Antitrust Bulletin最新文献

{"title":"White Label: The Technological Illusion of Competition","authors":"Garry A. Gabison","doi":"10.1177/0003603X221126160","DOIUrl":"https://doi.org/10.1177/0003603X221126160","url":null,"abstract":"This article looks at the competition (or lack thereof) in the U.S. and EU financial service markets and how innovative companies have decided to enter the market. Over the years, many start-ups have ventured into financial services; however, they have faced heavy regulations. These regulations have led these companies to using a “white label” business model. This model has wide competition law implications: some good (e.g., more innovation at different levels of financial services) and some bad (e.g., innovative companies being bought out). These start-ups do not provide the competition first hoped while competition authorities and regulators often lag behind the technology to act and preserve competition before it is too late. This article makes some recommendations how the U.S. and EU competition authorities can learn from each other’s mistakes.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"642 - 662"},"PeriodicalIF":0.0,"publicationDate":"2022-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41672591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Missed Opportunity: The European Union’s New Powers over Digital Platforms","authors":"John Davies, Valentine Meunier, Gianmarco Calanchi, Angelos Stenimachitis","doi":"10.1177/0003603X221126128","DOIUrl":"https://doi.org/10.1177/0003603X221126128","url":null,"abstract":"The Digital Markets Act (DMA) in the European Union assumes that all large “core platform service” providers pose similar threats to competition and to fairness and thus imposes identical obligations on all of them. The alternative “New Competition Tool,” that would have allowed the European Commission (EC) to conduct fact-intensive investigations of markets to design bespoke remedies, has been largely abandoned. The approach adopted contradicts the basic principle that competition policy should be concerned with evidence of adverse effects. The proponents of the adopted form of the DMA argue that ex ante action is required to forestall irreversible harm to competition, but that same logic also implies assessing the risk of harm from excessive regulation—and the DMA contains no mechanism to do so. Given the different underlying economics of different kinds of platform services, including the way some support digital ecosystems involving many firms, a different approach is needed. The EC missed the opportunity to introduce a market investigation tool. The rigid and static framework of the DMA seems like the wrong solution, given the economics of digital markets.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"504 - 521"},"PeriodicalIF":0.0,"publicationDate":"2022-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42769757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Effective Merger Review: A Question for Australian Courts?","authors":"Rhonda L. Smith, Deborah J. Healey","doi":"10.1177/0003603X221126158","DOIUrl":"https://doi.org/10.1177/0003603X221126158","url":null,"abstract":"There is increasing global concern about the effectiveness of merger control in competition law. Globally, concerns about rising market concentration and in particular, the effect of consolidation by digital platform businesses, have prompted numerous inquiries and articles exploring whether competition laws are effective in addressing concerns about their anticompetitive impact in relation to mergers. Australia’s approach to merger control makes it an outlier in a number of ways. Its major approval procedure, informal clearance, is outside the scope of the Competition and Consumer Act 2010 (Cth). Formal decisions are generally heard in courts. Of note, under the current “likely substantial lessening of competition” test which became operative in 1993, the Australian Competition and Consumer Commission (ACCC) has not successfully proven in court that a merger would be likely to infringe the law. This article examines the methodology of Australian courts in applying this test, including the judicial approach to acceptance and assessment of economic and noneconomic evidence. It suggests approaches to enable consideration of the best evidence available. This analysis is in the context of amendments to the merger system recently proposed by the ACCC. We conclude that there are significant challenges in determining whether a merger is anticompetitive and that changes to the relevant methodology are necessary. This might be done by adopting the ACCC proposals or by a reconsideration of the merger factors and the approach to applying them.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"600 - 621"},"PeriodicalIF":0.0,"publicationDate":"2022-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41815916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Competition Law Enforcement in Digital Markets: The Brazilian Perspective on Unilateral Conducts","authors":"Caio Mário S. Pereira Neto, R. Pastore, Raíssa Paixão","doi":"10.1177/0003603X221126159","DOIUrl":"https://doi.org/10.1177/0003603X221126159","url":null,"abstract":"Following an international trend, Brazil’s National Competition Authority (NCA), the Administrative Council for Economic Defense (CADE), has been devoting more attention to potential anticompetitive conducts in the digital economy. This article discusses a set of cases involving unilateral conducts in the digital economy, assessing CADE’s decision-making practice, enforcement challenges, and tools used. Building from CADE’s case law, we single out some relevant aspects of the Brazilian experience, including (1) the cautious approach taken by CADE when evaluating effects of unilateral conducts in final decisions, (2) the use of interim measures to intervene in early stages of investigations, and (3) the use of settlements to reach quick solutions with negotiated remedies. A brief conclusion discusses possible future trends given the experience discussed in the article.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"622 - 641"},"PeriodicalIF":0.0,"publicationDate":"2022-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45077121","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"European Antitrust Enforcement in the Digital Era: How It Started, How It’s Going, and the Risks Lying Ahead","authors":"Athena Kontosakou","doi":"10.1177/0003603X221126138","DOIUrl":"https://doi.org/10.1177/0003603X221126138","url":null,"abstract":"The digitalization of economy, the proliferation of data collection, and the increased dependency of consumers on online services has brought about new ecosystems, new business models, and new, complex antitrust issues. Delineating the new remits of antitrust enforcement to tackle those issues is not an easy task. The present contribution discusses significant legislative and enforcement changes in Europe, both at Union and Member State level and identifies risks for the future of antitrust enforcement.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"522 - 535"},"PeriodicalIF":0.0,"publicationDate":"2022-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48320670","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Introduction and Synopsis","authors":"Ioannis P. Kokkoris, Claudia Lemus","doi":"10.1177/0003603X221126127","DOIUrl":"https://doi.org/10.1177/0003603X221126127","url":null,"abstract":"Considering the emerging consensus that traditional antitrust enforcement tools may not be fully successful in addressing concerns raised by the development of the digital economy, key stakeholders across the world are making great efforts to address the issue. In particular, the legislative initiatives of the European Union (EU) have been prominent in this area. The United States has belatedly shown signs that there are concerns about concentrated economic power in digital markets and antitrust is being portrayed as an effective means to address the adverse consequences on competition. In China, regulators have recently expanded their remit on competition enforcement in digital markets. The strengthening of regulatory actions against digital platforms has also echoed across the globe, including in jurisdictions such as Australia and Brazil. Yet, even if all these efforts are remarkable, it is still yet unclear whether the variety of the proposed interventions would tackle the competition enforcement challenges posed by digital platforms and whether there is disparity of enforcement approaches that creates its own challenges for the companies involved in the digital sector. In the EU, after months of stakeholder consultations and internal debate, in December 2020 the European Commission (EC) presented the Digital Markets Act (DMA), which is aimed to control a range of anticompetitive conducts of large online platforms (LoPs) and to ensure the expansion of European platforms in fair and contestable markets. In other words, the DMA is intended to create a level playing field on which European tech firms can compete against America’s tech giants. Recently, on July 18, 2022, the DMA was approved by the Council of the EU and is expected to inspire regulatory intervention in other jurisdictions. Hence, the DMA constitutes an ex ante regulatory regime that places the EC as the digital regulator and includes an exhaustive list of rigid obligations and prohibitions that need to be observed by designated gatekeepers. A company is presumed to be a gatekeeper if it meets the qualitative and quantitative criteria set out in the provision. According to Margrethe Vestager, the Commissioner for Competition, without these rules “others will not get room to grow.”1 Perhaps, but it may also happen that firms would feel discouraged to expand to the point where they may be subject to the DMA. Paradoxically, an instrument that has been created with the intention of spurring growth and innovation could lead to having an adverse impact on","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"499 - 503"},"PeriodicalIF":0.0,"publicationDate":"2022-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44964930","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Platform and Device Neutrality Regime: The New Competition Rulebook for App Stores?","authors":"O. Borgogno, G. Colangelo","doi":"10.1177/0003603X221103122","DOIUrl":"https://doi.org/10.1177/0003603X221103122","url":null,"abstract":"Among the numerous legislative initiatives implemented around the globe on digital platforms, some of these provisions are explicitly directed toward app stores. As they have all the distinctive features of multi-sided markets, app store owners represent the prototype of digital gatekeepers, controlling access to mobile ecosystems and competing with business users operating on the platforms. In light of the rule-setting and dual role of these gateway players, regulatory interventions are required in order to ensure that large app stores are treated like common carriers or public utilities, thereby imposing upon them a neutrality regime vis-à-vis new entrants. For the very same reasons, dominant app store providers have been subject to an increasing number of antitrust investigations attempting to ensure equal treatment and to avoid self-preferencing at the expense of rivals’ services. Against this background, the article investigates whether antitrust provisions are flexible enough to curb anticompetitive practices carried out by app stores and the extent to which regulatory interventions could, on the other hand, be necessary in order to address the seemingly unique features of the app economy.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"451 - 494"},"PeriodicalIF":0.0,"publicationDate":"2022-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43444333","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Vertical Mergers that Induce Exit","authors":"David J. Balan","doi":"10.1177/0003603X221103198","DOIUrl":"https://doi.org/10.1177/0003603X221103198","url":null,"abstract":"It is well understood that vertical mergers can create an incentive for the merged firm to foreclose unintegrated rivals, and that one way this foreclosure can manifest itself is by driving an unintegrated rival below its minimum viable scale and causing it to exit. The central claims of this article are (1) that exit-inducing mergers are likely to be especially harmful because they result in the elimination of a competitor and (2) that even a modest amount of foreclosure can induce exit if the rival was not too far above its minimum viable scale before the merger. I argue that exit-inducing mergers merit explicit treatment in a revised version of the DOJ/FTC Vertical Merger Guidelines, both because they are harmful and because the possibility that they may occur with only modest foreclosure has important implications for how they should be investigated.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"442 - 450"},"PeriodicalIF":0.0,"publicationDate":"2022-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49245682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The 2020 Vertical Merger Guidelines: Some Suggestions for Revision","authors":"B. Alderman, R. Blair","doi":"10.1177/0003603X221103111","DOIUrl":"https://doi.org/10.1177/0003603X221103111","url":null,"abstract":"In 2020, the Department of Justice and the Federal Trade Commission (FTC) published their Vertical Merger Guidelines (VM Guidelines). The Guidelines were intended to reveal the principal analytical techniques, practices, and enforcement policies employed by the two Agencies, but they were short-lived at the FTC. In 2021, the VM Guidelines were rescinded by the FTC. Even before they were rescinded, their general language and some of the illustrative examples were not fully specified, which made them misleading. As work begins on reconstructing the VM Guidelines, we illustrate some of the weaknesses of the 2020 version and offer some suggestions for their revision. In this article, we will demonstrate why the incomplete specification can lead to some analytical difficulties. In addition, we will offer some clarifications and corrections. Our goal is to suggest refinements to the 2020 VM Guidelines so that they will be more useful in developing future guidelines for antitrust enforcement policy.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"390 - 405"},"PeriodicalIF":0.0,"publicationDate":"2022-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43536296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Vertical Merger Guidelines and the Rule of Law","authors":"G. Werden","doi":"10.1177/0003603x221103113","DOIUrl":"https://doi.org/10.1177/0003603x221103113","url":null,"abstract":"Mid-1960s Supreme Court decisions undermined the rule of law by giving the government unbridled discretion in enforcing Section 7 of the Clayton Act. Since 1968, the government has promoted the rule of law through guidelines limiting discretion. The Vertical Merger Guidelines, however, place no meaningful limits on agency discretion. They articulate theories under which mergers can be harmful but neither specific nor general standards. They set out no principles for determining when a merger harms competition, rather than a competitor, and no criteria for determining when harm to competition is likely, rather than merely possible. Nor do they convey the agencies’ general attitude toward vertical mergers.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"67 1","pages":"406 - 423"},"PeriodicalIF":0.0,"publicationDate":"2022-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43640374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}