Ariel Ezrachi is the Slaughter and May Professor of Competition Law and a Fellow of Pembroke College, Oxford. He serves as the Director of the University of Oxford Centre for Competition Law and Policy.
He is co-editor-in-chief of the Journal of Antitrust Enforcement (OUP) and the author, editor and co-editor of numerous books, including Virtual Competition - The Promise and Perils of the Algorithm Driven Economy (2016, Harvard), EU Competition Law - An Analytical Guide to the Leading Cases (5th ed, 2016, Hart), Global Antitrust Compliance Handbook (2014, OUP), Research Handbook on International Competition Law (2012 EE), Intellectual Property and Competition Law: New Frontiers (2011, OUP), Criminalising Cartels: Critical Studies of an International Regulatory Movement (2011, Hart), Article 82 EC - Reflections on its recent evolution (2009, Hart) and Private Labels, Brands and Competition Policy (2009, OUP).
His recently published papers focus on the digital economy, e-commerce, parity clauses, marketplace bans, vertical agreements, buyer power and the limits of competition law. They include the award winning papers 'Sponge' and 'Artificial Intelligence & Collusion'.
His research and commentary have been featured in The Economist, The New Yorker, Wall Street Journal, Financial Times, The Guardian (opinion), The Guardian, Nikkei, Times Higher Education, Harvard Business Review, HBR (2), Berkeley Technology Law Journal, Chicago University Pro Market, New Scientist, Politico, OBLB, WIRED, Click - BBC, CPI, Concurrences, The Scotsman, The Times, Fast Company, Nesta, UNCTAD, OECD, Forbes, Factor, The Australian, NRC 2016, NRC 2018, Business Insider, CMS Wire, Cited, IAI, Les Echos, ACCC, ZDnet, and other international outlets.
Prof. Ezrachi develops training and capacity building programmes in competition law and policy for the private and public sectors, including training programmes for European judges endorsed and subsidised by the European Commission. He is a member of UNCTAD Research Partnership Platform and a former Non-Governmental Advisor to the ICN.
- E-commerce promises to bring us closer to some economists’ ideal of perfect competition – where ample choice, better quality and lower prices reign. The new online world promises to reduce entry barriers and search costs, and increase transparency and market access. But a closer look reveals an imperfect online environment. Following the wave of innovation and competitiveness introduced by e-commerce are powerful anti-competitive undercurrents. More online markets are exhibiting increased concentration, barriers to expansion and entry, and anticompetitive strategies. At times, these anticompetitive strategies may be based on contractual frameworks – such as parity clauses and online marketplace bans. Indeed, the European Commission’s sector inquiry on e-commerce noted the increased use of selective distribution systems online ‘to better control their distribution networks, in particular in terms of the quality of distribution but also price.’ It also noted increasing ‘restrictions on the use of price comparison tools and exclusion of pure online players from distribution networks.’ Moreover, licensing practices may impede entry by new online business models and services. Rather than promoting the flow of goods and services across the EU, the sector inquiry found that ‘almost 60% of digital content providers who participated in the inquiry have contractually agreed with right holders to “geo-block,”’ which ‘prevents consumers from purchasing consumer goods and accessing digital content online from other EU Member States.’ At other times, competition may be at risk due to other potential anticompetitive strategies, from algorithmic tacit collusion to abusive behaviour by powerful providers or gatekeepers. This paper explores three emerging antitrust threats in the online world -- algorithmic tacit collusion, behavioural discrimination, and abuses by the emerging super-platforms – and the enforcement challenges they raise. We note the growing realisation by competition agencies as to the imperfections of the online environment, the ability to utilise new technologies to dampen competition, and additional risks of data-opolies.“All you need to do is say,” a recent article proclaimed, “‘I want a beer’ and Alexa will oblige. The future is now.” Advances in technology have seemingly increased consumers’ choices and opened markets to competition. As sales migrate from brick–and–mortar shops to online sites, consumers seemingly are getting more of what they desire, including better prices and quality. And yet, looking beyond the ease of online shopping, several emerging threats arise, including algorithmic collusion, behavioral discrimination and abuses by dominant super–platforms. Thus, a more complex reality exists. To see why, this Article examines the emerging frontier of personal digital assistants. These helpers are being developed by the leading online platforms: Google Assistant, Apple’s Siri, Facebook’s M, and Amazon’s Alexa–powered Echo. These super–platforms are heavily investing to improve their digital assistant offerings. We show how network effects, big data and big analytics will likely undermine attempts to curtail the digital assistant’s power, and will likely allow it to operate below the regulatory and antitrust radar screens. As a result, rather than advance overall welfare, these digital assistants—if left to their own devices—can undermine our collective welfare. But the harm is not just economic. The potential anticompetitive consequences from these assistants will likely take a toll on privacy, well–being and democracy. For those who grew up watching The Jetsons, the prospect of a personal helper might seem marvelous. Many already rely on Google’s search engine to find relevant results, Facebook to identify relevant news stories, Amazon for book recommendations, and Siri to place phone calls, send text messages, and find a good restaurant nearby. Many also already benefit from basic digital assistants. Apple iPhones users may instruct Siri to call their family members on speakerphone. Siri can “predict” what app users might want to use, which music they would like to listen to. Navigation apps can anticipate where the individual is heading throughout the day and provide traffic updates and time estimates. Even one’s favorite coffee outlet may send a notification and prepare the loyalty card on one’s device whenever one is near an outlet. Now personal digital assistants—or “digital assistants”—are seeking to interact with users in a human–like way. With its increasing sophistication, a digital assistant promises to transform how individuals access information, communicate, shop, are entertained, control smart household appliances, and raise their children. The digital assistant will also undertake mundane tasks and free our time. Amazon’s voice recognition personal assistant, Alexa, for example, can already perform many tasks. Alexa can shop for its users (knowing everything its user previously bought through Amazon); plan one’s mornings, including accounting for upcoming meetings, traffic, and weather; entertain one with music; suggest movies, shows, or audiobooks; and control one’s house’s smart appliances. In 2016, Google showed a video of a suburban family undergoing its morning wakeup routine: “The dad made French press coffee while telling Google to turn on the lights and start playing music in his kids’ rooms. The mom asked if ‘my package’ had shipped. It did, Google said. The daughter asked for help with her Spanish homework.” As the digital assistant—powered by sophisticated algorithms—learns more about its users, their routine, desires, and communications, it can excel in its role. In a human–like manner, it can be funny—at just the appropriate level—and trustworthy. These digital assistants can provide more than information and services; they can anticipate one’s needs and requests. After all, being privy to so many of its users’ activities, the assistant will become their digital shadow. As Alphabet’s CEO noted, “[y]our phone should proactively bring up the right documents, schedule and map your meetings, let people know if you are late, suggest responses to messages, handle your payments and expenses, etc.” The digital assistant, with their users’ trust and consent, will likely become the key gateway to the World Wide Web. Consumers will happily relinquish other less personal and useful interfaces, and increasingly rely on their digital assistant to anticipate and fulfill their needs. With this unique position of power, the digital assistant will act as a gatekeeper in a multi–sided market. And yet, despite their promise, can digital assistants actually reduce one’s welfare? Might their rise reduce the number of gateways to the digital world, increase a few firms’ market power, and limit competition? And if so, what are the potential social, political, and economic concerns? Our Article seeks to address these questions. Part II discusses the current race among Google, Apple, and Amazon to control as many aspects of the online interface and reap the associated benefits. The stakes are high, given several data–driven network effects, that will likely lead to one or two digital assistants that primarily undertake most people’s tasks and make the majority of decisions. So what are the implications of this winner–take–all contest to be the chief digital assistant? Part III considers the toll a dominant digital assistant can have on competition, democracy, and privacy. Given these risks, one would expect and hope for a “virtuous assistant”—a class of independent assistants, developed by independent firms with the users’ personal interests paramount. Part IV identifies several factors that favor one of the four super-platforms (Google, Apple, Amazon, and Facebook) capturing the digital assistant market, and disfavoring the independent virtuous assistant. As market forces will not necessarily prevent and correct the harms we identify, Part V outlines several issues and challenges confronting antitrust enforcers. Part VI concludes.When government officials argue for purity, one would expect raised eyebrows. But few question competition officials who, in speeches in foreign lands, praise the “purity” of competition law. They warn the hosts of polluting competition policy with social, ethical, and moral concerns. They warn of industrial policy, regulation, and rent-seeking. After the hosts provide dinner, the competition officials leave for the airport, where they prepare the same speech for another audience. The hosts will politely agree on the key objectives that competition policy should promote, but beneath this veneer, ill-defined terminology, open-ended goals and differences in enforcement philosophy remain. Differences, in one’s understanding of the ends of competition law often transform into a ‘purity battle’ – the claim that competition analysis has been polluted by some, and that a pure approach, as propagated by others, would deliver better, optimal results. Often, these claims accompany large transactions, state aid, and foreign jurisdictions, possibly threatening the domination of national champions through enforcement of their competition laws. Sometimes these claims will be made by the competition agency. Sometimes by politicians or leading corporations. At times, the true source of the claim – politics, business, law or economics – may be hard to ascertain. This is not to say that purity arguments are without merit. A consensus exists that competition law cannot be all things to all people: a panacea for every policy concern, ranging from labour to the protection of national champions. And yet, the pretence of purity may be misleading as it propagates a mirage of objectivity, clarity and analytical superiority – traits that are not always present. Indeed, competition law is often perceived as a stable discipline. In fact, one is often reminded that competition law must be based on economic considerations and reject external social, or political objectives. This paper argues that this appealing view – which embodies a sense of purity – is merely an illusion. It ignores the ‘sponge-like’ characteristics of the law – its susceptibility to national peculiarities originating in its design and evident in its application and its exposure to intellectual and regulatory capture. While the idea of a stable, predictable and economically-based antitrust discipline is in all of our interests, these traits are not inherent to the law. They are forced onto the sponge in an attempt to ‘discipline’ its natural tendencies, and propagated as reality, to support its legitimacy.Technological advancements, big data and big analytics have changed, and will continue to change, the dynamics of virtual competition. Notably, they have significantly affected pricing strategies, including the stealth-mode use of dynamic personalized pricing. Retailers and service providers can approximate consumers’ reservation price and engage in “almost perfect” price discrimination. Among the key market conditions necessary for successful online discrimination are access to personal data, ability to predict the consumer’s willingness to pay, and ability to monitor and limit available outside options. When observing discrimination in our modern online environment, notable is the shift from third-degree, imperfect price discrimination to near perfect, or first-degree, price discrimination. Online sellers, in tracking us, collecting data about us, and segmenting us into smaller groups can better identify our reservation price—our willingness to pay.The progressive, anti-monopoly, New Brandeis School of antitrust is making the news. Its rise follows mounting evidence indicating greater concentration, greater profits in the hands of fewer firms, and greater wealth inequality world-wide. Driven by concerns as to the competitive dynamic (or lack of it) in many markets, it advocates for more intervention. Signs of this trend are evident across the board. More antitrust enforcers and courts are emphasizing fairness. Liberals and conservatives are increasingly warning that consumers are not benefitting from the (meager) competition in many markets. Their concern is that the current state of competition law (and crony capitalism) benefits the select few at the expense of nearly everyone else. Even the laissez faire “Chicago School” ideology has lost some of its appeal, most notably at the University of Chicago. Furthermore, legislation in the U.S. is being proposed to restore the Clayton Act to its original purpose. Against this wave, others, in advocating antitrust’s purity, warn of an overly inclusive approach to competition law. Ironically, this claim sometimes arises in conferences sponsored by monopolies, and at times by speakers whose work is funded directly or indirectly by these same monopolies. In arguing for a “pure” antitrust, they endorse, outside of cartels, a “light” touch enforcement, if any. They warn about enforcement chilling pro-competitive behavior, and undermining the market’s ability to self-correct. They are content with the lack of antitrust enforcement against monopolies in the U.S., critical of enforcement actions in the EU, unconcerned about the trend toward concentration, and reject fairness or distribution concerns as part of competition policy. The debate has intensified with the rise of virtual competition. On the one hand, non-interventionists state that the threat of disruptive innovation pressures even dominant firms to innovate and compete. This, they argue, justifies the light, if any, touch. Others, on the other hand, warn of the increased concentration and rise of gatekeepers, which benefit from network effects, and access to big data and big analytics. While monopolies of the past might subject us to higher prices and poorer quality products, abuses by today’s super-platforms will affect not only our wallets. They can affect the news and entertainment we receive and ultimately, our privacy, well-being, and democracy. So what is going on here? One may attribute the increasingly polarizing debate to an ideological divide: between those who believe markets necessarily self-correct and those who believe intervention is necessary to safeguard long-term innovation and prevent the abuse of market power. Increasing the friction are other divisions: Between those who believe that the rising economic consolidation is yielding significant efficiencies and those warning about the detrimental effects that economic consolidation has on the person, the family, the community, and society; between those who believe that what is easily measurable, largely counts, and those, like economist F.A. Hayek, who dismiss the notion that only what is countable primarily counts (especially when many goods and services today are ostensibly free, and where our data and privacy are the cost). Ultimately the divide is over the soul of antitrust: Is antitrust solely about promoting some form of economic efficiency (or as cynics argue, the interests of the powerful who hide behind a narrow utilitarian approach) or the welfare of the powerless (the majority of citizens who feel increasingly disenfranchised by big government and big business)? Not surprisingly, with so much profit (and power) at stake, corporate interests are fueling the debate. Some who favour a narrow technocratic antitrust policy – including some dominant firms, their investment bankers, and their legal and economic experts - want to keep the M&A pipeline open and minimize the relevance of ex-post intervention. For them competition policy has evolved to its optimal point. Some who favour more intervention do so selectively when it promotes their commercial interest: Encouraging a particular enforcement action which may help improve their (or their client’s) market position and profitability, but not society overall. In an environment so captured, those in search of purity should look elsewhere. The reality is that ‘competition law’ has never been, nor will it ever be, pure from normative political, social and economic values. Ultimately it comes down to the values we want to promote and our belief in how competition works. Granted, antitrust cannot cure every ailment. A consensus exists that competition law cannot be all things to all people. Indeed, other vehicles, such as data protection law, may better remedy some of today’s concerns. And yet, competition law cannot be Orwellian -- sanctioning anticompetitive agreements, monopolistic abuses, and greater consolidation in already concentrated markets, all for the sake of promoting a vague “consumer welfare” objective. Also counselling against antitrust’s “purity” is that its objectives and legal standards often reflect trade-offs. For example, a society may sacrifice some efficiency in media markets to promote a vibrant marketplace of ideas. So, antitrust law does not exist as a Platonic ideal out there for us to find. Rather it is for us to design. As we design, we must return to antitrust’s core values: what do we, as a society, want to promote? What South Africa, the EU, the U.S., and other jurisdictions seek to promote may differ at the margins. Calling one country’s antitrust goals impure hardly advances the debate. While differences may exist at the margin, ultimately, competition law worldwide can advance several common political, social and economic goals. One would hope that our common optimal goal will be to promote our welfare in an economy that is inclusive (i.e., benefits many citizens, not just the wealthiest 1 percent), protects the privacy interests of its citizens, promotes overall well-being, and promotes a healthy democracy.Winner of the 2016 ‘Concurences’ prize for best article on collusion.The strive for tighter control of distribution, quality and price - has led an increasing number of producers to include restrictions on the use of online marketplaces in their selective distribution agreements. This paper considers the effects of such restrictions and the legal approach they call for. While acknowledging the legitimacy of proportionate restrictions on distribution, the article illustrates how an absolute ban on the use of online marketplaces may have a detrimental effect on market transparency, price competition, entry and expansion. The discussion illustrates how the legitimate interests of producers may be protected through less onerous means, without the increase in consumers’ search costs and the dampening of price competition. With that in mind, it is argued that these restrictions should be analysed on a case-by-case basis and should not benefit from the Vertical Block Exemption. Furthermore, the article considers whether absent proportionality and objective justification, the harmful effect of online marketplace bans, justifies their condemnation as anticompetitive by object.“This is a groundbreaking, critical work—a major contribution to the field of competition law.”—Frank Pasquale, author of The Black Box Society “Ezrachi and Stucke provide a compelling analysis challenging the orthodoxy that modern technology empowers consumers. Their findings will send a shiver down the spine of consumers, businesses, public policy makers and anyone working in the competition field. Virtual Competition is a fast-paced, mind-boggling thriller that you can’t put down; a thriller in which we are all set to be the victim.”—Alan Giles, Saïd Business School, University of Oxford “Virtual Competition provides an intriguing and provocative look at the potential dark side of big data and big analytics. The debate over digital competition is just beginning, and Ezrachi and Stucke have laid down a marker that is likely to capture wide attention.”—Jonathan Levin, Stanford Graduate School of Business “Ezrachi and Stucke’s insights into data-driven opportunities, collusion scenarios, discrimination, and ‘frenemies’ will help authorities distinguish between true efficiencies and anti-competitive problems, and ensure that most enforcement at least keeps up with technological developments. Forward-thinking competition authorities can use these insights proactively to help craft government policies that ensure that innovation and competition are real, while problems are addressed quickly and thus—hopefully—remain virtual.”—Philip Marsden, Inquiry Chair, Competition and Markets Authority “A thought-provoking, clearly written examination of the coming effects on markets and competition of computer algorithms, big data, big analytics, and ‘super-platforms,’ drawing on real-life examples, on neoclassical and behavioral economics, and on the authors’ deep understanding of U.S. and EU competition law.”—Harry First, New York University School of LawA look at the international competition law landscape reveals consensus as to the main goals of competition law. Indeed, core economic reasoning and market analysis serve as the backbone to competition analysis and support assimilation of thought and policy worldwide. Orbiting that core, one may identify a wider, heterogeneous, range of policies advanced by competition regimes. These policies are sometimes viewed as external to the pure competition analysis and, as such, may be regarded as illegitimate. Overall, the in and out methodology presupposes the presence of a legal and analytical structure which defines competition law and to which jurisdictions are expected to align. This paper explores that proposition. It considers the inherent properties of the law and questions the presence of a clear dividing line between competition law and external considerations. It argues that the law, by its nature, provides for an absorbent and flexible platform which soaks up national values and interests. Accordingly, the inherent scope and nature of modern competition laws are not necessarily as consistent and objective as one might like them to be.The examination of buyer power in merger control may relate to one of two forms of power. It may relate to the merging parties ability to exercise buyer power to the detriment of consumers. Alternatively, it may relate to the presence of countervailing buyer power that can relax some of the effects generated by an upstream transaction. This paper examines the economic and policy implications of buyer power and reviews the European Commissions decisions in cases in which buyer power considerations were present. The analysis reviews the weight attributed to buyer power considerations in finding a significant impediment to effective competition or, conversely, the role of countervailing buyer power as a mitigating factor in the analysis of upstream mergers. The discussion highlights a certain gap between the limited emphasis given to buyer power in merger analysis, in contrast to the extensive and heated discussion it triggers outside legal analysis at policy, social and economic levels.This is the fourth edition of the highly practical guide to the leading cases of European Competition Law. It explores the application of Article 101 TFEU, Article 102 TFEU and the European Merger Regulation, as well as the public and private enforcement of Competition Law. In addition, it reviews the intersection between Competition Law and Intellectual Property Rights and the application of Competition Law to State action. Each chapter outlines the relevant laws, regulations and guidelines for each topic. Within this framework, cases are reviewed in summary form, accompanied by analysis and commentary. . . 'This book should be in the library of every competition law practitioner and academic. The summary of cases is first class. But what makes it really stand out is the quality of the commentary and the selection of the material which includes not only the most important European judgements and decisions but also some of the leading cases from the US and European Member States.' Ali Nikpay, Gibson, Dunn & Crutcher LLP, Former Senior Director, Office of Fair Trading . . 'The study of EU Competition law requires the analysis and understanding of a number of increasingly complex European Commission and European Court decisions. Through the provision of case summaries, excerpts from the important passages and concise commentary linking these decisions to other key case law and Commission documents, this unique and impressive book, now in its fourth edition, provides the student and practitioner of EU competition law with an extremely clear and useful introduction to these leading decisions.' Dr Kathryn McMahon, Associate Professor, School of Law, University of Warwick . . 'This book is especially valuable for competition law specialists in Europe and abroad who are interested in the jurisprudence and policy of the European Union and its member states. Familiarity with the European regime is essential for proficiency in competition law today, and this volume provides an excellent foundation.' William E Kovacic, Global Competition Professor of Law and Policy, George Washington University Law School, Former Chairman, US Federal Trade Commission . . 'The Guide is an invaluable tool for both students and practitioners. It provides a compact overview on the fundamental cases and highlights the essential problems in a clear and sharp analysis.' Dr Christoph Voelk, Antitrust Practice Group, McDermott, Will & Emery LLPThe proliferation of antitrust enforcement regimes around the world has transformed the enforcement landscape in recent decades. This trend has led to increased focus on the competitiveness of markets and the curtailment of anticompetitive activities, to the benefit of consumers. It has also led to increased bilateral, regional and multinational cooperation resulting in a gradual process of assimilation of thought and law. However, while record numbers of competition agencies progressively apply similar principles and law, competition law enforcement remains domestic in nature. Indeed, a look at the active jurisdictions reveals a range of substantive and procedural approaches. Differences in the competition agencies mandate, priorities and enforcement powers, as well as different political, social and legal environments are only several of the variants which underscore the heterogeneous enforcement landscape. This reality presents challenges for companies and undertakings operating across borders. With increased globalization of business and increased extraterritorial application of competition laws, it is often the case that an activity, agreement or transaction will be subjected to a range of overlapping competition regimes. Subsequently, the task of managing the legal and financial risks associated with competition law infringements requires a careful exploration of the law and practices around the world. This multi-jurisdictional compliance guide addresses this complexity and offers a comprehensive and detailed multi-country review of critical antitrust compliance issues. The book outlines the laws and practice in forty three of the leading antitrust jurisdictions around the world. With compliance requirements in mind, this book provides businessmen, law firms and in-house lawyers with the necessary information to explore the changing global antitrust landscape. This book is a resource for those responsible for competition and corporate compliance programs and for those interested in the international enforcement landscape of competition law. It assists in tailoring global compliance programs while considering multijurisdictional effects and policies. In addition, it provides a clear and accessible benchmark for the consideration of agreements, activities and transactions on a case by case basis. Contributions to this book have been authored by leading competition law practitioners from their respective jurisdictions. Chapters in this guide enable assessment of personal and corporate risk exposure. The reader will find information on each regimes laws and practice. Areas covered include enforcement procedure and substance. These include, among others, the enforcement environment and enforcement priorities, leniency programs, penalties, fines and individual sanctions. In addition chapters outline the laws applicable to horizontal and vertical agreements, market power and the abuse of a dominant position and merger control.Recent decades have witnessed a marked internationalization of competition law enforcement and dialogue. Multinational, regional and bilateral efforts, have contributed to the approximation of competition law regimes worldwide and to collaborative enforcement. However, notwithstanding these valuable developments, domestic social, political, industrial and market considerations still affect the scope and application of national competition laws. This paper explores the meeting points between the domestic perspective of competition law enforcement and growing international collaboration and enforcement efforts. In doing so, it highlights the intrinsic national nature which is embedded in the DNA of competition law and the natural limits of international convergence and collaboration in this area.A central mantra of competition policy is that competitive market forces, besides lowering prices, can increase efficiency, product quality, the level of services, the number of choices, and ultimately consumers welfare. Indeed, the antitrust community generally accepts a relationship between greater competition and lower prices and uses the latter as the prime metric in assessing competitive behavior and the effects on consumer welfare. Alongside the consideration of price, competition authorities recognize that quality can be as, if not more, important in some markets. But as competition authorities also recognize, identifying the dimensions of competition important to many consumers is difficult. Even when these dimensions of quality are identified, measuring them represents additional challenges. To circumvent these challenges, competition authorities rely on several heuristics when assessing a mergers, cartels or monopolistic restraints impact on quality. One heuristic is that more competition will generally increase quality for a given price or reduce price for a given level of quality. A second heuristic is that when prices and quality vary, consumers will weigh the offerings using an internal price-quality metric. Price adjusts for quality, and consumers rely on the heuristic you get what you pay for. Often the heuristics work well for the competition authorities. However, at times, market realities are more complex and these heuristics fail to reflect the relationship between competition and quality. In this paper we focus on these instances in which the positive correlation between competition and quality breaks down. We explore two necessary, but not sufficient, variables, which affect that correlation. The first relates to the consumers limited ability to accurately assess quality differences. The second concerns imperfect information flows that make it difficult or costly to convey to consumers the products or services inherent quality differences. Companies recognize that neither they nor their competitors can easily or inexpensively convey to consumers the inherent quality differences in their and their competitors product offerings. With these variables in mind, we consider instances when an increase in competition will not increase quality (when one would expect it should) and when competition is inversely correlated with quality, and its increase would lead to quality degradation. Importantly, we do not posit a normative argument: namely that consumers are choosing poor quality goods and services (e.g., reality television shows) when they should be demanding higher quality fare (e.g., investigative news programs). Nor do we posit a social welfare argument, namely competition involving status goods (where price may correlate more with conspicuous consumption than quality), which increases envy to the detriment of overall well-being. Our assumption is that while different customers have different desires and seek a range of quality, many customers for certain goods and services desire a similar specific dimension of quality. Our focus is on the ability of the competitive process to deliver that desired quality attribute.The paper explores the retail price effects of upstream and mid stream horizontal mergers. It questions the prevailing assumption in merger review according to which such transactions will have similar effects on retail price as that of downstream horizontal mergers. The analysis illustrates how a sophisticated profit-maximizing merged entity may find it more profitable to enter into efficient contracts which seek to maximise the profit of the distribution channel, and so ensure that retail prices are not raised. The merged entity uses its market power and improved bargaining position to extract as much of that profit as possible from the retailer. We therefore argue that one cannot simply assume a direct link between the creation of market power upstream following a merger transaction, and the subsequent increase in retail prices. An analysis of the effects of upstream mergers on retail prices should call for a more nuanced appraisal which distinguishes the transfer of wealth within the operators in the distribution chain from the possible price impacts on final consumers.ISBN: 1744-6414This paper considers the welfare implications of input price fixing and the enforcement standard to be applied to these arrangements. It explores the way in which European competition law approaches input price fixing, the scope of the object-based approach and the instances in which effects-based analysis may be used in the appraisal. In doing so, the paper sets to clarify the legal approach to price fixing of procured input. It outlines a possible benchmark for the assessment of input price fixing, with the aim of sharpening the dividing line between instances which restrict competition by object, and those which necessitate consideration of effects.ISBN: 1744-6414The paper explores the effects buyer power may have on product quality. It argues that, at times, excessive pressure on input price will trigger direct welfare costs to consumers in the form of disguised inferior products. To illustrate quality erosion, the discussion focuses on the unique area of private labels and the relationship between the powerful buyer and its private-label supplier.This article explores the interface between competition law and intellectual property rights (IPRs) in the context of compulsory licensing. It considers how European competition law has been applied to limit the protection awarded to IPR holders and reflects on the remedy of compulsory licensing. In doing so, the article considers how current policies may affect innovation and welfare. In our analysis, we consider two questions that are inter-linked. The first relates to the threshold for finding that a refusal to license IPRs amounts to an abuse of a dominant position. We consider whether the current European threshold for intervention is adequate and clear. Our analysis illustrates that the use of competition law as an external balancing tool has gradually eroded the protection conferred by IPR. Furthermore we show that the European Commissions Guidance Paper on Article 102 of the Treaty on the Functioning of the European Union (TFEU)1 has contributed to this trend. We argue that these processes have blurred the principles which limit the application of competition law to IPR, creating a potentially detrimental effect on competition and innovation. We consider the characteristics of the compulsory license remedy and reflect on its adequacy in resolving competitive and innovative injuries caused by the refusal to license. In doing so, we review the aims of compulsory licensing, as well as its advantages and disadvantages. We then propose an offense-remedy distinction, which allows substantive analysis of abuse, independent of the remedy. This method enables antitrust authorities to evaluate the offense with less risk of reaching a conclusion that is based on a false positive.ISBN: 1744-6414The application of competition law in an international setting has long been a challenging area for competition agencies. Legal and practical obstacles often limit an agencys ability to obtain information on multinational violations and engage in effective enforcement and prosecution. These limitations have been particularly noticeable in the case of developing countries and economies in transition. These regimes are characterised by limited enforcement capacity and tend to focus their attention on domestic violators and on efforts to foster a competition culture. The challenge of tackling sophisticated cross-border anticompetitive activity and the imposition of effective sanctions on international violators may be beyond their reach. Unfortunately, the limited enforcement capacity of these regimes often results in an increased and disproportionate exposure to multinational anticompetitive activity. This exposure is particularly harmful given the ever growing level of cross-border trade. Indeed, in many instances, unless the cross-border activity is challenged by other, more powerful jurisdictions, developing economies and economies in transition remain exposed to negative transfer of wealth. This reality serves as a powerful incentive for these regimes to enhance their enforcement capacity in order to effectively tackle cross-border infringements. To facilitate these efforts, UNCTAD has recently launched a new initiative that will foster transparent information flow and collaboration between competition agencies. This initiative known as the Collaborative Information Platform - forms part of UNCTADs on-going work on international cooperation and enforcement.EU competition law enforcement has undergone significant changes in the past decade, aimed at improving its effectiveness by employing more actors (national competition authorities and courts) and more flexible procedures (commitments decisions and settlements). Occupying centre stage alongside these developments were efforts to advance private EU competition law enforcement and consumer involvement therein. Yet, while the number of damages actions in competition cases has steadily increased in some Member States, this increase has been modest and uneven across Europe. Procedural difficulties, excessive costs, risks and the multitude of legal systems involved, are only some of the obstacles still curtailing the availability of effective judicial redress in competition law cases. In addition, difficulties in launching group actions and adopting a harmonised Euro-wide collective redress mechanism, further limit access to corrective justice. This paper addresses shortcomings in the private enforcement of competition laws across Europe. It explores the possibility and desirability of deploying public enforcement to promote some of the objectives traditionally linked to damages actions in national courts. More specifically, it advocates in favour of including elements of compensation for injured parties, as part of the public enforcement of competition law (hereafter Public Compensation). Under the proposed mechanism, at the end of a public investigation, the competition authority would be able to impose not only a fine but also award a certain form of compensation to the injured parties, either individually identified or defined more broadly as the injured class. This mechanism provides an attractive vehicle for supplementing damage claims; narrowing the gaps in corrective justice, while fulfilling the traditional deterrent function of public enforcement. These benefits, we argue, justify consideration of a formal approach toward Public Compensation, which would facilitate its implementation across the European Union. Such mechanism could be implemented alongside possible future changes to the private enforcement landscape. This paper advances a two-fold argument addressing the questions of why and how Public Compensation is desirable. We begin by identifying the gap in the enforcement system that Public Compensation could fill, and offer further normative justifications for Public Compensation. We then consider the merit in advancing a more formal, fused approach toward competition law enforcement. Subsequently we move on to review cases in which the competition authority imposed or accepted compensation as part of the public inquiry. These cases provide inspiration for the ensuing proposal of a formal, institutional approach.ISBN: 2041-7764This book is inspired by the international movement towards the criminalisation of cartel conduct over the last decade. Led by US enforcers, criminalisation has been supported by a growing number of regulators and governments. It derives its support from the simple yet forceful proposition that criminal sanctions, particularly jail time, are the most effective deterrent to such activity. However, criminalisation is much more complex than that basic proposition suggests. There is complexity both in terms of the various forces that are driving and shaping the movement (economic, political and social) and in the effects on the various actors involved in it (government, enforcement agencies, the business community, judiciary, legal profession and general public). Featuring contributions from authors who have been at the forefront of the debate around the world, this substantial 19-chapter volume captures the richness of the criminalisation phenomenon and considers its implications for building an effective criminal cartel regime, particularly outside of the US. It adopts a range of approaches, including general theoretical perspectives (from criminal theory, economics, political science, regulation and criminology) and case-studies of the experience with the design and enforcement of existing or contemplated criminal cartel regimes in various jurisdictions (including in Australia, Canada, EU, Germany, Ireland and the UK). The book also explores the international dimensions of criminalisation - its specific practical consequences (such as increased potential for extradition) as well as its more general implications for trends of harmonisation or convergence in competition law and enforcement.The role of antitrust in curtailing excessive prices has long been a contentious area. Consequently, the charging of excessive prices has been subjected to diverse levels of enforcement across the world.1 U.S. antitrust law, for example, does not encompass the charging of high prices as such,2 and was held not to condemn the resultant of those very forces which it is its prime object to foster: finis opus coronat.3 By contrast, competition laws in other jurisdictions provide for the condemnation of excessive or unfair pricing. Such is the case under EU competition law,4 the competition provisions in the European Member States,5 and in other jurisdictions across the world.6 But even among those competition regimes which do intervene against the charging of excessive prices as such, one may identify different levels of enthusiasm for doing so. In Europe, for example, recent years have witnessed a restrained approach by the European Commission7 but a more proactive approach by some of the competition authorities of the Member States.8 Varying levels of intervention reflect a controversy as to the merit of prohibiting excessive pricing. Three main grounds are often used to justify non-, or limited-, intervention: (1) intervention is not necessary, as high prices would be competed away by new entry, attracted by the ex-cessive price; (2) there are practical difficulties in speculating what a price would have been had there been competition and in determining the excessiveness of the prices actually charged; and (3) enforcement which targets excessive prices may chill innovation and investment.9 To illustrate the difficulties of assessment and to question some of the justifications that are used to rationalize non-intervention, this article reviews the recent litigation in South Africa related to alleged excessive pricing by Mittal Steel.10 We use the decisions of the South African Competition Tribunal and the South African Competition Appeal Court as a case study to highlight both the complexity of, and possible merit in, antitrust intervention against excessive pricing. Our analysis focuses on the three grounds for non-intervention. First, with respect to the self-correcting nature of excessive prices, we illustrate how excessive prices, in and of themselves, do not attract new entry, when potential entrants are either informed or uninformed about their post-entry profits. Referring to our previous work on this subject,11 we question the South African Competition Tribunals holding in the Mittal case with respect to the prerequisite conditions for intervention against excessive pricing. Second, we consider how the difficulties of assessing what is an excessive price affected the outcome in the Mittal litigation. Without underestimating these difficulties, we consider how they may be alleviated in certain cases through reasonable methods for inferring what may constitute an excessive price. Third, while acknowledging the possible validity of concerns about chilling ex ante investment, we outline instances in which these concerns should not serve to support nonintervention. It should be stressed that this article does not advocate across-theboard intervention. It does, however, question the validity of a categorical hands-off approach, which deems excessive prices to be outside the realm of competition law. We consider separately the weight that should be assigned to each ground for non-intervention. Subsequently, we argue in favor of a case-by-case approach which explores the factual matrix of each case and considers the benefits, costs, and net effects of intervention.ISBN: 0003-6056Recent decades have witnessed a distinct increase in the sales and popularity of private labels. The growing market share of private labels has transformed the landscape of retail competition in developed countries. Major retailers are no longer confined to their traditional roles of purchasers and distributors of branded goods. By selling their own label products within their outlet they compete with their upstream brand suppliers on sales and shelf space. This vertical competition is not confined solely to value categories of products. These days, retailers offer private label goods catering for the value, specialized and premium markets. These developments, and the increasing confidence that consumers have in private labels, have increased the bargaining position and market power of retailers as their labels compete directly with the leading manufacturers brand and its value alternatives. This unique relationship and the increased role played by private labels raises fundamental questions as to their pro-, and possible anti-, competitive effects. It further highlights the shifting power balance between the producer and distributor and between the private label and branded good. This paper focuses on the effects of private labels, sold in major supermarkets, on retail competition and consumer welfare. In particular, it considers how supermarkets affect competition due to the fact that they retain control over shelving, in-store promotion and the pricing of branded and own label goods in addition to having superior access to consumer data. Furthermore, it reviews the enforcement of competition law in a private label environment and the difficulty in balancing the beneficial short-term effects of private labels and their possible, harmful, long-term effects. It subsequently questions whether these difficulties imply a lack of competitive harm or reflect a gap in regulation, as traditional analysis fails to encompass the increased market power of retailers and the existence of vertical competition.ISBN: 1011-4548This book is designed as a working tool for the study and practice of European Competition Law. It is an enlarged and updated second edition of the highly practical guide to the leading cases of European Competition Law, first published in 2008. This second edition focuses primarily on Article 101 TFEU (Ex Article 81 EC), Article 102 TFEU (Ex Article 82 EC) and the European Merger Regulation. In addition it explores the public and private enforcement of Competition Law, the intersection between Intellectual Property Rights and Competition Law and the application of Competition Law to State action. Each chapter begins with an introduction which outlines the relevant laws, regulations and guidelines for each of the topics, providing the analytical framework for the case entries that follow. The case entries are then set out is summary form, accompanied by analysis and commentary.ISBN: 1849460477/97818494In recent years the debate on the soul of Article 102 TFEU and the effects based approach have dominated the competition law landscape. While many would agree on the clear merit of introducing more carefully balanced analysis when establishing abuse, the practicalities of such an approach have been difficult to agree upon. The recent Guidance Paper on Enforcement Priorities in the Application of Article 102 TFEU, which stemmed from the public consultation, has further sparked the public debate in this area. Concerns were raised as to the scope of the effects based variants in the Guidance Paper and the innovation it heralds - for example in the treatment of fidelity rebates and the use of the new proposed efficiency defence. Beyond the substantive and conceptual complexities that an effects based approach carries, its practical application has given rise to an interesting and somewhat disconcerting duality. On one hand, the European Court has not yet warmed to the effects based approach. In its judgements, the Court, has by large, continued to hold that it is not necessary to demonstrate that the abuse in question had a concrete effect on the markets concerned. It has generally ignored the lively debate on the effects based approach and even at times, the opinion of its own Advocate General . On the other hand, the Commission has pushed toward an effects based analysis, not only in its Guidance Paper but also in its decision making. In the Prokent/Tomra decision the Commission noted that it has completed its analysis by considering the actual effects of the dominant companys practices and did not satisfy itself with the lower formalistic threshold established by the Court. Similarly, in Intel Corporation , the Commission took the decision in line with the orientations set out in its Guidance Paper and considered the effects of the fidelity rebates. The Commission noted, however, that even with the absence of harmful effect, Intels behaviour may be condemned under the formalistic analysis of abuse as applied by the Court, thus using a dual benchmark in its decision making. This Form based approach at the European Court and the Effects based approach as applied by the Commission, trigger apparent legal and business uncertainty.ISBN: 1744-6414ISBN: 9781841136745ISBN: 9770972509009ISBN: 9781845421816DOI: 10.1093/ojls/gql006ISBN: 1464-3820ISBN: 1011-4548ISBN: 0882-6420
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