases of claims resulting from competition law infringement and settling competition law disputes by arbitration courts. In the response, the Author points to a number of legal issues still to be resolved, which are part of the discussion about the inter-relationship between competition law and …

Elements Of A Dynamic Analysis Of The Impact Assessment Of A Merger On The Relevant Market, Wojciech Piwowarczyk

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

The article covers issues related to dynamic impact assessment (for an individual relevant market) of mergers and, derived from that impact assessment, the permissibility of a merger. It presents criteria that should be taken into consideration by competition authorities during the relevant markets’ prospective analysis, which is characterized by particular volatility (or potential volatility). This volatility in the prospective analysis goes beyond speculations and focuses on anticipated effects of the merger in the sphere of economic trends. The article presents varies reasoning that has in practice been used in merger control cases, but has not been directly articulated. This reasoning …

An Antitrust Analysis Of Joint Research And Development Agreements In The European Economic Community And The United States, Francene M. Augustyn

Georgia Journal of International & Comparative Law

No abstract provided.

Tensions Between Antitrust And Industrial Policy, D. Daniel Sokol

UF Law Faculty Publications

Sound antitrust law and policy is in tension with industrial policy. Antitrust promotes consumer welfare whereas industrial policy promotes government intervention for privileged groups or industries. Unfortunately, industrial policy seems to be alive and well both within antitrust law and policy and within a broader competition policy worldwide. This Article identifies how industrial policy impacts both antitrust and competition policy. It provides examples from the United States, Europe and China of how industrial policy has been used in antitrust. However, this Article also makes a broader claim that the overt or subtle use of industrial policy in antitrust and a …

The Wood Pulp Case: The Application Of European Economic Community Competition Law To Foreign Based Undertakings, Evan Breibart

Georgia Journal of International & Comparative Law

No abstract provided.

Trouble Abroad: Microsoft's Antitrust Problems Under The Law Of The European Union, Justin O'Dell

Georgia Journal of International & Comparative Law

No abstract provided.

The Proposed Damages Directive: The Real Lessons From The United States, Robert H. Lande

All Faculty Scholarship

Europeans should be doubly cautious when they study the U.S. experience with private antitrust enforcement. Nevertheless, there are ten specific lessons they can learn. None, however, is consistent with the conventional wisdom in the international competition community that U.S.-style private enforcement has been a disaster. Each should help Europe objectively consider the Commission's proposed Directive concerning private enforcement of Competition law.

Welfare Standards In U.S. And E.U. Antitrust Enforcement, Roger D. Blair, D. Daniel Sokol

UF Law Faculty Publications

The potential goals of antitrust are numerous. Goals matter to antitrust. We believe that it is total welfare rather than consumer welfare that should drive antitrust analysis. We use this Article as an opportunity to explore both a comparative analysis of welfare standards across E. U. and US. competition systems and the impact of welfare standards on global antitrust systemwide welfare.

In this Article, we analyze two types of situations in which there would be a different outcome based on the goal implemented. One scenario involves resale price maintenance (RPM). For RPM, we argue that even if there were a …

The Lessons From Libor For Detection And Deterrence Of Cartel Wrongdoing, Rosa M. Abrantes-Metz, D. Daniel Sokol

UF Law Faculty Publications

In late June 2012, Barclays entered into a $453 million settlement with UK and U.S. regulators due to its manipulation of Libor between 2005 and 2009. Among the agencies that investigated Barclays is the Department of Justice Antitrust Division (as well as other antitrust authorities and regulatory agencies from around the world). Participation in a price fixing conduct, by its very nature, requires the involvement of more than one firm.

We are cautious to draw overly broad conclusions until more facts come out in the public domain. What we note at this time, based on public information, is that the …

Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande

All Faculty Scholarship

This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly:

1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches;
2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice;
3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer …

The Diverging Approach To Price Squeezes In The United States And Europe, George A. Hay, Kathryn Mcmahon

Cornell Law Faculty Publications

Notwithstanding assertions of greater harmonization and convergence between United States and European Union competition law, recent case law has identified significant differences in their approaches to the regulation of a price or margin squeeze. In the US after linkLine the likelihood of a successful claim has been significantly diminished, particularly if there has been no prior course of voluntary dealing and no downstream predatory pricing. In contrast, in a series of decisions in liberalized telecommunications markets, the EU Courts in applying an “as efficient competitor test” have focused on the preservation of competitive rivalry as “equality of opportunity.” This significantly …

"Consumer Choice" Is Where We Are All Going - So Let's Go Together, Neil W. Averitt, Robert H. Lande, Paul Nihoul

All Faculty Scholarship

Globalisation of business makes it important for firms to predict how their behaviour is likely to be treated in the roughly 200 nations that have competition laws. In that context, a crucial question is: are we in a position to develop a common intellectual framework that would give coherence to policy statements made on specific competition related issues and, at the same time, be acceptable, broadly, in a variety of legal systems, not necessarily based on identical assumptions? We believe that the answer is “yes.” A concept is emerging as a possible source of unification for competition policies around the …

2008 And 2009 Eu Competition Law And Sector-Specific Regulatory Case Law Developments With A Nexus To Poland, Dagmara Kośka, Krzysztof Kuik

Yearbook of Antitrust and Regulatory Studies

The 2008 issue of YARS contained an overview of EU law developments in the period of time from 2004 to 2007. This overview covers the years 2008-2009. It confirms that State aid cases remained numerous (6 in total) and that the Commission’s enforcement activities in the area of State aid control continued at a similar pace as before. With respect to other areas of competition law and policy, the overall picture shows a relatively high level of scrutiny in mergers (5) and antitrust cases or inquiries (2). Moreover, EU Courts adopted several decisions in Polish cases, notably in the regulatory …

The Impact Of China's Antitrust Law And Other Competition Policies On U.S. Companies, Susan Beth Farmer

Faculty Scholarship

This article is based on the author's testimony for part of the hearings on “The Impact of China’s Antitrust Law and Other Competition Policies On U.S. Companies,” held by the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy on July 13, 2010. It describes developments in the enforcement and application of the Chinese Anti-Monopoly Law, interpretation and enforcement during the two years since the AML came into effect, with particular attention to merger review. It comments on the organization and staffing of the enforcement agencies and the publication of numerous procedures, guidelines and regulations, which suggests that …

Consumer Choice As The Best Way To Recenter The Mission Of Competition Law, Robert H. Lande

All Faculty Scholarship

This article will (1) define the consumer choice approach to competition law or antitrust law and show how it differs from other approaches; (2) discuss the types of situations where a consumer choice focus is likely to make a difference in enforcement outcomes, producing better results than the other paradigms; (3) show that another important advantage of using the consumer choice approach would be to nudge decisions in the right direction; and (4) offer a brief overview of implementation issues.

This is a chapter of a forthcoming ASCOLA book, and is a condensation and update of Neil W. Averitt & …

Quick - Somebody Call Amnesty International! Intel Says Eu Antitrust Fine Violated Human Rights, Robert H. Lande

All Faculty Scholarship

This articles discusses Intel's claim that the EU's fine against it for a competition law violation was so large that its human rights' were violated.

Of Myths And Evidence: An Analysis Of 40 U.S. Cases For Countries Considering A Private Right Of Action For Competition Law Violations, Robert H. Lande, Joshua P. Davis

All Faculty Scholarship

This article assesses some of the benefits of private enforcement of the United States antitrust laws by analyzing forty large recent, successful private cases. It should help in assessing the desirability and efficacy of private enforcement - information that may prove useful to jurisdictions contemplating a private right of action for competition cases.