12 research outputs found
Recommended from our members
Book Review: Evidence, Proof and Judicial Review in EU Competition Law by Fernando Castillo de la Torre and Eric Gippini Fournier
Recommended from our members
âExpert Evidence Deficiencies in the Judgments of the Courts of the European Union and the European Court of Human Rightsâ, George Cumming
Recommended from our members
Book Review: Alistair Lindsay and Alison Berridge, The EU Merger Regulation: Substantive Issues (5th edition, Sweet and Maxwell 2017)
Recommended from our members
FIDE Congress 2020 - EU Competition Law and the Digital Economy: United Kingdom Report
This report was prepared for the 29th biennial Congress of the International Federation of European Law (FIDE) to be held in The Hague in May 2020. It is the national report for the United Kingdom in response to Topic 3 of the 2020 FIDE Congress, titled âEU Competition Law and the Digital Economyâ. This report offers an overview of UK competition enforcement in digital economy markets by answering twelve questions organised into four sections. Part A summarises key UK antitrust and merger decisions, agency publications, priorities and goals of enforcement in digital economy markets. Part B focuses upon the definition of markets and conceptualisation of market power by UK authorities in digital economy cases in light of their challenges and particularities. Part C offers a detailed overview of the issues underpinning UK antitrust and merger scrutiny in this field: the types of conduct investigated, relevant factors and concepts, theories of harm, efficiency justifications and remedies in digital economy cases. Finally, Part D identifies the potential for incoherent enforcement in this field from two different sources: the overlap between UK competition law and ex ante regulatory regimes (e.g. consumer protection, data protection); and the overlap between the powers of various UK competition decision-makers (e.g. sectoral regulators, the Competition Appeal Tribunal, and the courts)
Recommended from our members
Whatâs in a name? The marginal standard of review of âcomplex economic assessmentsâ in EU competition enforcement'
Judicial control of the Commissionâs complex economic appraisals in EU competition enforcement has long troubled both academics and practitioners. Despite the commonly shared feeling that the marginal standard of review, as applied by EU Courts, is not as deferential as one might fear, its operation remains shrouded in vagueness, due to difficulties in defining the notion of âcomplex economic evaluationsâ as the trigger for a less strict standard of control and due to the lack of a clear understanding as to the errors that may invalidate the Commissionâs analysis. This article sheds light on the judicial scrutiny of complex economic assessments, and demonstrates that (a) complex economic evaluations may come in different varieties and should not be seen as a uniform group, (b) the manifest error of assessment test is not an intangible formula of judicial scrutiny, contingent on oneâs subjective perception of âmanifestnessâ, but targets four specific defects in the Commissionâs analysis: failure to correctly assess the material facts of the case, failure to take into account a relevant factor, taking into account an irrelevant factor that distorted the analysis, and failure to satisfy the standard of proof, and (c) EU Courts have three âacesâ up their sleeve that may enable them to diminish the Commissionâs margin of appreciation: economics, evidence review and Article 19(1) TEU
Recommended from our members
The Standard of Proof in Phase I Merger Proceedings: The Lesson from the Microsoft/Skype Appeal
How "certain" must the Commission be that a notified concentration will or will not impede effective competition on the market, if allowed to proceed, before it lawfully adopts a decision prohibiting or authorising it respectively? This question largely synopsises the heart of the heated discussions that the famous trilogy of merger annulments in Schneider Electric, Airtours and Tetra Laval incited. Amidst a general feeling that the evidence expectations of the European Courts had sharply increased, attempts were made to positively identify the standard of proof governing merger analysis.1 The issue is not one to take lightly. In view of the prognostic nature of merger control, what standard of proof the Commission has to satisfy determines not only the practical perception of the "significant impediment to effective competition" test as established in the EU Merger Regulation, but also the legitimacy of its decision-making. In this context, this article discusses the significance of the latest judicial insight into the problem of the standard of proof governing Phase I merger decisions as provided by the General Court in Cisco âs appeal against the Commissionâs authorisation of the Microsoft/Skype concentration
Recommended from our members
Revisiting Parental Liability in EU Competition Law
Why are parent companies held liable for the infringements committed by their subsidiaries under EU competition law? This article examines the jurisprudence of the EU Courts with a view to illuminating the rationale underpinning parental liability. Taking a closer look at the "single economic unit/undertaking" explanation endorsed by the Courts post- Akzo , it demonstrates that this doctrine lacks the exegetical power assigned to it, insofar as it is based on a fallacious reasoning. With this in mind, two alternative justifications for parental liability are then discussed: the "failure to exercise vigilance" theory and the "enterprise" rationale. As the article illustrates, both justifications have their advantages and limitations. Ultimately, the final choice lies with the EU Courts, but it is submitted that, all things considered, the "failure to exercise vigilance" argument offers a betterâor at least more realisticâsolution to the problem of developing a coherent explanation for parental liability in EU competition law
Recommended from our members
The Allocation of the Legal Burden of Proof in Article 101 TFEU Cases: A âClearâ Rule with Not-So-Clear Implications
This article evaluates the allocation of the legal burden of proof in cases concerning the application of Article 101 TFEU, as prescribed by Article 2 of Regulation 1/2003 which provides that the Commission is responsible for establishing that an agreement or concerted practice constitutes a restriction of competition by object or effect, whereas it is for the undertakings to demonstrate the âdefenceâ of Article 101(3) TFEU. The article investigates how this shared division of the legal burden instructs competition analysis under Article 101 TFEU and affects its enforcement; and secondly, whether such a bifurcated apportionment of the burden of persuasion respects the evidential prescriptions of the presumption of innocence. The analysis of these two questions yields the conclusion that shifting the legal burden of establishing the conditions of Article 101(3) TFEU on the undertakings is prone to distort the substantive scope of Article 101 TFEU and increase the risk of over-enforcement, whilst it is also at odds with the presumption of innocence. On this basis, it is submitted that Article 2 of Regulation 1/2003 must be re-read as placing the whole legal burden on the Commission and imposing only an evidential burden on defendant undertakings