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Competition Law: Analysis, Cases, & Materials

Ioannis lianos, valentine korah, paolo siciliani.

This casebook, designed for a readership of graduate students, policy makers, and practitioners in competition law, aims to provide a comprehensive reference on EU and UK competition law. While the majority of the text comprises analysis supplemented with detailed commentary and analysis of judgments, National Competition Authorities (NCAs) and European Commission decisions, and legislation, the casebook also gives a high-level introduction to the design and history of EU and UK competition law, including an overview of the main actors and their objectives, furnishing students with the understanding of the law required to practise competition law. In particular, the book takes an interdisciplinary approach to the subject, featuring a substantial section on the economic context of competition law accessible even to those with no economics background.

Bibliographic Information

Affiliations are at time of print publication..

Ioannis Lianos, author

Valentine Korah, author

Paolo Siciliani, author

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• Preface and Acknowledgements
• Table of Contents
• Abbreviations
• List of Figures
• Commission of the European Communities
• European Court of Human Rights
• European Court of Justice
• Netherlands
• Competition Appeal Tribunal (UK)
• Competition Commission (UK)
• Competition and Markets Authority (UK)
• Office of Fair Trading (UK)
• Federal Trade Commission (US)
• Regulations
• United Kingdom
• United States
• Table of Treaties and Instruments
• Preliminary Material
• Combination of Articles 101 TFEU and 102 TFEU
• Article 106 TFEU
• Articles 107–9 TFEU
• Undertakings infringe only by autonomous conduct
• State measures reinforcing the effects of anti-competitive agreements/concerted practices (or more broadly anti-competitive conduct)
• State measures that delegate the fixing of prices to undertakings
• Narrowing INNO: The ‘November Revolution’
• An objective functional process approach?
• 1.1.1.2.1 Competition Act 1998
• 1.1.1.2.2 Enterprise Act 2002
• 1.1.1.2.3 Enterprise and Regulatory Reform Act 2013
• 1.1.1.2.4 Consumer Rights Act 2015
• 1.1.2.1.1 The European Commission
• 1.1.2.1.2 National competition authorities
• The Court of Justice of the EU
• The General Court
• National courts as EU judges
• 1.1.2.1.4 Other actors involved in the EU competition law process
• 1.1.2.2.1 The Secretary of State
• 1.1.2.2.2 The Lord Chancellor
• 1.1.2.2.3 The Competition and Markets Authority
• 1.1.2.2.4 The sector-specific regulators
• 1.1.2.2.5 The Competition Appeal Tribunal
• 1.1.2.2.6 Ordinary civil and criminal courts
• 1.2.1 Common Law Antecedents of Competition Law
• 1.2.2.1 The United States
• 1.2.2.2 The United Kingdom
• D Gerber, ‘Two Forms of Modernization in European Competition Law’ (2008) 31(5) Fordham Int’l LJ 1235, 1235–41
• 1.2.2.3.2 The substantive ‘modernization’ of EU competition law
• Commission Notice—Guidelines on the effect on trade concept contained in Articles [101] and [102] of the Treaty[2004] OJ C 101/81 (excerpts)
• D Bailey, ‘Appreciable effect on trade within the United Kingdom’ (2009) 30(8) European Competition L Rev 353, 353–4
• Regulation 1/2003, [2003] OJ L 1/1
• Regulation 1/2003 [2003] OJ L 1/1
• Competition Act 1998
• 1.3.3.3 Competition law in the UK after Brexit
• Selective Bibliography
• OFT 1390, Competition and Growth (November 2011)
• 2.1.2 Competition Law and Economic Welfare/Efficiency
• 2.1.3 The Concept of Economic Welfare/Economic Efficiency
• 2.1.4 Economic Efficiency and Consumer Welfare
• 2.1.5 Criticism of the Narrow Economic Welfare Perspective in Competition Law and the Separability Thesis
• 2.1.6 Promoting Innovation
• 2.1.7.1 Economic democracy
• 2.1.7.2 The integration of the Internal Market
• 2.1.7.3 The protection of consumers
• 2.1.7.4 Freedom to compete/freedom to trade
• 2.1.7.5 Fairness, equality of opportunity
• 2.1.7.6 Conflict of goals or is it possible for the efficiency perspective to take into account these multiple objectives?
• 2.2.1.1 The objectives of competition law according to the EU Courts
• 2.2.1.2 EU competition law’s interaction with other EU and national public policies
• 2.2.2 The Aims of UK Competition Law
• Joined Cases 56 & 58/64, Consten & Grundig v Commission: [1966] ECR 299
• 2.3.2 Towards a More Pragmatic Approach?
• G Tsouloufas, ‘Limiting Pharmaceutical Parallel Trade in the European Union: Regulatory and Economic Justifications’ (2011) European L Rev 385, 387–9
• P Rey and T Vergé, ‘Vertical Restraints in European Competition Policy’ (2014) 4 Concurrences 44, 50 (references omitted)
• Case T-168/01, GlaxoSmithKline Services Unlimited v Commission: [2006] ECR II–2969 (some references omitted)
• Joined Cases C-501, 513, 515 & 519/06 P, GlaxoSmithKline Services Unlimited v Commission: [2009] ECR I–9291 (some references omitted)
• Joined Cases C-468 to 478/06, Sot Lelos kai Sia v GlaxoSmithKline: [2008] ECR I–7139
• 2.3.3.3 Digital single market and EU competition law: Geo-blocking and geo-filtering
• 2.4.1 Is There Something Like a Value-Free Competition Law?
• 2.4.2 The Changing Face of Competition in The Digital Age—A Business Strategy Perspective
• 2.4.3 Competition Law and Government Intervention
• 2.4.4 Case Study: Competition Law, Big Data/Algorithms, and Data Protection/Privacy
• Paul J McNulty, ‘A Note on the History of Perfect Competition’ (1967) 75(4) J Political Economy 395, 398
• 3.1.1 The Central Role of the Concept of Market Power
• 3.1.2 Competition and The Nature of Strategic Interaction
• 3.2.1 The Conceptual Foundations of Welfare Economics: Ordinal Utility, Revealed Preferences, and Behaviourism
• 3.2.2.1 The factors of production and commodification
• 3.2.2.2 Firms as hierarchies: Applying marginalism to the question of economic organization
• 3.2.2.3 The distinction between firms and consumers
• 3.2.2.4 Monopsony
• OFT1224, ‘What does Behavioural Economics Mean for Competition Policy?’: (March 2010) (references omitted)
• 3.2.3.1 Implications for economic efficiency
• 3.2.3.2 Implications for economic inequality
• 3.3.1 The History and Many Dimensions of Market Definition
• Notice on market definition [1997] OJ C 372/5 replacing a series of notices since 1970 (some headings have been added, footnotes omitted)
• 3.3.3.1 Determining substitutability: The hypothetical monopolist test
• 3.3.3.2 The ‘cellophane fallacy’ and the ‘reverse-cellophane fallacy’
• OECD, The Role and Measurement of Quality in Competition Analysis, DAF/COMP (2013)17, 14–15
• 3.3.3.4 Technology markets
• 3.3.3.5 Market definition and innovation
• 3.3.4 Geographic Market Definition
• 3.3.5.1 Aftermarkets
• 3.3.5.2 Bundles
• 3.3.5.3 Bidding markets
• 3.3.5.4 Two-sided markets and platform competition
• 3.3.5.5 Brands and product differentiation
• 3.3.5.6 Pharmaceuticals
• 3.4 Barriers to Entry and/or Expansion: Potential Competition
• 3.5 The Use of Quantitative Evidence
• 3.6 The Future of Market Definition
• 4.1 Foundations
• 4.2.1 What is Meant By ‘Economic Activity’?
• The scope of US antitrust law: Comparative insights
• 4.2.3.1 Production and consumption markets
• Case C-343/95, Diego Cali & Figli SrL v Servizi Ecologici Porto di Genova Spa: [1997] ECR I–1547
• Case C-364/92, SAT Fluggesellschaft mbH v Eurocontrol: [1994] ECR I–43
• Case T-155/04, SELEX Sistemi Integrati SpA v Commission: [2006] ECR II–4797
• Joined Cases C-159 & 160/91, Poucet and Pistre v AGF and Cancava: [1993] ECR I–637
• Joined Cases C-264/01, 306 & 355/01, AOK Bundesverband and Others [2004] ECR I–2493 (some references are omitted)
• T Prosser, ‘EU competition law and public Services’ in E Mossialos, G Permanand, R Baeten, and TK Hervey (eds) Health Systems Governance in Europe: The Role of European Union Law and Policy (CUP, 2010), 315, 317 (footnotes omitted)
• 4.2.4.1.1 Collective labour agreements between employers and employees: The Albany exception
• Case C-309/99, JCJ Wouters, JW Savelbergh and Price Waterhouse Belastingadviseurs BV v Algemene Raad van de Nederlandse Orde van Advocaten, intervener: Raad van de Balies van de Europese Gemeenschap: [2002] ECR I–1577
• Case C-413/13, FNV Kunsten Informatie en Media, ECLI:EU:C:2014:2411
• Case C-41/90, Höfner and Elser v Macrotron: [1991] ECR I–1979
• 4.2.4.3 Non-profit entities
• Chapter I of the Enterprise Act
• 4.2.6 Absence of a Possibility of Actual or Potential Competition
• 4.3.1 The Boundaries of the ‘Undertaking’ and the Limits of Enterprise/Firm Liability: An Economic Perspective
• 4.3.2.1.1 Group of companies, single-entity doctrine, and the application of Article 101(1) TFEU
• Intra-enterprise conspiracy in US antitrust law
• Case C-97/08 P, Akzo Nobel and Others v Commission: [2009] ECR I–8237 (footnotes omitted)
• Entities with a common owner (siblings or sister companies)
• Non-wholly owned subsidiaries
• Joint ventures with no majority shareholding
• 4.3.2.2.1 The meaning of ‘decisive influence’
• Joined Cases C-93 & 123/13 P, European Commission v Versalis SpA & Eni SpA, ECLI:EU:C:2015:150 (most notes and references omitted)
• 5.1 Foundations
• 5.2 The Forms of Collusion: Agreement, Concerted Practice, or Decisions by Association of Undertakings
• 5.3.1.1 The concept of antitrust agreement: The distinction between horizontal and vertical relationships
• Case T-566/08, Total Raffinage Marketing v Commission, ECLI:EU:T:2013:423 (notes omitted)
• Case T-348/08, Aragonesas Industrias y Energía v Commission: [2011] ECR II–7583 (notes omitted)
• 5.3.2.1 Private coercion
• 5.3.2.2 Public coercion or the doctrine of State compulsion
• OECD, Trade Associations, DAF/COMP(2007)45, 16 (footnotes omitted)
• Case C-382/12 P, MasterCard and Others v Commission, ECLI:EU:C:2014:2201
• Joined Cases C-204, 205, 211, 213, 217 & 219/00 P, Aalborg Portland A/S and Others v Commission: [2004] ECR I–123 (references omitted)
• Case C-634/13 P, Total Marketing Services SA v Commission, ECLI:EU:C:2015:614 (references omitted)
• Case C-194/14 P, AC-Treuhand AG v Commission, ECLI:EU:C:2015:717
• Case C-74/14, Eturas UAB et al v Lietuvos Respublikos konkurencijos taryba, ECLI:EU:C:2016:42
• Case T-180/15, ICAP v European Commission, ECLI:EU:T:2017:795
• Case T-434/08, Tono v Commission, ECLI:EU:T:2013:187 (some case references omitted)
• The Bayer case
• Case T-41/96, Bayer v Commission (Judgment): [2000] ECR II–3383
• Joined Cases C-2 & 3/01 P, Bundesverband der Arzneimittel-Importeure eV & Commission v Bayer: [2004] ECR I–23
• European Commission, Guidelines on Vertical Restraints [2010] OJ C 130/1
• Communication from the Commission—Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements[2011] OJ C 11/1 (some footnotes included)
• Case T-452/05, BST v Commission: [2010] ECR II–1373 (references omitted)
• GL Zampa and P Buccirossi, ‘Hub and Spoke Practices: Law and Economics of the New Antitrust Frontier?’ (2013) 9(1) Competition Policy Int’l 91, 93–6
• GL Zampa and P Buccirossi, ‘Hub and Spoke Practices: Law and Economics of the New Antitrust Frontier?’ (2013) 9(1) Competition Policy Int’l 91, 97
• The e-books case in the US as an interesting case study distinguishing hub and spoke conspiracy and horizontal direct collusion
• The Dairy case
• Tesco Stores and others v OFT: [2012] CAT 31
• JE Harrington, Jr, ‘Exploring the Boundaries of Unlawful Collusion: Price Coordination when Firms Lack Full Mutual Understanding’, Working Paper (2012), 2
• 6.1 Foundations
• 6.2 Rules, Standards, and the Concept of Restriction of Competition: A Perspective of Decision Theory
• Case 56/65, Société La Technique Minière v Maschinenbau Ulm GmbH: [1966] ECR 235
• 6.3.1.1.2 The ‘orthodox’ view of the Commission’s Guidelines on Article 101(3) (formerly Article 81(3))
• Case C-209/07, Competition Authority v Beef Industry Development Society Ltd and Barry Brothers (Carrigmore) Meats Ltd: [2008] ECR I–8637
• Case T-168/01, GlaxoSmithKline Services Unlimited v Commission: [2006] ECR II–2969
• Opinion of Advocate General Trstenjak in Joined Cases C-501, 513, 515 & 519/06 P, GlaxoSmithKline Services Unlimited v Commission, ECLI:EU:C:2009:409 (footnotes omitted)
• Joined Cases C-501, 513, 515 & 519/06 P, GlaxoSmithKline Services Unlimited v Commission: [2009] ECR I–9291 (references omitted)
• Opinion of AG Kokott in Case C-8/08, T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV and Vodafone Libertel NV v Raad van bestuur van de Nederlandse Mededingingsautoriteit: [2009] ECR I–4529 (references omitted)
• Case C-8/08, T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV and Vodafone Libertel NV v Raad van bestuur van de Nederlandse Mededingingsautoriteit: [2009] ECR I–4529 (references omitted)
• S King, Agreements that Restrict Competition by Object under Article 101(1) TFEU: Past, Present and Future (London School of Economics, PhD thesis, January 2015), 56–7 (references omitted)
• Case 27/87, Erauw-Jacquery Sprl v La Hesbignonne Société Coopérative: [1988] ECR I–1983, [1988] CMLR 576
• Opinion of Advocate’s General Mazák in Case C-439/09, Pierre Fabre Dermo-Cosmetique SAS v Président de l’Authorité de la Concurrence, Ministre de l’Économie, de l’Industrie et de l’Emploi, ECLI:EU:C:2011:113
• Case C-32/11, Allianz Hungária Biztosító Zrt, Generali-Providencia Biztosító Zrt and Others v Gazdasági Versenyhivatal, ECLI:EU:C:2013:160
• The Cartes Bancaires case
• Opinion of Advocate General Wahl in Case C-67/13 P, Groupement des cartes bancaires (CB) v Commission, ECLI:EU:C:2014:1958
• CJEU Judgment in Case C-67/13 P, Groupement des cartes bancaires (CB) v Commission, ECLI:EU:C:2014:2204
• Case C-345/14, SIA ‘Maxima Latvija’ v Konkurences padome, ECLI:EU:C:2015:784
• Case T-472/13, H Lundbeck A/S and Lundbeck Ltd v Commission, ECLI:EU:T:2016:449
• 6.3.1.2.7 Summing up
• Commission Staff Working Document—Guidance on restrictions of competition ‘by object’ for the purpose of defining which agreements may benefit from the De Minimis Notice C(2014) 4136 final (some footnotes included)
• 6.3.2.2 The ‘object box’ and ‘hardcore’ restrictions
• Restrictions by object in agreements between competitors
• Case C-179/16, F Hoffmann-La Roche Ltd and Others v Autorità Garante della Concorrenza e del Mercato, ECLI:EU:C:2018:25
• Restrictions by object in agreements between non-competitors
• Communication from the Commission—Notice—Guidelines on the application of Article 101(3) of the Treaty [2004] OJ C 101/97 (references omitted)
• Case T-328/03, O2 (Germany) GmbH & Co OHG v Commission: [2006] ECR-II 1231
• Case C-226/11, Expedia Inc v Autorité de la concurrence and Others, ECLI:EU:C:2012:795
• Communication from the Commission—Notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty on the Functioning of the European Union (De Minimis Notice) [2014] OJ C 291/01
• Case C-234/89, Stergios Delimitis v Henninger Bräu AG: [1991] ECR I–935, [1992] 5 CMLR 210, [1992] 2 CEC 530
• Guidelines on vertical restraints [2010] OJ C 130/1 (emphases added)
• Case 42/84, Remia BV and Verenigde Bedrijven Nutricia v Commission: [1985] ECR 2545, [1987] 1 CMLR 1, CMR 14217
• Case T-112/99, Métropole Télévision (M6) and Others v Commission (Métropole III ): [2002] ECR II–2459
• Case C-382/12P, MasterCard Inc and Others v European Commission, ECLI:EU:C:2014:2201
• Sainsbury’s v Mastercard / Arcadia v Mastercard / Sainsbury’s v Visa: [2018] EWCA 1536 (Civ)
• Case C-309/99, Wouters, Savelbergh and Price Waterhouse v Algemene Raad Van de Nederlandse Orde van Advocaten: [2002] ECR I–1577
• Case C-519/04 P, David Meca-Medina and Igor Majcen v Commission: [2006] ECR I–6991
• Agents’ Mutual Limited v Gascoigne Halman Limited (T/A Gascoigne Halman): [2017] CAT 15
• C Humpe, I Lianos, N Petit, and B Walle de Gelcke, ‘The Effects-based Approach in Article 101 TFEU’ in M Merola and D Waelbroeck (eds) Towards an optimal Enforcement of Competition Rules in Europe (Bruylant, 2010), 467, paras 41–2 (references omitted)
• European Commission, Guidelines on the application of Article 101(3) (references omitted)
• Case T-168/01, Glaxo-SmithKline Services Unlimited v Commission: [2006] ECR II–2629
• Case C-501/06 P, GlaxoSmithKline Services Unlimited v Commission: [2009] ECR I–9291
• Case C-382/12 P, MasterCard Inc and Others v Commission, ECLI:EU:C:2014:2201
• OFT, Article 101(3)—A Discussion of Narrow versus Broad Definitions of Benefits (12 May 2010) (text withdrawn from the OFT Archives/CMA website, on file with author) (excerpts)
• 6.4.4 Indispensability of the Restrictions
• 6.4.5 No Elimination of Competition in a Substantial Part of the Market
• MIFS and individual exemption under Article 101(3) TFEU
• Sainsbury’s v Mastercard: [2016] CAT 1 on exemption
• Asda Stores Ltd & Others v Mastercard: [2017] EWHC 93 (Comm) on exemption
• Sainsbury’s v Visa: [2018] EWHC 355 (Comm) on exemption
• Sainsbury’s v Mastercard / Arcadia v Mastercard / Sainsbury’s v Visa: [2018] EWCA 1536 (Civ) on exemption (emphases added)
• 6.4.6.2 Block exemption regulations
• 6.4.6.3 Parallel exemptions
• 7.1 Cooperation between Competitors, Collusion, and Competition Law
• OECD, Recommendation to the Council concerning Effective Action Against Hard Core Cartels, C(98)35/FINAL (25 March 1998)
• 7.2.2 The Harm Caused by Cartels
• Characterization and the BMI precedent of the US Supreme Court
• Joined Cases T-217 & 245/03, French Beef [2006] ECR II–04987
• Case C-41/69, ACF Chemie farma NV v Commission: [1970] ECR-661
• Joined Cases C-29 & 30/83, CRAM v Commission: [1984] ECR-1679
• Kier Group PLC and others v OFT: [2011] CAT 3
• Joined Cases C-189, 202 & 205–8/02, Dansk Rorindustri A/S v Commission and Others: [2005] ECR I–5425
• Communication from the Commission—Guidelines on the applicability of Article 101 TFEU to horizontal co-operation agreements [2011] OJ C 11/1 (footnotes omitted)
• Joined Cases C-89, 104, 114, 116, 117 & 125–9/85, A Ahlström Osakeyhtiö and Others v Commission: [1993] ECR I–1307
• Joined Cases T-25–6, 30–2, 34–9, 42–6, 48, 50–65, 68–71, 87–8, 103 & 104/95, Cimenteries CBR and Others: [2000] ECR II–491
• Case C-8/08, T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV, Vodafone Libertel NV v Raad van bestuur van de Nederlandse Mededingingsautoriteit: [2009] ECR I–4529
• Case C-286/13 P, Dole Food Company Inc and Dole Fresh Fruit Europe v European Commission, ECLI:EU:C:2015:184 (Dole) (references omitted)
• Decision of the Office of Fair Trading No CA98/05/2006, Exchange of information on future fees by certain independent fee-paying schools, Case CE/2890-03 (20 November 2006) (footnotes omitted)
• Motor insurers’ data exchange (commitment decision)
• Conduct in the modelling sector
• Galvanized steel water tanks—information exchange
• M Bennett and P Collins, ‘The Law and Economics of Information Sharing: The Good, the Bad and the Ugly’ (2010) 6(2) European Competition J 311, 313
• Communication from the Commission—Guidelines on the applicability of Article 101 TFEU to horizontal co-operation agreements [2011] OJ C 11/1
• M Bennett and P Collins, ‘The Law and Economics of Information Sharing: The Good, the Bad and the Ugly’ (2010) 6(2) European Competition J 311, 324 (footnotes omitted)
• FW von Papp, ‘Information Exchange Agreements’ in I Lianos and D Geradin (eds) Handbook on European Competition Law: Substantive Aspects (Edward Elgar, 2013), 130, 147–9
• M Bennett and P Collins, ‘The Law and Economics of Information Sharing: The Good, the Bad and the Ugly’ (2010) 6(2) European Competition J 311, 318–20
• Case T-35/92, John Deere Ltd v Commission of the European Communities: [1994] ECR II–957
• Case C-238/05, Asnef-Equifax, Servicios de Información sobre Solvencia y Crédito, SL v Asociación de Usuarios de Servicios Bancarios (Ausbanc): [2006] ECR I–11125
• VHSE Robertson, ‘A Counterfactual on Information Sharing: The Commission’s Horizontal Guidelines 2011 Applied to the Leading Cases’ (2013) 36(4) World Competition, 459, 484–5 and 487–8 (footnotes omitted)
• Characteristics of the information exchange
• Joined Cases T-374, 375, 384 & 388/94, European Night Services Ltd (ENS) et al v Commission: [1998] ECR II–3141 (some references to case law are omitted)
• European Commission Comments, OECD, Crisis Cartels DAF/COMP/GF(2011)11 (18 October 2011), 109–11 (footnotes omitted)
• Commission Regulation No 1217/2010 of 14 December 2010 on the application of Article 101(3) TFEU to categories of research and development agreements [2010] OJ L 335/36
• Case C-250/92, Gøttrup-Klim ea Grovvareforeninger v Dansk Landbrugs Grovvareselskab AmbA: [1994] ECR I–5641
• Communication from the Commission—Guidelines on the applicability of Article 101 TFEU to horizontal co-operation agreements [2011] OJ C 11/1 (footnotes omitted, emphases added)
• 7.4.3 Public Policy Concerns and Collective Benefits
• Herbert Hovenkamp, ‘The Legal Periphery of Dominant Firm Conduct’, University of Iowa Legal Studies Research Paper No 07-21 (1 September 2007) (footnotes omitted)
• P Behrens, ‘The Ordoliberal Concept of “Abuse” of a Dominant Position and its Impact on Article 102 TFEU’ (9 September 2015), in P Nihoul and I Takahashi (eds) Abuse Regulation in Competition Law: 10th ASCOLA Conference (forthcoming), 2, 12, available athttps://ssrn.com/abstract=2658045 (footnotes omitted)
• Economic Advisory Group for Competition Policy (EAGCP), An Economic Approach to Article 82 EC, Report (July 2005) (excerpts)
• 8.2.2 The Dichotomy Between Unilateral and Collusive Conduct
• D Geradin, P Hofer, F Louis, N Petit, and M Walker, ‘The Concept of Dominance in EU Competition Law’, Global Competition Law Centre, College of Europe, Research Paper on the Modernization of Article 82 EC (2005), 3 (footnotes omitted)
• Communication from the Commission—Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings [2009] OJ C 45/7 (excerpts)
• 8.3.2.1 Neoclassical market power: Power over price
• 8.3.2.2 Exclusionary market power and dominant position
• Non-structural market power in EU competition law: Virgin/British Airways
• Virgin/British Airways (Case IV/D-2/34.780) Commission Decision [2000] OJ L 30/1
• Case T-219/99, British Airways v Commission: [2003] ECR II–5925
• F Jenny, ‘The “Coming Out” of Abuse of Superior Bargaining Power in the Antitrust World’ (15 July 2008), 3–5, available at http://unctad.org/sections/ditc_ccpb/docs/ditc_ccpb0008_en.pdf (excerpts)
• 8.3.2.3.3 Superior bargaining power and the limits of competition law
• 8.3.3 Market Definition and Dominant Position
• Case C-62/86, AKZO Chemie BV v Commission: [1991] ECR I–3359
• Opinion of AG Fennelly in Joined Cases C-395/96 P and C-396/96 P, Compagnie Maritime Belge Transports SA v Commission: [2000] ECR I–1365
• Commission Guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services [2002] OJ C 165/6 (excerpts)
• OFT 415, Assessment of Market Power (2004), 11–13, available atwww.gov.uk/government/uploads/system/uploads/attachment_data/file/284400/oft415.pdf (footnotes excluded)
• Communication from the Commission—Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings [2009] OJ C 45/7 (footnotes omitted)
• A Coscelli and G Edwards, ‘Dominance and Market Power in EU Competition Law Enforcement’ in I Lianos and D Geradin, Research Handbook in EU Competition Law (Edward Elgar, 2012), ch 8, 366–70 (excerpt, most footnotes omitted, emphasis original)
• Case AT.39740, Google Search (Shopping) (2017) not yet published
• OFT 415, Assessment of Market Power (2004), 24–5
• A Coscelli and G Edwards, ‘Dominance and Market Power in EU Competition Law Enforcement’ in I Lianos and D Geradin (eds) Research Handbook in EU Competition Law (Edward Elgar, 2012), ch 8, 371–2 (excerpt, some footnotes omitted)
• OFT 415, Assessment of Market Power (2004), 25–26
• A Coscelli and G Edwards, ‘Dominance and Market Power in EU Competition Law Enforcement’ in I Lianos and D Geradin (eds) Research Handbook in EU Competition Law (Edward Elgar, 2012), ch 8, 375 (excerpt)
• Case C-22/78, Hugin Kassaregister AB and Hugin Cash Registers Ltd v Commission: [1979] ECR 1869
• Opinion of AG Gerhard Reischl
• Judgment of the Court of Justice
• 8.3.6.2 Follow-ups: Pelikan/Kyoecera, Info-Lab/Ricoh, and EFIM
• Joined Cases T-68, 77 & 78/89, Società Italiana Vetro SpA v Commission (Italian Flat Glass): [1992] ECR II–1403, [1992] 5 CMLR 302, [1992] 2 CEC 33 (full references omitted)
• Case C-395/96 P, Compagnie Maritime Belge [2000] ECR I–1365, [2000] 4 CMLR 1076
• H Schweitzer, ‘The History, Interpretation and Underlying Principles of Section 2 Sherman Act and Articles 82 EC’ in CD Ehlermann and M Marquis (eds) European Competition Law Annual 2007: A Reform Approach to Article 82 EC (Hart, 2008), 138–9 (footnotes omitted)
• Case C-6/72, Continental Can Europemballage Corporation and Continental Can Company Inc v Commission: [1973] ECR 215
• National Grid Plc v Gas and Electricity Markets Authority: [2009] CAT 14
• Case C-52/09, Konkurrensverket v TeliaSonera Sverige AB: [2011] ECR I–527 (footnotes excluded)
• B Lyons, ‘The Paradox of the Exclusion of Exploitative Abuse’, CCP Working Paper No 08-1 (December 2007), available athttp://ssrn.com/abstract=1082723 (footnotes omitted)
• Case C-209/10, Post Danmark A/S v Konkurrencerådet, ECLI:EU:C:2012:172
• Case T-286/09, Intel Corp v European Commission, ECLI:EU:T:2014:547
• Case C-322/81, Nederlandsche Banden-Industrie Michelin NV v Commission [1983] ECR 3461 (Michelin I)
• Communication from the Commission—Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings [2009] OJ C 45/7 (footnotes omitted, emphasis added)
• Case T-83/91, Tetra Pak International SA v Commission, ECLI:EU:T:1994:246
• 8.4.5.1 Is there a distinction between anti-competitive object and anti-competitive effect in the context of the abuse of a dominant position?
• 8.4.5.2 Freedom of competition, competitive structure, and ʻconsumer welfareʼ: Three roads for interpreting the concept of abuse of a dominant position
• 8.4.5.3.1 The early case law and the development of two doctrines for Article 102 TFEU
• OECD, Competition on the Merits, Policy Roundtable, DAF(COMP)2005 (30 March 2006), 27
• Opinion of AG Kokott J in Case C-95/04 British Airways plc v. Commission: [2007] ECR I–2331
• Communication—Guidance on the Commission’s enforcement priorities in applying [Article 102 TFEU] to abusive exclusionary conduct by dominant undertakings [2009] OJ C 45/7
• The Google Search case of the Commission in 2017
• Case C-52/09, Konkurrenverket v TeliaSonera Sverige AB: [2011] ECR I–527 (some references omitted)
• Post Danmark v Konkurrecerädet (Post Danmark I)
• Tomra v Commission
• Post Danmark A/S v Konkurrencerådet (Post Danmark II)
• The General Court’s judgment
• The Opinion of Advocate General N Wahl
• The judgment of the Court of Justice in Intel v Commission
• Some thoughts about the concepts/slogans of ‘more economic approach’ and ‘effects-based’ approach
• JF Bellis and T Kasten, ‘Will Efficiencies Play an Increasingly Important Role in the Assessment of Conduct under Article 102 TFEU?’ in F Etro and I Kokkoris (eds) Competition Law and the Enforcement of Article 102 (OUP, 2010), 130–1.
• Communication—Guidance on the Commission’s enforcement priorities in applying [Article 102 TFEU] to abusive exclusionary conduct by dominant undertakings [2009] OJ C 45/7 (footnotes omitted)
• Case C-52/09, Konkurrenverket v TeliaSonera Sverige AB [2009] ECR I–527 (references omitted)
• Case C-209/10, Post Danmark A/S v Konkurrencerådet (Post Danmark I), ECLI:EU:C:2012:172 (references omitted)
• 8.4.6.3 Streetmap Limited v Google (UK) and Google Search (EU)
• 9.1 Acquisition of Competitors and Exclusive Rights
• 9.2.1.1 The leverage theory
• 9.2.1.2 Raising rivals’ costs
• 9.2.1.3 Maintenance of monopoly
• Case C-6/73, Istituto Chemioterapico Italiano SpA and Commercial Solvents Corp v Commission: [1974] ECR 223 (Commercial Solvents)
• Case C-27/76, United Brands Co and United Brands Continentaal BV v Commission: [1978] ECR 207
• 9.2.3.1 The essential facilities doctrine
• Opinion of Advocate General Jacobs in Case C-7/97, Oscar Bronner GmbH & Co KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG, ECLI:EU:C:1998:264
• Case C-7/97, Oscar Bronner GmbH & Co KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG: [1998] ECR I–7791
• 9.2.3.3 Refusal to supply in aftermarkets
• 9.2.4.1 Volvo v Veng and CICRA v Renault
• Joined Cases C-241 & 242/91 P, Radio Telefis Eireann v Commission: [1995] ECR I–743 (Magill)
• Case C-418/01, IMS Health GmbH & Co OHG v NDC Health GmbH & Co KG: [2004] ECR I–5039
• Attheraces Ltd v British Horseracing Board: [2005] EWHC 3015 (Ch)
• Opinion of Mr Justice Etherton in Attheraces Ltd v British Horseracing Board: [2005] EWHC 3015 (Ch)
• ME Burgess, JJ Burgess and SJ Burgess (trading as JJ Burgess & Sons) v Office of Fair Trading: [2005] CAT 25
• Chemistree Homecare Limited v Abbvie Ltd: [2013] EWHC 264 (Ch)
• A Edlin, ʻPredatory Pricingʼ in E Elhauge (ed) Research Handbook on the Economics of Antitrust Law (Edward Elgar, 2012), 162, 164
• Case C-62/86, AKZO v Commission: [1991] ECR I–03359
• Case C-202/07 P, France Télécom v Commission: [2009] ECR I–2369
• A Jones and L Lovdahl Gormsen, ʻAbuse of Dominance- Exclusionary Pricing Abusesʼ in I Lianos and D Geradin (eds) Handbook in EU Competition Law: Substantive Issues (Edward Elgar, 2013), ch 10, 434 (footnotes omitted)
• 9.3.2.4 The Commission’s Guidance on Article 102
• Aberdeen Journals Ltd v OFT: [2003] CAT 11
• Cardiff Bus [2009] UKCLR 332
• OFT 804, Selective price cuts and fidelity rebates, Economic Discussion Paper (July 2005)
• Case C-395/96 P, Compagnie Maritime Belge Transports SA v Commission: [2000] ECR I–1365
• Opinion of Advocate General Fennelly on ‘fighting ships’
• Opinion of Advocate General Mengozzi in Case C-209/10, Post Danmark AS v Konkurrencerådet, ECLI:EU:C:2011:342: (Post Danmark I) (excerpt)
• Case C-209/10, Post Danmark A/S v Konkurrencerådet ECLI:EU:C:2012:172: (Post Danmark I)
• B Lundqvist and G Skovgaard Ølykke, ʻPost Danmark, now concluded by the Danish Supreme Court: Clarification of the Selective Low Pricing Abuse and Perhaps the Embryo of a New Test under Article 102 TFEU?ʼ (2013) 34(9) European Competition L Rev 484, 485 (footnotes omitted)
• Claymore Dairies Limited and Arla Foods UK PLC v Office of Fair Trading: [2005] CAT 30
• 9.4.1 Definition
• R O’Donoghue and J Padilla, The Law and Economics of Article 102 TFEU (Hart, 2nd ed, 2013), 376
• Commission—Notice on the application of the competition rules to access agreements in the telecommunications sector—framework, relevant markets and principles [1998] OJ C 265/2
• Case T-5/97, Industrie des poudres sphériques v Commission: [2000] ECR II–3755
• Case T-271/03, Deutsche Telekom AG v Commission: [2008] ECR II–477
• Case C-280/08 P, Deutsche Telekom AG v Commission: [2010] ECR I–9555
• Case C-52/09, Konkurrensverket v TeliaSonera Sverige AB: [2011] ECR I–527
• Case T-398/07, Kingdom of Spain v Commission ECLI:EU:T:2012:173
• Genzyme Limited v Office of Fair Trading: [2004] CAT 4
• Albion Water Limited & Albion Water Group Limited v Water Services Regulation Authority (Dwr Cymru/Shotton Paper): [2006] CAT 23; [2006] CAT 36; [2008] EWCA Civ 536
• International Competition Network, Unilateral Conduct Workbook, Chapter 5: ‘Exclusive Dealing’, paras 1–4
• 9.5.1 The Economics of Exclusive Dealing
• Case T-65/98, Van den Bergh Foods Ltd v Commission: [2003] ECR II–4653
• 9.5.4 Exclusivity Payments
• National Grid PLC v The Gas and Electricity Markets Authority: [2009] CAT 14; [2010] EWCA Civ 114
• Arriva the Shires Ltd v London Luton Airport Operations Ltd: [2014] EWHC 64 (Ch)
• DG Comp ‘Discussion Paper on the application of Article 82 of the Treaty to exclusionary abuses’ (December 2005), available at http://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf
• OECD, Loyalty and Fidelity Discounts and Rebates, DAFFE/COMP(2002)21 (4 February 2003), 25–6
• G Federico, ʻThe Antitrust Treatment of Loyalty Discounts in Europe: Towards a More Economic Approachʼ (2011) 2 J European Competition L & Practice 277, 278.
• Giulio Federico, ʻThe Antitrust Treatment of Loyalty Discounts in Europe: Towards a More Economic Approachʼ (2011) 2 J European Competition L & Practice 277, 281.
• R O’Donoghue and J Padilla, The Law and Economics of Article 102 TFEU (Hart, 2nd ed, 2013), 472
• N Economides, ʻTying, Bundling, and Loyalty/Requirement Rebatesʼ in E Elhauge (ed) Research Handbook on the Economics of Antitrust Law (Edward Elgar, 2012), 121, 132–3.
• Numerical example: Incremental versus retroactive rebates
• Case C-85/76, Hoffmann-La Roche v Commission: [1979] ECR 461
• Case C-95/04, British Airways plc v Commission of the European Communities: [2007] ECR I–2331
• Communication from the Commission—Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings [2009] OJ C 45/7
• Case C-549/10 P, Tomra Systems ASA v European Commission, ECLI:EU:C:2012:221
• Opinion of AG Kokott in Case C-23/14, Post Danmark A/S v Konkurrencerådet, ECLI:EU:C:2015:343
• Case C-23/14, Post Danmark A/S v Konkurrencerådet, ECLI:EU:C:2015:651
• Case T-286/09 Intel Corp v European Commission, ECLI:EU:T:2014:547
• Opinion of Advocate General N Wahl in Case C-413/14 P, Intel Corp v European Commission, ECLI:EU:C:2016:788
• Case C-413/14 P, Intel v Commission, ECLI:EU:C:2017:632
• 9.6.5 UK Case Law
• P Papandropoulos, ʻHow Should Price Discrimination Be Dealt With by Competition Authorities?ʼ (2007) 3 Concurrences 34, 34 para 3
• P Papandropoulos, ʻHow Should Price Discrimination Be Dealt With by Competition Authorities?ʼ (2007) 3 Concurrences 34, 37 paras 17–18
• Case T-301/04, Clearstream Banking AG and Clearstream International SA v Commission: [2009] ECR II–3155
• Case T-57/01, Solvay SA v Commission: [2009] ECR II–4261
• Case T-128/98, Aéroports de Paris v Commission: [2000] ECR II–3929
• Case C-95/04 P, British Airways plc v. Commission: [2007] ECR I–2331
• Case C-525/16, Meo—Serviços de Comunicações e Multimédia v Commission, ECLI:EU:C:2018:270
• 9.7.3 UK Case Law
• 9.8.1 The Economics of Bundling/Tying
• 9.8.2.1 Hilti
• Case T-83/91, Tetra Pak II: [1994] ECR II–755
• 9.8.3 Technical Tying: Microsoft I and Microsoft II
• 9.8.4 Google (Android)
• 9.8.5 Mixed Bundling, Financial Tying, and Bundled Rebates
• 9.8.6.1 Télémarketing
• Google Search (Shopping) (Case AT.39740) Commission Decision—Summary: [2018] C 9/11
• Google Search (Shopping) (Case AT.39740) Commission Decision, C(2017) 4444 final (27 June 2017)
• Streetmap.Eu Limited v Google Inc, Google Ireland Limited, Google UK Limited: [2016] EWHC 253 (Ch)
• Socrates Training Limited v The Law Society of England and Wales: [2017] CAT 10
• 9.9.1 General Principles
• 9.9.2 Vexatious Litigation
• 9.9.3 Abuse of the Regulatory Process
• 9.9.4 Anti-Competitive Use of Injunctions
• Joined Cases C-468–78/06, Sot Lelos kai Sia EE and Others v GlaxoSmithKline AEVE Farmakeutikon Proionton: [2008] ECR I–7139
• Case C-27/76, United Brands v Commission: [1978] ECR 207
• M Gal, ʻAbuse of Dominance: Exploitative Abusesʼ in I Lianos and D Geradin (eds) Handbook on European Competition Law: Substantive Aspects (Edward Elgar, 2013) 385, 422–4 (footnotes omitted)
• Joined Cases C-395/87 & 110, 241–2/88, Ministère Public v Jean Louis Tournier, François Lucazeau and Others v Société des Auteurs, Compositeurs et Editeurs de Musique Jean Verney (SACEM): [1989] ECR 2565
• Case C-177/16, AKKA/LAA v Konkurences padome (Latvian copyright), ECLI:EU:C:2017:689 (some references omitted)
• CMA 94, Pricing Algorithms (October 2018), para 8.8, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746353/Algorithms_econ_report.pdf
• 9.11.3 Non-Price Exploitation
• Albion Water Limited & Albion Water Group Limited v Water Services Regulation Authority (Dwr Cymru/Shotton Paper) [2008] CAT 31
• CMA, Case CE/9742-13, Unfair pricing in respect of the supply of phenytoin sodium capsules in the UK
• Flynn Pharma Limited, Flynn Pharma Holdings Limited v CMA: [2018] CAT 11
• 9.12 Unfair Commercial Terms and Conditions
• 10.0 Foundations
• JA Kay, ‘Managing Relationships with Customers and Suppliers: Law, Economics And Strategy’ (1991) 2(1) Business Strategy Rev 17, 17–18
• J Church and R Ware, Industrial Organization: A Strategic Approach (McCraw-Hill, 2000), 688
• JA Kay, ‘Managing Relationships With Customers and Suppliers: Law, Economics And Strategy’ (1991) 2 Business Strategy Rev 17, 22
• 10.1.3 Vertical Restraints Beyond Transactional Efficiency
• Massimo Motta, Competition Policy—Theory and Practice (CUP, 2004), 302–4 (footnotes omitted)
• 10.3.1 The Origins of a Differentiated Application of Competition Law to Vertical Integration and Vertical Contractual Restraints
• 10.3.2 A Differentiated Regime for Vertical Integration and Vertical Restraints in Europe
• Case C-73/95 P, Viho Europe BV v Commission: [1996] ECR I–5457
• 10.4.1.1.2 Searching for the economic foundations of the single entity doctrine: Transaction cost economics and property rights theories of vertical integration
• 10.4.1.2.1 The origins of the specific regime for commercial agency agreements
• The Vertical Restraints Guidelines
• Case T-325/01, DaimlerChrysler AG v Commission: [2005] ECR II–3319 (references omitted)
• Case C-217/05, Confederación Española de Empresarios de Estaciones de Servicio v Compañia Española de Petróleos, SA: [2006] ECR I–11987 (references omitted)
• Commercial agency agreements and the e-Books case
• 10.4.1.3 The application of Article 101(1) TFEU to sub-contracting agreements
• 10.4.2 Vertical Restraints and the Unilateral/Collusive Practices Dichotomy in Competition Law
• 10.4.3 Effect on Trade Between Member States and Verticals
• V Korah and D O’Sullivan, Distribution Agreements under the EC Competition Rules (Hart, 2002), 114 (footnotes omitted)
• V Korah and Denis O’Sullivan, Distribution Agreements under the EC Competition Rules (Hart, 2002), 116 (footnotes omitted)
• Guidelines on Vertical Restraints [2010] OJ C 130/1
• 10.4.4.1 The vertical/horizontal restraints dichotomy
• Green Paper on Vertical Restraints in EC Competition Policy, COM(96)721 final (22 January 1997)
• Communication from the Commission—Notice—Guidelines on the application of [Article 101 TFEU] [2004] OJ C 101/97 (footnotes omitted)
• Resale price maintenance
• Joined Cases C-403 & 429/08, Football Association Premier League Ltd and Others v QC Leisure and Others and Karen Murphy v Media Protection Services Ltd: [2011] ECR I–9083
• M Motta, P Rey, F Verboven, and N Vettas, Hardcore Restrictions under the Block Exemption Regulation on Vertical Agreements: An Economic View, available atec.europa.eu/dgs/competition/economist/hardcore_restrictions_under_BER.pdf (references omitted)
• C-439/09, Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la concurrence and Ministre de l’Économie, de l’Industrie et de l’Emploi: [2011] ECR I–9419
• PING Europe Limited v CMA: [2018] CAT 13
• Case C-230/16, Coty Germany GmbH v Parfümerie Akzente GmbH, ECLI:EU:C:2017:941
• Opinion of AG Wahl in Case C-230/16, Coty Germany GmbH v Parfümerie Akzente GmbH, ECLI:EU:C:2017:603
• Case C-230/16, Coty Germany GmbH v Parfümerie Akzente GmbH, ECLI:EU:C:2017:941 (some references omitted)
• Expanding and retracting the object category in verticals: Allianz Hungária and SIA Maxima Latvija
• What’s different with franchise and selective distribution agreements?
• Case 161/84, Pronuptia de Paris GmbH v Pronuptia de Paris Irmgard Schillgallis: [1986] ECR 414
• Judgment of the CJEU
• V Korah and D O’Sullivan, Distribution Agreements under the EC Competition Rules (Hart, 2002), 85
• Case T-19/92, Leclerc v Commission [1996] II–1851 (footnotes omitted)
• Case T-19/92, Leclerc v Commission: [1996] ECR II–1851 (references omitted)
• T Buettner, A Coscelli, T Vergé, and RA Winter, ‘An Economic Analysis of the Use of Selective Distribution by Luxury Goods Suppliers’ (2009) 5 European Competition J 201, 209
• T Buettner, A Coscelli, T Vergé, and RA Winter, ‘An Economic Analysis of the Use of Selective Distribution by Luxury Goods Suppliers’: (2009) 5 European Competition J 201, 201
• T Buettner, A Coscelli, T Vergé, and RA Winter, ‘An Economic Analysis of the Use of Selective Distribution by Luxury Goods Suppliers’: (2009) 5 European Competition J 201, 220
• Qualitative, objective, and non-discriminatory criteria of selection
• The criteria must be proportionate
• Case C-75/84, Metro-SB-Grossmärkte GmbH & Co. KG v Commission (No 2): [1986] ECR 3021 (Metro II)
• Conclusions on selective distribution and Article 101(1) TFEU
• Guidelines on Vertical Restraints [2010] OJ C 130/1 (references omitted)
• Case T-65/98, Van den Bergh Foods Ltd v Commission: [2003] ECR II–4653 (references omitted)
• Commission—Communication on the application of the Community competition rules to vertical restraints—Follow-up to the Green Paper on vertical restraints COM/98/0544 final [1998] OJ C 365/3
• Communication from the Commission—Notice—Guidelines on the application of Article [101(3) TFEU] [2004] OJ C 101/97 (analysing the basic principles for assessing agreements under Article 101(1))
• ACM Chen and KN Hylton, ‘Procompetitive Theories of Vertical Control’ (1999) 50(3) Hastings LJ 573, 580
• P Rey and T Vergé, ‘Economics of Vertical Restraints’ in P Buccirossi (ed) Handbook of Antitrust Economics (MIT Press, 2008), 360
• P Rey and T Vergé, ‘Economics of Vertical Restraints’ in P Buccirossi (ed) Handbook of Antitrust Economics (MIT Press, 2008), 353, 361
• 10.5.1.2 The free rider rationale and retail services
• 10.5.1.3 Vertical restraints and principal–agent theory
• ABA Section of Antitrust Law, Antitrust Law and Economics of Product Distribution (2006), 69–70
• 10.5.1.5 Vertical restraints ensuring retailers for demand uncertainty
• 10.5.1.6 Vertical restraints as contract-enforcement mechanisms and the ‘promotional services theory’ of vertical restraints
• Guidelines on vertical restraints [2010] OJ C 130/1
• P Rey and T Vergé, ‘Vertical restraints in European Competition Policy’, (2014) 4 Concurrences 44, 47
• P Rey, Vertical Restraints—An Economic Perspective (13 October 2012), 19 and 30, available at www.fne.gob.cl/wp-content/uploads/2013/11/Patrick-Rey.-Vertical-Restraints.pdf
• 10.5.2.1 Vertical restraints as collusive devices
• 10.5.2.2 Vertical restraints as exclusionary devices
• 10.5.2.3 Vertical restraints as dampening competition devices
• 10.5.2.4 Vertical restraints affecting market integration
• 105.2.5 Vertical Restraints are Not Always Efficient and Necessary
• JC Cooper, LM Froeb, D O’Brien, and MG Vita, ‘Vertical Antitrust Policy as a Problem of Inference’, Federal Trade Commission (18 February 2005)
• M Brenning-Louko, A Gurin, L Peeperkorn, and K Viertiö, ‘Vertical Agreements: New Competition Rules for the Next Decade’: (June 2010) 1 CPI Antitrust J
• M Brenning-Louko, A Gurin, L Peeperkorn, and K Viertiö, ‘Vertical Agreements: New Competition Rules for the Next Decade’ (June 2010) (1) CPI Antitrust J
• 10.6.2.1 The market share cap: Article 3 of Regulation 330/2010
• Guidelines on Vertical Restraints [2010] OJ C-130/1 (references omitted)
• 10.6.2.2.3 Restrictions on resale in a selective distribution system: Article 4(c) of Regulation 330/2010
• 10.6.2.2.4 Restraints on cross-suppliers in a selective distribution system: Article 4(d) of Regulation 330/2010
• 10.6.2.2.5 Restraints that prevent or restrict end users, independent repairers, and service providers from obtaining spare parts directly from the manufacturer: Article 4(e) of Regulation 330/2010
• 10.6.2.3 Severable, non-exempted obligations—Article 5 of Regulation 330/2010
• 10.6.3 Motor-Vehicle Distribution
• 10.7.1 Vertical Restraints—Integrating the Retailer Power Story in Competition Law
• 10.7.2 Private Labels
• 10.7.3 Upfront Access Payments
• 10.7.4 Category Management
• 11.1 Introduction to Main Oligopolistic Models Used in Competition Law and Game Theory
• 11.2 The Economics of Collusion
• 11.3 ‘Unilateral Effects’ and Merger Efficiencies
• 11.4.1 The Cournot and Bertrand Models
• 11.4.2 Old and New Demand-Side Market Failures
• 11.5 Designing a Competition Law Regime With the Aim of Tackling the Harmful Effects of Oligopoly: Challenges
• JE Harrington Jr, ‘A Theory of Tacit Collusion’ (January 2012), available at krieger2.jhu.edu/economics/wp-content/uploads/pdf/papers/wp588_harrington.pdf (excerpt; footnotes omitted)
• Aniline Dyes (Case IV/26.267) Commission’s Decision [1969] OJ L 195/11, [1969] CMLR D23
• Case 48/69, Imperial Chemical Industries Ltd v Commission (Dyestuffs): [1972] ECR 619
• Joined Cases 40–8, 50, 54–6, 111 & 113–14/73, Re the European Sugar Cartel: Coöperatieve Vereniging ‘Suiker Unie’ UA v Commission: [1975] ECR 1663
• Joined Cases C-89, 104, 114, 116–17 & 125–9/85, Re Wood Pulp Cartel: A Ahlström Oy and Others v Commission (Woodpulp II): [1993] ECR I–1307, [1993] 4 CMLR 407
• Case 395/87, Ministère Public v Jean Louis Tournier and Jean Verney: [1989] ECR 2521
• N Petit, ‘The Oligopoly Problem in EU Competition Law’ in I Lianos and D Geradin (eds) Handbook in European Competition Law: Substantive Aspects (Edward Elgar, 2013), 259, 267–71 (footnotes omitted)
• W Kovacic, RC Marshall, LM Marx, and HL White, ‘Plus Factors and Agreement in Antitrust Law’ (2011) 110 Michigan L Rev 393, 406–7
• N Petit, ‘The Oligopoly Problem in EU Competition Law’ in I Lianos and D Geradin (eds) Handbook in European Competition Law: Substantive Aspects (Edward Elgar, 2013), 259, 293–6 (some footnotes included)
• 11.6.7 Collective Dominance in Article 102 TFEU and Chapter II CA98
• N Petit, ‘The Oligopoly Problem in EU Competition Law’ in I Lianos and D Geradin (eds) Handbook in European Competition Law: Substantive Aspects (Edward Elgar, 2013), 259, 314–16 (footnotes omitted)
• 11.6.8.2 Sector inquiries and market studies
• OFT 511, Market Investigation References (March 2006), available at www.gov.uk/government/uploads/system/uploads/attachment_data/file/284399/oft511.pdf (footnotes omitted0
• 11.6.8.4 ‘Problem Markets’ and the regulation/competition/consumer protection law interface
• 11.6.8.5 Algorithms and collusion in oligopolistic markets
• D Encaoua, ‘Book review: Louis Kaplow, Competition Policy and Price Fixing’: (2014) 111 J Economics 309, 310
• W Page, ‘Objective and Subjective Theories of Concerted Action’ (2013) 79 Antitrust LJ 215, 246–7
• R Abrantes-Metz, OECD Roundtable on Ex-Officio Cartel Investigations and the Use of Screens to Detect Cartels, OECD DAF/COMP(2013)20 (2013), 3–4 (footnotes omitted)
• R Abrantes-Metz, OECD Roundtable on Ex-Officio cartel Investigations and the Use of Screens to Detect Cartels, OECD DAF/COMP(2013)20 (2013), 3–4 (footnotes omitted)
• 11.6.8.6.2 An approach focusing on deconcentration
• 11.6.8.5.3 Approaches promoting new entrants in the industry: Output restriction, price freezing rules, industrial policy/design
• Suggested bibliography
• 12.1.1 Merger and Acquisition Activity: Emergence and Development of a Global Economic Phenomenon
• 12.1.2 Pro-Competitive and Anti-Competitive Drivers For M&A Activity
• 12.1.3.1 Merger control and the Treaties
• 12.1.3.2 The role of Articles 101 and 102 TFEU in merger control
• 12.1.3.3 The successive merger regulations in the EU
• 12.1.3.4 The emergence of UK merger control
• Horizontal Merger Guidelines [2004] OJ C 31/5, paras 19–21
• Case T-102/96, Gencor v Commission: [1999] ECR II–753
• Case T-342/99, Airtours plc v Commission: [2002] ECR II–2585
• Case T-464/04, Independant Music Publishers and Labels Association (Impala, association internationale) v Commission: [2006] ECR II–2289
• Case C-413/06 P, Bertelsmann AG and Sony Corporation of America v Independent Music Publishers and Labels Association (Impala): [2008] ECR I–4951
• 12.1.4.1.3 Unilateral or non-coordinated effects
• Assessing effects on innovation in the Dow/Dupont merger
• 12.1.4.1.5 The substantive tests in UK merger control
• 12.1.4.1.6 Public interest tests
• European Commission—Notice on restrictions directly related and necessary to concentrations [2005] OJ C 56/24
• Areva/Siemens (Case COMP/39736) Commission Decision (18 June 2012)
• 12.1.4.3 Burden and standard of proof
• 12.1.4.4 Merger statistics
• Microsoft/Yahoo! Search Business (Case COMP/M.5727) Commission Decision C(2010) 1077 (18 February 2010)
• 12.2.1.2 Case study II: Eurotunnel
• 12.2.1.3.1 Sole control in EU Merger Regulation
• 12.2.1.3.2 Material influence under the UK jurisdiction
• 12.2.1.4 Joint control
• 12.2.1.5 Changes in the quality of control
• 12.2.1.6 Joint ventures
• 12.2.1.7 Exceptions
• 12.2.1.8.1 Economic foundations
• Commission Staff Working Document, Impact Assessment, SWD (2014) 217 final (9 July 2014)
• 12.2.1.8.3 The situation in the UK
• 12.2.1.8.4 The situation in the US
• 12.2.1.8.5 Concluding thoughts on minority shareholdings and cross-ownership
• Commission Consolidated Jurisdictional Notice under Council Regulation No 139/2004 on the control of concentrations between undertakings [2008] OJ C 95/1
• 12.2.2.2 Reform of the turnover thresholds
• 12.2.3.1 Post-notification referrals to the national competition authority under Article 9
• 12.2.3.2 Post-notification referrals to the Commission under Article 22
• 12.2.3.3 Pre-notification referrals under Article 4
• 12.2.4.1 The legitimate interests exception in the EUMR
• 12.2.4.2 The public interest test in the UK
• 12.3.1 The Case for Reforming the EUMR Substantive Test
• 12.3.2 The Counterfactual Assessment
• Case T-210/01, General Electric v Commission: [2005] ECR 5575
• MCI WorldCom/Sprint (Case COMP/M.1741) Commission Decision [2003] OJ L 300/1
• DOJ and FTC, Horizontal Merger Guidelines (2010), 21
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• Agfa-Gevaert/DuPont (Case No IV/M.986) Commission Decision [1998] OJ L 211/22
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• Hutchison 3G UK/Telefónica UK (Case M.7612) Commission Decision [2016] OJ C 357/17, paras 19–22
• 12.3.5.5.2 ChemChina/Syngenta
• 12.3.6.1 Ex post identification
• DOJ and FTC, Horizontal Merger Guidelines (2010), 25
• Air Liquide/BOC (Case COMP/M.1630) Commission Decision [2004] OJ L92/1
• The Coca-Cola Company/Carlsberg A/S (Case IV/M.833) Commission Decision [1998] OJ L 145/41
• Enso/Stora (Case IV/M.1225) Commission Decision [1999] OJ L 254/9
• 12.3.9 Efficiency Defence
• Horizontal Merger Guidelines [2004] OJ C 31/5, paras 89–91
• Newscorp/Telepiù (Case COMP/M.2876) Commission Decision [2004] OJ L 110/73
• Non-Horizontal Merger Guidelines [2008] OJ C 265/7, paras 13 and 14
• General Electric Company v Commission: [2005] ECR II–5575, paras 70–5
• TomTom/Tele Atlas (Case No COMP/M.4854) Commission Decision (14 May 2008)
• ChemChina/Syngenta
• Thomson Corporation/Reuters Group (Case COMP/M.4726) Commission Decision C (2008) 654 final (19 February 2008)
• 12.4.1.2 Coordinated effects in vertical mergers
• Non-Horizontal Merger Guidelines [2008] OJ C 265/7, paras 95–102
• Case C-12/03, Commission v Tetra Laval: [2005] ECR I–987
• Case T-210/01, General Electric Company v Commission: [2005] ECR II–5575
• Google/DoubleClick (Case COMP/M.4731) Commission Decision C(2008) 927 final (11 March 2008)
• Data concentration, anti-competitive foreclosure, and exploitation
• 12.4.2.2 Coordinated effects in conglomerate mergers
• S.1.2.2.2.1 Administrative control: Monopolies and Restrictive Practices (Inquiry and Control) Act 1948 and the establishment of the Monopolies Commission
• S.1.2.2.2.2 General Report of the Monopolies Commission on Collective Discrimination
• S.1.2.2.2.3 Restrictive Trade Practices Act 1956
• S.1.2.2.2.4 Resale price maintenance
• JD Gribbin, ‘Recent Antitrust Developments in the United Kingdom’ (1975) 20(2) Antitrust Bulletin 377, 383
• JD Gribbin, ‘Recent Antitrust Developments in the United Kingdom’ (1975) 20(2) Antitrust Bulletin 377, 391
• S.1.2.2.2.7 Restrictive trade practices legislation, consolidated and amended in 1976
• S.2.4.3.1 The interplay of aims of competition law and institutional design: The example of the UK RTPA
• Opinion of AG Roemer in Joined Cases 56 & 58/64, Consten & Grundig v Commission: [1966] ECR 299
• S.3.2.1.1 Marginalism and the development of the neoclassical economics of utility
• S.3.2.2.2 Ordinalism and the rise of the economic efficiency approach
• S.3.2.2.3 The rise of behaviourism: Revealed preferences, game theory and expected subjective utility
• OFT 1224, What Does Behavioural Economics Mean for Competition Policy? (March 2010)
• Avishalom Tor, Justifying Antitrust: Prediction, Efficiency, and Welfare (2016), 49–50, 67, available at http://ssrn.com/abstract=2730670
• A Italianer, ‘Competitor agreements under EU competition law’, Speech (26 September 2013), available at http://ec.europa.eu/competition/speeches/text/sp2013_07_en.pdf (footnotes omitted)
• S.7.5.2.1 The insurance sector
• S.7.5.2.2 Banking and Payment systems
• OECD, Wireless Market Structures and Network Sharing DSTI/ICCP/CISP(2014)2/FINAL, 66 (footnotes omitted)
• Case C-27/76, United Brands Corporation and United Brands Continental BV v Commission: [1978] ECR 207
• Case C-85/76, Hoffmann-La Roche & Co AG v Commission: [1979] ECR 461
• Case T-83/19, Tetra Pak International SA v Commission, ECLI:EU:T:1994:246
• P Behrens, ‘The Ordoliberal Concept of “Abuse” of a Dominant Position and its Impact on Article 102 TFEU’ in P Nihoul and I Takahashi (eds) Abuse Regulation in Competition Law (Proceedings of the 10th ASCOLA Conference, Tokyo, 2015), 13–14, available at https://ssrn.com/abstract=2658045 (footnotes omitted)
• S.8.4.5.2.2 The structuralist approach
• S.8.4.5.2.3 The consumer welfare approach
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• Case C-322/81, NV Nederlandsche Banden Industrie Michelin v Commission (Michelin I): [1983] ECR 3461
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• Case T-203/01, Manufacture française des pneumatiques Michelin v Commission (Michelin II) [2003] ECR II–4071 (some references omitted)
• S.10.1.3 Internet and the transformation of supply chains
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• P Rey and T Vergé, ‘Vertical Restraints in European Competition Policy’ (2014) 4 Concurrences 44, 51
• S.10.8.1.2.1 Absolute online sales bans
• S.10.8.1.2.2 Partial online bans/restrictions to the use of marketplaces and price comparison websites related restrictions
• S.10.8.1.2.3 Most favoured customer/nation clauses, also called parity clauses
• S.10.8.1.2.4 Online RPM and RPM facilitating conduct: Minimum advertised price agreements (MAPs) and dual pricing restriction
• S.10.8.1.2.5 Geo-blocking
• S.10.8.1.2.6 Tying (resulting in a single branding type of obligation)
• S.10.8.2.1 Competition enforcement activity in the food sector
• S.10.8.2.2 Superior bargaining power and the emergence of fairness-driven competition law
• S.10.8.2.3 Retail and local competition
• UNCTAD, Competition Issues in the Food Chain: Possible Measures to Address Buyer Power in the Retail Sector, UNCTAD Discussion Paper (22 September 2014), 4–7, available at unctad.org/meetings/en/Contribution/tdb61_c01_UNCTAD.pdf
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Article Contents

I. introduction, ii. competition law, the intensity of competition, and economic inequality, iii. hypothesis: model of law and economic inequality, iv. methods and data, v. results: comparative analysis of the us model, vi. regulatory competition and cooperation, vii. conclusions, supplementary material.

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Competition Law and Economic Inequality: A Comparative Analysis of the US Model of Law

Postdoctoral fellow at the Centre for Law & Economics (CLE), ETH Zürich, Switzerland, and research fellow at the Centre for Competition Law and Policy (CCLP), University of Oxford Faculty of Law, United Kingdom. This work was funded by Leverhulme Trust with grant number RPG-2019-270.

• Article contents
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Amit Zac, Competition Law and Economic Inequality: A Comparative Analysis of the US Model of Law, Journal of International Economic Law , Volume 25, Issue 3, September 2022, Pages 484–500, https://doi.org/10.1093/jiel/jgac028

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To what extent does the choice of competition law model correlate with economic inequality? While competition laws have been suggested as potentially contributing to current inequality trends in developed countries and as a viable instrument to address them, there is little empirical evidence on their distributional effects. This article helps fill this gap. It utilizes a comparative legal approach and a unique estimation framework based on the textual similarity to estimate the differences between the US and EU models and provides evidence that countries that adopt a US-style antitrust model are more likely to exhibit higher income inequality levels over time. While this link should not be interpreted causally, it suggests that potential institutional factors might affect the rise of inequality.

Despite global economic growth, economic inequality levels have been increasing in many parts of the world. 1 In the face of the current economic downturn brought about by the Coronavirus pandemic, these trends have intensified. 2 Researchers and regulators point to the usual suspects: regressive tax policy, trade (globalization), and technological changes. 3 Commentators have also recognized that competition law and the way it is applied might contribute to the rise of inequality. Stiglitz, Baker, and Salop 4 were among the first to argue that an increase in rents could contribute to the increase in income and wealth inequality and that the decline of antitrust enforcement in the USA might be a cause. However, to date, the debate has mostly been limited to abstract legal and normative arguments—‘should’ competition law aim to effect inequality? 5 Perhaps most critically, the discussion lacks empirical analysis of the actual interaction between competition law and inequality.

This paper examines how the choice of model of law (proxied by similarity in the legal text) might be linked to economic inequality. Its main contribution is offering a first comparative analysis of competition law models using an extensive cross-country database (country–year), which links the choice of model of law , United States of America (US) and the European Union (EU), to levels of inequality. It takes advantage of a new and extensive dataset on competition laws developed by Bradford and Chilton 6 and macroeconomic data gathered by the World Bank and the World Inequality Lab (WID). The article exposes a strong link between the model of law and distributional outcomes; the US model of law is associated with higher levels of economic inequality. While it does not aim at establishing causal relationships between the model of law and economic inequality, the conclusions offer fertile ground for future work to focus on testing more precise transmission mechanisms at different scales, such as at the country, industry, and household level.

The paper is organized as follows: section II reviews the empirical literature on the effects of competition law on economic inequality, section III develops the hypothesis concerning the link between the choice of competition law model and economic inequality, section IV presents the methods and data, and section V summarizes the empirical results, linking the similarity to the US model with economic inequality. 7 Section VI discusses the results from a comparative legal perspective and section VII concludes. More detailed information about the data, methods, and additional sensitivity and robustness testing can be found in the online appendix.

The primary effect of competition law is to enhance the competitive environment in product markets by constraining the illegal exercise of market power (that is, firms using their market dominance to stifle entry or expansion of competitors, allowing them to raise prices over costs over a long period of time), by breaking up restrictive agreements among competitors, 8 and by challenging mergers and accusations that have the potential to create dominance. 9 If firms try to substantially raise their markup (prices above costs) in a highly competitive environment, new companies will enter the market, driving the markups back down.

Competition law enforcement may, therefore, affect economic inequality in two main ways. First, lower prices resulting from competition in essential product markets (like food and clothes) affect households in a progressive way, as poorer consumers tend to spend a higher proportion of their income on consuming these products. 10 Hausman and Leibtag estimated an average 4.8% reduction in prices associated with greater retail competition (due to the entry of low-priced outlets into the geographical market) in the USA and found that households with an income below USD 10,000 benefitted disproportionately from competition (by approximately 50% more than the average household). Market power, therefore, has a potentially regressive effect. 11

Second, higher prices reduce consumption, which in turn reduces the scale of economy-wide production and subsequently leads to a reduction in the demand for labour (especially for low-skilled workers). 12 Even though the labour market might be competitive (a difficult assumption in and of itself), wages for workers drop due to the general effect of an economy-wide increase in market power. De Loecker, Eeckhout, and Mongey found that market power had an effect on equilibrium wages and that, quantitatively, the effect was large (real wages as a share of Gross Domestic Product (GDP) dropped by over 26%). 13

The enforcement of competition laws, however, may have other important spill-over effects. For example, prominent voices in the antitrust public and academic world are calling for proactive engagement in the labour market to tackle anticompetitive practices by employers as a way to potentially raise wages (in this case monopsony power), as until recently, such enforcement activities have been minimal to non-existent in most countries. 14

Therefore, at least in theory, competition laws’ ability to constrain market power can have a direct effect on economic inequality. To exemplify the link between firms’ markups and economic inequality, we plot the aggregated markups time series of the USA ( Figure 1 ) on the left panel, next to the correlation between the top 1% and 10% income groups and markups (the top 1% or 10% income groups refer to the ratio of the income, which is accumulated by these two groups and the rest of society). As markups increase, the share of the two top income groups increases dramatically.

Aggregated markup trends in the USA and top income shares.

Yet, there are little empirical data on how strong the connection between the laws and inequality actually is. Indeed, Dierx et al. 15 provided the only empirical investigation, which considered both the effect of the laws on competition intensity and the following impact on distributional macroeconomic results. The authors developed a model that connected competition policy, competition, and wealth distribution and so accounted for the two-part causal chain explored until here, using a mixed methods ‘bottom-up’ approach. 16 The authors looked at how EU competition policy measures affected distributional outcomes in households with varying skill levels and income earners (capital owners, wage earners, and benefit recipients). They discovered that liquidity-strapped households—i.e. those who were less well-off—raised their spending proportionally more than non-liquidity-strapped households (four times more after 5 years). This supported the idea that competition law enforcement could have a progressive effect. The research is illuminating as it highlights the economic mechanism at play: from the law to inequality via market competition.

Connected, a companion paper to this article studies in-depth the effects of competition law on the labour share, and in there, we show a similar association between competition policy and distributional outcomes: competition policy is negatively affecting firm’s average profits and positively linked with the labour share. 18 The approach in that article focuses on competition policy (rather than specific enforcement decisions) using industry panel data and a measure of competition policy developed by Buccirossi et al., 19 which includes data on budgets, staff, and output in 12 industrialized countries from the Organisation for Economic Co-operation and Development (OECD). The results also suggest that competition policy is linked with economic inequality, as the labour share decline is associated with a rise in inequality.

In summary, effective competition law is expected to be negatively correlated with markups and profits on the firm, industry, and even country level. Competition intensity (or the lack thereof, i.e. market power) affects consumers in a regressive way via prices and workers via wages, potentially contributing to rising economic inequality.

We move on to explore the comparative legal research on competition laws to support the main hypothesis of this paper—the US model of law is linked to higher levels of economic inequality.

A. Comparative analysis of model of law

It has been argued that the USA and the EU represent two ‘models of law’ 20 and that they encouraged the adoption of dozens of new competition laws all over the world from the early 2000s. 21 These two laws reflect a slightly different process of decision-making in competition regulation 22 and competing philosophies for economic regulations. 23 Overall, these differences relate to a central question on risk avoidance: in an error-cost framework, on what side of the ‘error’ do legal architects prefer to fall, privileging false positives (overenforcement and its associated chilling effects) or false negatives (under deterrence of potentially illegal conduct)? While US antitrust enforcers are focused on minimizing the chilling effects of the law, the EU model is concerned with under deterrence. 24 Related to our hypothesis, if competition law is calibrated to minimize false positives, the intensity of competition may decline over a long period of time, affecting distributional outcomes.

Another way to characterize these differences is offered in the theoretical literature of comparative competition law, which is based on the optimal enforcement models of Becker and Landes. 25 Optimal enforcement theory implies that the optimal antitrust enforcement policy should reduce monopolizing firms’ incentives to inflect harm on consumers. One way to reach optimal deterrence, according to Landes’ model, is to internalize consumer harm (i.e. pay back), while another is to eliminate the expected profits from the anticompetitive conduct in hopes of deterring the behaviour altogether (i.e. prevent gains). 26 According to Blair and Sokol, these two options manifest themselves in the two different legal models: US antitrust (internalize consumer harm) and the EU competition policy (complete deterrence). They further argued that the choice may reflect a public welfare mechanism. 27 In other words, how the law is enforced (e.g. legal standard of abuse of dominance) could incorporate social goals even if, formally, they are not specified directly in the EU regulation. 28

A third and last comparative viewpoint on the two models is reflected in the differences between their institutions of enforcement. US competition law is a criminal–legalistic system centred around the Supreme Court. 29 Recent evidence supports the argument that the Supreme Court has been shifting to suppress the antitrust movement, 30 potentially heralding a drift towards less (USA) interventionist policy. In contrast to this approach stands EU competition law, with its public administrative–bureaucratic focus on wider policy goals and its higher appetite for enforcement. 31

These three comparative viewpoints support the hypothesis that countries that follow the US antitrust law model might be associated, overall, with higher levels of market power and, as a result, with higher levels of inequality. In Figure 2 , we plot a recent estimate of markups for a group of 20 OECD countries between 1985 and 2017. The figure shows that the countries (mainly Australia, Canada, Ireland, Japan, and New Zealand) that are closer to the US model of antitrust also saw some of the largest rises in markups. Excluding Canada, which only shows a small increase in markups since 1985 and 2017, the rest of the group shows a big change between the observed years. These findings are also consistent with De Locker and Eeckhout’s global analysis. 33

Markups over marginal costs by country, between 1990 and 2010.

Clearly, other factors influence these ratios and therefore require a subtle econometric analysis. Yet this descriptive picture supports the intuition that some cross-country differences might be at play in addition to global economic forces such as trade and technology. Next, we explore our chosen proxy for model of law: text similarity.

B. Similarity in text as a proxy for the US model

Ideally, we would prefer to use a qualitative approach to determine the roots and de facto elements of the competition law models’ adoption by countries. However, such an approach requires significant resources to reach a wide enough dataset of countries and years required for an econometric study. Alternatively, one can use a leximetric dataset that captures competition laws, such as Hylton and Deng’s 34 competition law measure or the Competition Law Index (CLI) developed by Bradford and Chilton. 35 Yet, for our purpose, relying on a scope measure (like the CLI) is ineffective. Scope measures are limited in their ability to predict policy outcomes over time. For example, in many of these indexes, the scope of US antitrust continued to expand between 1980 and 2010, while the legal discourse clearly points to the decline of the antitrust movement. 36

The empirical analysis relies on the similarity of legal text language as a proxy for the model of law. Similarity of legal text language is a standard method to document the spread of laws. 37 If there is a similar language in two jurisdictions’ laws, the later adopter may have borrowed from the earlier adopter. 38 Bradford, Chilton, and Lancieri also showed that similarity in text can be a useful tool to group countries based on legal influence in the context of competition law models. 39 In order to increase the robustness of results, this article adds qualitative analyses to the text language similarity, helping to minimize errors resulting from false positives while still enjoying the approach’s main benefits. For example, the appendix hosts a short, descriptive legal analysis on three key countries—Ireland, New Zealand, and Japan—which are recognized by the similarity proxy. As explained in the next section, these countries included textual similarity to the USA in one of the main areas of law (cartel, merger, or dominance).

Employing this similarity method leads to a recognition of 10 countries as similar to the USA in their antitrust regime: Australia, Canada, and Japan are all similar to the USA for the entire time series, while Estonia, Ireland, Lithuania, New Zealand, Poland, and Slovenia all copy US antitrust law after the 1970s. We consider a country as ‘treated’ if it has any similarity to the US antitrust text after 1972, based on other studies marking the turning point on US antitrust. 40

Finally, we used a placebo model to further test the text similarity proxy, checking if the definition of treatment is statistically different from a placebo similarity effect using indicators from comparative law studies of the ‘origin of law’. This means that if the observed results come from a shared confounder (i.e. legal origin), the placebo test should be able to capture it.

The remainder of the paper presents the data and empirical estimations of the link between the model of law using text similarity as a proxy and economic inequality. As mentioned above, the main hypothesis is that the US antitrust law model should be associated with higher economic inequality. As such, countries that resemble the US model—like Japan, for example—should also have higher economic inequality than those following the EU model, all other things being equal.

The cross-country panel data enable us to link the similarity in the text of the law ( ⁠|$resemb\_us\_after\_{1972_{i,t}}$|⁠ ) with economic inequality ( ⁠|${\rm{log}}{\left( {\rm{Y}} \right)_{i,t}}$|⁠ ). The similarity data cover the period from 1960 to 2010. 42 The actual time series varies according to the controls included in ( ⁠|$X_{i,t}^{\prime}$|⁠ ). It includes a minimum of 32 countries from the OECD group, depending on the data’s availability. We include country ( ⁠|${\alpha _i}$|⁠ ) and year ( ⁠|${\beta _t}$|⁠ ) fixed effects, while |${v_{i,t}}$| represents the error term. The advantage of the DiD model is its ability to capture any country-specific non-varying effects on inequality (e.g. historical determines) as well as global effects (economic shocks). As we explain in the next section, we also try to model the error term by including geographical region time trends ( ⁠|$Regio{n_i}*{\beta _t}$|⁠ ), which allow for time-varying regional differences (to capture, for example, a ‘European effect’ separately).

All panel data DiD models are based on the parallel trend assumption of the countries selected for comparison, i.e. in the absence of the treatment (similarity here), the average outcomes of treated and control units would have followed parallel paths. Researchers have more confidence in its validity when limiting the sample to homogenous units, which in this case is measured in terms of economic development countries like the OECD (compared to a world dataset, for example). Yet this assumption is often violated. The DiD models are also more easily manipulated by the researcher’s specification and choices (e.g. choice of controls). For these reasons, this article also implements a version of synthetic control method (SCM). 43 The SCM is based on the construction of a so-called ‘synthetic unit’ as a counterfactual unit to assess a state of the world in absence of the treatment. The synthetic unit is a weighted unit of potential control units to approximate the most relevant characteristics of the treated unit in the pre-treatment period. In the period after the treatment, one can estimate the counterfactual scenario of the treated unit by looking at the trend of the synthetic control unit. The intuition behind these methods is matching or correcting for un-parallel trends.

The general SCM (GSC) used here also relaxes the assumption of parallel trends and unifies older SCM with linear fixed-effects models. 44 In short, the GSC model allows for multiple treated units (in our case different countries adopting the antitrust text) and combines two approaches in the literature to deal with assumptions of the DiD model—matching pre-treatment data (the assumption of parallel trend) and modelling the error term with time-varying latent factors, which are not directly observed in the model (the assumption of exogenous treatment).

These methods have several advantages: 45 first, it allows the treatment to be correlated with the unobserved unit and time heterogeneities under more reasonable assumptions. Second, it generalizes the SCM to the case of multiple treated units (like our case) and variable treatment periods and improves efficiency and interpretability. Third, with a built-in cross-validation procedure, it avoids specification (p-hacking) searches and is thus easy to implement. More information on the method can be found in the online appendix.

B. Explanatory variables

We use Bradford and Chilton’s textual laws analysis, 46 which examines the extent to which various national laws replicate the language used in the US ( resemb_us ) and EU ( resemb_eu ) competition laws using human coding. The law is considered to resemble US law if it uses any of the following phrases:

‘substantially lessen competition’

‘every contract, combination’

‘every person who shall monopolize’ ( resemb_us_monopolize is also coded separately).

As described, the empirical analysis is based on the notion that most countries decide to initially ‘copy’ from either the USA or EU and then develop their own unique set of competition laws over time. However, it is relatively rare for countries to borrow language from both the USA and the EU.

In the OECD database we compiled, only 7% of the observations (country–year) indicate a positive sign for both dummy similarity variables for the USA and the EU, making them de facto distinct groups. Only 13% of the observations are similar to the USA model compared to 36% similar to the EU model, with the remaining 44% non-similar to either model. However, as explained, in many of the observations (a country–year pair), a country could have no competition law in place, meaning that 44% is higher than the actual number of unique (no similarity) choices. Figure 3 lists countries and years considered similar to the USA.

Similarity to the USA.

Each of the European countries ‎that are mentioned has the EU competition law text sitting above its national law, which applies ‎to almost any major firm operating in the country. As such, the effects of the EU supra-national law are expected to be similar in all EU countries. The focus on national competition ‎texts for European countries allows us to use variation between the two levels. However, we do not ignore the likelihood that inequality ‎would be driven at least as much, if not more so, by applying ‎‎supra-national (non-US) competition laws and enforcement efforts of the European Commission.‎

C. Control variables

The database includes various controls typically associated with inequality in cross-country macroeconomic studies. 47 The main source for these variables is the World Development Indicators repository maintained by the World Bank. It includes GDP per capita (in constant US dollars, 2000) ( gdp_pcg ) to capture the level of economic development of a country and the inflation rate ( inflat ) to control for macroeconomic stability and monetary policy. 48 The total unemployment rate ( unemploy ) is also included. Increased unemployment has been found to disproportionately affect low-income groups and increase inequality, as more workers shift to the bottom of the income distribution. 49 The level of imports ( imp_gdp ) and exports ( exp_gdp ) as % GDP are included separately 50 to control for globalization effects. Public expenditure ( gov_exp ) as % GDP can effectively reduce inequality by improving the living conditions of the bottom income earners through redistributive policies (if efficiently allocated); on the other hand, if the public resources are not wisely employed, inequality might increase. The data also include life expectancy in years ( life_exp ) as a proxy for human capital and level of public services. While education would have been a better proxy and that it plays a crucial role in shaping inequality, 51 the limited amount of data and the presence of several missing values would have further reduced the size of the sample. In addition, life expectancy is strongly and positively correlated with education. 52 Gross capital formation or physical investment ( inv ) as % GDP is another control that captures differences in how the rate of returns of human and physical capital interacts with inequality over time. 53

Lastly, we control for technological investment by including gross domestic spending on research and development investment ( tpc_gcp ) to proxy the countries’ technological progress. 54 Unfortunately, this measure is only available for a short timespan (after 1980) and for a small number of countries compared to other controls. Given the aggregation levels of the data, and the limited cover of the proxy, we do not expect it to capture capital-augmenting technology or automation changes to their fullest extent.

D. Dependent variables

The dependent variables are the income shares accumulated by the top 1 and 10 percentile. The data are taken from the WID. The WID project combines different data sources—national accounts, survey data, fiscal data, and wealth rankings—in one of the larger inequality research projects in the world. Table 1 provides summary statistics of the control and dependent variables:

Summary Statistics

A. DiD results

Table 2 presents a summary of the panel data results, using similarity to the US Sherman Act with the two income share indicators between 1990 and 2015. It presents results for three specifications—fixed effects only, fixed effects with geographical time trends, and both in addition to a lag of dependent variable (autocorrelation). 55 All specification includes the list of controls mentioned above.

Top income share, similarity to the US Sherman Act

Note: Errors are clustered by country.

***p < 0.01, **p < 0.05, *p < 0.1.

The similarity to the Shearman Act is positive in all of the models with statistical significance (α < 0.05 for the top 1 income share and α < 0.1 for the top 10 income share), suggesting that competition laws whose text resemble that of the USA are linked to a higher level of economic inequality. 56 Full results are available in Supplementary Appendix Table A1 of the online appendix.

The shift from a non-US competition law text to a law similar to the Sherman Act wording is associated with an increase in the top 1 income share, supporting the notion that a US model is more inclined towards income inequality. Again, we do not see this result as a causal link but a correlation that requires further investigation. The main problem with this estimation is that our treatment assignment is not random. The similarity to the US model comes with many other uncontrolled similarities.

As explained, fixed effects for year and country help limit these concerns alongside the controls for the classic alternative explanations, but they do not solve the concerns from omitted variable bias, as further explained in section VI . However, due to the possible link between the adoption of a US antitrust model and other political and institutional preferences, this method cannot fully distinguish the causal connection between the choice of model and economic inequality. In other words, a selection bias (an institutional bias broader than competition law) or even reverse causality 57 limits the interpretation of the results. Supplementary Appendix Table A1 in the appendix includes the full results, with additional models and sensitivity analysis that diminish but do not fully rule out these potential alternative explanations.

B. GSC results

The key features of the GSC models create a synthetic—that is, an artificial, statistically generated control group—that can be used as a benchmark for counterfactual analysis. In doing so, they are a complementary technique that can help researchers identify causal links in areas where other methods to estimate counterfactuals are not available/ideal. GSC models are based on three stages: first, the time-varying latent factors for the model are estimated based on all the countries included in the pre-treatment periods. Following the analysis, the treated countries’ counterfactuals are giving actual weights based on the control group, i.e. estimating the synthetic units. Finally, the effect estimated by the model is the comparison between the predicted outcome of the syntactic unit (the counterfactual) and the observed data of the treated units.

The GSC method’s primary assumption is that there are no spill-over effects between the treated and control groups (stable unit treatment value assumption), which is a reasonable assumption in the context of our inquiry. We use the GSC for eight treated countries in our OECD sample group (Australia, Canada, Ireland, Japan, New Zealand, Poland, Slovenia, and the USA) as we had to drop Estonia and Lithuania due to there being too few pre-treatment data points to calibrate the model.

First, we run the model without any controls. The results are positive and significant, with an estimated effect of 0.13 (***p value ∼ 0). Next, we included three controls only (as the algorithm does not support missing values) to maximize the number of observations using log-log transformation for consistency with the DiD models: government expenditure, GDP per capita growth, and inflation. With this specification, we report the top 10 income share graphically as the dependent variables. The top 1 income share results are similar and consistent, but as with the DiD model less statistically significant. All of the results are summarized in Supplementary Appendix Table A3 of the online appendix.

The GSC estimates ( Figure 4 ) an increase in the top income share as a long-term effect of the ‎US antitrust similarity. Both the average treatment effect (ATE) and the ‎Ireland example show a positive correlation between the US text ‎similarity criterion and an increase in the top income shares.‎

10% income share similarity to the US model, Expectation Maximization (EM) algorithm, and OECD.

The ATE on treated (ATT) ‎is 0.0434 (SE, 0.002; ***p value < 0.01), which is higher than the 0.035* found in the DiD model ( Table 2 , column 5), but the key is that the coefficient estimate remains positive and stable across the years ( Figure 5 ).

10% income share, similarity to the US model.

The appendix includes the list ( Supplementary Appendix Table A2 ) of weights used in the analysis for Ireland, Japan, and New Zealand. We add sensitivity tests using alternative specifications for the GSC in the online appendix, and results from all models are summarized in Supplementary Appendix Table A3 .

We also run a placebo model as another way to test our proxy for the model of law (similarity in legal text). The idea behind placebo testing is similar to the classic terminology used in testing new pharmaceutical drugs: a non-treatment (‘sugar pill’) is expected to show no effects on economic inequality. In this case, a treatment proxy that is unrelated to the main hypothesis of this article will be used as the placebo. We used the legal origin literature 58 to create two placebo treatments for the countries of ‘Common law’ and ‘British’ colonial power. We re-run the same model as above, changing the treatment definition based on these two variables (instead of similarity to the US antitrust). The results show no effect for the placebo treatment group, supporting the main findings in this section: it is similarity to the US antitrust model, not another older relationship to the British legal system, which drives the correlation with inequality data. The results are detailed in the online appendix.

It is important to acknowledge that the number of treated countries in our dataset is small (eight in most models). This presents a very narrow picture. Yet, the advantage of using similarity to the US model is that the textual similarity is closer to an exogenous variable than other law measures, such as scope or number of antimonopoly cases. All in all, both the findings from the difference–indifference and the findings from the GSC models support the hypothesis that the US model of law is associated on average with higher levels of income inequality. We discuss some of the implications of these findings next.

Competition laws around the world converged towards the two models of law analysed in this paper. One possible reason for this process (i.e. internationalizing of economic law into two models of law) stems from the hypothesis that nations design or use their laws to attract trade, investment, or the establishment of business away from their neighbours and that minimizing the costs associated with regulatory burdens is a lead way to do so. Such process is often referred to as regulatory competition 59 and could lead to a race between nations. In the context of antitrust and competition laws, it has been argued that the laws create marginal incentives for firms as ‘competition laws normally govern not only the conduct of firms within that jurisdiction, but also the conduct of firms located outside of the jurisdiction that harm competition within the jurisdiction’. 60

This paper emphasized the ways in which the US and EU models are different in both policy goals and conflicting understandings of the role and extent of competition law enforcement. Previous work suggested that further attempts for internationalization of competition law are prone to failure. 61 One might ask, is it the end of the harmonization process of international competition law? One possibility that has been generalized by scholarship in this area is that as different antitrust models compete, a natural equilibrium will develop. This would be because firms would primarily face compliance costs that multiple as regimes differ and not directly from a particular model of law versus another. Under these circumstances, the stricter competition law model would prevail. 62 Indeed, one can see that the EU model of law has spread over the last decades, marginalizing the US antitrust laws to a narrow group of countries. 63 It has been argued that the EU was more successful in spreading EU competition laws for several reasons, including their use of the desire to gain access to EU economic markets (‘The Brussels Effect’) and the diversity of policy goals in EU model. Adopting countries preferred to ‘defer less to markets and more to governments in their ability to correct market failures’. 64

This article provides some suggestive evidence backing this general line of inquiry, but one that is focused on potential welfare gains which are associated with the different available models. If the EU model is associated with lower levels of inequality (regardless of the causal mechanism), this might persuade countries trying to diminish this inequality that a versatile toolbox could work for their advantage. In the current global inequality crisis, the EU competition law model may even drive a ‘race to the top’ that pulls US-style legal systems, including US antitrust, by encouraging them to expand the scope of laws and their appetite for enforcement. This would lead to a more harmonized global regime based on the EU model of law.

While scholars recognize the distributional effects of market power, 65 most economists have generally eschewed making judgements on their second-order consequences, arguing that there is no objective way or conceptual apparatus to assess how the gains should be distributed. 66 There is also a view that assigning weights to different society members involves ‘political’ or ‘social welfare’ judgements on which economists have no expertise. 67 Some even see uneven distributions as a necessary outcome of the competitive process. While abstracting from distributional issues can aid analytical tractability, there is no reason why these topics should not be the focus of systematic inquiries.

This paper provides one of the first attempts to examine the link between competition laws and economic inequality from a legal comparative viewpoint. It makes two main contributions.

First, countries that are similar to the USA in terms of their competition law text are more likely to exhibit high inequality trends. These findings suggest that some regulatory choices, which are essential parts of the antitrust model, might be associated with less competition and higher inequality. The paper’s findings are consistent with the differences we observe between countries in the intensity of competition of their internal markets. 68 Studies that explore the trends over leading EU countries show that overall, the rise of market power (measured by concentrations levels or markups) and the decline of market dynamism is less dramatic than the trends observed in the USA. 69 These findings are also consistent with the legal work on the paradigmatic shift, which occurred in US antitrust. 70 While the multifaceted nature of the questions prevents a clean identification that fully distinguishes other possible interpretations of the results presented herein, the growing economic literature on market power effects on the labour share and economic inequality provides further general backing to the positive link between the antitrust similarity proxy and economic inequality.

Second, our findings support the line of inquiry that explains both the convergence towards two diverse models of competition law (USA and EU) and the current momentum of the EU model in the global arena. The diversified set of goals and tools (i.e. the remaining differences between the models) could be meaningful and reflect a wider association between the choice of competition law model sustainability goals (i.e. reducing inequality).

Still, it is always important to recognize that the empirical analysis of the model of law relies on factors that are not exogenous. In other words, omitted variable bias could affect the results. For example, there may be missing variables such as market ‘ideology’ or democratic process related to the model of law chosen and, simultaneously, to the market outcomes. 71 Because of this, it is hard to disentangle the effects of broader ideological influences from the effects of the antitrust regime. At the minimum, if the antitrust text is nothing more than a proxy for a laissez-faire ideology, countries following such an ideological approach may also be the ones that experience greater degrees of inequality—this is already an important observation concerning market mechanisms. The efforts to find a link between competition law and other macroeconomic performance factors (e.g. growth) have long had substantial difficulty achieving compelling results, so it is not surprising to find a similar difficulty with relation to economic inequality.

All in all, this article represents an important step in our understanding of the links between competition law models, economic inequality, and global governance regimes—one that echoes other work being done in this and its associated fields. It also provides an important stepstone for further inquiries into this field that can better disentangle the causal links between competition laws and economic inequality at a more disaggregated level.

Supplementary Material is available at JIELAW online.

The latest United Nation Development Report records that income inequality based on the top 10% income share has risen since the 1980s. In 2017, the global top 1% owned more than 33% of the total wealth, while the bottom 50% owned less than 2%. United Nation, ‘Human Development Report 2019’, http://hdr.undp.org/sites/default/files/hdr2019.pdf (visited 26 February 2022), at 111, 132. We use the term economic inequality to refer to both wealth and income measures of inequality in contrast to opportunity inequality and other methods of estimations of social gaps, e.g. mobility, wages, and so on.

Aaron van Dorn, Rebecca E Cooney, and Miriam L Sabin, ‘COVID-19 exacerbating inequalities in the US’, 395(10232) Lancet (2020), at 1243. According to the Institute for Policy Studies, between March 18 and 15 September 2020, the US billionaires’ total net worth rose from $2.95 trillion to $3.8 trillion. Gains of $141 billion a month, $32 billion a week, or $4.7 billion a day. From mid-March to mid-August, the collective work income of rank-and-file private-sector employees (all hours worked times the hourly wages of the entire bottom 82% of the workforce) declined by 4.4.%. Institute for Policy Studies, ‘Billionaire Bonanza 2020’, https://ips-dc.org/wp-content/uploads/2020/04/Billionaire-Bonanza-2020.pdf (visited 26 February 2022).

Emmanuel Saez, ‘Income and wealth inequality: Evidence and policy implications’, 35(1) Contemporary Economic Policy (2017), at 7; Facundo Alvaredo, Anthony B Atkinson and Salvatore Morelli, ‘Top wealth shares in the UK over more than a century’, 162 Journal of Public Economics (2018), at 26.

Joseph E Stiglitz, The Price of Inequality: How Today’s Divided Society Endangers our Future (WW Norton & Company, 2012, United States). Jonathan B Baker and Steven C Salop, ‘Antitrust, competition policy, and inequality’, 104 Geo LJ Online (2015), at 1. Maybe the first to argue that market power is casing inequalities are William S Comanor and Robert H Smiley, ‘Monopoly and the Distribution of Wealth’, 89(2) The Quarterly Journal of Economics (1975), at 177.

Lina M Khan and Sandeep Vaheesan, ‘Market power and inequality: The antitrust counterrevolution and its discontents’, 11 Harvard Law Review 235 (2017), at 245; Niamh Dunne, ‘Fairness and the Challenge of Making Markets Work Better’, 84(2) Modern Law Review (2020), at 1468.

Anu Bradford and Adam S Chilton, ‘Competition Law Around the World from 1889 to 2010: The Competition Law Index’, 14 (3) Journal of Competition Law & Economics (2018), at 393.

Our empirical analysis applies panel data techniques and a General Synthetic Control (GSC) method to test this hypothesis. This method has been used in recent years using aggregated data and a small group of treated units, making it ideal for this study. Eduardo Cavallo et al., ‘Catastrophic Natural Disasters and Economic Growth’, 95 (5) The Review of Economics and Statistics (2013), at 1549.

Hiau Looi Kee and Bernard Hoekman, ‘Imports, entry and competition law as market disciplines’, 51 (4) European Economic Review (2007), at 831. Jonathan B Baker, The Antitrust Paradigm: Restoring a Competitive Economy (Harvard University Press, 2019, United States). Timothy Besley, Nicola Fontana and Nicola Limodio, ‘Antitrust Policies and Profitability in Nontradable Sectors’, 3 (2) American Economic Review: Insights (2021), at 251.

Steven Berry, Martin Gaynor, and Fiona Scott Morton, ‘Do Increasing Markups Matter? Lessons from Empirical Industrial Organization’, 33 (3) Journal of Economic Perspectives (2019), at 44.

Jerry Hausman and Ephraim Leibtag, ‘Consumer benefits from increased competition in shopping outlets: Measuring the effect of Wal‐Mart’, 22 (7) Journal of Applied Economics (2007), at 1157.

John Creedy and Robert Dixon, ‘The relative burden of monopoly on households with different incomes’, 65 (258) Economica (1998), at 285; Carlos M Urzúa, ‘Distributive and regional effects of monopoly power’, 22 (2) Economia Mexicana, Nueva Epoca (2013), at 279.

Jan De Loecker, Jan Eeckhout, and Gabriel Unger, ‘The Rise of Market Power and the Macroeconomic Implications’, 135 (2) Quarterly Journal of Economics (2020), at 561.

Ibid; Jan De Loecker, Jan Eeckhout, and Simon Mongey, Quantifying Market Power and Business Dynamism in the Macroeconomy , w28761 (Cambridge, MA: National Bureau of Economic Research, 2021) http://www.nber.org/papers/w28761.pdf .

Sumit K Majumdar, Rabih Moussawi, and Ulku Yaylacicegi, ‘Mergers and Wages in Digital Networks: a Public Interest Perspective’, 19 (4) Journal of Industry, Competition and Trade (2019), at 583. Ioana Elena Marinescu and Eric A Posner, ‘Why Has Antitrust Law Failed Workers?’ SSRN Electronic Journal (2019), at https://www.ssrn.com/abstract=3335174 . OECD 2019 at: https://one.oecd.org/document/DAF/COMP(2019)2/en/pdf .

See De Loecker, Eeckhout, and Unger, above n 12.

Adriaan Dierx et al., ‘6. Distributional Macroeconomic Effects of the European Union Competition Policy: A General Equilibrium Analysis’, Step Ahead Compet Policy Shar Prosper Incl Growth Banco Mund OCDE (2017), at 155.

Consumers’ saving estimates are calculated by multiplying the foreseen reduction in prices (in comparison with the counterfactual of no competition policy intervention) and the duration of such a price reduction and the turnover in the market affected by the decision.

Amit Zac et al., ‘Competition Policy and the Labour Share’ (2021) CCLP Working Paper  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3824115 (visited 31 January 2022).

Paolo Buccirossi et al., ‘Competition policy and productivity growth: An empirical assessment’, 95 (4) The Review of Economics and Statistics (2013), at 1324.

‘In spite of the large number of antitrust enforcement regimes, there are three that are recognized as extremely important in global commerce: the United States, the EU, and China. Moreover, China has modelled its antitrust law regime on that of the EU. Given this, there are essentially two antitrust regime types that dominate global commerce: the United States and the EU’, Roger D Blair and D Daniel Sokol, The Oxford handbook of international antitrust economics (USA: Oxford University Press, 2015), at 17:18.

Mattia Guidi, Competition Policy Enforcement in EU Member States (Springer, 2016, United States).

Eleanor M Fox, ‘US and EU competition law: A comparison’, Global Competition Policy (United States: The Peterson Institute for International Economics, 1997), at 339.

Peter A Hall and David Soskice, Varieties of Capitalism: The Institutional Foundations of Comparative Advantage (Oxford: OUP, 2001).

Anu Bradford et al., ‘The Global Dominance of European Competition Law Over American Antitrust Law’, 16 (4) Journal of Empirical Legal Studies (2019), at 731, at 733–734.

Becker, 1968; Landes, 1983.

See Blair and Sokol, above n 20, at 19–22.

Ibid, at 27.

Roger J Van den Bergh, Comparative Competition Law and Economics (Edward Elgar Publishing, 2017, United Kingdom).

Earl E Pollock, ‘Antitrust, the Supreme Court, and the Spirit of’76’, 72 Northwestern University Law Review (1977), at 631; Keith N Hylton, Antitrust Law: Economic Theory and Common Law Evolution (Cambridge University Press, 2003, United Kingdom), at 48–49; Robert H Lande and Joshua P Davis, ‘Benefits from private antitrust enforcement: an analysis of forty cases’, 42 USFL Rev 879 (2007), at 906; Michael J Trebilcock and Edward M Iacobucci, ‘Designing competition law institutions: values, structure, and mandate’, 41 Loy U Chi LJ (2009), at 455; David Ramsey, Antitrust and the Supreme Court (LFB Scholarly Pub., 2012, United States), at 1–6.

Filippo Lancieri, Eric A Posner, and Luigi Zingales, ‘The Political Economy of the Decline in Antitrust Enforcement in the United States’, Forth. Antitrust Law Journal (2023), at https://www.ssrn.com/abstract=4011335 .

Pablo Ibáñez Colomo and Andriani Kalintiri, ‘The Evolution of EU Antitrust Policy: 1966–2017’, 2 The Modern Law Review 83 (2020), at 321. Anu Bradford, Adam S Chilton, and Filippo Maria Lancieri, ‘The Chicago School’s Limited Influence on International Antitrust’, 87 (2) University of Chicago Law Review (2020), at 297.

Paul Schreyer and María Belén Zinni, ‘Productivity Measurement, R&D Assets, and Mark‐Ups in OECD Countries’, Rev Income Wealth (2020), at roiw.12492.

Jan De Loecker and Jan Eeckhout, Global market power , 0898–2937 (National Bureau of Economic Research, 2018), at 7.

Keith N Hylton and Fei Deng, ‘Antitrust around the world: An empirical analysis of the scope of competition laws and their effects’, 74 (2) Antitrust Law Journal (2007), at 271.

See Bradford and Chilton, above n 6, at 402. Besides a dummy variable of the enactment of the laws, the CLI quantifies the essential elements of the authority granted to regulate competition and the substance of competition laws that are in force in each jurisdiction in each year since the country introduced its first competition law. They aggregated the elements into an overall index that can be used to measure the scope of competition regulation (the net regulation or risk associated with it).

See Lancieri, Posner, and Zingales, above n 30.

David S Law and Mila Versteeg, ‘The declining influence of the United States Constitution’, 87 NYUL Rev (2012), at 762. David S Law, ‘Constitutional archetypes’, 95 Tex Rev (2016), at 153.

Jack L Walker, ‘The diffusion of innovations among the American states’, 63 (3) American Political Science Review (1969), at 880.

See Bradford, Chilton, and Lancieri, above n 31.

Vivek Ghosal, ‘Regime shift in antitrust laws, economics, and enforcement’, 7 (4) Journal of Competition Law & Economics (2011), at 733, studied the pragmatic shift in the US enforcement using statistics of the federal agencies’ activities. Ghosal does not assume a breakpoint but instead uses econometric techniques to reveal the structural change date (pp. 751–752). He finds a distinct regime shift in antitrust enforcement during the 1970s, which is consistent with the claims made by Khan and others. This conclusion relies on a compositional change of enforcement efforts; a significant increase in criminal antitrust court cases alongside a decrease in civil antitrust court cases. Even more impressive is the clear decreasing trend apparent when disaggregating the civil cases to sections 1 and 2 of the Sherman Act. For both the aggregated civil cases and the Sherman Act, section 2–1972 is the estimated time point.

We do not report the similarity to EU results because it is easier to find an effect resulting from the lower levels of inequality (despite high levels of heterogeneity) apparent in the EU countries. Nonetheless, the results are as predicted by theory, showing a negative correlation between similarity to the EU law and inequality.

Under a conservative assumption, the effect of the similarity criterion is extended to 5 years since the last observation (max 2015).

The method was developed for comparative case studies in Alberto Abadie, Alexis Diamond, and Jens Hainmueller, ‘Synthetic control methods for comparative case studies: Estimating the effect of California’s tobacco control program’, 105 (490) Journal of the American Statistical Association (2010), at 493.

Yiqing Xu, ‘Generalized synthetic control method: Causal inference with interactive fixed effects models’, 25 (1) Political Analysis (2017), at 57.

Ibid; See Abadie, Diamond, and Hainmueller, above n 43, at 405–408.

See Bradford et al., above n 53.

Robert J Barro, ‘Inequality and Growth Revisited’ (2008) Asian Development Bank Working paper series on regional economic integration  www.adb.org/sites/default/files/publication/28468/wp11-inequality-growth-revisited.pdf  (visited 2 February 2022); Manthos D Delis, Iftekhar Hasan, and Pantelis Kazakis, ‘Bank Regulations and Income Inequality: Empirical Evidence’ (2014) 18 Review of Finance 1811; Orsetta Causa, Alain De Serres, and Nicolas Ruiz, ‘Can Pro-Growth Policies Lift All Boats?: An Analysis Based on Household Disposable Income’ (2015) OECD Journal: Economic Studies 227; Sebastian Jauch and Sebastian Watzka, ‘Financial Development and Income Inequality: A Panel Data Approach’, 51 Empirical Economics 291 (2016).

The effect of inflation on inequality is ambiguous—see, for example, Olivier Coibion et al., ‘Innocent Bystanders? Monetary Policy and Inequality’, 88 Journal of Monetary Economics 70 (2017); Davide Furceri, Prakash Loungani, and Aleksandra Zdzienicka, ‘The Effects of Monetary Policy Shocks on Inequality’, 85 Journal of International Money and Finance 168 (2018). Inflation can be costly and harmful for the poor, who hold more illiquid assets. When prices increase, the real value of wages and cash decrease, while the value of financial assets (mostly held by the wealthy groups) increase, making the rich better insured and protected against uncertainty. However, lower interest rates can benefit borrowers (middle-class households with fixed-rate mortgage debt) to the detriment of savers. See Matthias Doepke and Martin Schneider, ‘Inflation and the Redistribution of Nominal Wealth’, 114 Journal of Political Economy 1069 (2006).

Bradford M Van Arnum and Michele I Naples, ‘Financialization and Income Inequality in the United States, 1967–2010’, 72 American Journal of Economics and Sociology 1158 (2013).

Max Roser and Jesus Crespo Cuaresma, ‘Why Is Income Inequality Increasing in the Developed World?’ 62 Review of Income and Wealth 1 c(2016).

David Coady and Allan Dizioli, ‘Income Inequality and Education Revisited: Persistence, Endogeneity and Heterogeneity’, 50 Applied Economics 2747 (2018).

The life_exp proxy is highly correlated with the education measure (ρ = 0.85) and there is sufficient data for the required time periods of the analysis.

Oded Galor and Omer Moav, ‘From Physical to Human Capital Accumulation: Inequality and the Process of Development’ (2004) 71 Review of Economic Studies 1001. According to this model, in the initial phase of industrialization, physical capital tends to be the main booster of economic growth (also ensuring a higher rate of return), exacerbating income inequality as the poor have a lower marginal propensity to save. As the economy develops, the rate of return of human capital increases, making human capital accumulation the main engine of growth.

Daron Acemoglu, ‘Labor‐and capital‐augmenting technical change’, 1 Journal of the European Economic Association 1 (2003), at 1.

The three specifications are aimed to capture economic cycles: year fixed effects capture the global trend; the geographical time trends are a powerful (but inefficient) tool to address economic shocks affecting regions; the lag of the dependent variables (top 1 and top 10 income share) is designed to capture the persistence of inequality (past observations explain future trend).

Top shares are also correlated with GDP growth (as the economy expands, the shares at the top increase). The other controls’ sign is consistent with the literature, government expenditure is negative, and unemployment and imports are positive. Note, government expenditure is used as an explanatory variable to go around issues of tax evasion. Yet, taxes can include both ‎progressively collected taxes (e.g. income tax) and regressive taxes (e.g. VAT taxes), ‎which have contrasting impacts on inequality. Hence, changes in the tax mix changes, affect inequality in ways that are not ‎picked up by a government-spending variable. For this reason, we also use the income, profits, and capital tax burden as a sensitivity test for our results, yet the results in Table 2 remain the same with the treatment effects positive and statistically significant in columns 1–5.

In this case, reverse causality would suggest that countries that are more inclined to economic inequality choose a form of competition law that seems less intrusive.

Daniel M Klerman et al., ‘Legal origin or colonial history?’ 2 Journal of Legal Analysis 3 (2011), at 379. We use the ‘LO’ variable, which is Kerman et al. (2011)’s coding of legal origins, and the ‘CO’ variable, which is their coding of colonial power.

Richard Revesz, ‘Rehabilitating Interstate Competition: Rethinking the “Race to-the-Bottom” Rationale for Federal Environmental Regulation’,67 New York University Law Review 1210 (1992).

Eleanor M. Fox, ‘Antitrust and Regulatory Federalism: Races Up, Down, and Sideways’, 75 New York University Law Review 1781 (2000), at 1789. Even if we regard some countries laws’ as ‘efficiency’ laws and some as ‘fairness’ laws as Professor Fox suggested, the incentives of countries to follow the Antitrust model, i.e. efficiency model by degrading their laws would be minimal. I use ‘bottom’ and ‘top’ here as defined by Fox, although the argument of what is an optimal law for firms and countries is practically impossible to define.

Anu Piilola, ‘Assessing Theories of Global Governance: A Case Study of International Antitrust Regulation’, 39 Stanford Journal of International Law 207 (2003), who argues that to advance international competition laws a global governance regime must incorporate different aspects of cooperation: intergovernmental (e.g. WTO), trans-governmental (e.g.), and non-governmental institutions (e.g. OECD). The lack of a global governance could also be a game theoretic deadlock between countries. See Anu Bradford, ‘International Antitrust Negotiations and the False Hope of the WTO’, 48 Harvard International Law Journal 383 (2007), who uses game theory to explain why such global coordination fails again and again, regardless of the mechanism.

Anu Bradford, ‘International Antitrust Cooperation and the Preference for Nonbinding Regimes’ in Cooperation, Comity, and Competition Policy 16 (2011).

See Bradford et al., above n 53, at 733–735.

Ibid, at 735, 757–758.

Alan A Fisher and Robert H Lande, ‘Efficiency considerations in merger enforcement’, 71 Calif Rev (1983), at 1580.

Oliver E Williamson, ‘Economies as an antitrust defense: The welfare tradeoffs’, 58(1) The American Economic Review (1968), at 18.

William J Baumol and Dietrich Fischer, Superfairness: applications and theory (MIT Press, 1986, United States).

Germán Gutiérrez and Thomas Philippon, ‘How EU Markets Became More Competitive than US Markets: A Study of Institutional Drift’ (2018) National Bureau of Economic Research Working Paper 24700  https://www.nber.org/papers/w24700 (visited 31 January 2022).

Maria Chiara Cavalleri et al, ‘Concentration, market power and dynamism in the euro area’ (2019); Matej Bajgar et al, ‘Industry concentration in europe and north america’ (2019); John P Weche and Achim Wambach, ‘The fall and rise of market power in Europe’, Jahrbücher für Nationalökonomie und Statistik (2021). One exception is the study by Sean F Ennis, Pedro Gonzaga, and Chris Pike, ‘Inequality: A hidden cost of market power’, 35(3) Oxford Review of Economic Policy 518 (2019), at 529, who finds excess markups for France, Germany, South Korea, and Spain, which are almost twice as much as estimates for the USA and Japan for example.

Allen Michael O., Kenneth Scheve, and David Stasavage, ‘Democracy, Inequality, and Antitrust’ (2021).

Author notes

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Home » Blog » 10 Landmark Competition Law Case Laws | 2022 | Expert Analysis and Explanations

10 Landmark Competition Law Case Laws | 2022 | Expert Analysis and Explanations

• Blog | Top Rulings 2022 | Competition Law |
• 22 Min Read
• Last Updated on 6 January, 2023

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Get the inside scoop on the top 10 rulings on Competition Laws that everyone is talking about! Our team of experts at Taxmann has compiled a list of landmark rulings from 2022 that are trending among the stakeholders. The judgments are selected on the basis of their relevance to the practising professionals, and settlement of a challenging position of law.  The Gist of these cases is presented hereunder:

1. CCI has jurisdiction over anti-competitive aspects of lottery business though lottery may be res extra commercium: SC

Case Details: Competition Commission of India v. State of Mizoram Citation: [2022] 134 taxmann.com 199 (SC)

Judiciary and Counsel Details

• Sanjay Kishan Kaul & M.M. Sundresh , JJ.
• Rajshekhar Rao , Sr. Adv.,  Arjun Krishnan , AOR,  Ms Khushboo Mittal ,  Sumit Srivastava , Advs.,  Brijender Chahar , Sr. Adv.,  Rajesh Kumar , AOR,  Varun Mudgil ,  R.K. Srivastava ,  Dr Pratyush Nandan ,  Arjun Garg ,  Aakash Nandolia , Adv.,  Sagun Srivastava , Advs.,  Kedar Nath Tripathy , AOR,  Siddhesh Kotwal ,  Ms Ana Upadhyay ,  Ms Manya Hasija ,  Ms Pragya Barsaiyan ,  Akash Singh , Advs.,  Nirnimesh Dube , AOR,  Nikhilesh Krishnan ,  Pranav Malhotra , Advs. & Shantanu Kumar , AOR  for the Appearing parties.

Though lotteries, being akin to gambling activities, comes under purview of doctrine of res extra commercium, that will not takeaway aspect of something which is anti-competition in context of business related to lotteries and thus, CCI has jurisdiction over anti-competitive aspects of lottery business

Facts of the Case

The State of Mizoram had issued an Expression of Interest (EoI) inviting bids for the appointment of lottery distributors and selling agents for State lotteries regulated by the Mizoram Lotteries (Regulation) Rules, 2011 framed under the Lotteries (Regulation) Act, 1998.

The EoI was for appointment of lottery distributors/selling agents to organise, promote, conduct, and market the Mizoram State Lottery through both conventional paper type and online system. The EoI specified that the minimum rate fixed by the Government of India is Rs.5 lakh per draw for Bumper and Rs. 10,000 per draw for others – bids less than these rates would be summarily rejected. In pursuance of the EoI, five bids were received of which four which quoted identical amount of Rs. 10,000, were selected. The State had also asked the successful bidders to furnish a security and deposit amount

The Respondent No. 4 made a complaint to the CCI under Sections 3 & 4 read with Section 19(1)(a) of the Competition Act alleging that the State of Mizoram abused its dominant position as administrator of State lotteries, by requiring distributors to furnish exorbitant sums of money towards security, advance payment, and prize pool even before the lotteries were held.

Respondent No. 4 alleged that the bidders had cartelised and entered into an agreement that had an appreciable adverse effect on competition in the lottery business in Mizoram. There was bid-rigging and a collusive bidding process which violated Section 3(1) read with Section 3(3) of the Competition Act, and also caused grave financial loss to the State of Mizoram.

The CCI’s Director General (DG) found prima facie evidence on cartelisation and big rigging against the bidder companies, but the case against State was dropped by the DG.

The State of Mizoram moved to the High Court by filing a writ petition challenging the adverse remarks made against it by the CCI. The High Court by an interim order halted the CCI final orders. The High Court opined, was applicable to legitimate trade and goods, and was promulgated to ensure competition in markets that are res commercium.

Thus, lottery activity being in the nature of res extra commercium could not be covered by the Competition Act and consequently the CCI did not have jurisdiction to entertain the complaint of respondent no. 4, the High Court ruled. The CCI moved to the Supreme Court in appeal against the order

Supreme Court Held

The Supreme Court observed that though lotteries are state-regulated, the CCI has jurisdiction over the anti-competitive aspects of lottery business like bid-rigging in tendering process for appointment of selling agents and distributors. The CCI can order a probe into any perceived bid rigging in appointment of selling agents & distributors of lotteries.

Lotteries may be a regulated commodity and may even be res extra commercium. That would not take away the aspect of something which is anti-competition in the context of the business related to lotteries.

“We must take note of the expansive definition of ‘Service’ under Section 2(u) of the Competition Act. It means “service of any description”, which is to be made available to potential users.”

The purchaser of a lottery ticket is a potential user and a service is being made available by the selling agents in the context of the Competition Act. Suffice for us to say the inclusive mentioning does not inhibit the larger expansive definition.

The lottery business can continue to be regulated by the Regulation Act. However, if in the tendering process there is an element of anti-competition which would require investigation by the CCI, that cannot be prevented under the pretext of the lottery business being res extra commercium (thing beyond trade/commerce), more so when the State Government decides to deal in lotteries.

2. CCI slaps penalty of Rs. 936.44 Cr. on Google for abuse of dominance in market for licensable OS for smartphones

Case Details: XYZ (Confidential) v . Alphabet Inc. Citation:  [2022] 145 taxmann.com 43 (CCI)

• Ashok Kumar Gupta , Chairperson, Ms Sangeeta Verma & Bhagwant Singh Bishnoi , Member
• Sajan Poovayya ,  Jayant Mehta , Sr. Advs.  Karan Chandhiok ,  Ms Deeksha Manchanda ,  Ms Raksha Aggarwal ,  Ms Avaantika Kakkar ,  Kaustav Kundu ,  Ms Ruchi Verma ,  Tarun Donadi ,  Ms Auraellia Wang ,  Thomas Bohnett ,  Ms Smita Ann Andrews ,  Ms Sonam Mathur ,  Ms Dinoo Muthappa ,  Abir Roy ,  Dhruv Dikshit ,  Mark Buse ,  Vivek Pandey , Advs. & Tom Thomas  for the Appellant.

CCI  imposes penalty of Rs. 936.44 Cr. on Google for abuse of dominance in market for licensable OS for smartphones & in market for app store for Android

The CCI found that Google had abused its dominant position in contravention of several provisions of the Competition Act, 2002 as under –

• Google was found to be in violation of the provisions of Section 4(2)(a)(i) of the Act by making access to the Play Store, for app developers, dependent on mandatory usage of the Google Play Billing System (GPBS) for paid apps and in-app purchases which constitute an imposition of an unfair condition on app developers.
• Google was found to be in violation of Section 4(2)(a)(i) and 4(2)(a)(ii) of the Act by following discriminatory practices by not using GPBS for its own applications such as YouTube. This also amounts to an imposition of discriminatory conditions and pricing on other apps that are required to use the system.
• Google was found to be in violation of Section 4(2)(b)(ii) of the Act  due to the mandatory imposition of the Google Play Billing System, which disrupts innovation incentives and limits the ability of payment processors and app developers to innovate and undertake technical development in the market for in-app payment processing services.
• The mandatory imposition of GPBS by Google, has resulted in the denial of market access for payment aggregators and app developers, in violation of Section 4(2)(c) of the Act.
• The practices followed by Google resulted in leveraging its dominance in the market for licensable mobile operating systems and app stores for Android to protect its position in the downstream markets, in violation of Section 4(2)(e) of the Act.
• Google’s use of different methodologies to integrate its own UPI app with the Play Store compared to rival UPI apps resulted in the violation of Sections 4(2)(a)(ii), 4(2)(c) and 4(2)(e) of the Act.

The CCI observed that the prohibitions laid down in section 4 of the Competition Act are straightforward and any abuse of dominant position in terms of the imposition of unfair conditions, denial of market access, leveraging, imposition of supplementary obligations etc. is prohibited.

The CCI held that Google, after imposing unfair conditions as well as engaging in other conducts violating Section 4 of the Act, cannot take a plea that it lacked anti-competitive intent. The dominant undertakings are expected to comply with the provisions of the Act. Thus, the plea raised by Google was devoid of any merit and the same was rejected.

Further, the CCI imposed a penalty of Rs. 936.44 crores upon Google for violating Section 4 of the Act and directed Google to deposit the penalty amount within 60 days of the receipt of this order.

Also, the CCI directed Google to cease and desist from indulging in anti-competitive practices that have been found to be in contravention of Section 4 of the Act.

3. CCI orders probe against Apple for forcing ‘app developers’ to use its in-app payment solution

Case Details: Together We Fight Society v . Apple Inc. Citation:  [2022] 135 taxmann.com 194 (CCI)

• Ashok Kumar Gupta , Chairperson, Ms Sangeeta Verma & Bhagwant Singh Bishnoi , Member  

Apple  requires app developers, who wish to sell digital in-app content to their consumers, to use  Apple’s  in-app payment solution and thus, restricts choice available to app developers to select a payment processing system of their choice especially considering when  Apple  charges a commission of 30 per cent, though other payment processing solutions charge significantly lower fee for processing payments, these restrictions imposed by  Apple  forecloses market for app stores for iOS for potential app distributors in violation of section 4(2)(c)

In the instant case, the informant (an NGO called ‘Together We Fight Society’) alleged that Apple uses a barrage of anti-competitive restraints and abuse of dominant practices in markets for distribution of applications (‘apps’) to users of smartphones, tablets and processing of consumers’ payments for digital content used within iOS mobile apps (‘in-app content’).

The Informant averred that Apple imposes unreasonable and unlawful restraints on app developers from reaching users of its mobile devices (e.g., iPhone and iPad) unless they go through the ‘App Store’ which was stated to be controlled by Apple.

Further, Apple requires app developers who wish to sell digital in-app content to their consumers to use Apple’s in-app payment solution i.e. In-App Purchase (IAP) which carries a 30 per cent commission which is 10 times higher than as compared to open market rates.

The informant alleged that such restrictive practice and charge of exorbitant price amounts to abuse of dominant position under section 4 of the Act.

The Informant further asserted that Apple enjoys a dominant position in the market for non-licensable mobile OS for smart mobile devices as well as in the relevant market for app store for Apple smart mobile OS in India.

Apple’s App Store was the only approved App store for iOS devices. App developers have no other alternative except Apple’s App Store through which they could reach users of iOS. Thus, Apple was stated to have a monopoly in the iOS app distribution market.

The informant had alleged that Apple prevents iOS users from downloading app stores or apps directly from websites; pre-installs its own App Store on every iOS device it sells; disables iOS users’ ability to remove the App Store from their devices; and conditions all app developers’ access to iOS on the developers’ agreement to distribute their apps solely through the App Store and not to distribute third-party app stores.

The Competition Commission of India observed that in a relevant market i.e., market for app stores for iOS in India, Apple’s App Store is only means for developers to distribute their apps to consumers using Apple’s smart mobile devices running on Apple’s smart mobile operating system iOS, Apple holds a monopoly position in relevant market.

Then Apple requires app developers, who wish to sell digital in-app content to their consumers to use Apple’s in-app payment solution i.e., In-App Purchase (‘IAP’), and thus, restrict choice available to app developers to select a payment processing system of their choice especially considering when Apple charges a commission of 30 per cent however, other payment processing solutions charge significantly lower fee for processing payments; Apple also prohibits app developers to include a button/link in their apps which take user to third party payment processing solution other than Apple’s IAP, these restrictions imposed by Apple forecloses market for app stores for iOS for potential app distributors in violation of section 4(2)(c).

The Commission prima facie viewed that Apple has violated the provisions of section 4(2)(a), 4(2)(b), 4(2)(c), 4(2)(d) and 4(2)(e) of the Act, and therefore, it warrants detailed investigation. Accordingly, CCI directed the Director-General to cause an investigation to be made into the matter under the provisions of section 26(1).

4. CCI dismisses complaints of abuse of dominance and tie-in sales arrangement against Zomato

Case Details: Rohit Arora v . Zomato (P.) Ltd. Citation:  [2022] 137 taxmann.com 68 (CCI)  

OP i.e. Zomato , and another online intermediary for food ordering and delivery i.e. Swiggy, were competing with each other in same segment on various parameters, prima facie  Zomato  did not appear to hold a dominant position and complaints of abuse of dominance and bundling/tying of food ordering services with food delivery services were to be dismissed

In the instant case in the matter of Mr Rohit Arora v. Zomato Private Limited (now Zomato Limited) [2022] 137 taxmann.com 68 (CCI) , an information was filed by an Informant under Section 19(1)(a) of the Competition Act, 2002 (Act) against Zomato Private Limited (OP) alleging contravention of provisions of Sections 3(4) and 4 of the Act. The Informant is stated to be a consumer of Zomato for a long and has been ordering regularly from its platform since 2018.

The Informant alleged that Zomato abused its dominant position by raising food delivery charges and by charging unfair, discriminatory, and exorbitant delivery charges from its consumers. It was further alleged that Zomato vertically restrained restaurants from delivering food themselves and is restricting food delivery from unfavoured restaurants by not assigning delivery executives.

In order to support the complaint, the Informant mentioned three incidents:

First Incident:  Zomato had canceled the order stating it could not deliver the order, as the customer was unavailable to collect the food at the mentioned address and your phone was unreachable. Since the restaurant had prepared your order and denied to refund the amount for this order

The Informant later checked the terms of service on the OP’s app and found that as per Term XIII, any cancellation will be treated as an authorization breach for which Zomato is entitled to levy liquidated damages which it may determine at its discretion. The imposition of such an arbitrary cancellation policy was alleged to be abusive conduct on the part of the OP.

Second Incident: The second incident was related to spillage of food, Zomato and replied that Zomato Valet has delivered perfect orders in the last week and he is rated 4.9 out of 5 stars. We’ll treat this mistake as an exception from his end and share feedback with him. According to the Informant, this amounted to an abuse of dominant position by Zomato.

Third Incident:  This incident was related to the non-refund of money on the cancellation of order. Zomato refunded only 50% of the order amount citing that the restaurant had begun preparing the food ordered. The Informant compared the cancellation policy of Zomato with other platforms such as Swiggy, Talabat.com, Deliveroo, Food Panda, etc. to demonstrate that the cancellation policy of the former is abusive.

Zomato’s reply

In its reply, Zomato, at the outset, as regards the first incident, stated that, the Informant placed an order through Zomato, then directly contacted the delivery partner asking him to contact him on his landline number and not on his registered mobile number when delivering the order. When such instructions are communicated through Zomato, its customer service executives ensure that such instructions reach the delivery partner. But in the present circumstances, when the instructions were directly passed on to the delivery partner, it would have been unfair for Zomato to provide the Informant a full refund since the delivery partner had spent time, energy, and fuel to pick up and transport the order.

With regard to the second incident, Zomato had stated that its customer support executive asked the Informant to select the item that was spilled. However, the Informant did not proceed with the complaint and did not provide a photo of the spill which prima facie shows that the Informant was just interested in getting a quick refund, and when he realised that this will not happen, he did not proceed with the complaint and is now twisting the facts by stating that Zomato did not ask him to provide photographic evidence of the spill. As per Zomato, had it been a genuine case, the Informant should have raised the issue with the customer support team or contacted them through email, attaching photographic evidence of the spillage.

As regards the third incident, Zomato had refuted the Informant’s claim that he cancelled the order dated 30.10.2020 ‘within 30—40 seconds’. As per Zomato, the Informant had placed the order at 11.09 A.M. and had reached out for cancellation at 11.11 A.M., which was two minutes after placing the order. Even then, contrary to the Informant’s allegation, he was provided a full refund for the order, a fact which the Informant has wilfully and fraudulently failed to disclose.

CCI ruled that with respect to the three personal incidents of abuse alleged by the Informant, the Zomato sought to negate the same with evidence on record, which was not refuted by the Informant substantively, and thus, the Commission found no instance of abuse has been made out against the Zomato

The Commission observed that the Informant had delineated two separate relevant markets as online food ordering services provided by food aggregator apps in India and food delivery services in India, which Zomato had disputed. Based on the facts and circumstances of the case, the Commission believed that there exists no prima facie case of contravention of the provisions of the Act against the OP, and the Information filed is directed to be closed forthwith under Section 26(2) of the Act.  

5. No violation of Competition Act if Govt. dept. insists their suppliers to get accreditation from NABL only

Case Details: Dushyant v. National Accreditation Board for Testing and Calibration Laboratories (NABL) Citation:  [2022] 135 taxmann.com 349 (CCI)

In a tender floated by OPs for supply of products/services, OPs mandated suppliers to obtain testing or accreditation services from NABL  or labs accredited by  NABL  based on their policies/guidelines/rules of procurement/some enactments governing their functioning, there was no violation of provisions of sections 3 and 4 by OPs

In the instant case, in the matter of Dushyant v. National Accreditation Board for Testing and Calibration Laboratories (NABL) [2022] 135 taxmann.com 349 (CCI), Mr Dushyant (“Informant”) filed an application under Section 19(1)(a) of the Competition Act, 2002 (Act) alleging contravention of the provisions of Sections 3 and 4 of the Act by the National Accreditation Board for Testing and Calibration Laboratories (“NABL”) and other Department of Government/Government-affiliated bodies or Public Sector Undertakings-Opposite Parties (OPs).

The Informant alleged that NABL entered into Exclusive Supply Agreements (ESA) with the other OPs where no other accreditation service other than that of NABL was allowed. The suggested bidders/suppliers had to obtain accreditation services from NABL and its accredited laboratories only. The Informant contended that when there were other accreditation agencies existing as on date in India, it violated the provisions of section 3 (4) of the Act.

The Informant further submitted that it led to the monopolisation of power in the hands of NABL and caused an appreciable adverse effect on competition, leading to the denial of market access. The Informant contended that this violates Sections 4(2)(a) and 4(2)(c) of the Act.

The CCI held that the Informant failed to provide any evidence about NABL having an agreement/arrangement with OPs in relation to some exclusive arrangement in favour of NABL. Thus, the CCI, prima facie, does not find a contravention of Section 3(4) of the Act by any OPs.

As far as the question of violation of section 4 of the Act was concerned, CCI held that the Informant failed to provide any data/information to support his claim regarding the market share or dominance of each of the OPs.

The OPs seeking NABL’s accreditation (based on their policies/ guidelines/ rules of procurement/some enactments governing their functioning), there was nothing to suggest that NABL had any role in framing the same.

Further, OPs are free to stipulate standards for procurement, and the same cannot be held to be out-rightly anti-competitive. There was no hint to suggest that procurers other than OPs are also imposing similar conditions as the present OPs. Therefore the question of foreclosure of the market for other accreditation agencies does not arise.

The CCI ordered that there was no prima facie case of contravention of any of the provisions of Section 3 and/or 4 of the Act was made out against the OPs for causing an investigation into the matter. Therefore, the matter was ordered to be closed forthwith.

6. CCI imposes a monetary penalty of Rs. 1,337.76 crores on Google for anti-competitive practices

The Competition Commission of India (Commission) has imposed a penalty of Rs. 1,337.76 crores on Google for abusing its dominant position in multiple markets in the Android Mobile device ecosystem, apart from issuing cease and desist orders. The Commission also directed Google to modify its conduct within a defined timeline.

Based on its assessment, the Commission found Google to be dominant in all the below-mentioned relevant markets:

(a) Licensable OS for smart mobile devices in India;

(b) App store for Android smart mobile OS in India;

(c) General web search services in India;

(d) Non-OS specific mobile web browsers in India;

(e) Online video hosting platform in India.

Further, Google also secured a significant competitive edge over its competitors in relation to its other revenue-earning app, i.e. YouTube on Android devices. The competitors of these services could never avail of the same level of market access that Google secured and embedded for itself through a Mobile Application Distribution Agreement (MADA). Network effects, coupled with status quo bias, create significant entry barriers for competitors of Google to enter or operate in the concerned markets.

Further, the Revenue Sharing Agreements (RSAs) helped Google to secure exclusivity for its search services to the total exclusion of competitors. The combined results of these agreements guaranteed continuous access to search queries of mobile users, which helped not only in protecting the advertisement revenue but also to reap the network effects through continuous improvement of services, to the exclusion of competitors. With these agreements in place, the competitors never stood a chance to compete effectively with Google. Ultimately, these agreements resulted in foreclosing the market for them and eliminating choice for users.

CCI Observations

The Commission opined that the markets should be allowed to compete on merits, and the onus is on the dominant players, i.e. Google, that its conduct does not influence this competition on merits. By virtue of the agreements discussed above, Google ensured that users continued to use its search services on mobile devices, which facilitated uninterrupted growth of advertisement revenue for Google. Further, it also helped Google to further invest and improve its services to the exclusion of others. Thus, the underlying objective of Google in imposing various restrictions via MADA and RSAs was to protect and strengthen its dominant position in general search services.

CCI’s Decision

Accordingly, in terms of the provisions of Section 27 of the Act, the Commission imposed a monetary penalty of Rs. 1,337.76 crores and issued cease and desist orders against Google from indulging in anti-competitive practices that have been found to be in contravention of provisions of Section 4 of the Act.

One important part of the CCI order is that Licensing of Play Store (including Google

Play Services) to OEMs shall not be linked with the requirement of pre-installing Google search services, Chrome browser, YouTube, Google Maps, Gmail or any other application of Google.  The CCI wants Google to stop the mandatory pre-installation of the entire Google Mobile Suite on smartphones under its Mobile Application Distribution Agreement (MADA) that it signs with Original Equipment Manufacturers (OEMs). The CCI noted in the press release that this placement is unfair to “device manufacturers” and anti-competitive in nature. Further, it cannot restrict users from uninstalling its apps and choosing other search engine options.

Read the Full Press Release

7. Bar council of India couldn’t be said to be an enterprise, a review petition filed before Supreme Court dismissed

Case Details: Thupili Raveendra Babu v. Competition Commission of India Citation: [2022] 142 taxmann.com 549 (SC)

Supreme Court dismissed review petition filed against it ruling that Bar Council of India is a statutory body established under section 4 of Advocates Act, 1961, which is exclusive rule making authority to set standards of legal education and, thus, it could not be said to be an ‘enterprise’ within meaning of section 2(h)

Facts of the Case  

In the instant case, the petitioner was an executive engineer in the Central Public Works Department (CPWD), Ministry of Urban Development, Government of India. He planned to take voluntary retirement to pursue a legal education.

According to the petitioner, the Bar Council of India (BCI) regulates legal practice and education in India. It enjoys the dominant position in controlling legal education and practice in India.

The petitioner stated that pursuant to Clause 28 of Schedule III, Rule 11 to Part IV – Rules of Legal Education, 2008, a part of BCI Rules enacted under the Advocates Act, 1961 according to which the candidates belonging to the general category who have attained the age of more than 30 years, was barred from pursuing a legal education.

The BCI had allegedly imposed maximum age restrictions, which act as an indirect barrier for the new entrants. The impugned clause 28 had been incorporated by the BCI in contravention of Section 4 of the Competition Act, 2002 by ‘misusing its dominant position’. Further, the BCI had also indulged in a colourable exercise of power.

Therefore, the petitioner had prayed before the Commission to declare the impugned Clause 28 as illegal and void ab initio and impose the maximum penalty on the BCI for violation of Section 4 and indulging in a colourable exercise of power. Further, the petitioner also prayed for interim directions under Section 33 for suspending the impugned clause 28.

The CCI opined that there was no prima facie case under Section 4 and directed the information filed to be closed immediately under Section 26(2) of the Act. Therefore, the aggrieved petitioner preferred an appeal before the NCLAT.

The NCLAT held that the Bar Council of India is a Statutory Body and has its primordial role in performing its duties. Hence, the Bar Council of India is not an ‘enterprise’ having any economic and commercial activity.

Further, the NCLAT held that the BCI is concerned with the standards of the legal profession and equipping those who seek entry into such profession with the relevant knowledge and skills.

The Supreme Court, by the impugned order, upheld the order passed by the NCLAT. Then, the petitioner, by the instant petition, sought a review of the impugned order.

The Supreme Court held that the Bar Council of India is a statutory body established under Section 4 of the Advocates Act. It is the exclusive rule-making authority to set standards of legal education. Thus, it couldn’t be said to be an ‘enterprise’ within the meaning of Section 2(h) of the Competition Act, 2002.

The Supreme Court further held that the impugned order didn’t suffer from any apparent error warranting its reconsideration. Accordingly, the instant review petition was to be dismissed.  

8. CCI orders investigation into allegations of abuse of dominance by Google in news aggregation services

Case Details: Digital News Publishers Association v . Alphabet Inc. Citation:  [2022] 134 taxmann.com 103 (CCI)

• Ashok Kumar Gupta , Chairperson, Ms Sangeeta Verma & Bhagwant Singh Bishnoi , JJ

Google was an indispensable trading partner for news  website  publishers  and Google had unilaterally decided not to pay  digitalnewspublishers  for snippets used by them in search engine, it also forced  publishers  to build mirror-image websites using Accelerated Mobile Pages (AMP) format with Google caching all articles and serving content directly to mobile users, such conduct of Google required a detailed assessment, and thus, DG was directed to cause an investigation into matter under provisions of section 26(1)

In the instant case in the matter of Digital News Publishers Association v. Alphabet Inc – [2022] 134 taxmann.com 103 (CCI) , the informant (Digital News Publishers Association), a Section 8 Company formulated to promote, aid, help, encourage, develop, protect and secure the interest of digital news publishers filed a complaint under section 19(1)(a) of the Competition Act, 2002 against Alphabet Inc., Google LLC, Google India Private Limited, and Google Ireland Limited (collectively referred to as ‘Google’) alleging violation of Section 4 of the Act.

The Informant claimed that the majority of the traffic on news websites comes from online search engines (i.e. more than 50%), wherein Google is claimed to be the most dominant search engine. The informant argued that Google imposed direct/indirect unfair conditions on the members of the Informant while allowing website links of the members of the Informant on their search engine results.

The informant alleged that Google abused its dominant position to impose unfair and arbitrary conditions on the members of the Informant u/s Section 4(2)(a)(i), as the members of the Informant were not informed of or given any data pertaining to the amount of revenue earned by the Google by providing advertisements on the websites/links of the members of the Informant. Google only give a small chunk of revenue generated to the members of the Informant in an arbitrary manner. The publishers of the news only got a smaller chunk of the revenue generated.

The informant also alleged that unfair acts of Google are detrimental and prejudicial to the interests of the consumers as well as the journalism industry as it de-motivates the entire journalism industry, as they put all hard work into publishing news and get only a smaller chunk of revenue.

The Informant further alleged that Google does not produce any news of their own; however, they have steadily grown their influence in the news space by effectively using their dominance in the relevant markets.

It had been contended that Google not only had a monopolistic position in search in India, it also had a very strong position in advertising intermediation and controls the major share at each level. The informant alleged that Google abused its dominance in every way. The members of the Informant have no other option but to accept the terms, as they are, with no bargaining power whatsoever.

The informant prayed the Commission to pass an order under section 26(1) of the Act to inquire into the conduct of Google for the violation of Section-4 of the Act.

The Commission noted that Google’s market share ranged from 98% to 99% in the mobile search engine market during the period April 2019 to July 2021. Apart from market share data, the Commission had also taken note of the detailed submissions of the Informant on other factors given under Section 19(4) of the Act to assert the dominance of Google in the relevant markets.

Based on the above, the Commission, prima facie viewed that no doubt Google has the dominance in the relevant market and Google had violated the provisions of Section 4(2)(a) of the Act, which merits investigation. The Commission observed that an investigation by the DG would be able to examine the issues comprehensively by allowing all concerned to present their case. Accordingly, directed the DG to cause an investigation into the matter under the provisions of Section 26(1) of the Act.

9. HCs can’t interfere with CCI’s probe unless there is an abuse of process and it appears a mala fide investigation

Case Details: GMR Hyderabad lnternational Airport Ltd. v . Competition Commission of lndia Citation:  [2022] 144 taxmann.com 186 (Telangana)

• K. Lakshman , J.
• S. Niranjan Reddy & Ms Rubaina S. Khatoon for the Petitioner. 
• K. Vivek Reddy ,  Ms Neha Pandey ,  D. Prakash Reddy &  P. Sriram  for the Respondent.

CCI order directing probe against  GMR  for alleged abuse of market power, on a complaint filed by informant an aircraft Maintenance, Repair and Overhaul (MRO) service provider Air Works was well reasoned, hence could not have been interfered with

In the instant case in the matter of GMR Hyderabad lnternational Airport Ltd. v. Competition Commission of lndia – [2022] 144 taxmann.com 186 (HC-Telangana),  a question was raised before the High Court as to whether the Court can interfere in CCI proceedings and investigations when there appears to be an abuse of law?

High Court Held

The High Court observed that an order passed u/s 26(1) of the Competition Act, 2002, directing investigation by the Director General is an administrative order passed only to determine whether allegations made by informant u/s 19(1), about possible violations of competition law are true.

It was further observed that once information is received u/s 19(1), CCI, based on material produced by the informant has to form a prima facie opinion regarding possible competition law violations. The High Court held that while forming a prima facie opinion, CCI has to only determine if allegations along with material produced are taken to be true, will that result in breach of competition law.

The High Court held that scope of interference of High Courts under Article 226 of the Constitution of India, in an order passed directing investigation under section 26(1) is extremely limited. The CCI and authorities under Act, 2002 were well equipped to conduct the investigation and possess expertise in said field.

In view of the above, it was held that the High Courts could not interfere with such investigation unless there is an abuse of process and prima-facie it appears that the investigation was marred by mala fides.

It is only after the investigation/inquiry is completed and parties are given an opportunity of hearing that the CCI can decide whether the dispute is strictly commercial and raises no competition law concerns.

10. No abuse of dominance by Asian Paints; allegations of enforcing exclusive supply agreement couldn’t be substantiated: CCI

Case Details: JSW Paints (P.) Ltd.  v . Asian Paints Ltd. Citation:  [2022] 142 taxmann.com 210 (CCI)

Informant filed information against manufacturer of decorative and industrial paints , i.e. OP that it had acted in contravention of provisions of sections 3 and 4 by enforcing an exclusive supply agreement and restraining  paint  dealers to not to deal with informant’s  paint , however, said allegations could not be substantiated with concrete evidence, no case of contravention of provisions of sections 3 and 4 was made out

In the instant case in the matter of JSW Paints (P.) Ltd. v. Asian Paints Ltd. – [2022] 142 taxmann.com 210 (CCI) , the information was filed by JSW Paints (P.) Ltd (the “Informant) u/s 19(1)(a) against Asian Paints Limited alleging the contravention of sections 3(4) and 4 of the Competition Act, 2002.

JSW Paints alleged that, immediately after the launch of its decorative paints, Asian Paints targeted dealers/distributors/retailers partnering with JSW Paints. It directed them to stop dealing with JSW Paints and threatened them to stop supplies to these dealers.

Further, it also asked dealers to remove display of JSW Paints products from their retail shelves and threatened of not to allow them discretionary discounts, among others.

Further, Asian Paints was alleged to hinder the entry of JSW Paints by virtue of its dominance in the market for the manufacture and sale of decorative paints by the organised sector in India, in contravention of provisions of Section 4(2)(c) of the Act. Thus, the conduct of Asian Paints was aimed at preventing JSW Paints from establishing its presence in the said market

The CCI noted that the conduct of Asian Paints was a case of enforcing an exclusive supply agreement and refusal to deal as provided in Section 3(4) of the Act. Thus, the said conduct caused an appreciable adverse effect on competition by creating barriers to entry, driving existing competitors out of the market and foreclosure of competition by hindering the entry of JSW Paints into the market.

The CCI observed that the Asian Paints prima facie appeared to enjoy a dominant position in the relevant market for “manufacture and sale of decorative paints by the organised sector in India”.

Further, with respect to the alleged contravention of Section 3(4) of the Act, the CCI observed that the restraints imposed by Asian Paints appeared to be in the nature of an exclusive supply agreement and refusal to deal. Accordingly, the CCI directed the DG to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act.

The CCI, on the basis of DG findings, held that there has to be evidence that, on the balance of probabilities, would point towards a strong entrenched player using tactics to oust a smaller player or even a new entrant to the market (regardless of its size or inherent advantages) by either incentivizing or coercing downstream players to boycott or not deal with the new players.

“In the present case, the balance was not tilted towards JSW Paints. Asian Paints was able to demonstrate that some of its conduct or practices adopted qua the dealers were in furtherance of its terms of doing business with such dealers and not to keep JSW Paints away from the market. “

In view of the above, the allegations of enforcing an exclusive supply agreement and refusal to deal against the Asian Paints were to be dismissed.

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Competition Law Research Paper Topics

This page presents a comprehensive exploration of competition law research paper topics , designed to assist law students in their pursuit of academic excellence. As competition law continues to play a critical role in regulating market dynamics, students often face the challenge of choosing compelling research topics that reflect the evolving complexities of this field. Here, we highlight the diverse range of competition law research paper topics covered in this page, encompassing anti-competitive agreements, abuse of dominant market position, mergers and acquisitions, intellectual property issues, digital markets, international antitrust enforcement, consumer protection, public policy implications, and emerging issues in the digital era. Through this curated list of topics, students will gain insights into the multifaceted dimensions of competition law, fostering critical thinking and the ability to address real-world challenges in an ever-changing legal landscape. Whether investigating the intersection of competition law and technology or exploring the impact of global trade on market competition, this page aims to empower students with an array of research paper ideas to embark on their scholarly endeavors in competition law.

100 Competition Law Research Paper Topics

Competition law is a dynamic and multifaceted field that addresses various issues related to market competition, monopolies, consumer welfare, and economic efficiency. As law students delve into this intricate domain, they often encounter the challenge of selecting compelling research paper topics that reflect the evolving complexities of competition law. To aid students in their academic journey, we present a comprehensive list of competition law research paper topics, carefully curated and divided into ten categories, each offering unique insights into the realm of market regulation and antitrust enforcement.

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Anti-competitive Agreements:

• The Role of Cartels in Market Manipulation: Case Studies and Impact on Consumers
• Horizontal vs. Vertical Agreements: Analyzing the Distinctions and Legal Implications
• Price Fixing and Collusion: Assessing the Challenges of Detecting and Prosecuting Anti-competitive Conduct
• Leniency Programs: Evaluating the Effectiveness in Combating Cartels and Encouraging Cooperation
• Trade Associations and Competition Law: Balancing Industry Cooperation and Compliance with Antitrust Regulations
• Technology Cartels and the Digital Age: Investigating Anti-competitive Practices in Tech Markets
• Intellectual Property and Competition: Antitrust Implications of Patent Pools and Cross-Licensing Agreements
• Compliance Mechanisms for Agreements: Promoting Ethical Business Practices and Preventing Collusion
• Bundling and Tying Arrangements: Analyzing the Impact on Market Entry and Consumer Choice
• Antitrust Enforcement in the Pharmaceutical Industry: Addressing Market Distortions and Access to Medicine.

Abuse of Dominant Market Position:

• Monopolization and Market Power: Analyzing the Criteria for Identifying Dominant Firms
• Predatory Pricing and Market Entry Barriers: Evaluating the Impact on Competitors and Consumers
• Exclusionary Practices by Tech Giants: The Intersection of Dominance and Digital Markets
• Leveraging Dominant Position to Enter Adjacent Markets: Examining the Antitrust Implications
• Essential Facilities Doctrine: Balancing Market Dominance and Access to Key Infrastructure
• Market Definition and Dominant Market Shares: Methodological Challenges in Identifying Dominant Firms
• Refusal to Deal and Essential Inputs: Assessing the Role of Dominant Entities in Supply Chains
• Intellectual Property and Dominant Firms: Exploring the Intersection of Competition Law and Patents
• Abusive Discrimination and Market Access: Analyzing the Legal Framework and Enforcement Challenges
• Monopoly Regulation in Developing Economies: Promoting Fair Competition and Economic Growth.

Mergers and Acquisitions:

• Merger Control Thresholds: The Balance between Market Concentration and Facilitating Business Transactions
• Failing Firm Defense: Evaluating the Criteria for Allowing Mergers in Distressed Companies
• Killer Acquisitions: Assessing the Impact of Acquiring Potential Competitors on Innovation
• Conglomerate Mergers and Market Power: The Challenges of Analyzing Diversified Entities
• Gun-Jumping and Pre-merger Coordination: The Role of Antitrust Agencies in Preventing Premature Actions
• Cross-Border Mergers: Analyzing the Challenges of Harmonizing Antitrust Enforcement in Global Transactions
• Market Definition in Merger Analysis: The Significance of Product and Geographic Market Definition
• Remedies in Merger Control: Evaluating the Effectiveness of Divestitures and Behavioral Conditions
• Merger Waves and Economic Cycles: Examining the Relationship between M&A Activities and Market Performance
• Merger Notification Procedures: Streamlining the Review Process and Ensuring Effective Decision-Making.

Intellectual Property and Competition Law:

• Standard-Essential Patents and FRAND Commitments: Balancing Innovation Incentives and Access to Essential Technologies
• Patent Thickets and Competition: Addressing Patent Pools and Overlapping Rights
• Intellectual Property Rights and Market Power: Antitrust Scrutiny of Dominant Firms with Strong IP Portfolios
• Technology Transfer Agreements and Antitrust Compliance: Evaluating Licensing Practices and Competition
• Trademarks and Market Distinctiveness: Analyzing the Antitrust Implications of Branding Strategies
• Copyright Licensing and Competition: The Interface between Copyright and Market Competition
• Big Data and Antitrust: The Impact of Data Dominance on Market Concentration and Consumer Choice
• Digital Rights Management and Competition Law: Striking a Balance between Copyright Protection and Market Access
• Antitrust Enforcement in the Digital Media Industry: Implications for Content Creators and Distribution Platforms
• Innovation and Market Dominance: The Interaction between Patent Protection and Competition Law.

Competition Law and Digital Markets:

• Big Tech and Platform Dominance: Investigating the Role of Technology Giants in Shaping Digital Markets
• Data Privacy and Antitrust: Analyzing the Relationship between Consumer Data and Market Power
• Online Platforms and Self-Preferencing: The Legal Boundaries of Fair Competition in E-Commerce
• Algorithmic Collusion: Detecting and Addressing Collusive Behavior in Automated Systems
• Digital Advertising and Competition: The Intersection of Targeted Ads and Market Concentration
• The Sharing Economy and Antitrust Regulation: The Challenges of Promoting Competition in Peer-to-Peer Platforms
• Internet Intermediaries and Market Fairness: Examining the Role of Online Intermediaries in Facilitating Market Access
• Digital Market Definition and Geographic Boundaries: The Challenges in Defining Online Markets
• Data Ownership and Market Power: The Antitrust Implications of Data Dominance in the Digital Era
• E-Commerce Platforms and Exclusionary Practices: Analyzing Anti-competitive Behavior in Online Markets.

International Antitrust Enforcement:

• Extraterritorial Application of Competition Law: The Legal Challenges and Global Cooperation Efforts
• Cross-Border Cartels: Investigating the Challenges of Multi-Jurisdictional Prosecution and Enforcement
• Regional Competition Agreements: Assessing the Role of Regional Bodies in Promoting Cross-Border Competition
• Merger Control in a Globalized Economy: Harmonization and Divergence of Merger Review Procedures
• Antitrust in the Digital Silk Road: The Impact of China’s Belt and Road Initiative on Global Markets
• International Trade and Market Access: Analyzing the Link between Antitrust and Trade Policies
• Antitrust and Developing Economies: Tailoring Enforcement to Local Contexts and Economic Development
• Antitrust Compliance in Cross-Border Mergers: Navigating the Legal Landscape of International Transactions
• Cross-Border Antitrust Investigations: Examining the Challenges of Collecting and Sharing Evidence
• Competition Advocacy in International Forums: Promoting Global Cooperation and Convergence.

Consumer Protection and Competition Law:

• Misleading Advertising and Consumer Deception: The Intersection of Consumer Rights and Market Competition
• Price Discrimination and Consumer Welfare: Analyzing the Impact on Vulnerable Populations
• Online Consumer Rights in Digital Markets: Ensuring Fair Practices and Redress Mechanisms
• Competition Law and Healthcare: Addressing Market Concentration and Access to Medicine
• Financial Services and Market Regulation: Consumer Protection in the Banking Sector
• Consumer Data and Privacy in the Digital Age: The Intersection of Consumer Protection and Data Dominance
• Unfair Competition Practices: Analyzing the Role of Unfair Competition in Restraining Market Access and Consumer Choice
• Product Safety and Market Competition: Balancing Innovation and Consumer Welfare
• Consumer Empowerment and Market Information: The Impact of Market Transparency on Consumer Decision-Making
• Competition Law Remedies for Consumer Harm: Evaluating the Effectiveness of Compensation Mechanisms.

Public Policy and Competition Law:

• Antitrust and Innovation: The Interplay between Market Competition and Technological Advancements
• Competition Policy and Economic Development: The Role of Antitrust in Fostering Economic Growth
• Political Influence and Market Concentration: Analyzing the Impact of Lobbying on Antitrust Regulation
• Market Regulation in Times of Crisis: Addressing Competition Challenges during Economic Downturns
• National Security and Competition Law: Balancing National Interests and Open Markets
• Market Power and Income Inequality: The Socioeconomic Implications of Market Concentration
• Technology Transfer and National Interest: Assessing the Role of Competition Law in Safeguarding Innovation
• Corporate Social Responsibility and Market Dominance: Examining Ethical Business Practices and Market Influence
• Environmental Sustainability and Competition Law: The Relationship between Competition and Green Business Practices
• Digital Sovereignty and Market Control: Navigating the Challenges of Global Technology Regulation.

Emerging Issues in the Digital Era:

• Artificial Intelligence and Antitrust: The Challenges of Addressing Algorithmic Collusion
• Blockchain Technology and Market Competition: The Potential of Decentralized Markets
• Data Monopolies and Market Distortion: Antitrust Implications in Data-Driven Economies
• Internet of Things and Market Dominance: The Intersection of Connected Devices and Competition Law
• Virtual Markets and Market Power: Analyzing the Antitrust Impact of Virtual Goods and Services
• Privacy Regulation and Competition Law: The Balancing Act between Data Protection and Market Competition
• Digital Disinformation and Competition Law: Addressing Misinformation and Consumer Manipulation
• Competition Law Enforcement in the Gig Economy: The Challenges of Regulating Flexible Work Arrangements
• Smart Cities and Antitrust: The Impact of Technological Urbanization on Market Concentration
• Cybersecurity and Market Competition: The Role of Antitrust in Protecting Against Cyber Threats.

Case Studies in Competition Law:

• Microsoft Antitrust Case: Analyzing the Legacy of the U.S. v. Microsoft Corp. Case
• Google Antitrust Cases: Assessing the EU’s Multiple Investigations into Google’s Market Dominance
• Apple vs. Epic Games: The Antitrust Battle over App Store Policies and Market Access
• Qualcomm vs. FTC: The Antitrust Litigation over Qualcomm’s Licensing Practices
• Intel Antitrust Case: Examining the European Commission’s Decision on Intel’s Market Dominance
• Amazon and Antitrust: Investigating Amazon’s Role as a Dominant E-Commerce Platform
• Facebook and Market Dominance: The Antitrust Scrutiny of Social Media Platforms
• Standard Oil and the Origins of Antitrust: A Historical Perspective on Competition Regulation
• Uber and Antitrust: Addressing the Competition Challenges in the Ride-Hailing Industry
• Visa and Mastercard Antitrust Cases: Analyzing the Legal Battle over Credit Card Network Fees.

In conclusion, this comprehensive list of competition law research paper topics offers a diverse and extensive range of areas for exploration in the dynamic field of antitrust regulation and market competition. From examining the implications of anti-competitive agreements to navigating the challenges of regulating digital markets, students will find ample opportunities to delve into complex legal issues and contribute to the ongoing evolution of competition law. By exploring these thought-provoking topics, students can enhance their critical thinking skills, develop a deeper understanding of legal complexities, and contribute to the advancement of competition law jurisprudence. This carefully curated collection aims to empower law students in their academic pursuits and inspire them to undertake impactful research in the realm of competition law.

Competition Law: Exploring the Range of Research Paper Topics

Competition law, also known as antitrust law in some jurisdictions, is a crucial area of legal study that aims to promote fair competition and prevent anti-competitive practices in the marketplace. It plays a vital role in maintaining a level playing field for businesses, safeguarding consumer interests, and fostering economic efficiency. As students of law venture into the realm of competition law, they are presented with a vast and ever-evolving landscape of legal issues to explore and analyze. This section delves into the multifaceted world of competition law research paper topics, highlighting key areas of interest and offering valuable insights to inspire law students in their academic pursuits.

The Evolution of Competition Law

To begin our exploration, it is essential to understand the historical development of competition law. Students can investigate the origins of antitrust regulation, examining landmark cases and legislative milestones that have shaped the field over time. They can explore how competition law has evolved to adapt to new economic challenges and technological advancements, such as the impact of globalization and the digital era on market competition.

Theoretical Perspectives in Competition Law

Competition law draws upon various economic theories to justify its existence and guide its application. Students can delve into different theoretical perspectives, such as the Chicago School of thought, the Harvard School, and the Post-Chicago School, and critically analyze their implications for antitrust policy and enforcement. This area of research allows students to explore the tensions between economic efficiency and consumer welfare, as well as the role of competition authorities in balancing competing objectives.

Comparative Analysis of Competition Laws

Conducting a comparative study of competition laws across different jurisdictions provides an enriching research opportunity. Students can compare and contrast the legal frameworks, enforcement approaches, and policy objectives of various countries, shedding light on the diversity of approaches to competition regulation and identifying potential areas of harmonization or cooperation in the global context.

Market Definition and Dominance Assessment

Defining relevant markets and assessing market dominance are critical steps in competition law analysis. Research papers in this area can explore the methodologies used by competition authorities to define markets, measure market power, and identify dominant firms. Students can examine the challenges of market definition in emerging sectors, such as digital markets and technology-driven industries.

Anti-competitive Agreements

The prohibition of anti-competitive agreements lies at the core of competition law. Students can investigate the different types of agreements, such as cartels, price-fixing arrangements, and bid-rigging, and explore the legal and economic consequences of such collusive practices. Research papers may delve into leniency programs, the role of whistleblowers, and the use of technology in detecting and prosecuting anti-competitive agreements.

Abuse of Dominant Market Position

Analyzing cases of market dominance and abuse is an area of significant interest in competition law research. Students can examine the factors that contribute to market power, such as barriers to entry, network effects, and economies of scale, and explore how dominant firms may engage in exclusionary conduct to maintain or strengthen their position in the market. This research can include the examination of cases involving monopolization, predatory pricing, and refusal to deal.

Merger Control and Consolidation

Mergers and acquisitions have the potential to impact market competition significantly. Research papers in this area can focus on the effectiveness of merger control regulations in preventing anti-competitive consolidation, the role of economic analysis in merger reviews, and the challenges of regulating cross-border mergers. Students can explore the factors considered by competition authorities when evaluating the competitive effects of mergers and the design of remedies to address potential anti-competitive concerns.

Competition Law Enforcement in the Digital Age

As the world becomes increasingly digitalized, competition law faces new challenges in addressing the unique issues arising in the digital marketplace. Students can investigate the role of competition law in regulating online platforms, data-driven markets, and the use of algorithms. They may examine the complexities of applying traditional competition principles to the digital economy and consider the role of big data, artificial intelligence, and machine learning in competition enforcement.

Sector-Specific Competition Law

Competition law is often tailored to address specific industries or sectors. Students can explore sector-specific competition regulations, such as competition law in the healthcare industry, telecommunications, financial services, or energy markets. This research allows for an in-depth examination of the particular challenges and policy objectives that arise in different sectors and how competition law can be adapted to address sector-specific issues.

Competition Policy and Public Interest Considerations

Competition law enforcement is not only about promoting efficiency and consumer welfare but also involves considerations of public interest and broader societal objectives. Students can delve into the interface between competition law and public policy, examining cases where competition enforcement has been influenced by non-economic concerns, such as environmental protection, access to essential services, or cultural preservation.

The realm of competition law research offers a vast landscape of compelling topics that reflect the intricacies of market regulation, antitrust enforcement, and consumer protection. As law students engage in exploring these research paper topics, they embark on a journey to understand the complexities and significance of competition law in shaping the competitive dynamics of modern economies. Through their scholarly pursuits, students not only contribute to the academic discourse but also play a crucial role in advancing the field of competition law and its impact on society and economic welfare.

How to Choose Competition Law Research Paper Topics

Selecting a research paper topic is a crucial step in the academic journey of law students. The field of competition law offers a diverse range of fascinating and relevant issues for exploration, making the process of choosing the right research topic both exciting and challenging. This section provides valuable insights and practical tips to help students navigate the process of selecting compelling and well-defined competition law research paper topics that align with their interests, expertise, and academic goals.

• Identify Your Area of Interest : Begin by identifying your area of interest within the broad scope of competition law. Are you intrigued by antitrust enforcement in the digital economy, mergers and acquisitions, or the economic implications of market dominance? By narrowing down your interests, you can focus on specific topics that resonate with your passion for the subject.
• Conduct Preliminary Research : Before finalizing your research topic, conduct preliminary research to familiarize yourself with recent developments and emerging trends in competition law. Stay updated with landmark cases, policy changes, and academic publications in the field. This background research will help you identify gaps in the existing literature and potential areas for further exploration.
• Define Your Research Objectives : Clearly define your research objectives and the specific questions you aim to answer in your paper. Are you seeking to analyze the effectiveness of certain competition law regulations, explore the impact of market consolidation, or evaluate the role of competition enforcement in specific industries? Having well-defined research objectives will guide your selection of a focused and relevant topic.
• Analyze the Legal Framework : Competition law operates within a legal framework that varies across jurisdictions. If you are interested in conducting a comparative analysis, choose a topic that allows for a meaningful comparison of competition laws in different countries. Understanding the legal context is essential for framing your research question and methodology.
• Consider Practical Implications : Assess the practical implications of your chosen research topic. How does your research contribute to the ongoing discourse on competition law? Is there potential for your findings to inform competition policy or impact the enforcement practices of competition authorities? Topics with practical significance can add value to your research and demonstrate its relevance in the real world.
• Consult with Faculty and Peers : Engage in discussions with your faculty members and peers to seek their input and feedback on potential research topics. Collaborating with others can provide new perspectives, help refine your ideas, and ensure that your research aligns with academic standards and expectations.
• Access to Data and Resources : Consider the availability of data and resources relevant to your research topic. Access to comprehensive data and credible sources can significantly enhance the quality and depth of your research. Ensure that you have access to the necessary legal texts, court decisions, economic data, and academic literature to support your analysis.
• Timeliness and Relevance : Choose a research topic that is timely and relevant to the current state of competition law. Topics that address emerging issues, recent court decisions, or changes in regulatory approaches can attract greater interest from readers and contribute to ongoing debates in the field.
• Originality and Contribution : Strive for originality in your research topic and aim to make a unique contribution to the field of competition law. Avoid topics that have been extensively covered or lack novelty. Consider how your research can fill gaps in existing literature or offer fresh perspectives on well-known issues.
• Stay Open to Exploration : Finally, remain open to exploring new ideas and adjusting your research focus as you delve deeper into the literature. As you progress in your research journey, new insights may lead you to refine your research question or explore related areas that enrich your paper.

Selecting the right competition law research paper topic is a critical step in producing a compelling and impactful academic work. By identifying your interests, conducting thorough research, defining your objectives, and considering practical implications, you can narrow down your choices and choose a topic that aligns with your academic goals and contributes meaningfully to the field of competition law. Remember to seek guidance from faculty and peers, access credible resources, and stay open to exploration as you embark on your research journey.

How to Write a Competition Law Research Paper

Writing a competition law research paper requires a systematic approach that combines legal analysis, economic insights, and critical thinking. As law students delve into the complexities of competition law, they must effectively communicate their findings and arguments in a well-structured and coherent manner. This section provides valuable guidance on how to write a compelling competition law research paper, from planning and conducting research to structuring the paper and presenting the analysis effectively.

• Define Your Research Question : At the outset, clearly define your research question or thesis statement. Your research question should be specific, focused, and aligned with the objectives of your study. It serves as the guiding compass throughout the writing process and ensures that your paper remains cohesive and on track.
• Conduct Thorough Research : Competition law research papers require a comprehensive examination of legal texts, court decisions, academic literature, and economic data. Conduct thorough research using authoritative sources to gather relevant information, legal precedents, and empirical evidence to support your arguments.
• Create an Outline : Before diving into writing, create a detailed outline that outlines the structure of your paper. An outline helps organize your thoughts, provides a logical flow to your arguments, and ensures that you cover all essential aspects of your research.
• Introduction : The introduction should provide context for your research topic, present the research question, and outline the scope and objectives of your paper. Engage your readers with a compelling opening and highlight the significance of your research in the context of competition law.
• Literature Review : Conduct a thorough literature review to situate your research within the existing body of scholarship on competition law. Identify key theories, legal principles, and economic concepts that inform your research and highlight any gaps in the literature that your paper aims to address.
• Legal Analysis : Present a detailed legal analysis of the relevant competition law principles, statutes, and court decisions that are central to your research question. Analyze how these legal frameworks apply to the specific issues or cases you are examining. Use clear and precise legal language while supporting your analysis with authoritative sources.
• Economic Analysis : If your research involves economic aspects, provide an economic analysis that complements your legal analysis. Integrate economic concepts, such as market power, consumer welfare, and efficiency, into your arguments. Use empirical data, economic models, and economic theory to support your findings.
• Case Studies : Consider incorporating case studies or real-world examples to illustrate your arguments and demonstrate how competition law principles are applied in practice. Case studies provide valuable insights and strengthen the practical relevance of your research.
• Antitrust Policy Implications : Discuss the policy implications of your research findings. Consider how your analysis informs antitrust policy, enforcement practices, and potential legislative reforms. Offer practical recommendations for policymakers and competition authorities based on your research.
• Conclusion : In the conclusion, restate your research question and summarize the main findings of your paper. Emphasize the significance of your research and its contribution to the field of competition law. Discuss any limitations of your study and propose areas for further research.
• Citations and References : Ensure that you use proper citations and references throughout your paper to acknowledge the sources of your information and ideas. Follow the appropriate citation style, such as APA, MLA, or Chicago, as required by your academic institution.
• Review and Revise : Writing a competition law research paper is an iterative process. After completing the first draft, review your paper for clarity, coherence, and consistency. Revise your arguments, strengthen your analysis, and ensure that your paper adheres to academic standards.
• Seek Feedback : Seek feedback from professors, mentors, or peers to get valuable insights and suggestions for improvement. Feedback from others can help refine your arguments, clarify your writing, and enhance the overall quality of your research paper.

Writing a competition law research paper requires a rigorous approach that integrates legal analysis, economic insights, and scholarly research. By defining a clear research question, conducting thorough research, and structuring your paper effectively, you can craft a compelling and impactful research paper that contributes to the vibrant field of competition law. Through careful writing and presentation of your analysis, you can convey your expertise, critical thinking, and understanding of complex legal issues to your readers.

iResearchNet’s Custom Research Paper Writing Services

At iResearchNet, we understand the challenges that law students face when tasked with writing a competition law research paper. The field of competition law is dynamic and complex, requiring a deep understanding of legal principles, economic theories, and real-world applications. We recognize the importance of producing high-quality research papers that not only meet academic standards but also contribute to the advancement of competition law knowledge. To support students in their academic journey, we offer custom competition law research paper writing services that cater to their unique needs and requirements.

• Expert Degree-Holding Writers : At iResearchNet, we pride ourselves on having a team of expert writers who possess advanced degrees in law and related fields. Our writers are well-versed in competition law and have a keen understanding of legal principles and economic concepts. With their expertise, they can deliver comprehensive and well-researched papers that meet the highest academic standards.
• Custom Written Works : We believe in providing personalized solutions to our clients. Each competition law research paper is custom written based on the specific requirements and instructions provided by the student. Our writers conduct thorough research, analyze legal and economic aspects, and craft original papers that address the unique research questions and objectives of each client.
• In-Depth Research : Competition law research papers require in-depth research and analysis. Our writers have access to extensive academic databases, legal texts, court decisions, and economic data, enabling them to gather credible and relevant information for each paper. We ensure that our research papers are comprehensive, well-supported, and up-to-date.
• Custom Formatting : Academic formatting is a crucial aspect of research papers. Our writers are proficient in various citation styles, including APA, MLA, Chicago/Turabian, and Harvard. They meticulously adhere to the specified formatting guidelines, ensuring that each paper is presented professionally and in accordance with the academic requirements.
• Top Quality : At iResearchNet, we prioritize quality above all else. Our dedicated quality assurance team reviews each research paper to ensure accuracy, coherence, and adherence to the client’s instructions. We aim to deliver research papers that demonstrate thorough analysis, critical thinking, and a deep understanding of competition law.
• Customized Solutions : We understand that each competition law research paper is unique, requiring individualized attention and focus. Our writers work closely with clients to understand their research objectives, preferences, and specific areas of interest. This collaborative approach allows us to deliver customized solutions that align with each student’s academic goals.
• Flexible Pricing : We offer competitive and transparent pricing for our custom competition law research paper writing services. Our pricing model is designed to accommodate students with varying budget constraints. We believe in providing value for money by offering high-quality research papers at affordable rates.
• Short Deadlines : We recognize that students often face tight deadlines when completing their research papers. At iResearchNet, we are equipped to handle urgent orders with short deadlines, delivering high-quality papers within as little as three hours. Our fast turnaround ensures that students can meet their submission deadlines without compromising on quality.
• Timely Delivery : We understand the importance of timely delivery for students. Our team is committed to delivering completed research papers within the agreed-upon deadlines. We value punctuality and ensure that clients receive their papers promptly, allowing them ample time for review and revision if needed.
• 24/7 Support : Our customer support team is available 24/7 to assist clients with any queries, concerns, or requests. Whether you need to track your order, communicate with your assigned writer, or seek updates on your paper’s progress, our support team is always ready to provide prompt assistance.
• Absolute Privacy : At iResearchNet, we prioritize the privacy and confidentiality of our clients. All personal information and communication are kept strictly confidential, and we do not disclose any client details to third parties. We use secure encryption technology to safeguard client data and ensure a safe and secure environment for transactions.
• Easy Order Tracking : Our user-friendly platform allows clients to easily track the progress of their orders. You can stay informed about the status of your research paper, communicate with your writer, and access completed drafts conveniently through our website.
• Money Back Guarantee : We are confident in the quality of our services, and we offer a money-back guarantee to ensure client satisfaction. If a client is not satisfied with the delivered research paper or if it does not meet the specified requirements, we provide a refund as per our money-back policy.

At iResearchNet, we are dedicated to supporting law students in their academic pursuits by offering custom competition law research paper writing services that cater to their unique needs. Our team of expert writers, commitment to quality, and personalized approach ensure that each research paper is crafted to the highest academic standards and contributes to the advancement of competition law knowledge. With our reliable and efficient services, students can confidently embark on their competition law journey, knowing that they have a trusted partner in iResearchNet.

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Are you a law student looking to excel in the field of competition law research? Do you find yourself grappling with complex legal principles and economic concepts while writing your competition law research paper? Look no further! iResearchNet is here to empower your academic journey and unleash the full potential of your competition law research.

Unleash the potential of your competition law research with iResearchNet’s custom research paper writing services. Our expert guidance, personalized approach, and commitment to quality empower you to excel in your academic pursuits. Let us be your trusted partner in navigating the complexities of competition law and crafting research papers that leave a lasting impact. Take the next step in your competition law journey with iResearchNet, and watch your academic achievements soar to new heights. Get started today and experience the difference!

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Recent key judgments and developments in UK competition law

In 2022 the UK retained its crown as a first-class competition law litigation centre for international corporate claimants and consumers alike, notwithstanding the turbulent years post-Brexit and post-Pandemic. The year saw the continued resilience of the UK as a leading jurisdiction for both standalone and follow-on competition claims, with a noticeable uptick in the number of collective actions filed. In this article, we embark on a whistle-stop-tour of the key judgments and developments between January 2022 and February 2023, and feature the cases to watch for the remainder of 2023.

Shifts in the competition law universe

The mitigation defence meets reality (or the Court of Appeal)

In a seminal judgment relating to cartel damages actions, the UK Court of Appeal in January 2022 ruled that to successfully plead a cost mitigation defence, defendants need to show a sufficient causal nexus or connection between the alleged mitigation and the overcharge. The issue arising on this appeal was whether an over-charging supplier can defend the claim by pleading off-setting pricing elsewhere. This involves an attempt by the supplier to assert that the purchaser has mitigated the overcharge by getting reduced prices from other suppliers.

The Court also needed to decide whether it was permissible to plead a defence of this kind without any actual evidence that the claimant actually mitigated its loss in this way. Keeping this in mind, the Court confirmed that a defendant must demonstrate that:

• there is a legal and proximate causal connection between the overcharge and the act of mitigation being pleaded;
• this connection is “realistic” or “plausible” and carries some “degree of conviction”; and
• the evidence is more than merely “arguable.”

This decision is a welcome confirmation that the English courts will not tolerate attempts by defendants to advance bare assertions of a mitigation defence in cartel damages actions. Our  Perspectives blog  sets out a full summary.

Court of Appeal strikes out pass-on defence in Forex manipulation claim

In further good news for claimants, last March the Court of Appeal struck out arguments put forward by the defendant banks that investment funds such as Allianz had passed on their losses from the global Forex cartel by cashing out of investments. If successful, the defendants’ arguments would have had wide-ranging consequences regarding entities able to claim for losses arising from competition law infringements, and potentially would make damages claims unduly complex and burdensome. Although defendants will continue to raise a variety of different pass-on arguments as a shield to competition damages claims, in this context at least the door has been firmly shut to the pass-on defence.  For more info . 

Far-reaching CJEU ruling on the statute of limitation in cartel damages cases

The latest CJEU decision regarding the Trucks cartel published in June is undoubtedly the most significant judgment the EU courts have handed down on limitation rules applicable under the domestic laws of Member States and, in particular, in confirming that the Damages Directive can be relied on in this area.

The judgment has a far wider application than the Trucks cartel and will have a profound, positive impact for international corporate claimants both on the starting point and length of limitation periods for cartel damages actions brought in the UK under the laws of many Member States that have historically had very restrictive rules on limitation. Take a deep dive into our  Competition Cast  podcast on the issue of limitation rules.

Power Cables Cartel

Greater Gabbard Offshore Winds Limited and SSE plc continued making progress in their multi-million damages claim against cable manufacturer Prysmian in respect of the Greater Gabbard Offshore Windfarm. The claim was resolved and withdrawn shortly before trial was due to start in June 2022.

Trucks Cartel in the UK

In February 2023, Royal Mail and BT were awarded approximately £17.5 million in damages against DAF Trucks following a decision by the UK’s Competition Appeal Tribunal. In this landmark ruling – the country’s first award of damages against a member of the Trucks cartel – the Competition Appeal Tribunal found that because of the Trucks cartel, BT and Royal Mail had been overcharged by 5% for vehicles leased and bought from DAF. Moreover, the Tribunal rejected DAF’s argument that BT and Royal Mail passed on the losses they suffered as a consequence of the Trucks cartel to businesses that bought their used trucks and through charging higher prices for their own services.

In addition to the above, this year saw further significant progress being made to bring the other UK Trucks cartel proceedings to a head, especially in respect of disclosure and case management considerations. A further case management conference took place last March, during which the Tribunal:

• listed a 28-week trial commencing in April 2024
• confirmed the identity of eight “test claimants” whose claims in relation to the UK, French and German markets will be resolved at that trial
• set down a timetable to trial, with disclosure completing in November 2023 and factual and expert evidence to be exchanged in the course of next year and
• compelled the Defendants to assist in populating the Claimants’ “revised composite dataset” of truck data.

The parties also agreed on the scope of additional disclosure to be provided by the Claimants on the issue of pass-on and agreed on the number and identity of the experts who will testify at trial.

Trucks Cartel in the Netherlands

Notably, on 12 May 2021, claimants secured a major victory as the Amsterdam Court rejected the truck manufacturers’ arguments that the claimants did not suffer any damages and the claims should be struck out. Even though this judgment was rendered in the proceedings for the “first wave” of claimants, it will be of significance for other claimants.

On 27 July 2022, the Trucks cartel claimants secured another major victory. Following a hearing on 29 March 2022, the Amsterdam Court issued an interim judgement finding that Dutch law was to apply to all claims in the first sets of submissions. Following these important steps, further hearings are scheduled in April 2023.

There also are other claims in the Trucks mass litigation before the Amsterdam District Court, brought later and therefore case managed in separate stages by the Amsterdam District Court. The second and third such ‘waves’ of proceedings have also progressed positively in 2022, following the trail blazed by the abovementioned first set of proceedings. Further developments are expected in 2023 as these proceedings gather pace and attract momentum.

Auto Parts Cartels

The last year saw new and ongoing claims brought by the Stellantis Group (formed in 2021 after a merger between the Italian American conglomerate Fiat Chrysler Automobiles and the French PSA Group) against many global suppliers, who allegedly overcharged the claimants on automotive parts. Whilst the European Commission’s long series of cartel decisions in the automotive sector – 13 in total – have now come to a halt, many damages claims arising from those decisions are only now seeing the light of day, often on a standalone basis, as opposed to follow-on, whilst many more have been settled behind the scenes.

Occupant Safety Systems

The Stellantis Group continues to pursue a standalone claim relating to the occupant safety systems cartel. This claim was filed in the High Court against ZF/TRW, Autoliv, Toyoda Gosei and Tokai Rika in December 2020 and transferred to the specialist Competition Appeal Tribunal in March 2022. The litigation has since made good progress: the claim against Toyoda Gosei was resolved in May 2022 and a first case management conference was heard in June 2022, ordering the disclosure and access to the European Commission’s investigation file by September 2022. A second case management conference is listed for March 2023, likely to cover the next steps to trial which has already been listed for October 2024.

Thermal Systems

Similarly, the Stellantis Group is now pursuing a standalone claim relating to the thermal systems cartel. The claim was filed in the High Court against Denso, Valeo, MAHLE Behr, Sanden, Marelli (formerly Calsonic) and Panasonic in March 2022. The claim against Panasonic was resolved shortly afterwards.

Foundem v Google

Infederation Ltd (Foundem) is a UK based company which operated a comparison-shopping service (CSS) allowing consumers to compare prices for goods and services offered on retailer websites. Starting in 2004, Foundem became aware that Google was making changes to its flagship Google Search infrastructure and algorithms in a way that favoured Google’s own CSS (Google Shopping) and adversely affected competing CSS. Foundem was the first company to bring Google’s anti-competitive self-preferencing conduct to the attention of the European Commission and the U.S. Federal Trade Commission.

The European Commission determined that Google had abused its dominant position as a search engine by favouring its own CSS over competitors and imposed a €2.4 billion fine, which was appealed by Google to the General Court. This was the first time that the EU courts have considered whether Google’s conduct in respect of its CSS complies with European competition laws. The General Court delivered its judgme nt on 10 November 2021, largely upholding the Commission’s Decision. Google has appealed the General Court judgment to the Court of Justice of the European Union.

In parallel, since 2008, Foundem has been pursuing a private action for damages against Google in respect of the same conduct in the High Court of England and Wales. Over the summer of 2022, Google provided preliminary disclosure of material that they submitted to the Commission prior to its Decision. Pleading amendments are due to be concluded before the end of this year and a timetable to trial in 2025 has been ordered by the Court.

Further infringement findings against pharmaceutical companies

Prochlorperazine rose/anti-nausea drug

In February 2022, the UK Competition and Markets Authority ( the “ CMA”) found that Alliance Pharma, Lexon, Medreich and Focus had infringed competition law by concluding a “pay-for-delay” agreement, under which a competitor was paid not to launch an anti-nausea drug. The CMA declared that the arrangements had resulted in prices rising by 700% over a four-year period. The CMA imposed a fines of over £35 million in total. The decision has been appealed to the CAT.  For more info .

Aspen commitments – cancer drugs

In April 2022, the CMA announced that it had secured commitments from Aspen in relation to Aspen’s pricing of certain cancer drugs. In an earlier, parallel investigation, the European Commission investigated Aspen’s pricing of the same drugs which led to the Commission accepting commitments from Aspen. Pursuant to the commitments, Aspen reduced its prices across Europe, committed to paying rebates to purchasers for a limited period, and guaranteed the supply of the cancer drugs for a period of five years and, for an additional five-year period, will either continue to supply or make its marketing authorization available to other suppliers. This means that over a ten-year period, Aspen is not allowed to charge more than the price set out in the commitments in the EC decision. Since the EC’s decision dated after the UK exited the European Union, and the pricing-related commitments relate to future, post-Brexit conduct (i.e. after 31 December 2020), the commitments related to the pricing and guaranteed supply of the affected cancer drugs were not enforceable in the UK. Therefore, the CMA secured binding undertakings from Aspen with regard to the UK market of the same pricing- and supply related commitments Aspen made in the EC decision.  For more info.

Phenytoin sodium capsules/epilepsy medication

Following its original infringement decision in 2016 and after reassessing part of its investigation in July 2022, the CMA has found that Pfizer and Flynn abused their dominant positions resulting in overcharge in relation to phenytoin sodium capsules (an epilepsy drug previously known as Epanutin). After Pfizer and Flynn’s appeal of the 2016 infringement decision, it was partially annulled, and the Court of Appeal dismissed Flynn’s related appeal in its entirety. The CMA decided to re-investigate the matters that were remitted to it by the UK Competition Appeal Tribunal (which related to the CMA’s conclusion that the companies’ prices were an unlawful “abuse” of dominance). Following additional evidence gathering and analysis, the CMA has concluded that Pfizer and Flynn’s conduct was an abuse of their dominant positions in their respective markets and that both Pfizer and Flynn charged unfair prices for phenytoin sodium capsules.  For more info .

Key judgment on merger control following Meta challenge

Also in June, the UK Competition Appeal Tribunal ruled on the application brought by Meta for review of the UK CMA’s decision that it should divest itself of GIPHY. The judgment endorses the Authority’s approach to reviewing mergers that may harm innovation and provides useful guidance on the assessment of the concept of ‘dynamic competition.’ For more info . 

Brand-new UK competition regulatory regime for digital markets

In 2021, a new UK regulator, the Digital Markets Unit, was launched to boost competition in online markets, safeguard consumer choice and their control over their data, and tackle unfair business practices. Following this launch, in May 2022, the UK Government announced its intention to create new competition rules for digital markets and the largest digital firms as part of the Digital Markets, Competition and Consumer Bill. The draft Bill, which will notably provide the Digital Markets Unit with statutory status and the power to levy higher fines from abusive tech giants, will be published in draft form in the 2022/2023 Parliamentary session but is not expected to come into force until at least after 2023.

The UK Government’s plan to reform competition and consumer law

Following a consultation on wide-ranging reforms to the UK’s competition and consumer law regimes, the UK Government published in May its response to feedback received from over 180 stakeholders. While the draft legislation has yet to be published, the Government’s stated intention to legislate to promote competition and strengthen consumer rights is welcome, if – in relation to some of the reforms which appear likely to be adopted – a long time coming. For instance, the aligning of the UK Competition and Markets Authority’s fining powers for breaches of consumer law with those available to it pursuant to the competition law regime, have been mooted for some time but now appear likely to be implemented. While the opportunity to enhance access to justice which would have come with the expansion of the opt-out collective redress regime to consumer law breaches appears to have been put on ice for now, the Government does not appear to have closed the door to reforms in this area in the medium or longer term.  For more info .

Looking ahead

2023 appears set to be a busy year in relation to the enforcement of UK competition law. From the point of view of public enforcement, it will be interesting to observe how the draft Digital Markets, Competition and Consumer Bill evolves in Parliament in the coming year, as abusive tech giants are among the biggest challenges facing the CMA in 2023.

We also anticipate that the CMA intervening in competition law proceedings relating to big tech, a feature of 2022, for example in Epic Games’ lawsuit against Google, is likely to continue in 2023.

It should also be noted that a new UK subsidy control regime came into effect on 4 January 2023. This requires public bodies to adapt and update their approaches to meet the new rules, and 2023 may well see the development of related competition law litigation.

Like 2022, it is likely that private enforcement will see a growing volume of standalone damages actions progressing through the English courts in 2023. The collectives actions sphere will continue to be active, as our 2023 outlook predicts.  For summary .*

*Scott Campbell is a Partner and the Head of Competition and Disputes, Lucy Rigby is a Partner, and Charles LaPorte-Bisquit is a Senior Associate in London. 

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• Nov 15 2023

Thank you for you interest in our "10 Competition Law Cases you should know about" campaign!

As more relevant and recent cases have been published since the roll-out of this campaign, we will no longer be running it. For further information about the Competition Law service and our latest Competition Law cases, please click on the button below.  

Competition law applies horizontally in all sectors, in addition to sector-specific regulation. Antitrust and merger control cases abound in the telecoms and media sectors, with significant cases also occurring in the postal sector. In addition, the rise of the data economy is challenging traditional approaches to assess market power.

Cullen International’s cross-sectoral Competition Law service tracks and analyses all of these developments, allowing you to prepare for the business risks and commercial opportunities presented by antitrust and merger control rules. Our English language database of unbiased national and EU case summaries is organised around ten categories of cases: eight covering different forms of abuse of dominance, plus those covering restrictive agreements and mergers.

11 Oct 2023

EU Competition Law and sustainability - A success story

Competition Law. Technical legal language, highly complex and what does it actually have to do with just, fair and sustainable economies? To take the answer up front: A lot!

In 2014, the Fair Trade movement embarked on a journey to intersect with the intricate realm of Competition Law, and later “antitrust” in particular. This encounter sought to address anti-competitive agreements and regulations governing collaborations on critical sustainability issues within markets. It started with a report examining Competition Law and its intersection to Sustainability in the Netherlands commissioned by the Fair Trade Advocacy Office and gained momentum when multi-stakeholder settings, some in which the Fair Trade movement was involved, revealed that EU Competition Law was perceived as a burden to agreements on some aspects around sustainability. The lack of clarity around the extent to which sustainability-oriented agreements could breach competition law led to a dichotomy where some market actors were afraid of collectively discussing price related issues such as the payment of Living Income or Living Wage, while others used it as an excuse to evade discussions on these crucial matters.

Studies, commissioned by the Fairtrade Foundation UK, found that the lack of clarity around competition law continued to prevent any meaningful progress in combating low prices to farmers, which is a major issue in the cocoa sector and beyond. According to the authors “ this really restricts further progress being made on other issues such as living incomes and wages . "

An EU Competition Law that works for people and the planet?

It was clear that the EU’s competition law enforcement must neither act, nor be perceived as, an unreasonable burden against any multi-stakeholder or business cooperation that aims to achieve legitimate sustainability goals, such as environmental sustainability and improved social standards, and especially the achievement of Living Incomes and Living Wages. On the contrary, the Fair Trade movement was certain it should encourage business initiatives pursuit of legitimate sustainability goals. Furthermore, it was also acknowledged that multi-stakeholder cooperation can effectively complement the EU’s sustainability legislation .

But why cooperation and not unilateral action? The answer is simple: It will often be difficult for companies to implement sustainability initiatives unilaterally when they might face a first-mover disadvantage, since such initiatives usually increase costs. This is especially problematic when a company commits to stop offering less sustainable but cheaper products. Such a decision might result in a substantial loss of customers in very price-sensitive markets or where there is little scope for product differentiation.

Bridging two worlds to enable a fairer economy

In December 2018 the Fair Trade Advocacy Office (FTAO) convened actors from the antitrust community in Brussels to identify potential routes for action in establishing sustainability as a factor in the agencies’ competitive analysis, but also an action plan for practical implementation and upcoming political windows of opportunities .

It was barely one year later, in October 2019, when the FTAO led initiative became suddenly more visible as well as political when the event “ Sustainability and Competition Policy: Bridging two Worlds to Enable a Fairer Economy ” was hosted at the European Committee of the Regions, and the European Economic and Social Committee organised together with the Global Competition Law Centre of the College of Europe and the Center for Economics, Law and Society at University College of London, and with the support of the German Federal Ministry for Economic Cooperation and Development. The debate revolved around the key question of whether EU competition policy can give weight to sustainability values, and avoid being seen as a barrier to private sector and civil society initiatives intended to deliver sustainability objectives. Until today the event, opened by Margrethe Vestager, European Commissioner for Competition and today's Executive Vice President of the European Commission, is seen as the kick-off to many other debates around sustainability in competition law and antitrust circles .

"This conference reminds us that businesses have a vital role in helping to create markets that are sustainable in many different ways, and competition policy should support them in doing that.” - Margethe Vestager at FTAO Conference on Competition Law in 2019.

It was not by chance that the European Commission launched its first public consultation process just a few days after the conference, in November 2019, to collect input from stakeholders on the revision of the Horizontal Guidelines. The process aimed to give more guidance on how to apply Article 101 TFEU on anti-competitive agreements between market actors. A great opportunity to address the need for legal certainty by including a comprehensive analysis of sustainability agreements in the Guidelines on Horizontal Cooperation Agreements. The Fair Trade movement was certain that this would facilitate and encourage genuine multi-stakeholder sustainability agreements involving competitors, while making clear that sustainability cannot be invoked as a smokescreen for anti-competitive behaviour.

Capitalizing on this great political window of opportunity the FTAO used the momentum to get other like-minded organisations, academics, lawyers and businesses on board to join forces and get involved in the process of influencing the upcoming guidelines and make sure a reference to sustainability agreements finds its way in the final document.

Since then the Fair Trade movement has remained one of the few civil society actors in the debate. Competition Law was and still is perceived as highly technical (rightly so) which has brought many civil society organizations to dedicate their resources elsewhere. Often argued that other regulations are better placed to achieve more sustainable markets and supply chains. Nonetheless, the need for more clarity around sustainability within Competition Law became increasingly urgent in the rise of Human Rights and Environmental Due Diligence and other EU initiatives concerning corporate responsibility.

Leveraging that momentum the Fair Trade movement partnered up with other relevant actors in the debate to raise awareness around the issue. First to mention, is the collaboration with the European Brand Organization AIM and the Fair Wear Foundation who got highly involved in the revision of the Horizontal Guidelines by joining the Fair Trade movements campaign and policy demands.

Articulating policy demands collectively contributed to gaining leverage at EU level, which translated to a key milestone: the EC’s first draft of the new Horizontal Guidelines revealed a stand alone section on “Sustainability Agreements”. The first sustainability chapter in the EU’s Guidelines on Horizontal Agreements ever!

While welcoming the great developments, the coalition emphasized the need to shift from an quasi-exclusive focus on the environmental dimension of sustainability to a multidimensional one that included social sustainability aspects. “[...] it is unrealistic to expect that farmers and workers can meet higher environmental standards if they struggle to make a living from their productio n.” - was part of the message and part of the letter sent to Vestager . Moreover, multi-stakeholder initiatives around sustainability were particularly unclear when it came to prices paid to workers and smallholder farmers along the supply chain. Therefore, a reference to the achievement of Living Incomes and Living Wages was seen as indispensable.

Addressing social sustainability equally to environmental aspects became the main objective of the coalition between the Fair Trade movement, AIM and the Fair Wear Foundation. Intensified efforts and relentless pursuit to convey the right message to the right person at the right time was the recipe that eventually led to the result published by the Commission in June this year. The final Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements now include a whole chapter on sustainability including references to Living Income as well as Living Wages and aspects of social sustainability. Remarkably while the first draft entailed examples merely on environmental aspects, the final Guidelines revealed two newly drafted examples: one on minimum conditions and fair wages as part of a non-governmental labelling organisation and another one on agreements around Living Wages in the textile sector. The presence of these new examples called “Fair Tropical Fruit” and “Fair Clothing” leave no doubts of the value provided by the Fair Trade movement, the Fair Wear Foundation, and its broader coalition.

Walking the talk: the hard day after a successful one

The new Guidelines have the potential to foster tangible contributions to sustainability worldwide and to the well-being of millions, but are nothing but paper if there is no implementation. The companies who have pledged allegiance to sustainability must now go ahead and “walk the talk”. The updated guidelines provide market actors with an unprecedented level of clarity and guidance around more sustainable business practices, setting the stage for meaningful change. Furthermore, the European Commission, alongside competition authorities in various Member States, have signalled their readiness to engage in constructive dialogues and discussions regarding specific cases.

In this transformative juncture, the private sector, civil society, and regulatory bodies stand at a critical crossroads. It is only through collective efforts, unwavering commitment, and a shared vision of a fairer, more sustainable economy that the true potential of these guidelines can be fully realized. By walking the talk and actively pursuing sustainability objectives, businesses can help pave the way toward a future where economic success is intricately linked with social and environmental responsibility.

The Fair Trade movement thanks all their partners who worked and collaborated on the Horizontal Guidelines to ensure their comprehensive understanding of sustainability.

Particular gratitude goes to our pro-bono partners that contributed massively to the success of the Fair Trade movements work by providing all the legal knowledge needed: Delphine Strohl, Marjolein De Backer, and Alec Burnside from Dechert LLP, to Alejandro Guerrerro from Simmon & Simmon, as well to Maurits Dolmans from Cleary Gottlieb. Moreover, we would like to thank Michelle Meagher, Ayse Gizem Yasar, Peter Möhringer, Julian Nowag, as well as Simon Holmes for their excellent work and great collaboration on the issue.

Case Crusade Virtual Case Study Competition by Maharashtra National Law University: Register by Jan 25

• Opportunities Other Opportunities
• January 17, 2024

About Maharashtra National Law University

Maharashtra National Law University, Nagpur was established by the Maharashtra Government by the enactment of the Maharashtra National Law University Act (Maharashtra Act No. VI of 2014) and the University takes pride in being the nineteenth National Law University in the country. The university offers B.A.LL.B. (Hons.), B.B.A.LL.B. (Hons.), B.A.LL.B. (Hons. In Adjudication and Justice), LLM, and Ph.D. programs. The University is making rapid progress towards its dream of achieving excellence in the field of legal education with its dedicated faculty members, staff, and students under the able guidance and supervision of its founding members, visionaries, well-wishers, and members of different statutory bodies of the University.

About CaseCrusade

Embark on a transformative journey of personal and professional development through MNLU Nagpur’s flagship Case Study Competition. This dynamic competition, comprising two compelling rounds – the preliminary and the final – is meticulously crafted to propel participants into a realm where the intricacies of law and management converge.

The Case Study Competition is a special platform where participants can uncover their full potential. It challenges them to handle real-world situations, promoting a complete understanding of the complex aspects of both law and management. This practical experience acts as a catalyst for personal growth, encouraging participants to think critically, innovate, and discover practical solutions.

CaseCrusade is a case study competition that combines the intricacies of competition law with strategic management perspectives. In the Preliminary Round, registered teams will be provided with a case study that presents challenges from both legal and management standpoints. The objectives for your team are to analyze the case thoroughly, identify problems, propose feasible solutions, and present a well-structured case analysis.

A selected number of teams will qualify based on the results of the preliminary round submissions. Successful teams will be notified via email on 8th February 2024. The final teams will be required to present a new case study in front of the panel, followed by question-and-answer sessions.

Eligibility

The competition is open to all undergraduate and postgraduate students from all streams.

Students can register solo or in teams of two.

The competition will be held in virtual mode. This applies to both rounds: preliminary and final. The platform for virtual rounds will be intimated to all the participants.

• The Winning team will be awarded a cash prize of Rs. 7500/-, Shield(s), Medal(s), and Certificate(s) of Merit.
• The Runner-up team will be awarded a cash prize of Rs. 4500/-, Shield(s), Medal(s), and Certificate(s) of Merit.
• A special prize will be awarded to the Best Presenter worth Rs. 2000/-, Shield(s), and a Certificate(s) of Merit.
• All participating teams will receive a Certificate of Participation.

Important Dates

• Registration deadline – 24th January 2024
• Release of Team Code – 25th January 2024
• Release of Case Study to all the Registered Teams – 27th January 2024
• Submission of Case Analysis via Submission Link – 31st January 2024, 11:59 PM
• Declaration of results of the Preliminary Round – 8th February 2024

Registration Fee

Registration fee for the competition shall be Rs. 200/- per team.

Registration Procedure

Interested candidates may register themselves using the link given below:

Click Here To Register .

Contact information.

E-mail: [email protected] , [email protected]

Student Co-ordinators:

• Mayank Singru – +91 84848 63726
• Alden Vas         – +91 98921 92348
• Srushti Parit    – +91 70387 80566 
• Ansh Abhyankar +91 83299 17969

The official notification is here .

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Harvard Law School Digitization Project Publishes Nearly 7 Million Court Cases Online

The Caselaw Access Project published nearly seven million cases from the Harvard Law School’s collections online on March 8, concluding a nine-year process to digitize the HLS Library’s archive of court cases.

The Caselaw Access Project, also known as CAP, aimed “to make all published U.S. court decisions freely available to the public online in a consistent format, digitized from the collection of the Harvard Law School Library,” according to the project’s website.

The recent release of cases has culminated in “360 years of United States caselaw” accessible to the public, according to the project’s website. This includes all “official, book-published state and federal United States caselaw through 2020,” with the first case dating back to 1658.

Jack Cushman, the project’s director, said that the impetus behind the effort was a desire to make caselaw more accessible to the public. In the past, few people beyond lawyers had access to expensive caselaw databases and could view important legal decisions.

This project, according to Cushman, sought to level the playing field.

Cushman said he believed it was important “for everyone to have access to the law of the land.”

CAP launched in 2015 through a partnership with Ravel Law, a legal research and analytics startup company. Per the terms of the partnership, CAP received financial support in exchange for Ravel obtaining eight years of exclusivity with the caselaw documents, according to Harvard Law Today, a school-run publication.

This project falls under the initiatives of the Law School’s Library Innovation Lab, “a forward-looking group of thinkers and doers working at the intersection of libraries, technology, and law,” according to the organization's website. The LIL facilitated the delicate process of digitizing case files for the project.

As part of the process, 40,000 books containing case files were retrieved from Harvard Law School’s collection in the HLS Library and a repository in Southborough, Mass. The CAP team then used a variety of tools to de-bind the books, effectively scan case files at a rate of 500,000 pages per week, and wrap the books in plastic to be sent to a limestone mine in Kentucky for preservation.

The scanned files were then translated into machine-readable documents and uploaded to the Ravel website. Ravel’s website made sifting through documents easier with their “data science, machine learning, and visualization” systems, according to Harvard Law Today.

Cushman said it was essential to not rush the process, as CAP was dealing with delicate documents that were both culturally and historically important.

“I think one lesson is just, it’s okay if it takes a long time,” he said. “For cultural preservation and cultural heritage — we’re in this for the long run.”

Now that the case files have been digitized, CAP aims to further improve search functionality to make the platform “practically usable,” furthering their mission to increase caselaw accessibility for all. With this forward-looking approach to law accessibility, CAP’s next goal is to strengthen its institutional collaborations with AI model makers interested in high quality datasets.

Cushman said that the digital archive could be useful for “Harvard students who are looking for projects or ways to make their mark with civic technology and big datasets.”

“We’ve only scratched the surface of what you can do with it,” Cushman added.

Want to keep up with breaking news? Subscribe to our email newsletter.

To revisit this article, visit My Profile, then View saved stories .

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Makena Kelly Vittoria Elliott

The US Claims Apple Has a Stranglehold on the Future

The US Department of Justice had long been expected to file an antitrust lawsuit against Apple. But when the suit arrived Thursday , it came with surprising ferocity.

In a press conference, attorney general Merrick Garland noted that Apple controlled more than 70 percent of the country’s smartphone market, saying the company used that outsize power to control developers and consumers and squeeze more revenue out of them.

The suit and messaging from the DOJ and 15 states and the District of Columbia joining it take aim at Apple’s most prized asset—the iPhone—and position the case as a fight for the future of technology. The suit argues that Apple rose to its current power thanks in part to the 1998 antitrust case against Microsoft, and that another milestone antitrust correction is needed to allow future innovation to continue.

Like the Microsoft case, the suit against Apple is “really dynamic and forward looking,” says John Newman, a law professor at the University of Miami. “It's not necessarily about Apple seeing direct competitors,” he says. “It's more about them trying to grab the territory you would need if you were going to even try to compete against Apple.”

Antitrust action in the tech industry has been a focus of the Biden administration’s agenda, which has seen suits brought against both Amazon and Google by the DOJ and the Federal Trade Commission. “This case demonstrates why we must reinvigorate competition policy and establish clear rules of the road for Big Tech platforms,” Democratic senator Amy Klobuchar told WIRED in a statement.

Rebecca Haw Allensworth, a law professor at Vanderbilt University, says that though the government almost always faces an uphill battle in antitrust cases, the Apple case appears relatively solid. “It's a lot stronger than the FTC Amazon monopolization lawsuit from last year,” she says. “And yet, it's very hard to win antitrust cases.”

In a statement, Apple spokesperson Fred Sainz said that the lawsuit “threatens who we are and the principles that set Apple products apart in fiercely competitive markets,” including the way its products work “seamlessly” together and “protect people’s privacy and security.”

Apple has long argued that keeping its mobile operating system, app store, and other services closed offers greater security and safety for customers. But Newman says that the DOJ complaint indicates that Apple doesn't enforce these policies consistently as would make sense if the goal was to protect users.

“Instead [Apple] heavily targets the types of app developers that pose the biggest competitive threat to Apple,” Newman says. The DOJ alleges that restrictions Apple places on iMessage, Apple Wallet, and other products and features create barriers that deter or even penalize people who may switch to cheaper options.

History Repeating

The antitrust case against Microsoft in the late 1990s accused the company of illegally forcing PC manufacturers and others to favor its web browser Internet Explorer. It is widely credited with causing the company to be slow to embrace the web, falling behind a wave of startups including Google and Amazon that grew into giants by making web services useful and lucrative.

When asked about the threat the new antitrust lawsuit might pose to Apple’s business, a DOJ official noted that “there are actually examples where companies, after having been charged and had to change business practices because they violated the antitrust laws in the long run, end up being more valuable than they were before.” Microsoft, thanks to its success in cloud services and more recently AI , is now the most valuable company in the world.

Adrienne So

The Department of Justice said Thursday that any potential remedy was on the table for Apple—implying that even breaking up the company is a possibility. But Allensworth says it is unlikely the government would pursue that outcome. The proposed remedies could more likely force Apple to change its "technological and contractual restrictions on app development, and on interoperability with other phones,” she says. “That is something that could be very meaningful, if that remedy were fully realized and overseen in a good way. But it still leaves Apple basically in control of the ecosystem,” Allensworth says.

Paul Swanson, antitrust partner at the law firm Holland & Hart, sees potential difficulties ahead for the suit. “They're alleging that Apple is excluding competition in the smartphone market by making their products stickier, by making it very attractive to stay within their ecosystem. And the way that Apple does that, according to the DOJ, is that it doesn't cooperate nicely with other companies,” he says. But Swanson says antitrust laws don’t generally require companies to work with others. “A business doesn't violate antitrust laws by terminating or refusing to work with another business.”

This is not the first antitrust case against Apple. In 2020, Epic Games filed a lawsuit against the company, accusing it of anticompetitive behavior, after being kicked off the App Store for offering a version of the Fortnite game that circumvented the Apple’s steep 30 percent fees for in-app purchases. Epic lost the case in the lower courts, and in January the Supreme Court declined to hear the appeal —and Apple announced it would levy a new app store fee on developers.

Newman notes that the government seems to have kept a close eye on that case in constructing the suit launched Thursday. The case was filed in the Third Circuit Court in New Jersey, rather than the Ninth Circuit Court, which includes California. He predicts it will ultimately end up before the Supreme Court. “I think this one's probably going all the way,” Newman says.

Update 3/22/2024, 9:55 am ET: Updated to correct the spelling of Rebecca Haw Allensworth's middle name.

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Law School Team Advances to International Rounds of World’s Largest Moot Court Competition

Following victories in the qualifying rounds of the Philip C. Jessup International Law Moot Court Competition, a team from Yale Law School will advance to the international rounds next week where they will take on opponents hailing from roughly 700 law schools in 100 countries and jurisdictions.

Hosted by the International Law Students Association (ILSA), the competition presents a fictional international dispute to students who must argue their case before the International Court of Justice. 

This year’s dispute “concerns traitors and crooks, and raises issues related to the right to political expression, statelessness, the right to a nationality, and the scope of the U.N. Security Council’s authority in the pacific settlement of disputes,” according to ILSA’s website. 

“The competition thus far has been intense and exhilarating,” said Declan O’Briain ’24, a member of the Yale team. “Each round has presented unique challenges, pushing us to think critically and creatively in advancing our arguments. The case we argued delved into various aspects of nationality, including statelessness. It required us to navigate complex legal frameworks, examining issues such as the rights of stateless persons, the responsibilities of states towards them, and the implications of international treaties and customary law on these issues.”

Mary Szarkowicz ’25, another member of the team, said the experience provides excellent insight into the applications of law, particularly international law. 

“Being on the team has improved my ability to think and respond on my feet and to tell a story out of seemingly disparate international law concepts,” said Szarkowicz. “International law, in particular, can seem abstract, but working on the Jessup problem was a great exercise in how international law can be applied.”

In addition to honing crucial lawyering skills, students are developing meaningful relationships with their law school peers through the experience. 

“The best part of the Jessup moot court experience has been getting to know everyone on the team,” said Szarkowicz. “We really bonded by working through the problem, talking each other through nerves, and exploring New Orleans [where the quarterfinal rounds were held]. I could not have asked for a better group of people to share this experience with.”

The team will compete in the international rounds being held from March 30 to April 6 in Washington, D.C. O’Briain described their time preparing as “intensive yet rewarding.”

“Our team has been diligently analyzing past cases, honing our legal research and writing skills, and engaging in mock trial sessions to refine our arguments and strategies,” he said. “Additionally, we’ve sought guidance from faculty mentors and alumni who have generously shared their insights and expertise.”

Students credited Sterling Professor of Law Harold Hongju Koh and Gerard C. and Bernice Latrobe Smith Professor of International Law Oona A. Hathaway ’97 for helping them prepare for the competition, particularly with mooting and their memorials. They also expressed gratitude for Associate Director for Foreign and International Law and Lecturer in Legal Research Lucie Olejnikova; Kee Chong ’24 LLM; Doruk Erhan ’22 LLM, ’27 JSD; Margo Darragh ’25; and Justin Cole ’23 for mooting them, as well as their coach Beatrice Walton ’18.

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Erin Hawley: The Woman Arguing Against the Abortion Pill

Erin Hawley, a law professor and wife of Senator Josh Hawley, is arguing the Supreme Court case.

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By Elizabeth Dias and Abbie VanSickle

It was 2014, and Erin Morrow Hawley was fighting against the egg-laying hens of Missouri. Specifically, a new requirement that chicken cages have enough space for the hens to stand up, turn around and stretch out.

A law professor from five generations of ranchers and the wife of Senator Josh Hawley, Ms. Hawley joined a challenge to California, which required more spacious enclosures for hens laying eggs to be sold there. The state where she taught, Missouri, sold a third of its eggs to California, and Ms. Hawley believed that a blue state had no right to impose its values and rules on Missouri’s farmers.

She joined in a lawsuit against California’s attorney general at the time, Kamala Harris. A judge found that the challengers could show no direct injury and dismissed the case. Ms. Hawley continued teaching, and Ms. Harris became Joe Biden’s vice president.

Ten years later, Ms. Hawley, 44, is now at the center of one of the country’s most heated cultural battles about bodily autonomy, gender roles and abortion. On Tuesday, for the first time since the overturning of Roe v. Wade, the Supreme Court considered a case involving nationwide limits on abortion access. And Ms. Hawley was the woman standing before the justices, arguing to sharply curtail access to the abortion pill.

The case centers on the Food and Drug Administration’s approval of mifepristone, a commonly available drug used in the majority of abortions in the country. Limiting medication abortion is a next frontier for the anti-abortion movement in the post-Roe era.

Ms. Hawley represents a group of anti-abortion doctors and an umbrella group of conservative medical associations that claim that the abortion pill — approved more than two decades ago — is a danger to women. The F.D.A. has pointed to substantial scientific evidence that the medication abortion is safe .

Ms. Hawley views the cause as similar to her fights against government interference, rooted in her experience of ranch life.

“You see how those regulations impact people that are really living on the ground, and sometimes for good and sometimes maybe not for good,” she said in an interview with The Times earlier this month. “And so being pro-life, and believing that every child, no matter how small, no matter if they’re not yet born, is invested with inherent dignity and worth — government action can have a lot to say about that as well.”

She argues that federal approval of the abortion pill went forward without enough consideration of possible side effects and dangers, and that subsequent changes to enable greater access have ignored health risks to women.

The government lawyers in this case, led by Solicitor General Elizabeth B. Prelogar, have argued in court filings that Ms. Hawley and her legal team offered scant evidence of real injury, and that declarations from “seven identified doctors” were “often vague or conclusory.”

Ms. Hawley’s particular background makes her ideal for this moment. Her longtime interest in limiting the power of the administrative state is well suited to speak to the current court’s conservative supermajority, which has welcomed cases challenging regulations on everything from herring fish to machine guns and, now, abortion.

Ms. Hawley brings her credentials not only as a former clerk to Chief Justice John G. Roberts Jr. but as a millennial Christian mother. An evangelical believer who forefronts her identity as a wife and mother of three, Ms. Hawley works for the Alliance Defending Freedom, a powerful conservative Christian legal group. She represents the ideals of womanhood many in the anti-abortion and conservative Christian movement seek to elevate.

Until now, Ms. Hawley has been best known as the wife of Senator Hawley, Republican of Missouri, who actively sought the overturning of Roe and has supported anti-abortion legislation.

In a campaign ad for him, Ms. Hawley starred as an everyday mom, playing with their children in the kitchen, while he took the spotlight. But she will be one of a few women to argue a prominent abortion case at the Supreme Court for the anti-abortion side.

Even anti-abortion leaders often said “who?” or “Josh’s wife?” when asked about Ms. Hawley. Penny Nance, president of Concerned Women for America, has met her at events supporting Senator Hawley but did not realize that Ms. Hawley was arguing the mifepristone case.

“There are millions of conservative women all over our country who are educated and powerful and love their families, similar to Erin Hawley,” Ms. Nance said. “She is actually fairly typical of young millennial conservative Christian women coming up through the ranks.”

But it may be Ms. Hawley, not Sen. Hawley, whose work will most power the anti-abortion cause.

“I think it may be more accurate to say that he’s Erin Hawley’s husband,” Mary Ziegler, a law professor and historian at University of California, Davis, said of the senator. “I think people are just beginning to see how influential she is.”

Erin Morrow was born into a family of frontier women and grew up on a cattle ranch near Folsom, N.M., population roughly 50. The foundation of her great-great-great grandmother’s homestead is still visible on the land, where family lore says that as a young widow, she outwitted marauding bandits.

The oldest of three daughters, Ms. Hawley was raised mainly by her mother after her parents divorced. Her father, a former national rodeo champion who struggled with alcoholism and depression, died by suicide when she was in high school, a pivotal moment she has spoken about on her podcast . Her mother, Shari Morrow, ran the family’s ranch, WineCup, and started teaching Erin to ride horses before she could walk.

“She was there when the bus came home, and often she’d throw us on horseback, and we’d help her move cattle, and we were able to sort of participate in her job in a small way,” Ms. Hawley said in the interview with Times reporters. “She was just a wonderful example of putting her family first but also doing something she loved and cared about.”

Her mother, a registered Democrat in the 1990s, had wanted to be a veterinarian, and for a while her daughter did too. Ms. Hawley studied animal science at Texas A&M University and considered a doctorate in genetics. But an internship for the House Committee on Agriculture sparked her interest in regulatory law.

Ms. Hawley started law school at the University of Texas in Austin, then transferred to Yale Law School, where she was a senior editor on the law review.

She clerked for J. Harvie Wilkinson III, a Reagan appointee on the U.S. Court of Appeals for the Fourth Circuit, and for Chief Justice Roberts in 2007.

There, her desk faced that of another clerk from Yale, Josh Hawley, and they secretly dated. He persuaded her to get married, when she was skeptical after having grown up “in a home with a marriage that wasn’t ideal,” she said in a podcast, and they moved back to his home state of Missouri.

When they searched for jobs, she impressed the faculty at the University of Missouri’s School of Law and expressed interest in filling a need to teach tax law. The school offered jobs to both of them.

Together they started the Missouri Liberty Project, “dedicated to promoting constitutional liberty and limited government.” But her husband’s career soon took the lead in their lives. As he campaigned for the U.S. Senate, she wrote a devotional book for mothers, drawing spiritual lessons from the lives of her children while comfortably weaving in references to modern theologians like Stanley Hauerwas. Her light textual analysis of original Greek words in the Bible echoes her approach to interpreting the Constitution in her legal work.

“Why can’t a high-powered lawyer also share that side of her life? Why not? That is her foundation, that is who she is,” said Julie Holmquist, who edited the book.

Ms. Hawley had expected her husband to pursue a political career after their children were grown. When they felt God calling him to run for office, she packed the family onto the campaign bus. The couple voted at their home church, The Crossing Church, an evangelical Presbyterian congregation, and the Hawleys moved to Washington.

Only a few months into her role as a lawyer for the conservative Christian legal advocacy group A.D.F. in 2021, Ms. Hawley flew to Mississippi to strategize on the Dobbs case, which overturned Roe v. Wade.

Ms. Hawley and her infant daughter arrived on time, but her babysitter did not. In the middle of the meeting, the baby let out a wail.

As Ms. Hawley tells it, this moment encapsulated her purpose, both as a Christian mom and as a lawyer aimed at dismantling the right to abortion. On the couple’s podcast, she described her baby’s crying as “a tangible reminder of why the Dobbs case might matter so much.”

At a speech after the Dobbs oral argument, Ms. Hawley said she had “been blessed to have a front-row seat on this case.” She added, “As a conservative mother, I can tell you it has been the project of a lifetime.”

Ms. Hawley has notched other legal victories, becoming synonymous with conservative social-issue cases. She worked on 303 Creative, the case in which the Supreme Court justices ruled in favor of a Colorado web designer who cited the First Amendment in refusing to serve same-sex couples.

Ms. Hawley is currently helping the Idaho attorney general defend the state’s abortion ban from a challenge by the Biden administration.

At the Supreme Court on Tuesday, her unique background was on display, even as most justices seemed skeptical of her argument. She answered a question from Justice Samuel A. Alito Jr. about determining standing — whether the anti-abortion doctors could show direct harm — by referencing how the court considered the issue in a case about genetically engineered crops. In that case, Ms. Hawley said, the court looked at “the distance that bees might fly in order to pollinate seed farms,” she said. She had the support of her husband, who was present in the courtroom.

Even with the pressure of a first-time oral argument, she said in the interview that she remained calm because the decision was ultimately up to God.

“Christians are called to work with excellence but also to rest in the knowledge that God is sovereign, and that we can trust the results to Him,” she said. “To have the faith that all of it is in His hands, I think does help.”

The justices are expected to make a decision in June.

Julie Tate and Kitty Bennett contributed research.

Elizabeth Dias is The Times’s national religion correspondent, covering faith, politics and culture. More about Elizabeth Dias

Abbie VanSickle covers the United States Supreme Court for The Times. She is a lawyer and has an extensive background in investigative reporting. More about Abbie VanSickle

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AI Campaigns and Case Studies

By Joanna Fragopoulos     March 29, 2024    

A rtificial intelligence (AI), and its applications, is at the forefront of many discussions in many industries and fields, from marketing to tech to healthcare to education to law. How to implement and leverage these tools in a helpful way for users can be challenging for teams. However, when used well, AI can help save time analyzing data, personalize content and information, enhance creative ideas, and find ways to promote diversity, equality, inclusion, and belonging (DEIB). Below are case studies and campaigns that successfully utilized AI.

Leveraging Chatbots and ChatGPT

Zak Stambor, senior analyst of retail and e-commerce at Insider Intelligence, discussed AI at an ANA event , stating that it is "very clear that marketers will be spending more of their budgets on AI-infused productivity tools in the future." Stambor cited two companies utilizing chatbots to help consumers find what they need. For instance, Instacart started its Ask Instacart tool to help its users "create and refine shopping lists by allowing them to ask questions like, 'What is a healthy lunch option for my kids?' Ask Instacart then provides potential options based on users' past buying habits and provides recipes and a shopping list once users have selected the option they want to try," according to the ANA event recap . Further, Mint Mobile used ChatGPT to write an ad which it later released. The recap , however, stated that the company's CMO "emphasized that there were limitations with the technology and stressed the importance of understanding a brand's DNA before using generative AI. He recommended approaching ChatGPT in the same way successful marketers approach social media."

Smoothing the Request for Proposal (RFP) Process

Creating campaigns that are actually interesting and engage people, is, of course, every marketer's dream. ZS, a consulting and technology firm focused on transforming global healthcare, worked with Stein IAS to create its campaign " Data Connects Us ," which provided client services teams with content, case studies, reports, ZS's Future of Health survey, and data to help with the RFP process. The campaign leveraged AI to create "futuristic AI generated images — such as a futuristic hospital — and coupled it with copy communicating how ZS is positioned to help connect data with people and support real innovation. By leveraging emotionally engaging, distinct, and memorable creative, ZS was able to invite consumers to learn more about the company," as described in the ANA event recap .

Fostering DEIB

Google sought to promote DEIB practices as well as combat stereotypes and bias; the company was able to do this through the use of AI in the photography space. In 2018, the company established the Google Image Equity initiative, which enlisted experts on "achieving fairness, accuracy, and authenticity in camera and imaging tools," according to the ANA event recap . This result in Real Tone, which is a "collection of improvements focused on building camera and imaging products that worked equally for people of color" and became a consideration for people potentially buying a Google Pixel. As part of this process, the company collaborated with Harvard professor, Dr. Ellis Monk; together, they released a 10-shade skin tone scale that was more inclusive of diverse skin tones. This scale helps "train and evaluate AI models for fairness, resulting in products that work better for people of all skin tones."

Unearthing Creativity

Michelob ULTRA partnered with agency CB New York to create a virtual tennis match with John McEnroe, both in the past and present. McEnroe's past self was created using motion-capture technology and AI. Moreover, the brand also created a campaign called "Dreamcaster" with Cameron Black, who has been blind since birth, who longed to be a sports broadcaster "but felt he would never get the opportunity due to his disability," as explained in the ANA event recap . The recap went on to explain that Michelob worked with Black for an entire year to "create a spatial audio portal, complete with 62 surround sound speakers and more than 1,000 unique sounds, that 'placed' him at center court and told him what was occurring during a basketball game in real time. The portal featured a vest, designed with its own haptic language, to further assist Black in following the action by allowing him to feel the game's action. After 12 months of development and training, Black became the first-ever visually impaired person to broadcast an NBA game on live TV."

Deepening Personalization

To enhance personalization, Panera Bread created a loyalty program called "My Panera" in 2010. The program gives customers rewards based on visits; the rewards to be personalized which boosts the program's engagement. Recently, Panera worked with ZS Associates to utilize machine learning to create an automated "best next action" program to enable "true one-to-one interactions with My Panera members," as described in the ANA event recap , which went on to say that the company uses a "time-based criterion, combine[s] it with several other variables identified and sorted by AI, and serve[s] more than 100 different offers to the same audience. Panera can also leverage the technology to develop multiple email subjects or coupon headlines, make product recommendations based on past purchases, and even customize colors and copy within the communication to suit the sensibilities of the customer being targeted. Overall, there are more than 4,000 unique combinations of offer and product recommendations that a customer can receive."

The views and opinions expressed in Industry Insights are solely those of the contributor and do not necessarily reflect the official position of the ANA or imply endorsement from the ANA.

Joanna Fragopoulos is a director of editorial and content development at ANA.