Monday, February 22, 2021
Horizontal Foreclosure With Vertically Shared Large Value: Qualcomm’s License Fee Contracts and Anti-Monopoly Decisions of Competition in the Smartphone Integrated Circuits Market of China, 2011–2014
Horizontal Foreclosure With Vertically Shared Large Value: Qualcomm’s License Fee Contracts and Anti-Monopoly Decisions of Competition in the Smartphone Integrated Circuits Market of China, 2011–2014
The Chinese competition authority's sanction against Qualcomm, a leading semiconductor manufacturer in the United States, drew the world's attention. This study investigates whether Qualcomm's pricing strategy limited competition with its rivals. The study estimated two demand functions for handsets and integrated circuit (IC) chips, as well as the marginal cost of smartphones. It then factored in the price of IC chips. Based on the estimated prices of chips and demand parameters, the study identified the competitive relationship regarding the IC chips at the product level.
The study found following nature; the cost of smartphone handset that installed Qualcomm's chipset is lower than that installed its rivals' products due to a license fee. Meanwhile, Qualcomm's chip generates a higher willingness to pay via transactions with increasing numbers of handset assemblers. Qualcomm did not commit vertical foreclosures since its product is not exclusive, instead, it increased number of customers and WTP and higher prices of their products. However, it committed horizontal foreclosures, as evident from the pricing of the license fee, where Qualcomm limits competition by raising the cost for rivals; this observation is also consistent with the authority's judgment. This anti-competition conduct is most severe in the CDMA2000 market in China. A counterfactual simulation shows that the reduction of the license fee by 35 percent will reduce the cost difference and expand the market substantially, both Qualcomm and rivals increase supplies. Handset assembler who integrated chip design installed Qualcomm's product presumably to reduce payment for license fee.
February 22, 2021 | Permalink | Comments (0)
Saturday, February 20, 2021
Antitrust workshop this coming Thursday: Methods Workshop Competition and Innovation in a Pandemic Environment for Antitrust- a Discussion
Every other week, along with Oke Odudu (Cambridge) I host an antitrust law workshop series. Law professors present their latest works in progress.
Because of some scheduling issues, we are going to have a non-traditional workshop this coming Thursday. Antitrust is about more than price. We will focus on quality and innovation in a group discussion. Our discussion leaders on teaching innovation in a pandemic environment will be four amazing teachers:
Erika Douglas, Temple
Hiba Hafiz, Boston College
Menesh Patel, UC Davis
Sean Sullivan, University of Iowa
Each will give 5 minutes of overview and then they will facilitate a broader discussion of what we have learned from 11 months of online and hybrid teaching as well as teaching innovations that can carry over to a time of purely in person classes again. This is very much a group session so participation from the "audience" is important as we encourage everyone to share their own comments and ideas.
I strongly urge people to attend this workshop. Please email me if you are not already on the mailing list for the listserv and please think of joining this zoom session (and others(.
February 20, 2021 | Permalink | Comments (0)
Friday, February 19, 2021
Seven deadly sins of tech?
Chinese Antitrust Exceptionalism How The Rise of China Challenges Global Regulation
Chinese Antitrust Exceptionalism
How The Rise of China Challenges Global Regulation
Angela Zhang (HKU)
Book Abstract
China's rise as an economic superpower has caused growing anxieties in the West. Europe is now applying stricter scrutiny over takeovers by Chinese state-owned giants, while the United States is imposing aggressive sanctions on leading Chinese technology firms such as Huawei, TikTok, and WeChat. Given the escalating geopolitical tensions between China and the West, are there any hopeful prospects for economic globalization?
In her compelling new book Chinese Antitrust Exceptionalism, Angela Zhang examines the most important and least understood tactic that China can deploy to counter western sanctions: antitrust law. Zhang reveals how China has transformed antitrust law into a powerful economic weapon, supplying theory and case studies to explain its strategic application over the course of the Sino-US tech war. Zhang also exposes the vast administrative discretion possessed by the Chinese government, showing how agencies can leverage the media to push forward aggressive enforcement. She further dives into the bureaucratic politics that spurred China's antitrust regulation, providing an incisive analysis of how divergent missions, cultures, and structures of agencies have shaped regulatory outcomes.
More than a legal analysis, Zhang offers a political and economic study of our contemporary moment. She demonstrates that Chinese exceptionalism-as manifested in the way China regulates and is regulated, is reshaping global regulation and that future cooperation relies on the West comprehending Chinese idiosyncrasies and China achieving greater transparency through integration with its Western rivals.
February 19, 2021 | Permalink | Comments (0)
On the Development of (Not So) New Competition Systems – Findings from An Empirical Study
On the Development of (Not So) New Competition Systems – Findings from An Empirical Study
Date Written: November 9, 2020
Abstract
New and recently established systems for regulating competition are often prone to an institutional instability, weak authority, and fragile track-record. Their development negotiates a variety of lifecycles, with various factors impacting their evolution. Relying on competition system development literature to provide a theoretical framework for our research, an empirical qualitative research study was conducted with the aim of examining the competition system in Croatia, in the 1995-2018 period. Main stakeholders were interviewed (in-depth interviews), forty persons in total (NCA officials, judges, practitioners, corporate lawyers, journalists, and academics). Archival research, as well as online research, was conducted to find relevant press reports, and selected NCA quantitative data was analysed. Using content analysis software, original and valuable insights were drawn from this dataset. The aim is to develop a theory that is able to explain the reasons underlying competition system immaturity in Croatia, more than two decades after its creation. The findings include a specific evolutionary path, as well as two underlying issues. Four distinct phases of development were identified (Inception; Withdrawal; Pre-accession; and Post-accession phase). The underlying issues are, first, a lack of institutional and system embeddedness, and second, functional self-restraint on the side of the authority, arguably a result of negative institutional memory. The comprehensive dataset and methodology used, make this research distinctive in broader terms, including being the first such study conducted on Croatia. This paper aims to contribute to the broader literature on competition systems development by examining the relevance of specific factors influencing their evolution.
February 19, 2021 | Permalink | Comments (0)
Challenges to the Conventional Wisdom About Mergers and Consumer Welfare in a Converging Internet Marketplace
Challenges to the Conventional Wisdom About Mergers and Consumer Welfare in a Converging Internet Marketplace
Date Written: December 13, 2020
Abstract
This paper identifies substantial flaws in how U.S. government agencies and courts assess the impact of proposed mergers by firms using broadband networks to reach consumers. Based on current market definitions, consumer impact assessments and economic doctrine, antitrust enforcement agencies may fail to identify the risk of harm to consumers and competition, a so-called false negative.
In recent years, the Department of Justice, Federal Communications Commission and Federal Trade Commission, individually and collectively, have assessed the competitive consequences of numerous multi-billion dollar acquisitions and have conditionally approved almost all of them. These agencies appear predisposed to favor deals that involve vertical integration between market segments, based on assumptions that short term consumer welfare gains exceed any potential competitive harms.
The paper concludes that reviewing government agencies appear too willing to extend current assumptions about how “bricks and mortar” markets work to transactions occurring via broadband networks. By “fighting the last war,” these agencies fail to identify new risks to consumer welfare, particularly by ventures operating in multiple markets that do not readily fit into the conventional assessment of mutually exclusive vertical and horizontal “food chains.” In a broadband ecosystem where both technologies and markets converge, ventures can appear to offer consumers an incredible value proposition. Like economists’ determination that there is no such thing as a free lunch, a better calibrated, multi-dimensional analysis would identify significant offsetting harms to “free” Internet services like that offered by Facebook and Google.
The paper concludes that recent and future acquisitions of broadband ventures have a much greater likelihood of generating legitimate concerns about competitive and consumer harms, particularly as markets become ever more concentrated, often dominated by a single firm. The paper does not recommend a repudiation of Chicago School antitrust doctrine, but recommends that reviewing agencies and courts calibrate empirical measures of prospective costs and benefits to consumers from a proposed merger by identifying short term and longer-term impacts on core and adjacent markets.
February 19, 2021 | Permalink | Comments (0)
Thursday, February 18, 2021
Taking Ecosystems Competition Seriously in the Digital Economy: A (Preliminary) Dynamic Competition/Capabilities Perspective
Taking Ecosystems Competition Seriously in the Digital Economy: A (Preliminary) Dynamic Competition/Capabilities Perspective
This paper discusses digital ecosystems. It first describes the common properties of business ecosystems and the idiosyncrasies of digital ecosystems. It then explains how dynamic capabilities provide a good understanding of ecosystem competition. It closes by exploring how a dynamic capabilities/competition-minded antitrust policy would look like. The paper was prepared for for the OECD hearing on Competition Economics of Digital Ecosystems (3 December 2020).
February 18, 2021 | Permalink | Comments (0)
Upward Pricing Pressure in Oligopoly With Competitive Fringe
Upward Pricing Pressure in Oligopoly With Competitive Fringe
Farrell and Shapiro (F&S, 2010) proposed an Upward Pricing Pressure (UPP) approach to merger screening between two symmetrical firms. According to them, this UPP approach is more practical than concentration-based methods. However, it fails because it does not incorporate all the theoretical effects which set the price. This article sets out to close two specific gaps in the UPP. First, the case of the industry which has a set of firms with asymmetric costs is addressed. Mathiesen et al. (2012) show that UPP screening could present a false-positive in asymmetric cases. To correct this, the study includes a competitive fringe in the feedback effects, and thereby rectifies the symmetric and asymmetric effects in pricing pressure. Second, when the asymmetric effect comes from only dominant side, the lack of representativeness of demand is then addressed. The study shows that the model presented by F&S is valid only for cases where the elasticity of demand is unitary. If that is not the case, the original model is biased. Finally, after filling both gaps, the validity of the relevant-market term in industrial organization is discussed and was concluded to be out of date. For the authors, the regulator just needs to set a channel between products in a convex set to establish a merger screening.
February 18, 2021 | Permalink | Comments (0)
The Antitrust Case against the Apple App Store (Revisited)
The Antitrust Case against the Apple App Store (Revisited)
The Apple App Store is the only channel through which app developers may distribute their apps on iOS. First launched in 2008, the App Store has evolved into a highly profitable marketplace, with overall consumer spend exceeding $ 50 billion in 2019. However, concerns are being increasingly expressed on both sides of the Atlantic that various practices of Apple with regard to the App Store may breach competition law. The purpose of this paper is to examine whether this is indeed the case and, if so, how these concerns can be addressed. With these aims in mind, the paper first introduces the reader to the app ecosystem and the Apple App Store, with a focus on Apple’s in-app payment policies and the 30% commission charged for in-app purchases. After engaging critically with the distinction between apps selling “digital” and apps selling “physical” goods or services, we consider such distinction is unclear, artificial, and unprincipled.
The paper then critically reviews several practices of Apple that appear to be at odds with competition law and in particular Article 102 TFEU. We first discuss the issue of market definition and dominance with regard to the App Store. We find that Apple is a monopolist in the market for app distribution on iOS, as it is not subject to any meaningful competitive constraint from alternative distribution channels, such as Android app stores. The result is that Apple is the gateway through which app developers have to go in order to reach the valuable audience of iOS users. This bottleneck position affords Apple the power to engage in several prima facie anti-competitive practices. A first concern is that Apple may exploit app developers by charging excessive fees for the services it provides and by imposing unfair trading conditions. Second, based on four case studies, the paper illustrates how Apple may use its control of the App Store or iOS to engage in exclusionary behaviour to the detriment of rival apps. These practices should be investigated by competition authorities, as they are likely to result in considerable consumer harm, be it in the form of higher app prices, worse user experience or reduced consumer choice. The paper finally proposes a combination of concrete remedies that would address the competition concerns identified.
February 18, 2021 | Permalink | Comments (0)
Corona and EU Economic Law: Competition and Free Movement in Times of Crisis
Corona and EU Economic Law: Competition and Free Movement in Times of Crisis
European Competition and Regulatory Law Review 2020, Vol. 4(2), 72-95
31 Pages Posted: 8 Dec 2020 Last revised: 11 Dec 2020
Abstract
The outbreak of the coronavirus—and the responses of governments and businesses to combat the medical and economic crisis it entails—raise a number of urgent questions, many of which concern European economic law, i.e. the competition rules and free movement provisions. Can businesses cooperate to guarantee the supply of essential items or a vaccine notwithstanding the cartel prohibition of Article 101 TFEU? Is the excessive price doctrine of Article 102 TFEU a match for the price increases caused by hoarding behaviour? Can competition authorities continue to assess mergers, and might they even become more sympathetic to certain arguments such as the failing firm defence and industrial policy considerations? Under which conditions are Member States allowed to grant aid to undertakings that face economic difficulties due to the crisis? Can Member States prohibit the export of medical supplies to other Member States, and can they close their borders for European citizens? And how much freedom do public procurement rules leave governments to quickly conclude contracts for essential supplies? This article addresses these pressing questions in a comprehensive manner. It situates the numerous guidance documents adopted by the European Commission within the broader framework of EU economic law and then evaluates the compatibility of the public and private corona-related measures with that framework. The aim is to offer a legal guide for governments and businesses combatting the corona crisis.
February 18, 2021 | Permalink | Comments (0)
Wednesday, February 17, 2021
Information Exchange among Firms: The Coherence of Justice Brandeis' Regulated Competition Approach
February 17, 2021 | Permalink | Comments (0)
Open Source Software and Standards Development: Competition Law Implications
Open Source Software and Standards Development: Competition Law Implications
Technical standards developed by standards development organizations (“SDOs”) increasingly involve software-based solutions that implicate open source software (“OSS”). SDOs generally operate pursuant to policies and procedures based on principles of consensus, due process, balance, and openness, and subject to consensus-defined intellectual property rights (“IPR”) policies that contemplate inclusion of patented solutions in standards. Consequently, SDO policies help incentivise IPR owners to contribute their new and innovative technologies to standards by providing owners of Standard Essential Patents (“SEPs”) the opportunity to offer licenses for their IPR on fair, reasonable and non-discriminatory (“FRAND”) terms.
Open source projects are often pursued in consortia or similar forums, which typically do not fully observe such procedural principles, and do not contemplate FRAND patent licensing, or patent licensing at all.
However, traditional SDO standards activities and open source projects are not mutually exclusive, and both can drive innovation and competitiveness. As noted by the European Commission’s 2017 communication on the EU’s approach to SEPs, integration between open source projects and standards development processes may be “a win-win situation,” and “[f]lexible and effective interactions between standardisation and open source communities will promote and accelerate the uptake of advanced technology developments.”
This paper considers the competition law implications of integrating standards development and open source efforts, to help facilitate that potential “win-win” outcome, and achieve the procompetitive goals of standards development, rather than create risks of competitive harm that will deter innovation. This paper submits that consensus-based approaches to standards development, where account is taken of all stakeholder interests, and which abide by principles of openness, balance and due process, should apply equally when SDOs accommodate open source projects. Experience shows that such procedural safeguards are fundamental to avoid potential anticompetitive effects resulting from imposiing IPR policies that favour discrete stakeholder interests. This paper further explains that EU and US competition law provide the necessary tools to challenge conduct related to standardization and open source licensing that may diminish competition and innovation.
February 17, 2021 | Permalink | Comments (0)
The Goals of EU Competition Law - A Comprehensive Empirical Investigation
The Goals of EU Competition Law - A Comprehensive Empirical Investigation
Competition law and enforcement are experiencing something of an awaking in the last decade. Central to the renewed interest in the role of competition law was the question of what objective it was designed to achieve. It is impossible to decide if competition law is the appropriate tool to correct the various perceived faults and imperfections of markets if it is not first known what this tool was meant to accomplish. While this question has always existed in the background of competition law scholarship and enforcement, it started moving centre stage more recently with the rise of what is collectively becoming known as the neo-brandeisian antitrust wave, which sees an expanded role for antitrust law, free from the shackles of the welfare-maximalist and efficiency-obsessed Chicago School. A broader movement built around the awareness of increasing inequality and economic concentration has also contributed to popularizing the idea that competition law and policy may have a role to play, and that therefore we should re-open the debate of its goals and purposes.
In this context, we set out to undertake an empirical investigation into the goals and purposes of competition law as manifested through Court of Justice of the European Union caselaw, European Commission decisions, opinions of Advocates General and official speeches and statements delivered by the Commissioners for Competition. In this first of a kind investigation, we analyse almost 4,000 sources covering articles 101 and 102 TFEU as well as concentrations, to distil seven broad goals of competition law—efficiency, welfare, economic freedom and protection of competitors, competition structure, fairness, single market integration, and competition process—as expressed through 74 keywords, and then analyse them to extract quantitative results and qualitative patterns and insights. We also make available the datasets we compiled for further use and enhancement by competition law scholars and authorities. The datasets and results paint a comprehensive picture of what the EU courts and authorities consider the goals and purposes of competition law to be. They show the evolution and distribution of all major goals and purposes of competition law throughout its history, they highlight similarities and differences among the Court, AGs, the Commission, and the Commissioners for Competition, and they highlight patterns in different types of cases (abuse of dominance, agreements, concentrations). In doing so, the study helps scholars and authorities ground competition law analysis on its proper goals, dispenses with the myth of single-themed competition law, demonstrates the some times contradictory and other times consistent choices of EU institutions, provides national competition authorities with a benchmark to compare their own practice with that of EU-level competition law to enhance harmonisation, and ultimately underscores how the goals and purposes of competition law shape its development and evolution.
February 17, 2021 | Permalink | Comments (0)
Interagency Coordination on Labor Regulation
Interagency Coordination on Labor Regulation
After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the national security agencies’ failure to coordinate. The financial crisis has been linked to similar coordination failures in the context of interagency banking regulation, with jurisdictional gaps and blind spots resulting in failure to prevent a global recession. But despite Gilded Age-levels of inequality, little attention has focused on the failures of interagency coordination to secure Americans’ access to economic opportunity through work—whether through securing higher wages and higher union density, coordinating government enforcement to achieve redistributive goals and combat consolidation of employer buyer power, or overcoming systemic abuses in employers’ wage theft, discrimination, and worker mistreatment. The crippling spread of the coronavirus (COVID-19) pandemic demands that now, more than ever, agencies coordinate in their regulation of labor markets to accomplish micro- and macroeconomic policy outcomes.
This Essay is a component of a larger project that seeks to document federal agencies’ selective coordination along six core policy vectors that impact work- or income-based avenues towards equality—macroeconomic, microeconomic, institution-building, industry-specific, anti-subordination, and democratic/expressive policy. It presents the results of a novel data set collecting and systematizing existing Memoranda of Understanding (MOUs) authorized by the core agencies involved in labor market regulation: the Department of Labor (DOL), its sub-agencies, the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the Department of Justice-Antitrust Division, and the Federal Trade Commission. By reviewing and hand-coding the 113 discoverable MOUs from the 1950s to the present, the Essay highlights which labor agencies coordinate most and least, what MOUs historically facilitate as a substantive and administrative matter, best practices of interagency coordination through MOUs, the network of existing institutional relationships for mobilization along the six policy vectors previously identified, and the broad scope and areas of labor market regulation on which coordination has not yet occurred. It concludes by arguing that the federal government lacks a coherent, aligned vision on labor market regulation and economic mobility through work, and proposes next steps for integrating agency coordination.
February 17, 2021 | Permalink | Comments (0)
Tuesday, February 16, 2021
The New Competition Tool: An Analysis of the Policy Options and Institutional Set-Up
The New Competition Tool: An Analysis of the Policy Options and Institutional Set-Up
Abstract
The European Commission (hereinafter “the Commission”) is seeking views on how to adapt is EU competition law to the digital economy. Against this background, on June 2, 2020, the Commission published two public consultations on a potential New Competition Tool (NCT) and a potential ex-ante asymmetric regulation against large online platforms (DSA). The NCT is a market investigation instrument to deal with structural competition problems. The DSA is a regulation that governs the behavior of large online platforms with a list of interdictions and obligations. Both tools will be merged into a single legislative framework, the Digital Markets Act (DMA). The legislative proposal is expected to be published on December 9, 2020. However, it is already possible to get insights on the NCT as the Commission has released the outcome of the public consultation (but not yet about the DSA). Is a New Competition Tool necessary? And if yes, how? This paper answers these questions by analyzing the data concerning the policy options (section I) and institutional set-up (section II).
February 16, 2021 | Permalink | Comments (0)
Branding Vertical Product Line Extensions
Branding Vertical Product Line Extensions
Abstract
Firms that sell vertically differentiated products infrequently roll out multiple products at the same time. In fact, it is often a firm already selling a well-established product, that decides to expand up- or downwards when such an opportunity arises. A critical decision in this scenario is whether to introduce the new product under an existing brand or not. In this paper, we develop a game-theoretic model in which firms expand their product line to cater to a different customer segment, choosing both their branding strategy as well as characteristics of their new products. While we find that the firm's optimal branding strategy depends on both the vertical direction of the expansion and the level of competition, we identify a novel interaction effect between these factors. In particular, firms engaged in direct competition employ branding as a commitment device to soften competition. When these firms extend their product line upwards, this creates a misalignment between firms' actions and consumer preferences. We also derive conditions under which firms, against conventional wisdom, choose to differentiate their products more when selling them under the same brand. Finally, we characterize the welfare effects of branding.
February 16, 2021 | Permalink | Comments (0)
Approximating Purchase Propensities and Reservation Prices from Broad Consumer Tracking
Approximating Purchase Propensities and Reservation Prices from Broad Consumer Tracking
A consumer's web‐browsing history, now readily available, may be much more useful than demographics for both targeting advertisements and personalizing prices. Using a method that combines economic modeling and machine learning methods, I find a striking difference. Personalizing prices based on web‐browsing histories increases profits by 12.99%. Using demographics alone to personalize prices raises profits by only 0.25%, suggesting the percent profit gain from personalized pricing has increased 50‐fold. I then investigate whether regulations intended to prevent price gouging increase aggregate consumer surplus. Two feasible regulations considered offer at best modest improvements.
February 16, 2021 | Permalink | Comments (0)
Endogenous Vertical Structure with Network Externalities
Endogenous Vertical Structure with Network Externalities
This study examines the endogenous vertical structure in which each manufacturer sells its product to its exclusive retailer who sells network goods to consumers (i.e. a duopoly in the upstream market) under Bertrand competition and Cournot competition with network externalities. We show that with strong (weak) network externalities under Bertrand competition, (a) it is a dominant strategy for each manufacturer to integrate (separate) its retailer; (b) with strong network externalities, the manufacturers’ profits, consumers’ surplus and social welfare are higher under vertical integration than under vertical separation. Under Cournot competition, (a) vertical separation is a unique subgame perfect Nash equilibrium; (b) with strong network externalities, the manufacturers’ profits, consumers’ surplus and social welfare are higher under vertical separation than under vertical integration.
February 16, 2021 | Permalink | Comments (0)
Monday, February 15, 2021
Market Definition, Antitrust Error, and Digital Platforms in Korean Competition Law and Policy
Market Definition, Antitrust Error, and Digital Platforms in Korean Competition Law and Policy
This article addressed the problems of market definition, antitrust error, and digital platforms in Korean competition law and policy. As sound economic analysis is critical in dealing with antitrust cases, economic theories must be tested when those come to the courtroom. For a long time, on the other hand, populist politicians as well as anti-capitalists have intentionally created irrational fear of large-scale firms in South Korea. They have also generated imaginary risk of bigness. Even when the relevant market is defined properly, a false-positive error will occur if we are captured by imaginary risk perception. Conversely, even if the relevant market is defined improperly, a false-positive error will not occur if our decision is based on sound, reliable fact-based analysis. For a long time, large firms have been treated as witches by populist politicians and extreme egalitarians in Korea. Big digital platforms are becoming today’s new witches. While the full-blown rule of reason prohibits witch-hunt, new ambitious hunters are against the conventional rule because they believe that AI and big data are witchcraft for real. There are a lot of criticisms on data monopoly as if it really does exist. However, data monopoly does not exist. In this regard, data monopoly can be called a phantom, imaginary risk. We should note that imaginary risk perception may subvert the real world. To protect free and fair competition, fact-based analysis must prevail over imaginary risk perception and fake economic analysis.
February 15, 2021 | Permalink | Comments (0)
Article 17(3) of the EU Antitrust Damages Directive and the Possibility for National Competition Authorities to Assist in the Quantification of Harm
Abstract
One of the explicit aims of the Directive on competition damages actions (the Directive) is to make the quantification of harm resulting from violations of European Union (EU) competition rules easier for damages claimants. One of the several ways envisioned by the Directive to achieve that aim is Article 17(3), according to which national competition authorities (NCAs) may assist national courts in quantifying the harm caused by anti-competitive conduct.
In this paper, I focus on the transposition of Article 17(3) of the Directive in Sweden and make the argument that Sweden has not correctly implemented the Article in Swedish law. The topic is admittedly rather limited at first glance, but a discussion on the (non-)transposition of Article 17(3) of the Directive in Swedish law offers three significant insights which make pursuing it worthwhile.
Firstly, it informs us about the nature and degree of interaction of the Swedish Competition Authority (SCA) with Swedish courts and tells us something about the relationship between the two.
Secondly, it reveals some important procedural differences between private and public enforcement of EU competition rules in Sweden and exposes a certain tension between national rules of procedure, on the one hand, and the effective application of EU competition rules in Sweden, on the other. “Effectiveness” is a requirement that follows both from well-established case law of the Court of Justice of the EU (CJEU) and from the Directive itself. As a result, the second insight inevitably leads to a discussion on whether certain aspects of Swedish procedural law may be impeding the effective application of EU competition law.
Thirdly, it explores different courses of action for Swedish courts and claimants that may find, like this author, that Article 17(3) has not been implemented correctly in Swedish law.
February 15, 2021 | Permalink | Comments (0)
