Antitrust and Trade Regulation Commons^™

Konsumenckie Usługi Finansowe W Świetle Najnowszego Orzecznictwa Sądów Polskich (Wybrane Przykłady), Edyta Rutkowska-Tomaszewska, Marta Fabiszewska

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

This study contains an overview of Polish case law and aims to present selected judgments of common courts and the Supreme Court issued between 2023 and 2025 concerning the enforcement of consumer protection laws in the financial services market, in the most ‘active’ areas of recent times that are of relevance to legal practice. It presents judgments relating to four main issues, i.e. so-called free credit sanctions, unauthorised payment transactions, mortgage loans linked to foreign currencies, and loans where the interest rate mechanism is based on the WIBOR index.

Jak „Zazielenia Się” Prawo Konsumenckie – Na Przykładzie Walki Z Greenwashingiem, Agata Zawłocka-Turno

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

Greenwashing has become a hot topic and a significant issue in recent years. On one hand, consumers are placing increasing importance on the sustainability of their purchases. On the other hand, businesses, recognizing this trend, increasingly employ eco-marketing. Unfortunately, they often do so ineffectively, leading their actions to take the form of greenwashing that misleads consumers. This article thoroughly discusses this phenomenon, outlining its forms, driving factors, scope, and consequences. It also describes the existing legal framework for combating greenwashing, and legislative changes that aim to address this issue more effectively. Finally, the article analyzes the legal risks faced by …

Przegląd Orzecznictwa Trybunału Sprawiedliwości Unii Europejskiej Oraz Pytań Prejudycjalnych Dotyczących Dyrektywy 2005/29/We O Nieuczciwych Praktykach Handlowych W Okresie Od 1 Stycznia 2023 Roku Do 31 Grudnia 2024 Roku, Magdalena El-Hagin

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

This paper analyses the judgments of the CJEU in cases: C-208/21 K.D. v. Towarzystwo Ubezpieczeń Ż S.A., C-646/22 Compass Banca and C-379/23 Guldbrev AB, as well as five references for a preliminary ruling, concerning the interpretation of Directive 2005/29 from 1 January 2023 to 31 December 2024. The examination of the judgments focused on an exegesis of the facts of the particular case referred for a preliminary ruling, an indication of the position of the Court, and the author’s derivation of partial conclusions for each judgment. As regards the questions of the referring courts pending before the CJEU, the text …

Standard Unijny A Praktyka Polskich Sądów W Sprawach Nieuczciwych Praktyk Rynkowych, Małgorzata Miś, Grzegorz Miś

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

The article analyzes the discrepancies between the consumer protection standard established by Directive 2005/29/EC and the practices of Polish courts in cases concerning unfair commercial practices. The primary goal of the Polish Act on Counteracting Unfair Commercial Practices is to prevent dishonest actions by entrepreneurs, and the proper application of the law is essential for achieving this goal. However, Polish courts face significant challenges in this regard. Several factors contribute to this issue. Firstly, courts fail to recognize the specific nature of consumer cases and that such cases should not be assessed solely through the lens of civil law. Moreover, …

Forced Arbitration In Tesla’S Consumer Contracts, Abigail Hug

Arbitration Brief

The Supreme Court has supported the FAA’s preference for enforcing arbitration clauses and has extended it to forced arbitration provisions. In DirecTV v. Imburgia, the Supreme Court upheld a mandatory arbitration clause in a consumer service agreement, which additionally prohibited class arbitration. The Court reasoned that the FAA clearly states that written provisions in contracts that mandate arbitration are enforceable as all other contracts are enforceable. Companies throughout the United States use forced arbitration for employment and consumer contracts, including those for car leases. Forced arbitration clauses in consumer contracts ensure that customers settle their disputes with a company through …

The Private Cause Of Action Under Maine's Unfair Trade Practices Act, Steven A. Shaw

Maine Law Review

In 1970 the Maine Legislature passed the Unfair Trade Practices Act (UTPA) which declared unlawful any "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . ." UTPA-type statutes, now common to all states, offer several advantages. The statutes provide for a statutory award of attorneys' fees, create a private cause of action which is simple in comparison to analogous common law claims, and offer a flexible concept of unlawful conduct which many courts have shown a willingness to interpret broadly and sympathetically. Although Maine's UTPA was originally …

A Structural Approach To The Application Of Section One Of The Sherman Act To Oligopolistic Interdependence, Annmarie Levins

Maine Law Review

A central tenet of American economic thought is that markets in which many producers compete for business are preferable to those in which one or a few sellers dominate. The conventional wisdom underlying this preference is that competitive markets produce more of the goods consumers want at lower prices than do noncompetitive markets. Oligopolies are markets in which there are few sellers. Oligopolistic markets are characterized frequently by higher prices and lower outputs than competitive markets. Many sectors of the American economy are oligopolistic. For example, the American automobile industry is dominated by "the big three," General Motors, Ford, and …

The Crypto Revolution: A Comparative Analysis Of Crypto Regulation In The United States And The European Union, Joseph Galasso

Touro Law Review

Cryptocurrency is something that many people have heard of, but few truly understand the totality of it. From its emergence to the present form, cryptocurrency has become an innovative technology which has changed the way in which we use money. As seen time and time again, where there comes new technology comes governmental authorities introducing new laws to regulate these emerging industries. The aim of these laws and regulations is to protect consumers, but it is imperative not to overregulate the industry. The goal of regulation is to allow consumers to enjoy the benefits of the industry; however, one cannot …

Searching For Coordination Between The Eu Copyright Enforcement System And Content Portability: An Underestimated Challenge?, Camilla Signoretta

Yearbook of Antitrust and Regulatory Studies

Portability is a multifaceted concept, standing in between data law, digital consumer law and platform regulation. Considering their different rationale, portability rules can be found in the General Data Protection Regulation (GDPR), the Digital Content Directive (DCD), the Portability Regulation (PR), and the Digital Markets Act (DMA). Throughout the years, portability evolved from a prerogative of data subjects into a content regulatory tool. Therefore, its interplay with intellectual property law became progressively more complicated. Importantly, some portability provisions have been enacted in the form of obligations to be implemented by digital platforms. In this light, the intersection between digital platform …

Vertical Restraints In An Amazon World, Martin Edwards

Dickinson Law Review (2017-Present)

Vertical restraints are a peculiarity, even among the dizzying array of contracts subject to antitrust scrutiny. While current law treats vertical restraints permissively, antitrust reformers have added this permissive treatment of vertical restraints to their list of proposed reforms. The reformers have softly proposed that courts apply a presumption of illegality standard for vertical restraints— greater scrutiny than the current standard, the rule of reason. This Article argues that doing so is inadvisable.

Producers and their consumers both want the same thing: the best overall product experience for the money. The critical economic functions of vertical restraints are to enable …

Countering ‘Dark Patterns’ On The Example Of The Activities Of The President Of The Offi Ce Of Competition And Consumer Protection (Uokik) In Poland, Damian Kazimierski

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

Online shopping is becoming an everyday occurrence for an increasing number of people, and many activities are moving online. With the spread of running day-to-day errands online, the knowledge of consumer behaviour on websites and mobile apps is also advancing. However, the experiences of cognitive psychologists and sociologists are becoming an incentive for website owners and graphic designers to use social engineering to get users to act in accordance with the will of the entrepreneur. The use of ‘dark patterns’ raises the need to counteract their effects on consumers. Several tools are available to supervisory authorities to counteract the use …

Glosa Do Postanowienia Sądu Najwyższego – Izby Kontroli Nadzwyczajnej I Spraw Publicznych Z Dnia 23 Lutego 2022 R., Sygn. Akt I Nsk 16/21, Daria Niesteruk

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

This commentary provides a critical analysis of the resolution of the Polish Supreme Court, Chamber of Extraordinary Control and Public Affairs, issued on the 23rd February 2023. In its resolution, the Supreme Court stated that the Polish Competition Authority (President of UOKiK) is not absolutely bound by the substance of its decision to initiate proceeding. This means that the specified legal basis could be changed or complemented during the proceeding, as could the definition of the relevant market, provided that the procedural parties have had an opportunity to take a stance on the mentioned change before the NCA takes its …

Coercive Rideshare Practices: At The Intersection Of Antitrust And Consumer Protection Law In The Gig Economy, Christopher L. Peterson, Marshall Steinbaum

Utah Law Faculty Scholarship

This Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition …

Review Of Judicial Case Law On Practices Violating The Collective Interests Of Consumers Concerning The Financial Market In The First Half Of 2022, Łukasz Wroński

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

This review discusses selected court rulings concerning the financial market (made in the first half of 2022) after the President of UOKiK (the Office of Competition and Consumer Protection) issued decisions in cases of practices that violate the collective interests of consumers. The study presents the most significant motives of the rulings of the District Court in Warsaw – SOKiK (the Court of Competition and Consumer Protection), the Court of Appeals in Warsaw and the Polish Supreme Court.

Review Of Anti-Consumer Market Practices Concerning Financial Services In Light Of The Decisions Of The President Of Uokik Issued In 2022, Edyta Rutkowska-Tomaszewska, Artur Zwaliński

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

This paper reviews the decisions of the President of UOKiK (President of the Office of Competition and Consumer Protection) issued during the period from January 1st to December 31st, 2022. All decisions issued by the President of UOKiK during the indicated period were analyzed and evaluated. They were divided into two main categories based on the UOKiK President’s jurisdiction to issue decisions on anti-consumer market practices; first: decisions on violations of collective consumer interests, and, second, decisions on the use of prohibited contractual provisions in model contract templates. They were then further divided, within the two above categories, into groups …

Dynamic Pricing Algorithms, Consumer Harm, And Regulatory Response, Alexander Mackay, Samuel Weinstein

Articles

Pricing algorithms are rapidly transforming markets, from ride-sharing, to air travel, to online retail. Regulators and scholars have watched this development with a wary eye. Their focus so far has been on the potential for pricing algorithms to facilitate explicit and tacit collusion. This Article argues that the policy challenges pricing algorithms pose are far broader than collusive conduct. It demonstrates that algorithmic pricing can lead to higher prices for consumers in competitive markets and even in the absence of collusion. This consumer harm can be initiated by a single firm employing a superior pricing algorithm. Higher prices arise from …

Pre-Contractual Information Obligations Of The Lender Towards The Borrower In The Act On Reverse Mortgage, Michał R. Walczak

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

The article raises the issue of the information obligation that precedes the conclusion of a reverse mortgage contract. This service is addressed, by definition, to the elderly who are looking for a way to increase their income from the funds obtained from a pension. The study analyzes statutory regulations concerning pre-contractual information obligations of the lender towards the potential borrowers, which are basically limited to the passing of the information form. The analysis leads to the conclusion that the statutory information obligation is not adjusted to the specifics of the borrowers.

Remedies For Lack Of Conformity Of The Digital Content Or Digital Services With The Contract, Klaudia Koman

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

Directive 2019/770, adopted on 20 May 2019, focuses on the rights and obligations of parties contracting for the supply of digital content or digital services. Member States shall implement the EU act into their domestic legal systems by 01 July 2021. Until the publication of the proposal for the Directive, digital content and digital services were not extensively regulated in most Member States. Providing real consumer protection while buying digital content or digital services depends on the correct interpretation of the provisions of Directive 2019/770. Therefore, this article focuses on the analysis of the key issues of the Directive, namely …

Obligation To Ex Officio Examine The Unfairness Of Terms And Conditions In The Event Of The Consumer’S Failure To Appear In Court In Cases Of Unfair Market Practices In The Financial Market. Commentary To The Judgment Of The Court Of Justice Of The European Union Of 4 June 2020 In Case C-495/19 Kancelaria Medius Sa V Rn, Małgorzata Sieradzka, Magdalena Zawisza

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

The aim of the article is to discuss and analyze the judgment of the Court of Justice of 4 June 2020 in case C-495/19 Kancelaria Medius SA vs. the Supervisory Board, from the point of view of its importance for the examination of cases related to unfair market practices on the financial market, where one of the parties is a consumer. On the basis of the judgment in question, the obligation to examine the unfairness of contract terms by the court will be presented in particular. The article covers the analysis and commentary of the decision made by the Polish …

New Consumer Agenda – Strengthening Consumer Resilience For Sustainable Recovery, Filip Wiaderek

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

The paper provides a shortcut of the ‘New Consumer Agenda – strengthening consumer resilience for sustainable recovery’ that is enshrined in the EC Communicate from 13 November 2020. The programme constitutes an outline of goals, which the European Commission plans to achieve between 2020 and 2025 that were divided into five priority areas: (1) the green transition; (2) the digital transformation; (3) redress and enforcement of consumer rights; (4) specific needs of certain consumer groups and, (5) international cooperation. The burden of proper implementation of the solutions outlined in the Agenda, especially with regard to green transition, is to a …

Consumer Protection From The Perspective Of Regulation (Eu) No. 910/2014 Of The European Parliament And Of The Council Of 23 July 2014 On Electronic Identifi Cation And Trust Services For Electronic Transactions In The Internal Market And Repealing Directive 1999/93/Ec, Agnieszka Anusz

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

The article analyses the infl uence of Regulation (EU) no. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identifi cation and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC on contracts concluded with consumers. The article concerns also potential violations of collective consumer interests. The conducted research leads to the conclusion that there is a necessity to precisely correlate the technical solutions implemented by Regulation (EU) no 910/2014 with the applicable consumer protection law.

Mandatory Ex Officio Examination Of Abusive Contractual Clauses By National Courts And The Guarantee Of Effective Protection Of Consumers’ Interests, Beata Sieńko-Kowalska

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

In order to ensure an appropriate level of consumer protection envisaged by the EU legislator, a national court is obliged to restore real balance between the consumer and the professional entrepreneur in every case and regardless of national law. The guarantee of effective consumer protection implies examining whether a disputed contractual provision has been individually agreed to by the professional entrepreneur and the consumer, as well as using any possible means to review ex officio the unlawful nature of the relevant contractual provision, even if it is the opinion of the court that the consumer did not raise the given …

Misselling On The Non-Banking Consumer Credit Market In The Light Of Current Market Problems, Magdalena Paleczna

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

Loan institutions and the credit services they offer represent a growing percentage of the credit market in Poland. Observing this market, and the proceedings conducted by the President of the Office of Competition and Consumer Protection against loan institutions, confirms the existence of large-scale irregularities that directly affect consumers, essentially non-professional financial market participants. These irregularities include misselling, which is a practice infringing collective consumer interests and consisting of the offering of financial services (in the case of loan institutions – credit services) which do not correspond to the real needs of consumers or are offered in a manner inadequate …

A New Model For The Protection Of Consumer Interests In The European Union And Its Possible Implementation Into Polish Law, Jagna Mucha

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

In the draft of a Directive on representative actions, the European Commission proposed an extension of the existing model of the protection of collective consumer interests by the inclusion, therein, of the possibility of compensatory redress. The current model, based on the provisions of Directive 2009/22/EC, does not contain the possibility of consumers to claim compensation, but it enables bringing an action for an injunction by qualified entities designated by the Member States. The above mentioned provision of Directive 2009/22/EC was implemented by the Polish legislator in the Act on Competition and Consumer Protection, which provides separate proceedings concerning practices …

Consumer Protection In The Collaborative Economy In Eu Law – The Analysis Of Selected Problems, Anita Kucharska

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

The main subject of this article focuses on the position of consumers in the collaborative economy in EU law. The phenomenon of the collaborative economy is an emergent field which causes plenty of yet unresolved legal problems. Choosing a method of providing the best kind of protection to the recipients of the services is one of the fundamental issues that need to be immediately analyzed. Safety of the users of platforms should be ensured with consideration of consumer protection rules currently in force and the nature of the collaborative economy’s environment. The author formulates the thesis that it is necessary …

Given Today's New Wave Of Protectionsim, Is Antitrust Law The Last Hope For Preserving A Free Global Economy Or Another Nail In Free Trade's Coffin?, Allison Murray

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari

Faculty Publications

Imagine a future in which every purchase decision is as complex as choosing a mobile phone. What will ongoing service cost? Is it compatible with other devices you use? Can you move data and applications across de- vices? Can you switch providers? These are just some of the questions one must consider when a product is “tethered” or persistently linked to the seller. The Internet of Things, but more broadly, consumer products with embedded software, are already tethered. While tethered products bring the benefits of connection, they also carry its pathologies. As sellers blend hardware and software—as well as product …

Competition Enforcement, Trade And Global Governance: A Few Comments, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

The debate on international antitrust has come from two perspectives. On the one hand, the trade community has emphasised the interface between trade policy and competition (policy and) enforcement. This interface, which was recognised from the outset of multilateral efforts to liberalise trade in what would become the GATT and eventually the WTO, focuses on the prospect that trade liberalisation through border instruments should not be undone by restrictive business practices (RBPs), placing a particular responsibility in this respect on competition enforcement. On the other hand, the antitrust community has emphasised the risk of inefficient enforcement when several jurisdictions can …

Mens Rea As The Requirement Of Unfairness Of A Commercial Practice. Comment To The Judgment Of The Warsaw Court Of Appeals Of 8 March 2018, Vii Aga 1356/18, Wojciech Janik

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

In this article the author analyzes the judgment of the Warsaw Court of Appeals delivered on 8 March 2018 (VII AGa 1356/18) focusing on the principle of guilt, as the legal requirement of unfairness of a commercial practice. The court’s decision may be of great signifi cance as far as the enforcement of Directive 2005/29/EC is concerned, as it restates the traditional approach to unfair commercial practices, which regarded them as strict liability offences. The author is trying to establish whether imposing on consumers an obligation to provide evidence of a wrong intention, on the part of the professional, guarantees …

The Idea Of Responsible Lending On The Non-Bank Consumer Credit Market In Poland, Edyta Rutkowska-Tomaszewska, Magdalena Paleczna

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

The problem of responsible lending by creditors and consumers is increasingly farreaching in the post-crisis reality because of the large scale of the phenomenon of consumer overindebtedness and its negative effects both individually and globally, as it generates excessive credit and even systemic risk. Responsible lending stops, therefore, being a mere postulate, and becomes the subject of regulation, and broadly understood jurisprudence, as well as very important social problems. The idea of responsible lending is implemented by a proper examination of the creditworthiness of the consumer by the lenders, both before granting the loan and during the loan. Consumers must …