Recalibrating the compass: towards effective competition law enforcement on mixed markets

The undertaking, a cornerstone of EU competition law, has consistently been approached as a functional concept. Any entity engaged in economic activity should be considered an undertaking, thereby ensuring consistent application of competition law across competitors. However, current national enforcement practice reveals a departure from the functional approach to the undertaking on mixed markets, where public and private firms compete. Particularly, allegedly anticompetitive behaviour by public entities has evaded competition law scrutiny in the Netherlands, because competition law was found not to apply to these public entities. Drawing on a jointly interpreted string of CJEU cases in competition law and state aid law – which this article coins as the “Compass doctrine” – the Dutch competition authority and courts found that economic activity by public entities is exempt from competition law when connected to the exercise of public power. Analysis of the Compass doctrine cases reveals how a number of case-specific outcomes taken together have allowed for an undermining of the functional approach to the undertaking. It is demonstrated how the sum of the Compass doctrine is larger than its individual parts, which seems to have been unforeseen by the CJEU. This article demonstrates how the Compass doctrine has two adverse consequences: (1) because it undermines the functional approach to the undertaking as the subject of competition law, it impedes effective enforcement; (2) the Compass doctrine enables public firms to behave anticompetitively on mixed markets. The CJEU never anticipated the advent of commercial behaviour by public entities, who with the Compass doctrine in hand can infringe competition law with impunity. Experiences in the Netherlands to this effect should be regarded as a canary in the coal mine for mixed markets across the EU. Therefore, it is incumbent on the CJEU to revisit the Compass doctrine in future cases, which may follow from preliminary references. This article recommends the CJEU to (re)emphasize that once an entity is engaged in economic activity, it can no longer escape competition law scrutiny by being connected to the exercise of public authority. To protect the level playing field on mixed markets, all economic activity should explicitly be subject to EU competition law

Commercial Divisions of Public Entities and the Limits of EU Competition Law

Competitive behaviour by public entities is generally approached in the literature as con- cerning the traditional State-owned enterprises pursuing public interest objectives. Howev- er, increasingly we see examples of commercial divisions of public entities aiming to gener- ate revenue per-se. Because these commercial divisions can enjoy competitive advantages over their private sector competitors, their behaviour may distort competition. This phenom- enon has become prevalent throughout the EU, and Member States tend to approach its an- ticompetitive effects through various competition law(-related) frameworks. This article points out, however, that a competition law framework may be ill-suited to address anticom- petitive effects of commercial divisions of public entities. With an ill-functioning and diverg- ing legal framework across the EU, anticompetitive effects of commercial divisions of pub- lic entities lead to an uneven playing field between public and private firms with adverse effects on the internal market

Commercial divisions of public entities and the limits of EU competition law

Competitive behavior of public entities is generally approached in the literature as concerning the traditional State-owned enterprises pursuing public interest or political economy objectives. However, increasingly we see examples of commercial divisions of public entities aiming to generate revenue — think of a commercial branch of a forestry service selling timber to construction firms to supplement its tax-based revenues. Because these commercial divisions enjoy various competitive advantages over their private competitors, their behavior may distort competition and market entry. A survey of Member States demonstrates that commercial divisions of public entities have become prevalent throughout the EU. Whereas anticompetitive behavior by commercial divisions is generally approached by means of competition law principles across EU Member States, this article demonstrates that competition law may not apply because these commercial divisions may not qualify as ‘undertakings’ under competition law. For the commercial divisions that would be considered undertakings, abuse of dominance might be established on a substantive level. However, competition authorities face numerous procedural and institutional challenges when enforcing against commercial divisions of public entities. The article then establishes two problematic consequences of the current approach to commercial divisions of public entities in the EU. First, an unequal playing field follows from the different treatment of private and public competitors in the application and enforcement of competition law. Second, the various competition law-inspired approaches towards commercial divisions of public entities hamper the internal market. The article concludes by suggesting possible remedies to these consequences: harmonization of competition law relating to anticompetitive behavior by commercial divisions, or enacting a standalone regulatory framework beyond competition law. Before resorting to these remedies, however, more research is necessary to appreciate and quantify the possible distortion of competition by commercial divisions of public entities, compile best-practice regulatory responses and further study effects on matters related to rule of law

Sense.us: Towards a more social ‘social visualization’

The present research analyses the ‘social visualization’ tool Sense.us, a commercial interactive Web application in which U.S. Census data are being visualized. Sense.us was developed as a tool for social data exploration and interaction, in which it would be worthwhile to pay attention to the socio-cultural values that have driven the collection and categorization of the underlying U.S. Census datasets. It is argued that closer attention to value-driven U.S. Census statistics would greatly enhance the social appeal of Sense.us, and would be a logical next step in the development of online social visualization tools. In order to allow for explicit socio-cultural values of statistics in online visualizations, three strategies are offered: pro-active annotation; more attention to visual aesthetics; and, a tighter integration of user profiles and represented data

Ongehinderd ondernemen: Hoe commerciële initiatieven van ZBO’s buiten het mededingingsrecht opereren

Er is sprake van een tendens in Nederland waarin ZBO’s zoals het Centraal Bureau voor de Statistiek, Staatsbosbeheer en de Kamer van Koophandel eigen inkomsten genereren uit commerciële initiatieven. De Wet Markt en Overheid (WM&O) heeft als doel een gelijk speelveld te bewaken wanneer publieke en private organisaties concurreren. Nu blijkt echter dat wanneer bedrijven handhavingsverzoeken indienen bij de Autoriteit Consument & Markt (ACM) vanwege vermeende marktverstoring door ZBO’s, zowel de ACM als de rechter in beroep de WM&O niet van toepassing verklaren op de activiteiten van de ZBO. Hierbij baseren ACM en rechter zich op jurisprudentie in het EU-mededingingsrecht. Dit artikel onderzoekt hoe deze situatie is ontstaan, wat de gevolgen hiervan zijn en in hoeverre maatregelen noodzakelijk zijn

The Case for Harmonizing Fault in Private Enforcement of EU Competition Law

In this article we explore fault as it has traveled from public enforcement to private enforcement of EU competition law and beyond the implementation of the Damages Directive. We demonstrate how differences between national tort law systems have prevented harmonization of fault in the Damages Directive. This leads us to point out the current different fault standards across Member States in private enforcement of competition law, ranging from strict liability, to a rebuttable fault presumption to a fault requirement. This variety of fault standards induces forum shopping between Member States, and has a negative effect on the European Internal Market’s level playing field. Given these adverse effects, we argue for harmonization of a fault standard in private enforcement of competition law, and find that harmonizing towards a rebuttable presumption of fault both is best in line with fair trial provisions, and best observes the effectiveness of EU competition law