Biographical information to follow
- ISBN: 978 1 80037 556 7The discussion about how European Union (EU) competition law can support sustainability goals, for instance those of the European Green Deal, entirely neglects the role Article 102 TFEU can play. Equally absent is a discussion of the role competition law enforcement can play to strike down unsustainable business practices. Instead, the debate is mostly dominated by how competition law can facilitate (otherwise anticompetitive) agreements of undertakings through the application of Article 101(3) TFEU, essentially, offering less competition in exchange for sustainability initiatives. Our research addresses the Article 102 TFEU gap in the debate and in the enforcement of EU competition law by looking at why and how the prohibition can be used as a sword to strike down unsustainable business practices. In this short chapter, we present our research on the relation between dominance and unsustainable business practices, examine briefly Article 102’s purpose and how it informs the concept of ‘abuse’, and introduce our ideas on how to see unsustainable business practices as ‘abuses’ of a dominant position. We do so by looking at barriers to entry, effects, and theories of harm. Our approach is a departure from how Article 102 is currently enforced and contrary to an economic approach to EU competition law that is obsessed with efficiency instead of fairness and level playing field, that understands competition as a race to the bottom to reward undertakings that care only about profit, that is disjointed from the acute problems our societies currently face, and that is based on a blind belief that markets will solve those problems. Yet, as we argue in this paper, that approach has failed and there is nothing normal, logical, or inevitable about the kind of competition it has enabled. We realised long ago that common standards (e.g. harmonization), offsetting charges (e.g. tariffs, anti-dumping measures, countervailing duties for subsidies), or exceptions on public policy grounds are needed in order to ensure States do not compete unfairly with low regulation. Within the context of constitutionalisation of private law, it is only inevitable to ensure that powerful market players be constrained from doing the same through their conduct. Thus seen, our approach is about more competition, just not the toxic kind. It is a call for refocusing competition policy and reconnecting concepts such as ‘abuse’ with the goals of the system of EU competition law.
ISBN: 978 1 80037 556 7
Having recently registered the 500th dispute at its docket, the WTO dispute settlement system is as prolific and relevant as ever. By almost any measure, it is a great success; it has contributed to bolstering the WTO’s legitimacy, increased the judicialisation of WTO Members’ trade relations, and promoted the scientification of public international law. With regard to the latter phenomenon, part of the empirical turn in WTO law is manifested as increasing reliance on economic theory and method, and econometric evidence in dispute settlement. Positive as that development may be due to the promise it holds for diminished judicial discretion, it increases complexity and poses questions as to the system’s capacity to administer WTO law in an efficient and effective manner, with implications for its legitimacy. Despite economics’ increased relevance, WTO law has not devised a way to implement a suitable response and its approach seems ambivalent. By contrast, EU competition law has undergone (arguably, successfully) a conscious transition to a 'more economic approach'. Could its experience provide guidance for the implementation of a more economic approach to WTO law, despite the two systems' institutional differences? This monograph compares WTO law and dispute settlement’s approach to economics with EU competition law’s more economic approach. The applied method is normative comparative law and economics and the relevant benchmarks adopted are administrability, effectiveness, and efficiency, taking into account legal certainty, predictability, consistency, coherence, clarity, deterrence, capacity, and the effects of judicial mistake. Three broad aspects of the two systems are compared: market definition and 'likeness', theories of harm and trade effects, and quantification in sanctions and remedies. Through detailed description of the two systems’ features and thorough evaluation according to the benchmarks, WTO law is shown to be less administrable, effective, and efficient than EU competition law. Explanations unrelated to the more economic approach are sought, but the majority are rejected. The monograph makes normative conclusions for WTO law’s improvement through the correct implementation of a more economic approach. Most importantly, it suggests increased capacity for all key actors in WTO dispute settlement and innovative ways to understand fundamental WTO concepts such as 'likeness', 'less favourable treatment', trade harm, trade effects, and the level of permissible countermeasures.
Journal Article (8)
With the climate and environment emergency as backdrop, we ask whether EU competition law and in particular Article 102 TFEU can and should be part of a holistic EU solution to solving the crisis and if so how it can contribute to ensuring that our social, economic, and ecological systems are not entrenched into further perpetuating and mutually reinforcing crises. This question relates to the existing debate about the goals of EU competition law and the relationship between antitrust and sustainability, but we broaden the perspective through the combination of legal with socioecological research. As shown in this paper, there is a significant sustainability gap in EU competition law, in particular when it comes to enforcing Article 102 TFEU as a 'sword' vis-a-vis dominant undertakings' conduct that has an impact on the environment. By using EU constitutional theories of 'mainstreaming', we show that a case can be made for including environmental and social sustainability goals in those that are pursued by EU competition law in order to hinder 'unsustainable business conduct' that harms people and planet. With research that cuts across law and socioecological studies, we offer an original and unique perspective that identifies hermeneutically and empirically a nexus between market power and business practices that harm people and planet. We do this, by demonstrating empirically, that undertakings that have in the past been found to be dominant by the Commission, also engage in unsustainable business practices. We show that this nexus is significant, as it demonstrates that addressing unsustainable business practices through the enforcement of Article 102 TFEU is not only a theoretical possibility mandated by EU constitutional law. It is a real opportunity to address environmental and social injustices and thereby contribute to tackling the most important existential threat currently facing humanity, climate change, by reading the relevant competition law test for ‘abuse’ through the constitutional law lens.
In November 2019, the German Constitutional Court delivered two significant rulings on the protection of fundamental rights when European Union (EU) Member States implement EU law within the meaning of Article 51 of the EU Charter of Fundamental Rights (the Charter). These two cases together break new ground in the Constitutional Court’s jurisprudence and at least partially strengthen fundamental rights protection in Germany. However, they also set the German Constitutional Court on a new course in its relationship with the EU Court of Justice (CJEU) and reveal certain potential inconsistencies in its jurisprudence with the CJEU’s case law. In this article, we present the facts of the two cases that related to the right to be forgotten and the GDPR and the rulings and reasoning of the Constitutional Court. We analyse and criticise the judgments, our main arguments being that (i) the German Constitutional Court strengthened fundamental rights protection through the Right to be forgotten cases by assessing constitutional complaints regarding fully harmonised EU law directly on the basis of the Charter, but (ii) at the same time introduced a "reverse Solange" presumption and reserved for itself the task of deciding where EU law leaves ‘leeway to design’ to Member States, thus undermining the unity of EU law and opening up for the possibility of disparities in fundamental rights protection in different Member States.
One of the external functions usually performed by entities effectively controlling a geographically defined area is the conduct of cross-border trade. To conduct international trade, entities that are recognised by the international community as sovereign States, or groups of such entities that form customs unions and free trade areas having legal personality under public international law, enter into treaties in the form of trade agreements that regulate the terms for the conduct of trade to and from those areas. However, there are also de facto independent regimes controlling geographically defined areas that, although not recognised as States by the international community, nevertheless conduct trade with States, to the extent they are not subject to trade sanctions or embargoes. In international trade law, these territories are usually termed ‘separate customs territories’, to distinguish them from sovereign States. These territories – topoi of ambiguity – are physical places whose status under public international law is (or has been) ambiguous, disputed, in flux, sui generis, or in any way unusual. This chapter is part of a wider research project whose aim is to systematically investigate on the basis of precedent the legal rules and practices by which de facto independent regimes, of which ‘separate customs territories’ as understood in international trade law form part, conduct cross-border trade and the ways in which States and international organisations react to these. The idea is to try to discern the public international law principles, legal rules, historical realities, or functionalist arguments – the notional places in international trade law that deal with the physical topoi to which topoi of ambiguity also alludes – that underpin the de jure or de facto territorial application of international trade rules to de facto independent regimes. Put simply, the question that I try to shed light on is why notions and requirements of statehood are decoupled from issues of the territorial application of the rules in the field of international trade law.
The article presents three case studies relating to multisided markets which were handled by the Swedish Competition Authority (SCA). These include the market for online booking of hotel rooms, the market for online listings of properties, and the market for online orders of take away food. The case studies show how an analysis based on the more recently developed economic theory on platform markets allows for a successful application of existing competition law. Moreover, common predictions on the economic behaviour of platform markets, as can be found in the academic literature, are tested against the experiences drawn from the aforementioned investigations. In addition to providing a robustness check on common assertions made on the functioning of platform markets, the article seeks to contribute to a better understanding of such markets by adding to the debate on when these common assertions are likely to hold.
*M Iacovides author of the section 'Amicable Settlements, Mutually Agreed Solutions and Withdrawals in 2014: Is Compensation Displacing Compliance'.
This analytical survey of WTO case law for 2014 is carried out within the framework of the PhD program in International Law and Economics of the PhD school of Bocconi University (Milan) and with the collaboration of the two Marie Curie Early Stage Research Fellows within the DISSETTLE network. Professor Giorgio Sacerdoti, a former member of the WTO Appellate Body (2001-2009), has coordinated the individual reviews of WTO case law. A shorter version of this review will be published in the 2014 Italian Yearbook of International Law. 2014 was in many ways an exceptional year for WTO dispute settlement. The Appellate Body was operating with six Members for most of the year and saw a record number of appeals brought to it. Delays ensued and resulted in friction between WTO Members regarding the interpretation of Article 17.5 of the DSU that sets out the time limit for the Appellate Body. Some appeals were put on hold. Requests for consultations remained high, and the number of established panels increased. In some cases panels were composed but could not begin work, as the WTO Secretariat could not support them. These developments led to an unprecedented speech of the Director General of the WTO (DG) to the Dispute Settlement Body (DSB). The DG announced some internal restructuring to allocate more resources to dispute settlement and asked WTO Members to consider other solutions, including increasing the number of Appellate Body Members to nine (Section 1). The year was also remarkable because of the disputes that were settled, or otherwise terminated. Notably in two disputes, US – Upland Cotton and US – Clove Cigarettes, mutually agreed solutions (MAS) were reached without bringing the measure into conformity with DSB recommendations. An argument can be made that compensation is displacing compliance. This and other systemic issues arising out of the two MAS are discussed. Two more cases were terminated, EU – Atlanto-Scandic Herring and EC – Seal Products II. The former is guaranteed to stay of interest for WTO lawyers and anyone interested in public international law, the law of the sea, and EU law (Section 2). Sections 3 to 7 provide case summaries of the four Appellate Body Reports that were adopted during 2014 and the one Panel Report that was adopted without having first been appealed. EC – Seal Products captured the attention of the wider community of international law scholars, animal welfarists and environmentalists. It also contains some interesting clarifications on the relationship of the TBT Agreement with the GATT (Section 3). US –Countervailing and Anti-Dumping Measures (China) continues in the tradition of disputes on trade remedies between the US and China. It sheds light on a previously unexplored matter concerning the interpretation of Article X(2) of the GATT (Section 4). China – Rare Earths continues the trend of disputes being brought on export restrictions, and has to be seen in the context of the importance of some raw materials for the manufacturing of complex consumer goods and in the defence industry. At the heart of the dispute is the relationship between China’s Accession Protocol and the WTO Agreement (Section 5). US – Hot-Rolled Carbon Steel (India) provides insight into the definition of public bodies that public international lawyers as well as WTO lawyers will find useful, and offers clarifications on “cross-cumulation”, that is whether an investigating authority may cumulate the effects of subsidised imports with the effects of non-subsidised imports subject to anti-dumping measures (Section 6). Finally, China – Autos (US), though not appealed, offers an interesting application of the Anti-Dumping and SCM Agreements (Section 7).
In Philippines - Distilled Spirits, the Appellate Body of the WTO reaffirmed that the determination of 'likeness' in the GATT should be about the competitive relationship between products. A coherent methodology for the determination of 'likeness' has finally begun to emerge, with the same methodology having been adopted in the GATS (Panel Report , China - Electronic Payments) and the TBT Agreement (Appellate Body Report, US - Clove Cigarettes). Yet, mainstream as the adoption of competition law methodology for the finding of 'likeness' may have become as of recent, its implementation by the adjudicating bodies of the WTO is still inadequate, as demonstrated by the disputes examined in this article. One recurrent problem is the choice of whose consumers' tastes and habits to take into account in the determination of 'likeness'. As shown in the article, competition law has had to deal with the same problem and has developed ways to address common fallacies arising out of relying on evidence regarding the choices of groups of consumers without the groups having been shown to be economically significant. The analysis suggests that the shortcomings of the application of competition law methodology at WTO dispute settlement can be easily addressed in the short-term by raising the awareness of the WTO Members, panels, and the Appellate Body to them, and by turning to competition law for readily available solutions, while increasing the institutional capacity of the adjudicating bodies of the WTO in the long-term.
The discussion about how European Union (EU) competition law can support sustainability goals, for instance those of the European Green Deal, entirely neglects the role Article 102 TFEU can play. Equally absent is a discussion of the role competition law enforcement can play to strike down unsustainable business practices. Instead, the debate is mostly dominated by how competition law can facilitate (otherwise anticompetitive) agreements of undertakings through the application of Article 101(3) TFEU, essentially, offering less competition in exchange for sustainability initiatives. Our research addresses the Article 102 TFEU gap in the debate and in the enforcement of EU competition law by looking at why and how the prohibition can be used as a sword to strike down unsustainable business practices. In this short chapter, we present our research on the relation between dominance and unsustainable business practices, examine briefly Article 102’s purpose and how it informs the concept of ‘abuse’, and introduce our ideas on how to see unsustainable business practices as ‘abuses’ of a dominant position. We do so by looking at barriers to entry, effects, and theories of harm. Our approach is a departure from how Article 102 is currently enforced and contrary to an economic approach to EU competition law that is obsessed with efficiency instead of fairness and level playing field, that understands competition as a race to the bottom to reward undertakings that care only about profit, that is disjointed from the acute problems our societies currently face, and that is based on a blind belief that markets will solve those problems. Yet, as we argue in this paper, that approach has failed and there is nothing normal, logical, or inevitable about the kind of competition it has enabled. We realised long ago that common standards (e.g. harmonization), offsetting charges (e.g. tariffs, anti-dumping measures, countervailing duties for subsidies), or exceptions on public policy grounds are needed in order to ensure States do not compete unfairly with low regulation. Within the context of constitutionalisation of private law, it is only inevitable to ensure that powerful market players be constrained from doing the same through their conduct. Thus seen, our approach is about more competition, just not the toxic kind. It is a call for refocusing competition policy and reconnecting concepts such as ‘abuse’ with the goals of the system of EU competition law.
One of the explicit aims of the Directive on competition damages actions (the Directive) is to make the quantification of harm resulting from violations of European Union (EU) competition rules easier for damages claimants. One of the several ways envisioned by the Directive to achieve that aim is Article 17(3), according to which national competition authorities (NCAs) may assist national courts in quantifying the harm caused by anti-competitive conduct. In this paper, I focus on the transposition of Article 17(3) of the Directive in Sweden and make the argument that Sweden has not correctly implemented the Article in Swedish law. The topic is admittedly rather limited at first glance, but a discussion on the (non-)transposition of Article 17(3) of the Directive in Swedish law offers three significant insights which make pursuing it worthwhile. Firstly, it informs us about the nature and degree of interaction of the Swedish Competition Authority (SCA) with Swedish courts and tells us something about the relationship between the two. Secondly, it reveals some important procedural differences between private and public enforcement of EU competition rules in Sweden and exposes a certain tension between national rules of procedure, on the one hand, and the effective application of EU competition rules in Sweden, on the other. “Effectiveness” is a requirement that follows both from well-established case law of the Court of Justice of the EU (CJEU) and from the Directive itself. As a result, the second insight inevitably leads to a discussion on whether certain aspects of Swedish procedural law may be impeding the effective application of EU competition law. Thirdly, it explores different courses of action for Swedish courts and claimants that may find, like this author, that Article 17(3) has not been implemented correctly in Swedish law.
Internet Publication (1)
EU competition law, antitrust, EU law, WTO law, international trade law, international economic law.