Browsing by Subject "competition law"
Now showing items 1-6 of 6
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(2024)This paper examines the relationship between competition damages and leniency programmes in the EU. The idea of a leniency programme is that a member of a cartel discloses its participation in the cartel and the existence of the cartel to the competition authorities. If the applicant provides sufficient information and cooperates with the authorities, it is granted immunity from fines. However, the immunity recipient remains liable for the damage caused by the cartel through overcharging. There has been a global decline in the number of leniency applications, and it is likely that the introduction of private enforcement in the EU has contributed to this trend. In this study, it was assessed whether private enforcement or leniency programmes should be reformed in a way that would encourage private enforcement while safeguarding the effectiveness of leniency. In order to assess this issue, the EU system was compared to the equivalent US system, as private enforcement of competition law is much more active in the latter. The main finding is that in the US, cooperation between leniency applicants and civil plaintiffs is encouraged by a combination of carrots and sticks. To receive immunity from fines, the leniency applicant must cooperate with private plaintiffs by providing them with all the necessary information. In the EU, Directive 2014/104 on the private enforcement of competition law has harmonised some of the rules of the Member States. Leniency statements cannot be disclosed, and other information provided under the leniency programme can only be disclosed only after the Commission has closed its proceedings. In the light of the US system, it is important to provide for carrots and sticks to ensure the effectiveness of leniency and private enforcement. Directive 2014/104 is based on the principle of full compensation, and under this principle it is not possible to provide for further limitations on the liability of immunity recipients. If a derogation from the principle of full compensation is allowed, it would be possible to simultaneously increase the effectiveness of both leniency and private enforcement. This would require the introduction of class actions in the EU, while the liability of an immunity recipient would be limited by allowing an exemption from joint and several liability. These reforms would increase the deterrence of private enforcement while at the same time incentivising leniency applications.
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(2023)Abstract Faculty: Faculty of Law Degree programme: International Business Law Programme Author: Aitor Sevillano Orbegozo Title:” Exclusivity agreements in international business operations; Risks and best practices. Level: Master’s thesis Month and year: November 2023 Number of pages: 79 Keywords: Exclusive dealings, competition law, international law, employment law, freedom of contract, choice of law, EU Law, exclusive clauses, contract law. Supervisor: P. Sean Morris Where deposited: E-thesis Helsinki University Abstract: This thesis will address the question of exclusivity clauses in business operations at the international level, consequentially establish what the risks are, and determine the best practices for entering into an exclusive commercial agreement in an international context. I will explore the international business environment and how companies interact with other undertakings in this environment. We will proceed by studying exclusivity in its different forms and aspects in a contractual context and dissecting exclusivity dealings exposing its features and effects, as well as looking at them through a dimensional prism. This will serve to understand and see how exclusivity terms affect the parties to an international business arrangement and the effects they have in the market they operate. Using principles of legal theory such as freedom of contract, and using a theoretical approach, a study of the effects of exclusivity will be elaborated considering the factors and attributes inherent to the inclusion of exclusivity terms in a commercial contract. Classifying and studying the effects of exclusivity considering the effects as isolated items and how these shape the relationship between the parties and play a role in international business operations. We will examine how exclusivity clauses position the parties in respect to their contractual relationship. Laws and regulations applicable to exclusivity agreements will be identified and considering these, the applicability and validity of exclusivity clauses and agreements will be scrutinised. Competition law and employment law will be the main fields of exploration to observe and study how these two fields of law regulate exclusivity terms in view of the horizontal and vertical direction of exclusivity agreements between the parties. We will use the examples of EU and UK regulations as they have a different angle in approaching the validity of exclusivity agreements. Following the identification of the main elements of exclusivity agreements, based on Competition end employment regulations as well as business elements, I will classify and identify the risks that the use of exclusivity agreements has for international commercial agreements, from an operational and legal perspective. Considering the risks and the features of exclusivity agreements, I will propose best practices to avert or remedy the risks and to achieve the best efficient use of exclusivity agreements.
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(2020)Merger control in the European Union is governed by the EC Merger Regulation No 139/2004 (the EUMR), which sets out jurisdictional thresholds that the merging companies need to exceed for the transaction to be reportable. The current EUMR relies on thresholds that are based on the annual turnover of the merging parties. These turnover-based thresholds, which were as a political compromise, provide a straightforward way of determining which mergers need to be notified to the Commission. However, developments in the digital economy have facilitated a trend, especially in the technology markets, where companies acquire innovative start-ups, to either take over their valuable assets or restrict competition and their position on the market. These acquired start-ups generally produce minimal turnover but have a large user base and valuable data sets. Thus, these aforementioned mergers do not fall under the Union dimension, due to the currently applicable high turnover-based thresholds. This study assesses if turnover-based thresholds are effective enough to tackle mergers occurring in the digital economy and whether there is a need to introduce additional thresholds to complement the currently applicable thresholds. In addition, the study researches what principles should be followed when introducing new thresholds and what are the possible new alternative thresholds that the Commission could introduce. This is a legal dogmatic study, which also includes come comparative elements. It contains seven chapters, each one addressing and examining certain aspects of the research questions. Chapter 1 introduces the subject matter, objectives and rationales for the carrying out of this study. Chapter 2 gives an overview of the framework of merger control, Chapter 3 discusses whether the existing EU merger control threshold criteria are inadequate of the digital era. Chapter 4 gives an overview of different thresholds used in seven jurisdictions, Chapter 5 compares the possible alternative thresholds with three normative benchmarks and gives recommendations for introducing new threshold criteria in the EU. Chapter 6 concludes and answers the research questions and gives suggestions for further research. The study found that that the currently applicable high turnover-based thresholds set out in the EUMR are not sufficient enough to capture mergers in the digital economy. In addition, considering the needs of the digital economy, especially the fact that the number of transactions taking place in the technology markets is rapidly increasing, the Commission should introduce in addition to the turnover-based thresholds alternative thresholds, especially in technology markets, to predict the potential anti-competitive outcomes of mergers, which are not suitable to be thoroughly assessed solely based on the turnover figures of the parties. Additionally, the study suggests that new alternative threshold criterion, based on transaction value, could be introduced to the EUMR. This threshold would be able fill the gap in the EUMR, so that the Commission could investigate notable transactions in the digital economy which are likely to produce competitive harm but currently lack the turnover to fall within the EU’s jurisdiction.
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(2020)Public policy considerations have had a varying degree of impact in EU competition law. Throughout the years, the European Commission has allowed for certain public policy considerations, such as the protection of the environment and employment, but “the more economic approach” of the early 21st century has marked a turning point in this regard. Economic analysis has since the late 1990s become an increasingly important part of competition analysis and enforcement, and the focus on economic parameters has led to a more cautious attitude towards public policy interests. Despite the advantages that the more economic approach has given to EU competition law, some argue that it has led to an overly price-centric approach to consumer welfare. Competition policies on a global scale are affected by different underlying economic theories. The varying economic and theoretical approaches can be classified into different schools of thought, which affect the underlying presumptions of how competition in the market is achieved. Antitrust law in the United States has been affected mainly by the Chicago and Harvard schools of thought, both of which have also affected the development of EU competition law. However, EU competition law can also be perceived as its own, distinct school of thought, namely the European school of thought. The purpose of this thesis is to assess public policy considerations in light of the European school of thought and its theoretical framework. The research question entails several different themes. Public policy considerations are first studied with case law and sustainability is highlighted as a recent and relevant example. In addition to public policy considerations, another essential theme to this thesis is the different schools of thought affecting competition law and policy. By studying the European school of thought and the social market economy, this thesis aims to emphasise the sui generis features of EU competition law. As the notion of social market economy implies that competition law should consider societal concerns as well, a relevant question in this regard is whether competition law should be interpreted coherently with the totality of EU law. In other words, this is a question of whether competition law should remain independent of the totality of EU law, or whether EU-wide goals and values should be accommodated in competition law as well. This thesis also studies the possibility of a broader conception of consumer welfare, mainly by analysing “the fair share of the benefits” and the concept of consumer well-being. The research question is contemplative by nature, and so are the conclusions of this thesis. A primary issue in studying this topic is that the objectives and priorities of EU competition law remain somewhat unclear. A central notion in this regard is the dichotomy between the Commission and the European Court of Justice, as they have given somewhat differing notions on the objectives of competition law. As for the European school of thought, a central notion is that EU competition law is embedded in a framework that is fundamentally different from the Chicago school of thought. The concept of the social market economy, together with Article 3 TEU and Articles 7 and 11 TFEU, suggest that the theoretical foundations for considering public policy interests in competition law exist. Studying the possibility of long-term consumer welfare, benefits to the society as a whole and the concept of consumer well-being, demonstrate that the economically oriented notion of consumer welfare is perhaps too narrow in the context of the social market economy. All in all, the question of public policy considerations in EU competition law is ultimately perceived as a question of including fundamental values and objectives of the Union in competition law and policy.
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(2022)My master’s thesis concerns the interplay of three distinct topics: sustainability, intellectual property rights and competition law. The perspective is systemic: the aim is to give a bird’s-eye view to issues that concern all three of the topics. The definition of sustainability is viewed theoretically as a form of justice and acquiring its practical meaning from the United Nations’ Agenda 2030 Sustainable Development Goals. The potential intellectual property right and competition concerns in the sustainable development goals are described and analysed in the thesis with the focus on those where the issues arise when an exclusive right of an IPR becomes a form of abuse of a dominant market position. The key findings of the thesis include the classical access versus incentive problem on how to let especially developing countries access innovations that increase the wellbeing of people and the environment while also incentivising further innovation. Further findings concern the role of competition law as a balancing tool for IP law by restricting what kind of licensing behaviour can be accepted for innovations that are important for promoting sustainable development. In addition, critical observations of the need of coherence of regulation and the predictability of competition law enforcement in sustainability settings are presented. In conclusion, intellectual property law and competition law can both be useful in promoting sustainable development at their current state, but both could benefit from attention from legislator regarding their missions. It should also be remembered that intellectual property law and competition law cannot be the only fields of law taking part in this task and whose mission is updated, but rather it should be considered which objectives are best suited to regulate within other fields of law.
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(2015)Data is the fuel of the digital economy and has become vital for innovation and consumer targeting. Data use is therefore also becoming a central factor for the competitiveness of markets. The increased processing of personal data has prompted a response from the EU legislators to improve the right of individuals to control their data through data protection rules. Now, it has been called for considering the of role competition law in striking down market conduct that reduces the users’ privacy. The question has been brought up in the Facebook case by the German Federal Cartel Office, and has accordingly become an issue EU competition law cannot ignore. Therefore, this thesis will examine to what extent the imposition of user terms that are disadvantageous to the end user’s privacy or breach of data protection rules can be considered an abuse of dominance under competition law. This will be done through a critical analysis of the Facebook decision, and an examination of the possibilities for similar conduct to be considered abusive according to Article 102 TFEU. Chapter 2 explains central factual and economic concepts that contribute to understanding how competition works in data-driven markets. First, Big Data is defined based on its central characteristics. This establishes data’s importance for digital markets. Secondly, economic concepts such as network effect, switching costs and economies of scale that typically occur in these markets, are examined. Finally, the chapter presents the legal notion of abuse of dominance under German and EU competition law, and the general concept of data protection law in the EU. This provides the foundation for the further analysis. Chapter 3 provides an overview of the Facebook decision and proceeds with a critical analysis. The Federal Cartel Office found Facebook’s data processing policy to violate data protection rules and to constitute an abuse of a dominant position. Members of the social networking platform had to agree to the collecting of data from outside of Facebook and merging it with the user profile. In particular, two aspects of the decision call for examination. First, the geographical scope of Facebook was found to be national, which means that German, and not EU, competition law was to be applied. Ensuring the national competition authority to be competent to investigate the case, this thesis questions whether the scope should have been wider. Secondly, relying on a breach of data protection law to establish an abuse is novel. As the case law on exploitative abuses is limited, a critical evaluation is done of the reasoning to assess the decision’s value in this regard. Chapter 4 examines the possibility for the imposition of contractual terms that decrease the user’s privacy to constitute an abuse of dominant position under Article 102 TFEU. This is done through first drawing up guidelines based on the relevant case law on exploitative abuses, which identifies a proportionality test for unfair trading terms. Further, the possibilities for relying on the breach of other legal provisions, in particular data protection rules, in the abuse analysis is explored. The analysis concludes that such practices can constitute unfair trading conditions and therefore be an abuse of dominance. However, the analysis heavily relies on the facts of the case where the objects and benefits of contract terms imposing data processing is central in the assessment of proportionality. The second part of the chapter considers potential issues of applying competition law parallel with data protection law. Especially, it focuses on how the principles of ne bis in idem and rule of law can be safeguarded. Chapter 5 explores the intersection between competition, consumer and data protection law and asks if competition law is a suitable tool to pursue data protection goals. The similarities and differences between the three legal fields are considered, as well as experiences with conduct similar to that of Facebook in Germany in other jurisdictions. The thesis then considers the role of EU competition law de lege ferenda for such behaviour. It is argued that a holistic approach to violations of data protection rights or similar reduction of privacy through contractual terms is necessary, and that competition law should not distance itself from these issues. It is concluded that competition law can play an important role, but it must be evaluated on a case-by-case basis whether competition law is the suitable legal tool for intervention. The thesis concludes that practices similar to that of Facebook can be considered to constitute an abuse of dominance under Article 102 TFEU. However, caution must be exercised based on the facts, to determine whether it should be applied in the case at hand. This way, competition law can contribute to creating a holistic approach to the issues arising in the market due to data protection issues.
Now showing items 1-6 of 6