Antitrust and Trade Regulation Commons^™

The Duality Of Provider And Payer In The Current Healthcare Landscape And Related Antitrust Implications, Julia Kapchinskiy

San Diego Law Review

Health care landscape has changed with the introduction of the ACA and will keep changing due to the proposed repeal. The only constant is the desire of health plans and providers to maximize profits and minimize costs, which is attainable through consolidation. This Comment advocates a revision of the existing antitrust guidelines that would (1) recognize unique nature of health care market, (2) be independent from the current or proposed legislation to the maximum possible extent, and (3) reflect the insurer-provider duality, which heavily influences the quality and accessibility of the healthcare for the consumer.

Hindsight Bias In Antitrust Law, Christopher R. Leslie

Vanderbilt Law Review

The modern field of study into hindsight bias was launched by Baruch Fischhoff. Fischhoff provided his research subjects with a primer on the 1810s conflict between British forces and Nepalese Gurkhas near Northern India. He suggested four possible outcomes: British victory, Gurkha victory, a peace settlement, and a military stalemate with no peace settlement. The subjects were then divided into five groups. One group was given no information about the ultimate outcome of the conflict. Subjects in each of the remaining four groups were told that one of the four outcomes had, in fact, occurred. The subjects were then asked …

Antitrust's Unconventional Politics, Daniel A. Crane

Articles

Antitrust law stands at its most fluid and negotiable moment in a generation. The bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values. To the bewilderment of many observers, the ascendant pressures for antitrust reforms are flowing from both wings of the political spectrum, throwing into confusion a conventional understanding that pro-antitrust sentiment tacked left and …

An Antitrust Approach To Corporate Free Exercise Claims, Ronald J. Colombo

St. John's Law Review

(Excerpt)

This Article suggests that antitrust law’s concept of market power could similarly be employed in balancing the free exercise rights of a corporation or any for-profit business venture against the rights of individuals. When a business enterprise seeks a religious liberty exemption from a rights-granting law, a major factor in assessing its claim should be the degree to which it wields market power in the relevant market. If the business is a monopolist, and, a fortiori, wielding tremendous market power, its claim for a free exercise exemption should probably fail. If, conversely, the business is but a minor marketplace …

Review Of The Decisions Of The President Of The Offi Ce Of Competition And Consumer Protection Regarding Infringements Of Collective Consumer Interests On The Financial Services Market In 2017, Aleksandra Drożdż

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

This review presents the latest decisions of the President of the Office of Competition and Consumer Protection regarding infringements of collective consumer interests on the financial services market. It describes the often-used practices of financial institutions, which have been recognized by the President of the Office of Competition and Consumer Protection as violating these interests.

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 …

Consumer Protection Against Unfair Commercial Practices In The Light Of The Request For A Preliminary Ruling From The Supreme Court (Poland) – Case C-628/17 Orange Polska S.A., Katarzyna Lis-Zarrias

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

In September of 2017, the Polish Supreme Court requested a preliminary ruling from the CJEU on the interpretation of Article 8, in conjunction with Articles 9 and 2(j), of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (case number: C – 628/17 Orange Polska S.A.). In the context of the questions referred to the CJEU, this article aims to draw attention to the importance of the circumstances of a given case, which have impact on the decision of a national court deciding on the character …

Report On The Conference ‘Intellectual Property Law – Competition – New Technologies’, Warszawa, 24.04.2018, Adrianna Michałowicz, Agata Sobusiak

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

No abstract provided.

Report On The Symposium ‘25 Years Of The Act On Combating Unfair Competition’, Łódź, 16.03.2018, Agata Sobusiak, Alicja Tarkowska

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

No abstract provided.

Digital Content Under European And Polish Law, Elwira Macierzyńska-Franaszczyk

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

This paper deals with the issue of defi ning digital content in existing as well as planned European and national legislation. The term ‘digital content’ was defi ned for the fi rst time in EU law in Article 2 point 11 of Directive 2011/83/EU as ‘data which are produced and supplied in digital form’ – this defi nition corresponded to the postulate of technological neutrality. Similarly, a broad approach to digital content has been adopted under the Common European Sales Law (CESL). The scope of ‘digital content’ is adjusted in some legal defi nitions to the needs of a given …

Has The Us Economy Become More Concentrated And Less Competitive: A Review Of The Data, Jonathan Baker, Steven Berry, Fiona Scott Morton, Joshua Wright, Gregory Werden

Legislative Testimony & Comments

FTC Chairman Joe Simons presented opening remarks, followed by a day of discussion by a distinguished set of panelists who discussed the following topics (some of which will be discussed on the rescheduled date):

• the current landscape of competition and consumer protection law and policy;
• whether the U.S. economy has become more concentrated and less competitive;
• the regulation of consumer data;
• antitrust law and the consumer welfare standard; and
• the analysis of vertical mergers.

The Principles Of Debt Restructuring Based On The Provisions Of The Law On Mortgage Loans And On The Supervision Of Mortgage Brokers And Agents, Bartosz Wyżykowski

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

The purpose of this article is to discuss the provisions of the new Law on Mortgage Loans and on the Supervision of Mortgage Brokers and Agents, regulating the principles of debt restructuring. Under strictly defi ned circumstances, the creditor is obliged to inform a consumer about the possibility of submitting a request for the restructuring of his debt. If such a request is submitted, and if the fi nancial situation of the given consumer justifi es it, the parties should make efforts in order to restructure the debt of the consumer; otherwise, the creditor is obliged to explain in detail …

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 …

Overview Of Key Legislative Proposals Of The European Commission Concerning The ‘New Deal For Consumers’, Agnieszka Kowalczyk-Zagaj

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

The aim of this study is to analyse legislative amendments in the context of the Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee ‘New Deal for Consumers’ announced by the European Commission on 11 April 2018. The methodology of the revision corresponds to the legislative amendments proposed by the Commission in particular legal acts. Presented fi rst are thus amendments to Directive 2005/29/EC on Unfair Commercial Practices, followed by Directive 2011/83/EU on consumer rights. A proposal of a directive on representative actions to protect the collective interests of consumers is discussed …

Assessment Of The Polish Legislative Process On The Example Of Recent Changes In Financial Markets Law, Marta Dzieciuch

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

This article deals with Polish legislative procedure from the perspective of fi nancial market institutions, recently affected by frequent changes of the applicable legal framework, directly infl uencing the way in which they conduct their business activity and the relations between a client and a fi nancial market entity. The analysis covers Polish legislative initiatives related to the fi nancial market and, at the same time, impacting the situation of its clients over the years 2015–2017, since the day we have observed the so called ‘tsunami of legislation’ on the fi nancial market. The assessment of the Polish legislative procedure …

Personal Bankruptcy In Polish Insolvency Law And The Practice Of Forum Shopping From The Perspective Of German-Polish Economic Relations, Artur Tim

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

The Author drafts Polish and German regulations on personal bankruptcy, the issue of trans-boundary insolvency law in the European Union (including the defi nition of the Centre of Main Interests, that is COMI, and the elements of its defi nition in case of trans-boundary personal bankruptcy proceedings), having regard to Polish-German relations and the legislation of both jurisdictions. The paper presents also the practice of forum shopping and the methods, which were established in EU insolvency law, to counteract this phenomenon. The Author proposes the thesis that not only can certain institutions of Polish personal bankruptcy law be attractive to …

Is The Insured In An Insurance Contract On Someone Else’S Behalf A ‘Consumer’ In The Light Of The Polish Civil Code?, Jan Ulański

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

In an insurance contract on someone else’s behalf, along with the insurer and the policyholder, an insured appears who is not a party to the insurance contract, but it is his insurable interest that is subject to protection. At the same time, the insured (who is often a natural person) is a weaker subject of the insurance contract and should be protected in the same way as a consumer in a typical insurance contract. However, due to the fact that the insured is not a party to the insurance contract, there are doubts whether, in the light of the defi …

Future Of The Consumer Ombudsmen. Remarks For The 20th Anniversary Of The Institution, Maciej Czapliński, Aleksandra Kapnik

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

The approaching 20th anniversary of the creation of a consumer ombudsman is an opportunity to summarize the legal bases and factual conditions for the functioning of ombudsmen in Poland and to ask about the future of this institution. Apart from a few cases, their competences are often unused in practice, primarily because of the lack of independence of the ombudsmen within the administrative structure of a district as well as inadequate funding of their activities. Individual elements of the consumer protection system, such as consumer ombudsmen, non-governmental organizations and ADR entities, do not cooperate with each other, do not exchange …

Individual Protection Of Consumers In The Act On Counteracting Unfair Market Practices And The ‘New Deal For Consumers’, Katarzyna Południak-Gierz

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

Although Directive 2005/29/EC does not provide tools for individual consumer protection, the Polish legislator decided to introduce some, as part of the implementation process, in Article 12 of the Act on Counteracting Unfair Market Practices. Currently, as part of the ‘New Deal for Consumers’ initiative, the EU legislator is also considering a revision of the Unfair Market Practices Directive by imposing on national legislators an obligation to provide consumers with instruments of individual civil law protection, including at least the right to unilaterally terminate the contract and the right to claim damages. The study focuses on the main doubts as …

Public Compensation And Other Measures To Remove The Continuing Effects Of An Infringement Of Collective Consumer Interests, Małgorzata Sieradzka

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

The analysis of decisions issued in cases of practices violating collective consumer interests makes it possible to conclude that the President of the Offi ce of Competition and Consumer Protection (UOKIK) is increasingly ‘using’ means which are not typical repressive instruments within the meaning of public competition law. Public compensation allows the competition authority to order or oblige the offending entrepreneur to take specifi c (marked) actions towards consumers. These may take the form of a material or intangible benefi t. Public compensation is intended to remove the continuing effects of an infringement of collective consumer interests. This measure must …