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Following the judgment of the Court of Justice and especially the Opinion of the Advocate General in the CDC Hydrogen Peroxide case, arbitration agreements on disputes concerning damages for infringements of the competition rules of the TFEU have been interpreted as being contrary to the principle of effectiveness of EU law by making the non-application of the competition rules more likely. Moreover, standard arbitration agreements, which are concluded ex ante (before the dispute arises) and delimit their objective scope in generic terms (referring, in one formulation or another, to any dispute arising out of or related to a specific contract), only cover disputes over contractual damages, but not those relating to damages in tort caused by a party’s participation in a cartel. Therefore, national judges should not decline jurisdiction over the standard arbitration agreements proposed by the main international arbitral institutions, making it impossible for arbitration to become a viable means of resolving disputes arising from cartel damages. However, although the principle of effectiveness limits the procedural autonomy of the Member States as regards the remedies for exercising the right to claim compensation for such damages, it does not prevent the holder from voluntarily waiving the right to exercise it before a court and submitting the dispute to arbitration. Moreover, in the absence of harmonization by EU law of the rules on commercial arbitration, any question relating to the existence, validity or scope of the arbitration agreement is governed by the law of each Member State. Therefore, a standard arbitration clause may also cover disputes relating to non-contractual liability incurred by a contracting party as a result of its participation in an unlawful cartel if this was the will of the parties when concluding the contract, as interpreted by national courts or arbitrators in accordance with the law applicable to the dispute.

Since 1989, the Court of Justice of the European Union has recognised a privilege against self-incrimination for undertakings subject to public enforcement procedures on the basis of Articles 101 and 102 TFEU. That privilege forms part of the fundamental rights of the defence. Over time, the privilege has been read into Article 6 ECHR and has gained ground in other domains of EU law as well. Against that background, the question arises as to whether the CJEU's original case law in the field of EU competition law needs to be updated. This paper revisits that case law by comparing it with developments in the context of the ECHR and in other domains of EU law. It argues that, in light of those developments, a case law update may indeed prove necessary. However, such an update alone would not sufficiently address the practical difficulties currently surrounding the application of the privilege in practice. For that, more coordinated legislative action would be warranted. [ABSTRACT FROM AUTHOR]

The settlement procedure in Slovakia stems from three sources of inspiration: top-to-bottom (European Union law), bottom-up (incentive of an undertaking’s lawyer) and horizontal sources (Czechia). After more than ten years of application of this feature of Slovak competition law, there are several cases which were settled. These cases show a certain variety from the point of view of the legal basis, the stage of procedure as well as the character or relevance of the case. This makes it possible to assess their features, practice, effects, and consequences of settlements from the empirical point of view. The present paper analyses the legal framework and practice from a historical point of view. It provides a qualitative overview with evaluation of the settlement procedure in the context of European law and the Slovak legal order as well as a quantitative overview based on data extracted from the decisions of the Slovak NCA (PMÚ) and court rulings. In its conclusions it brings forward fresh suggestions de lege ferenda.

The term ‘competition’ is a core notion for social and economic thinking and the organisation of markets. Nevertheless, this paper shows that there is no single acceptable economic imaginary ascribed to the notion in Europe. The search for the meaning of competition is an ongoing journey, from the EU’s very inception 60 years ago to the present day, which is inherently tied to the objectives, scope, and boundaries of EU (competition) law and to socio-economic transformations.

Book Review: Populism and Antitrust: The Illiberal Influence of Populist Government on the Competition Law System, Maciej Bernatt (Cambridge University Press 2022, ISBN: 9781108482837) 300 pp, £85,00.

The case commentary examines the recent ruling of the Court of Justice in the Nordzucker case. This judgment is important not only for the new approach to the ne bis in idem principle in competition law (which was first established in the Bpost case, issued the same day), but also for the clarification of the concept of “idem” with respect to the territorial effects of the infringement on the territories of two member states. The judgment thus provides guidance for the extraterritorial application of EU competition law.

The EU State Aid regulation is based on the premise that the market and the entities within it must operate independently without additional unnecessary intervention by the state. In other words, state intervention must be kept to a minimum. Unjustified aid to one or another entity may distort the situation in the market and lead to a number of undesirable consequences, including market advantage acquired by the aided entity. The willingness of the state and its institutions to help those who face difficulties may be understandable, but not always justified. However, the prohibition on a state and its institutions to grant aid is not unconditional and, in some cases, may cause serious undesired consequences. The coronavirus disease (COVID-19), which hit EU member states in the first half of 2020, led to a re-thinking of the rules in force and a broadening of the scope for state aid exemptions. However, there are a number of questions about the nature of the EU State Aid regulation and its correlation with COVID-19 outbreak-conditioned decisions. The article analyses the state aid granting practices across the EU (including the UK) related to COVID-19. It covers approximately two- year period—from the start of the pandemic in Europe to March 2022.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 627-639 | European Forum Insight of 17 October 2022 | (Table of Contents) I. Introduction. - II. Background. - II.1. The European Commission Decision. - II.2. The 2014 General Court judgment in Intel. - II.3. The Intel judgment of the Court of Justice. - III. The 2022 General Court decision in Intel. - IV. Critical analysis and further discussion. - V. Conclusion. | (Abstract) The latest judgment of the General Court in the Intel case annulled the EU Commission's decision from 2009 imposing a €1.06 billion fine on Intel for abusing its dominant position by offering fidelity rebate schemes (case T‑286/09 Intel v Commission ECLI:EU:T:2022:19). The judgment reaffirms the application of an "effects-based" approach which requires careful economic analysis in order to establish the abusive nature of fidelity rebates. The judgment demonstrates that the presumption that fidelity rebates are restrictions of competition by object can be rebutted by the dominant company. It also clarifies that the as efficient competitor (AEC) test is not an indispensable part of the assessment in examining the foreclosure capability of all rebate systems but can be a relevant factor where the Commission has carried it out as part of its assessment of the anticompetitive effects of the rebate schemes. This Insight seeks to examine how this clarification can be translated into concrete lessons not only for future cases but also for other cases dealing with similar issues (i.e. the Qualcomm and Google Shopping cases) and, in particular, the significance of the AEC test as a specific tool to evaluate the anticompetitive effects of fidelity rebates. The Insight concludes that the recent judgment leaves more questions than answers regarding the application of the AEC test, and that it can be seen as signalling the demise of the application of this test for future cases.

Today many companies are collecting and extracting data from different sources to help them with their strategic decision-making. Big data is the basis of data-driven economy, bringing significant competitive advantage and market power to companies who are able to harness and exploit its potential. Digital transformation of markets and economy challenges the existing structures of consumer protection, data protection and competition law. Data is a commodity as well as a strategic asset. The term Big data refers to the amount of data that cannot be processed in a short time by traditional informatics devices. Undertakings possessing a large scale of different data have a competitive advantage. Possible application of the essential facility doctrine to Big data issues has not attracted much attention in competition assessment. This paper will try to fill the gap by providing some insights into competition and data issues. Also, the question whether data can be considered under the essential facility doctrine will be analysed. Furthermore, it will be shown that essential facility criteria are applicable, although there is room for some adjustments to data markets. The last part of the paper will scrutinize the Digital Markets Act that tries to shed some light and clear some possible problematic behaviour of the so-called gatekeepers. The regulation leaves the conventional approach and shortens the process of tackling possible anti-competition concerns. It regulates only those undertakings that have significant impact on market and the possibility to become an important gateway in the future. When the status of a gatekeeper is established in accordance with all prescribed criteria, there will be no need to show that the elements of the essential facility doctrine are fulfilled. The essential facility doctrine will still be relevant to undertakings that are not designated as gatekeepers. [ABSTRACT FROM AUTHOR]

Copyright of Yearbook of Antitrust & Regulatory Studies is the property of University of Warsaw and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

EU competition law potentially has a role to play in the pursuit of sustainability goals and the fight against climate change. The need to interpret the EU competition law provisions in a manner consistent with the sustainability objectives that the EU is committed to - the sustainable development goals (SDGs), and the EU Green Deal and derived policies - is emphasised in this article. While agreements between competitors are generally prohibited by Article 101 TFEU, cooperation agreements among market actors pursuing sustainability objectives (sustainability agreements) might in certain situations fall under the cartel exception of Article 101(3) TFEU. In recent years, there have been numerous calls to clarify conditions under which sustainability agreements can be allowed under EU competition law, especially under Article 101(3) TFEU, and there is a heated debate among academics, national competition authorities (NCAs) and the European Commission. After questioning whether the objectives and measures of the agreements are being properly assessed with the current trends (for example, with the willingness-to-pay method), this article will add to the debate another possibility involving a broad interpretation of Article 101(3) TFEU under which the pursuit of sustainability agreements will be facilitated. Such a possibility will largely depend on the objectives of the agreements themselves and may allow a proper consideration of the objectives of a sustainability agreement for certain cases, by focusing on agreements that pursue pre-established objectives derived from international or national standards or concrete policy objectives that are not previously mandatory for the companies involved. [ABSTRACT FROM AUTHOR]

The term 'competition' is a core notion for social and economic thinking and the organisation of markets. Nevertheless, this paper shows that there is no single acceptable economic imaginary ascribed to the notion in Europe. The search for the meaning of competition is an ongoing journey, from the EU's very inception 60 years ago to the present day, which is inherently tied to the objectives, scope, and boundaries of EU (competition) law and to socio-economic transformations. The paper first reviews the history of the notion in both common-usage language and in legal-economic thinking. It exposes the emergence of three parallel, partly conflicting, imaginaries influencing the notion in EU competition law: Keynesian, ordoliberal, and neoliberal. After demonstrating that no single imaginary was adopted by EU primary, secondary, or soft laws, it applies Critical Discourse Analysis to the Commission's annual reports on competition (1971-2020) in search for the meaning of competition. The paper reveals that the notion of competition had acquired one meaning in 'hard' contexts of the enforcement (scope of the prohibition of competition; exceptions or justifications for allowing otherwise anti-competitive behaviour), and another meaning in 'softer' contexts (mandates of the competition rules, and to a lesser extent - selection of enforcement priorities). While the 'hard' contexts have experienced a transformation from Keynesian and ordoliberal imaginary of competition to a neoliberal notion; the 'soft' contexts still invoke a broader notion reflecting influences from all three theories. Finally, the paper argues that although the lack of a clear definition for competition undoubtedly raises challenges relating to the rule of law, legal certainty, and uniformity, its ambiguity also serves as a powerful tool in safeguarding the durability and legitimacy of competition as an economic imaginary. It allows tailoring the notion of competition to changing legal, economic, and social conditions without a Treaty amendment. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1325-1337 | European Forum Insight of 11 February 2022 | (Table of Contents) I. Introduction. - II. The economic entity's liability for damages under EU competition law. - II.1 The very existence of the economic unit as a basis for (civil) liability. - II.2. Conditions for determining the responsible economic unit. - II.3. Extension of liability to further companies of the same economic unit. - III. The subsidiary as defendant in damage claims for EU competition law infringements. - III.1. Framework for the exercise of the subsidiary's rights of defence. - III.2. Civil procedural implications of the EC's findings in administrative proceedings. - IV. Joint and several liability of the legal entities of the economic unit. - IV.1. Financial risks of the joint and several liability for shareholders. - IV.2. The internal allocation of the debt for the payment of damages. - V. Conclusion. | (Abstract) The judgment of the Court of Justice in the Sumal ECLI:EU:C:2021:800 case charts new territory in the application of the concept of the "economic unit" in EU competition law. In addition to the established principles regarding the liability of the economic unit for fines imposed by the European Commission, the Court has found that the concept may also serve as a basis for damage claims against a subsidiary of a parent company that has been found to infringe EU competition law. The application of these principles regarding the liability of a subsidiary for its parent's conduct warrants an adjustment of the criteria that determine the existence of the single economic unit. In the case of downward liability, the exercise of decisive influence of the parent company over the subsidiary is not enough. Additionally, to establish a uniform market conduct the subsidiary needs to be involved in the specific economic activity of the economic unit. Based on this new judgment, victims of infringements of EU competition law will no longer be limited to bringing actions for damages against those companies punished by the Commission. They may also hold liable any subsidiary of the parent company belonging to same economic unit - even though it is not named in the Commission's decision - and may benefit from the binding effect of this decision, joint and several liability, and additional fora.

One of the defining features of EU competition provisions is that they are enforceable and applicable by the authorities and courts of the European Union and those of its Member States. The European Commission and national competition authorities participate in the application of EU competition law to differing degrees. Different legal mechanisms are adopted to apply Article 101 TFEU, including leniency programmes aimed at pursuing cartels, considered to be the greatest risk to free competition in the European Union. These programmes are implemented using non-binding mechanisms of soft law, which has generated a number of issues for the European Commission and the administrative competition authorities of the Member States when applying European and national competition laws.

Distribution cartels in the automotive sector used to be frequently dismantled and sanctioned by the European Commission and the EU Courts still some 15 years ago. In recent years, however, only a few cases have been reported at the national level of EU Member States. Is it because the distribution of new cars really ceased to be a competition problem as the European Commission declared when it removed this part of the automotive business from the specific Block Exemption Regulation for the automotive sector in 2010? The purpose of the present analysis is first to inspect the car distribution cases that emerged in the EU after the year 2000 and, second, to speculate somewhat whether new forms of distribution, brought by the digitalization of marketing and sales, cannot bring about also new risks to cartel agreements and other types of distortions of competition in car sales.

Copyright of Selcuk Law Review / Selçuk Üniversitesi Hukuk Fakültesi Dergisi is the property of Selcuk Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Complying with the abstract rules of competition law has always been a challenge. The category of ‘restrictions of competition by object’ is precisely what facilitates compliance. However, parallel with the strengthening of compliance, much more complicated restrictions of competition cases have been dealt with by the competition authorities in the EU. In this context, the need for a precise delineation of the category of restrictions of competition by object has increased over the last ten years. The Hungarian cases have contributed signifi cantly to the development of the European Court of Justice’s case law on restrictions of competition by object. In the Hungarian cases referred for a preliminary ruling, the European Court of Justice has confi rmed that the classical categories of restrictions of competition by object can be extended. However, until now, case law has not yet provided examples of this extension, only in cases where the classifi cation of the conduct in question as restriction by object was not clear, or where it was not possible to prove suffi cient harm to competition.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(2), 987-1013 | Article | (Table of Contents) I. Introduction. - II. The road to the ECN+. - II.1. Regulation 1/2003. - II.2. Success and shortcomings of Regulation 1/2003. - II.3. Actions taken to address the shortcomings. - III. The ECN+ Directive. - III.1. Institutional security of NCAs. - III.2. Harmonised power to investigate and sanction. - III.3. Dissuasive fines. - III.4. Leniency pro-grams. - III.5. Mutual assistance. - IV. Decentralised cooperation as a role-model leading to an ever closer un-ion? - IV.1. Is the decentralised enforcement of competition law after the ECN+ to be considered as a well-functioning system? - IV.2. Can a decentralised enforcement system contribute to an ever closer union? - IV.3. Does the system under the ECN+ serve as a role-model for other areas, too? - V. Conclusion. | (Abstract) Present Article deals with Directive 1/2019 which intends to harmonise public enforcement regimes of EU competition law in the Member States. The Directive does so by harmonising and complementing the existing decentralised system of competition law enforcement and empowering the competition authorities in the Member States to be more effective enforcers. In light of the overall topic "Shaping the Future of Europe", the Directive will be tested regarding its possibilities to contribute to more effectiveness, acceptance and ultimately deeper integration. It is concluded that the system complemented by Directive 1/2019 can overall be considered a success, multiplying enforcers and thus strengthening enforcement. With the preconditions of uniform - and uniformly interpreted - substantive law, well-equipped expert authorities as well as close cooperation within a network, it could, furthermore, even contribute to an ever closer union and serve as a role-model for other areas, too.

Copyright of Yearbook of Antitrust & Regulatory Studies is the property of University of Warsaw and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The subject matter of this paper are the short-term and long-term consequences of Brexit, a historical event and a turning point in the development of the European Union (EU), as well as for the United Kingdom (UK) and the EU competition law and policy. The article first provides a comparative analysis of the historical development of legal regulation of competition in the UK and the EU, including relevant cases from the practice of competition authorities. In particular, the authors focus on the decisions of the European Commission regarding anti-cartel policy. The article further examines to what extent Brexit will influence the mergers and acquisitions policy, antitrust policy, anti-cartel policy, and state aid policy in the UK and the EU. The central question refers to the extent of Brexit's influence on the change of the UK and the EU business environment, and the repercussions that this change will have for the competition law. In the concluding remarks, the authors discuss the direction of future development of the UK competition law, particularly in terms of whether and to what extent the UK law will be harmonized with the EU competition law and case law in this area, or whether there will be a radical turn towards adopting a completely new concept of competition law and policy.

On 21 April 2021, the European Commission proposed a Regulation laying down harmonised rules on artificial intelligence (hereafter, “AI”). This so-called Artificial Intelligence Act (hereafter, the “Proposal”) is based on European values and fundamental rights. Far from appearing ex nihilo, it deeply relies on the European Ethics Guidelines proposed by the independent high-level expert group on AI set up by the European Commission. In addition, the European Commission’s White Paper on AI already called for a regulatory framework that should concentrate on a riskbased approach to AI regulation that minimises potential material and immaterial harms. The Proposal, internal market oriented, sets up a risk-based approach to AI regulation that distinguishes unacceptable, high, specific and non-high-risks. First, AI systems that produce unacceptable risk are prohibited by default. Second, those that generate high risk are subject to compliance with mandatory requirements such as transparency and human oversight. Third, AI systems interacting with natural persons have to respect transparency obligations. Fourth, developers and users of nonhigh- risk AI systems should voluntarily endorse requirements for high-risk AI systems. Exploring the origins of the AI Act and the ratione materiae dimension of the Proposal, this article argues that the very choice of what is a high-risk AI system and the astounding complexity of this definition are open to criticism. Rather than a fullextent analysis of the Proposal’s requirements, the article focuses on the definition of what is an unacceptable, high, specific and non-high-risk AI system. With a strong emphasis on high-risk AI systems, the Commission comes dangerously close to the pitfall this article humorously labels as the Humpty Dumpty fallacy, to pay tribute to the nineteenth century English author Lewis Carroll. Just because the Commission exhaustively enumerates high-risk AI systems does not mean the residual category displays non-high-risk. To support this argument, this article introduces recommender systems for consumers and competition law enforcement authorities. Neither of these two examples fall under the AI Act scope of application. Yet, the issues they have raised might well be qualified as high-risk in a different context. In addition, the AI Act, although inapplicable, could have provided a solution.

The main reasons why the importance of Legal Professional Privilege (‘LPP’) has been emphasised in present times are as follows: protection of confidentiality is considered to be closely related to the rights of defence of the undertaking and administrative due process. The protection of LPP is also beneficial not only to a privilege holder but also to the general public and the competition authorities. LPP in EU competition investigations has to evolve, because EU competition enforcement has been affected by the rapidly changing world. Even the European Courts have been forced towards the gradual broadening of the scope of LPP accordingly. However, even these efforts do not keep pace with the developments in the modern society. The general trend has been towards a gradual harmonisation of competition laws and the treatment of LPP in competition law should not be excluded. In some jurisdictions, it is protected as a fundamental right, but in others, a client’s right legitimately protecting confidentiality over communications with a lawyer does not exist. The protection of LPP is actually dependent on the laws or customs of each country and culture. However, I believe that gradual global harmonisation of LPP is not impossible, and that LPP in EU investigations is capable of becoming a global standard with substantial amendments to the current scope. In particular, it is necessary to broaden the current scope, taking into consideration various problems actually found in and outside the EU. In my contribution, I would like to make specific proposals for these amendments.

On 21 April 2021, the European Commission proposed a Regulation laying down harmonised rules on artificial intelligence (hereafter, "AI"). This so-called Artificial Intelligence Act (hereafter, the "Proposal") is based on European values and fundamental rights. Far from appearing ex nihilo, it deeply relies on the European Ethics Guidelines proposed by the independent high-level expert group on AI set up by the European Commission. In addition, the European Commission's White Paper on AI already called for a regulatory framework that should concentrate on a riskbased approach to AI regulation that minimises potential material and immaterial harms. The Proposal, internal market oriented, sets up a risk-based approach to AI regulation that distinguishes unacceptable, high, specific and non-high-risks. First, AI systems that produce unacceptable risk are prohibited by default. Second, those that generate high risk are subject to compliance with mandatory requirements such as transparency and human oversight. Third, AI systems interacting with natural persons have to respect transparency obligations. Fourth, developers and users of nonhigh-risk AI systems should voluntarily endorse requirements for high-risk AI systems. Exploring the origins of the AI Act and the ratione materiae dimension of the Proposal, this article argues that the very choice of what is a high-risk AI system and the astounding complexity of this definition are open to criticism. Rather than a fullextent analysis of the Proposal's requirements, the article focuses on the definition of what is an unacceptable, high, specific and non-high-risk AI system. With a strong emphasis on high-risk AI systems, the Commission comes dangerously close to the pitfall this article humorously labels as the Humpty Dumpty fallacy, to pay tribute to the nineteenth century English author Lewis Carroll. Just because the Commission exhaustively enumerates high-risk AI systems does not mean the residual category displays non-high-risk. To support this argument, this article introduces recommender systems for consumers and competition law enforcement authorities. Neither of these two examples fall under the AI Act scope of application. Yet, the issues they have raised might well be qualified as high-risk in a different context. In addition, the AI Act, although inapplicable, could have provided a solution. [ABSTRACT FROM AUTHOR]

The main reasons why the importance of Legal Professional Privilege ('LPP') has been emphasised in present times are as follows: protection of confidentiality is considered to be closely related to the rights of defence of the undertaking and administrative due process. The protection of LPP is also beneficial not only to a privilege holder but also to the general public and the competition authorities. LPP in EU competition investigations has to evolve, because EU competition enforcement has been affected by the rapidly changing world. Even the European Courts have been forced towards the gradual broadening of the scope of LPP accordingly. However, even these efforts do not keep pace with the developments in the modern society. The general trend has been towards a gradual harmonisation of competition laws and the treatment of LPP in competition law should not be excluded. In some jurisdictions, it is protected as a fundamental right, but in others, a client's right legitimately protecting confidentiality over communications with a lawyer does not exist. The protection of LPP is actually dependent on the laws or customs of each country and culture. However, I believe that gradual global harmonisation of LPP is not impossible, and that LPP in EU investigations is capable of becoming a global standard with substantial amendments to the current scope. In particular, it is necessary to broaden the current scope, taking into consideration various problems actually found in and outside the EU. In my contribution, I would like to make specific proposals for these amendments. [ABSTRACT FROM AUTHOR]

Article 6 (2) of the Constitution of Georgia recognises free competition as the basis of the economic order in the country. Defining the content of the constitutional clauses regarding economic competition and determining positive and negative obligations of the state deriving from the constitution usually give rise to significant practical and theoretical challenges. Preceding paper aims to establish proper theoretical grounds to overcome abovementioned legal obstacles. Based on the best western experience and scientific approaches, it defines the scope of the state’s positive and negative obligations concerning free competition and competitive equality of undertakings. The paper also examines the teleological grounds of the constitutional provisions regarding free competition and its role in the process of assessment of the constitutionality of a legislative act related to economic competition. Moreover, the study discusses the functions of free competition with respect to freedom of enterprise and consumers’ rights, and it identifies the relevant legal values as well.

This article studies the private enforcement conducted in Visita v Booking from the perspective of the interaction between public and private enforcement of competition law. This case concerned the question whether the narrow MFN clauses maintained by Booking were contrary to Article 101 TFEU and could therefore be prohibited by a Swedish court. The focus of this article is placed on the assessment carried out by the Swedish courts to determine whether the MFN clauses were restrictive of competition by effect and on the standard of proof attached to the claimant in this regard. With regard to the interaction between public and private enforcement, Visita v. Booking is viewed as an illustration of the increased complexity of competition policy, in particular were novel practices are at issue.

Merricks v Mastercard [2019] is the first action under the newly developed ‘opt-out’ collective proceedings regime for aggregate damages under UK competition law to be considered by the UK Court of Appeal. It is significant for both the level of damages (£14 billion (€16 billion)) and the clarification of the legal test at the certification stage for the suitability for an aggregate award: the method for calculation of the aggregate damages and the sufficiency of evidence. The Court’s lowering of these thresholds importantly opens the door to future class actions and reasserts the importance of collective proceedings as a valuable means of redress for competition law infringements. The decision has now been appealed to the UK Supreme Court where these issues may be further clarified and resolved.

In order to facilitate national competition authorities (NCAs) in their application of EU competition rules, the EU legislator adopted Directive 2019/1/EU. The Directive’s aim is to empower the competition authorities of the Member States to be more effective enforcers of competition law and to ensure the proper functioning of the internal market. The so-called ECN+ Directive introduces minimum harmonisation rules allowing competition authorities to have common investigative, decision-making (notably fining decisions) and enforcement powers. The Directive, furthermore, sets minimum safeguards for the NCAs’ independence, accountability and resources as well as harmonizes leniency programmes including the coordination of national leniency programmes with each other and with that of the European Commission. This paper critically analyzes the legal and policy developments that paved the way for the adoption of this Directive. Moreover, it examines the changes the implementation of the Directive is likely to generate in current Hungarian law and policy of competition protection. The focus of the paper’s assessment is on the institutional aspects of the Directive and the enforcement of Articles 101 and 102TFEU, in particular the mechanisms for ensuring independence and accountability of the NCAs. Through the assessment of the Hungarian implementation, the paper aims to shed light on abroader context of the Directive and the enforcement of EU competition law in EU Member States. The paper shows that the implementation of the Directive may fail to translate into (more) effective enforcement without an effective institutional capacity on the side of the NCAs, and in the broader legal and constitutional context of competition law and its multilevel enforcement.

The article aims at analysing activities of the European Commission and the national competition authorities of the Member States of the European Union in response to the Covid-19 outbreak. This analysis is carried out in the light of the objectives of EU competition law. The specific research question of this article is whether the competition law framework is sufficiently resilient to the current COVID-19 crisis and allows for the inclusion of public or non-economic interests, particularly with regard to the application of Article 101 of the Treaty of the Functioning of the European Union. With a view to answering this question, the temporary framework that has been adopted because of the pandemic will be assessed in the light of the framework for the application of Article 101 TFEU. Then the actions of competition authorities undertaken EU-wide will be analysed against the background of the current debate on the goals of EU competition law. [ABSTRACT FROM AUTHOR]

The article aims at analysing activities of the European Commission and the national competition authorities of the Member States of the European Union in response to the Covid-19 outbreak. This analysis is carried out in the light of the objectives of EU competition law. The specific research question of this article is whether the competition law framework is sufficiently resilient to the current COVID-19 crisis and allows for the inclusion of public or non-economic interests, particularly with regard to the application of Article 101 of the Treaty of the Functioning of the European Union. With a view to answering this question, the temporary framework that has been adopted because of the pandemic will be assessed in the light of the framework for the application of Article 101 TFEU. Then the actions of competition authorities undertaken EU-wide will be analysed against the background of the current debate on the goals of EU competition law.

Copyright of Yearbook of Antitrust & Regulatory Studies is the property of University of Warsaw and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Estonia has successfully created a digital society within the past 2 decades. It is best known for its eGovernment achievements, but it is also home for four unicorn star-ups. While the state is aiming to attract tech investments with e-Residency program and has recently started to invest into protecting national IP and safeguarding data from cybercrime by applying blockchain technology and creating its "digital embassy" in Luxembourg, emerging technologies such as and applications of artificial intelligence but also internet of things have posed the question on legal regulation and standardization. The dilemma, however, seems to be that since the new technologies, such artificial intelligence is much more overwhelming phenomenon than e-governance and presumably, before deciding the legal standards, the political and economic strategies that go beyond the e-governance should be set. [ABSTRACT FROM AUTHOR]

INTRODUCTION. The article examines the extent to which the Union’s internal market can be said to have been externalised, given the extraterritorial implications of the Union’s internal energy market rules and regulations. In this respect, the article investigates the exercise and control of EU regulatory power beyond EU borders by examining the crossborder reach of the Union’s regulatory power beyond its boundaries given its implications for Gazprom and Russia’s interests on the European market. MATERIALS AND METHODS. The article pursues a doctrinal approach to the research methodology which includes the internal dimension of the Union’s energy policy and the extent to which the Union’s internal market regulation has been externalised and imposed on its external energy relations with Russia – this includes a detailed analysis of: (i) the Third Energy Package (TEP)’s ownership unbundling rules; (ii) the Third Country Clause; and (iii) the Union’s Competition law (given the recent decision of the EU Competition investigation of Gazprom’s sales in Central and Eastern Europe). RESEARCH RESULTS. A fundamental aspect of the EU’s rule-based market approach, is the perception that a fully liberalised and competitive EU market can facilitate energy security by way of enhancing diversification of suppliers. As such, the TEPs’ ownership unbundling; the Third Country Clause; and the EU’s Competition law have become significant mechanisms in the Union’s toolbox of instruments to further its rule- based approach and market-based agenda for the purpose of ensuring European energy security. The article illustrates the Union’s sectoral application of the acquis beyond its borders in its efforts to export its liberalization model and Europeanise its energy corridors in pursuit of European security of energy supply. DISCUSSION AND CONCLUSIONS. The article reveals a fascinating dimension to the Union’s role as a global actor by analysing the Union’s normative agenda which it pursues through the export of its acquis and rule-based market approach which it imposes on third countries and its strategic energy partner, Russia. In undertaking this analysis, the article shows that the EU’s efforts to reform Russia’s energy markets through its liberalization movement and European model, suggest an external dimension to its internal market rules given the implications for Russia and Gazprom.

In this paper, the author explores the legal treatment of no challenge clauses in license agreements. In effect, these clauses prohibit a licensee to challenge the validity of intellectual property rights which are the subject matter of a license agreement for a specified period, usually within the duration of the contract. The author analyzes the legality of contracting the no challenge clause in license agreements from the aspect of European Union Competition Law, given the fact that there are still no positive legal norms governing this institute in Serbian competition law.

The paper presents four pillars of competition law that can be recognised in the European Union and Member States, namely EU competition law, national competition law sensu stricto, national competition law sensu largo and competition rules sensu largissimo. In order to demonstrate that this multi-faceted and complex system is able to work in an orderly manner, it is considered in relation to various concepts, particularly unity, uniformity and effectiveness. Nevertheless, the concept of unity serves as a focal point for the observations. The perspective of the EU single market plays a part also, enhancing the call for unity. With regard to discussed threats for unity, possible solutions are proposed in the final part of the article.

This essay raises a number of theses in support for a more liberalised approach to EU Net Neutrality rules. It offers a graded system of levels of regulatory intervention, arguing that soft Net Neutrality rules are capable of meeting all positive objectives of regulation without causing the problems generated by hard Net Neutrality rules, such as those currently in place in the EU. Hard Net Neutrality rules prevent Internet Service Providers (ISPs) from making disruptive innovations. Meanwhile, they enable some Content and Application Providers (CAPs) to monopolise many markets via (disruptive) innovations, resulting in newly established dominant positions which have, in many instances, been abused. The hypothesis of the essay is that loosening the rules on Net Neutrality would create competition between ISPs and CAPs as well as (which is even more important) between different CAPs for limited premium speed traffic. Such newly established competition could remedy some antitrust conundrums faced by EU competition enforcers and sectorial regulators vis-à-vis disruptive innovators in the area of electronic communications.

The article is devoted to the analysis of the procedural rights of private persons in EU competition law, including Ukrainian ones who carry on business in the EU. In order to be successful in doing business in the EU, private persons (individuals and legal entities) need to be aware of their rights and be able to effectively protect them. In the field of EU competition law procedural rights of individuals are of particular importance, since very often their violations during the investigation of competitive cases become the grounds for challenging decisions of such institution as the European Commission, which is one of the main regulators of EU competition law. The article explores the scope of procedural rights of private persons, such as the right to defense, which includes the so-called privilege against self-discrimination, the right to be heard, the right to have a representative and the right to defend communication with a representative, the right to good governance, the principle of innocence, etc. Importantly, this study is based on an analysis of the jurisprudence of the Court of Justice the EU, which has jurisdiction to protect private persons against EU institutions’ infringements and has the monopoly to interpret EU law.

This study investigates deontic modality, the grammatical category through which legal texts express mainly obligation and permission, in an English-Greek bilingual corpus composed of legislative texts related to European Union (EU) Competition Law. More specifically, the study is based on Biel’s discussion on deontic modality, i.e. deontic obligation and deontic permission (Biel 2014: 158). The analysis of the data is mainly quantitative, while a small-scale qualitative analysis is also carried out when necessary. The results of the study are compared with the specific guidelines proposed by the EU Institutions for English and Greek, i.e. the Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation (2015), the English Style Guide: A handbook for authors and translators in the European Commission for English (2018) and the Greek Style Guide: A handbook for authors and translators in the European Commission for Greek (n.d.), as well as with those of earlier studies on legislative texts.

The increasing application of presumptions in European Union competition law proceedings in recent years has contributed to a shift of the burden of proof away from competition authorities to undertakings. The use of presumptions is particularly complex in cases concerning the abuse of a dominant position under Article 102 of the Treaty on the functioning of the European Union. This article indicates a number of problems related to challenging the presumption of the breach of competition rules by a dominant undertaking. The judgment of the Court of Justice in the Intel case provides an interesting background for the analysis in the above context. The article also seeks to offer solutions as to how a dominant undertaking can rebut the presumption of a breach of competition law. [ABSTRACT FROM AUTHOR]

In recent years, the EU competition framework has been under strain because of the increasing market interconnectivity. Criticisms have raised regarding the EU competition enforcement model. In response, institutional debate and measures have focused on the enhancement of fairness in this area of EU law. Following the entry into force of the Lisbon Treaty, another source of ‘fairness’ in the enforcement of EU competition law is the EU Charter of Fundamental Rights. Article 47 of the EU Charter is the most invoked provision in the context of EU competition litigation. Considered to reaffirm the EU general principle of effective judicial protection, this article constitutionalises the right to an effective remedy and to a fair trial. Although the existing literature has highlighted the overall influence of fundamental rights in the enforcement of competition law, the contribution of Article 47 Charter, as interpreted by the Court of Justice of the European Union, in enhancing fairness in EU competition policies remains, so far, underexplored. The current paper aims to fill this gap in the literature by offering a threefold input. First, the paper situates the discussion on fairness in EU competition law in the broader philosophical debate regarding various conception(s) of fairness. Second, the paper analyses the case law of the EU Court of Justice on Article 47 of the EU Charter in EU competition litigation. Finally, the paper discusses what kind of ‘fairness’ Article 47 strengthens in the area of EU competition law enforcement.

The present contribution addresses the excessive amount of discretion left to the EU Commission (and Courts) in defining the enforcement priorities in the field of EU State aid Law, by singling out one element of the (inherently vague) the notion of State aid, namely the effect on trade between member States. The approach taken by the Commission’s practice and the ECJ case law in this field ends up building a rather unpredictable legal framework. This risks unreasonably undermining both member States’ legislative choices in fields not necessarily falling under an EU competence, and undertakings’ legitimate expectations.

The paper analyses to what extent financial consumer protection forms part of the competition law objective of consumer welfare that EU competition law nowadays adheres to. It argues that while EU consumer law more generally aims at protecting the final consumer, EU financial consumer protection instruments often protect a broader spectrum of customers. This wider notion of the consumer can also be found in EU competition law, where the consumer is usually likened to any customer. A notable difference between EU financial consumer protection and EU competition law, however, is that they place a different emphasis on structural goals and inherently individual components. In EU competition law, the structural protection of competition is thought to eventually protect consumers. By uniting individual and structural aspects of consumer welfare, as well as by combining reactive and proactive consumer protection, EU competition law and EU financial consumer protection law can together achieve a financial protection of consumers that naturally goes beyond what each area of the law could achieve alone. Astringent approach, however, would require the development of a comprehensive EU financial consumer law which includes both dimensions.