Antitrust and Trade Regulation Commons^™

Current Selected Problems In The Energy Sector, Marzena Czarnecka, Marcin Kraśniewski

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

From the Editors-in-Chief

Commission’S Current Approach To Vertical Restraints In Light Of Regulation 2022/720 And Its Accompanying Guidelines, Jarosław Łukawski

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

Agreements concluded between undertakings operating at different levels of trade, for the purpose of distributing goods or services, constitute one of the most often used agreements in the economic environment. The commonness of these types of agreements explains why antitrust assessment of certain clauses contained therein is of fundamental importance for business practice. The scale on which distribution agreements are concluded was one of the reasons why, as early as 1965, certain types of distribution agreements were exempted under EU competition law from the prohibition of entering into competition restricting agreements. The approach to the assessment of such agreements has …

Some Remarks On The Draft Block Exemption Regulations For Horizontal Cooperation Agreements, Aleksander Maziarz

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

The article addresses the issues of the proposed changes in EU regulations establishing block exemptions for horizontal co-operation agreements. The article analyses the draft regulations (establishing block exemptions for research & development agreements and for specialization agreements, as well as guidelines on the application of Art. 101 TFEU to horizontal cooperation agreements) that are subject to public consultation. The aim of the article is to analyze selected changes designed by the European Commission and assess their impact on EU competition law.

Application Of Competition Law By National Competition Authorities To Sports On The Example Of The Current Activities Of The Polish Nca (Uokik), Wojciech Lewandowski

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

Since the entry into force of Regulation 1/2003, the application of the TFEU antitrust rules in the internal market has been decentralized. National Competition Authorities (NCAs) should take over some of the duties related to the enforcement of TFEU antitrust provisions to ensure their effectiveness at the national level. As is evident from Case AT.40208 International Skating Union conducted by the European Commission, the activities of the NCAs in relation to sports can be a testing ground when conducting an EU competition law assessment of certain practices of international sports federations and national sports associations. Therefore, actions taken against one …

The Scope Of Duties And Powers Of The ‘Searching Authority’ And The ‘Searched Entity’ During The Search Process Initiated By The President Of Uokik – Discussion Of The Order Of Sokik (The Polish Competition Court) Of 22 November 2022 In Case Xvii Amz 92/22, Marcin Kulesza

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

The article presents a discussion of the order of SOKiK (the Polish Competition Court) of 22 November2022 in Case XVII Amz 92/22 which dismissed the complaint made by the searched party against UOKiK’s search activities, concerning the compatibility of the evidence obtained within the scope of the search, the possibility for the searched party to record the search activities (including from the point of view of the protection of third parties by the searchers), and the interference with the operation of the searched party by securing the necessary equipment and access to e-mail. The ruling may be relevant from the …

Commentary To The Judgment Of The Court Of Justice In Case C-721/20 Db Station & Service, Anna Kutyłowska

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

This commentary concerns the judgment of the Court of Justice in Case C-721/20 DB Station & Service. It also discusses other jurisprudence of the Court of Justice related to the indicated proceedings, as well as relevant provisions of the EU regulation of the rail transport sector and EU competition law. The commentary covers issues related to access to service facilities as well as rail-related services.

What Constitutes The Establishment Of A Joint Venture? Remarks To Sokik’S (The Polish Competition Court) Judgment Of 21 November 2022, Xvii Ama 11/21 (Gazprom), Szymon Murek

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

The article discusses the judgment of SOKiK (the Court of Competition and Consumer Protection) dealing with the appeal against the decision of the President of UOKiK (the Offi ce of Competition and Consumer Protection) in Nord Stream 2 (Gazprom and others). The article primarily discusses SOKiK’s position on the types of transactions constituting the establishment of a joint venture, the concept of the circumvention of law under the Polish Competition Act, as well as the political and economic background of the case.

Report On The Inp Pan Seminar “Ne Bis In Idem Principle In Competition Law And Sectorial Regulation – Towards Greater Protection Against Double Prosecution And Punishment?”, Warsaw, December 6, 2022, Kamil Flis

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

Warsaw, December 6, 2022

Amendments And Implementations, Or Competition Law In The Era Of Changes, Grzegorz Materna

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

From the Editors-in-Chief

Entire Issue Vol. 12 No. 1

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

Vol. 12(1)

Entire Issue Vol. 12 No. 2

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

Vol 12(2)

Table Of Contents

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

Table of Contents

Free Market State (Of Mind): Antitrust Federalism, John J. Flynn And The Utah Constitution’S Free Market Clause, Jorge L. Contreras

Utah Law Review

The Utah Constitution states that “[i]t is the policy of the state of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people.” Utah’s so-called Free Market Clause, adopted in 1992, is unique among the constitutions of the fifty states. Through an excavation of the historical record and contemporary literature, this Article shows that the Free Market Clause owes its existence to the influence of Professor John J. Flynn of the University of Utah, whose pioneering work on antitrust …

Critiquing The Sec's Ongoing Efforts To Regulate Crypto Exchanges, Carol R. Goforth

William & Mary Business Law Review

Despite the so-called “Crypto Winter” in the spring of 2022, which saw a deep plunge in global crypto markets, interest in the appropriate way to develop, use, and regulate cryptoassets and crypto-based businesses continues to be high. In the United States, a Presidential Executive Order and multiple bills that seek to tackle various issues of crypto regulation are regularly highlighted in the news, suggesting the appropriate treatment of crypto is a growing national priority. Despite these discussions, which tend to focus on finding a balanced way to regulate those within the industry without stifling the technology, the Securities and Exchange …

A Chair With No Legs? Legal Constraints On The Competition Rule-Making Authority Of Lina Khan's Ftc, Jennifer Cascone Fauver

William & Mary Business Law Review

Upon her appointment to the chair position of the Federal Trade Commission (FTC), Lina Khan wasted little time asserting that the Agency possesses the regulatory authority to promulgate rules related to unfair methods of competition. And the President has supported the Chair’s proffered authority, requesting that the Agency use that authority to address competition concerns across the U.S. economy. Chair Khan’s interpretation of the FTC Act relies on a single case decided by the Supreme Court in 1973—National Petroleum Refiners—and judicial deference under Chevron. However, while simplistic in its logic, Chair Khan’s support for the FTC’s competition …

Race-Ing Antitrust, Bennett Capers, Gregory Day

Michigan Law Review

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

The Factor/Element Distinction In Antitrust Litigation, Christopher R. Leslie

William & Mary Law Review

Most price-fixing litigation turns on whether the plaintiffs can present sufficient circumstantial evidence from which a reasonable jury could infer that the defendants did, in fact, conspire to raise prices. This generally entails the proffering of plus factors, a type of evidence that suggests parallel conduct by the defendants was the product of collusion, not independent decisions. As their name suggests, plus factors are just that—factors. Proving a collection of factors may be necessary for a plaintiff’s case, but no individual factor is ever required. If it were, it wouldn’t be a factor; it would be an element.

Several federal …

Running A Different Route: How Youtube Tv Plans To Avoid Antitrust Violations, Brody Shea

SLU Law Journal Online

After reaching a deal this past December, YouTube TV is now the sole option for NFL Sunday Ticket subscribers. By providing out-of-market sports games in a bundled package, YouTube TV runs the risk of violating the Sherman Antitrust Act. In this article, Brody Shea addresses how YouTube TV can avoid future litigation.

Gender, Credentials, And M&A, Tracey E. George, Mitu Gulati, Albert Yoon

BYU Law Review

For the past several decades, women have made up roughly half of law school classes and the ranks of entering law firm associates. Attrition between entry to law firms and partnership results in women comprising 20% to 25% of partners. But is there yet more attrition to the top of the partnership pyramid? Analyzing the past decade of data on publicly filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10% of deal leaders. When we look at the factors that determine who becomes a deal leader, we find that credentials—both …

The Failure Of Market Efficiency, William Magnuson

BYU Law Review

Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, …