Margin Squeeze: Theory, Practice, Policy

Margin squeeze occurs where the margin between the price charged by a vertically integrated firm for a wholesale input, and its own retail price for the end product incorporating the input, is so low as to foreclose one or more affected markets. The extent to which margin squeeze should constitute a discrete competition law offence, distinct from predation or refusal to deal, is a disputed question. A jurisprudential chasm between the approaches to margin squeeze under European Union competition law and United States antitrust has emerged, following the Court of Justice of the European Union’s judgments in Deutsche Telekom and TeliaSonera and the US Supreme Court’s decision in LinkLine. The EU recognises a broad concept of margin squeeze, applicable in any sector; the US does not recognise margin squeeze as a standalone abuse, and moreover, the presence of sector-specific regulation excludes the application of antitrust to the price levels that comprise the squeeze. This paper explores the margin squeeze concept, with particular attention to both areas of contention

Convergence in competition fining practices in the EU

The need for increased convergence in the decentralized processes for public enforcement of EU competition law has received much recent attention. Yet, this debate lacks a convincing explanation as to why the goal of effective enforcement warrants further harmonization. Focusing on fining practices for competition infringements, this article explores possible justifications to explain convergence; the legal or other means by which harmonization could be achieved; and the choice of converged practices that might be implemented. Whilst the strict necessity for convergence is less obvious, the evolving structure of decentralized enforcement would arguably benefit from increased alignment. Key concerns identified are the need to balance consistency with flexibility, and the reflection of an EU-wide consensus on fining practice

Perspectives on liberalisation

A near-ubiquitous concept in legal debates on contemporary approaches to market regulation and reform, liberalisation broadly speaking involves a transition from controlled to competitive markets. Yet for many, liberalisation implies not merely practical processes and legal instruments of economic reorganisation and governance, but moreover a higher-level conception of how markets fit within society, and thus how law might be deployed to achieve wider social and economic goals. This article explores the concept of liberalisation in both its technical and more-disputed normative dimensions, seeking to situate the latter within an understanding of the functioning — and limitations — of the former

Characterizing hard core cartels under Article 101 TFEU

The prohibition of cartels embodies arguably the sole universal norm of global competition law. Yet a precise understanding of what constitutes a cartel remains elusive, a problem that is exacerbated in the context of Article 101 Treaty on the Functioning of the European Union by the Commission’s administrative enforcement procedures and the expansive approach to the “by object” category of restraints. This article aims to provide a more precise characterization of the hard core cartel concept as reflected in EU competition case law and practice and to explore why such conduct continues to constitute the “supreme evil” of contemporary antitrust enforcement

Price regulation in the social market economy

Establishing open and undistorted competition within the internal market is a primary goal of the EU legal framework. Price controls, by contrast, are among the clearest derogations from this overarching objective. Yet much price regulation continues to occur within the internal market. The treatment of such regulation thus raises challenging questions, both substantive and institutional, about the nature of economic governance in the context of the EU’s ‘highly competitive social market economy’. This article begins with a consideration of price regulation, both in economic terms and in relation to its place within the institutional and ideological structure of the EU. It then examines differing approaches seen in EU law: from a sceptical prohibitive approach, to a cautious yet more receptive permissive approach, to an essentially prescriptive approach incorporating price regulation into the fabric of the internal market. The aim is to contribute to a more nuanced understanding of the challenges facing the pursuit of ‘open and undistorted competition’ within a modern social market economy

Pro-competition regulation in the digital economy: the United Kingdom’s Digital Markets Unit

The United Kingdom, like many jurisdictions, is introducing more demanding ex ante regulation for the digital economy. Centered on the work of a Digital Markets Unit located within the existing copetition authority, the U.K. proposals are defined by an explicit commitment to “pro-competition” regulation. This article traces the evolution and emerging design of the forthcoming U.K. regime. It then explores the notion of pro-competition regulation in greater detail. While the concept increasingly transcends its domestic origins, this article argues that the balancing act between conventional competition law and traditional regulation that it reflects can be fully understood only when located within the distinctive circumstances of the wider U.K. regulatory landscape

Fairness and the challenge of making markets work better

This article explores the revival of fairness as the lodestar of EU competition enforcement. It considers the theory and evolving discourse of fairness, then identifies and evaluates examples of fairness-oriented enforcement activity. Concluding that fairness represents a distinct development from the ‘hipster antitrust’ movement, the article suggests reasons to explain the shift, including a need to rehabilitate the social market economy in an age of market-scepticism, and to facilitate the progressive expansion of competition law to address modern market failures

Liberalisation and the pursuit of the internal market

Economic liberalisation operates both as functional process and disputed ideological touchstone within the pursuit of the EU’s internal market. This article evaluates liberalisation efforts to date, addressing both positive and normative perspectives. It considers the meaning of liberalisation; discusses the legal instruments that exist within EU law; suggests explanations for its prominence; and explores the extent to which ideologically-oriented understandings of such reforms are reflected in the resultant character of the internal market. In doing so, the article aims to identify and analyse the deeper implications of the recurrent use of liberalisation as a tool of economic integration within the EU

Regulating prices in the European Union

Establishing open and undistorted competition within the internal market is a primary goal of the EU legal framework. Price controls, by contrast, are among the clearest derogations from this overarching objective. Yet much price regulation continues to occur within the internal market, the legal treatment of which is recognised to raise exceptional issues in the context of both positive and negative integration. This article explores the approaches within the EU legal framework to price regulation, broadly construed. Following a theoretical inquiry of the institutional and ideological challenges posed, a range of regulatory circumstances is considered: from competition enforcement, to the free movement rules, to examples of direct regulation through EU law. A tentative explanation for the distinctive treatment of price regulation is then advanced, premised upon the axiomatic role of the price formative mechanism in motivating the entrepreneurial impulses which underpin the internal market. The aim is to contribute to a more nuanced understanding of the challenges facing pursuit of ‘open and undistorted competition’ within a modern social market economy

Public interest and EU competition law

While European Union (EU) competition law has long been understood as a variety of public interest law, the extent to which the rules can be applied directly to advance noneconomic public interest-oriented goals is more contentious. This contribution considers whether and how such concerns can be accommodated within the framework of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). It considers both the conventional approach to addressing public interest concerns within the analytical structure of the antitrust rules and also how broader public interest objectives have shaped recent EU-level enforcement efforts in three key sectors: the liberalizing public utilities markets, the pharmaceutical sector, and the digital economy