Publications

Fabian Ziermann's recent article, entitled ‘Dark patterns: Can criminal law remedy the shortcomings of antitrust law?’ was published in the New Journal of European Criminal Law. The article examines how Austrian criminal law can address dark patterns in Big Tech and video games that mislead users to make purchases. Fabian argues that antitrust law may not be sufficient to curb these practices, illustrated by Amazon's marketplace, Google's search, and Activision Blizzard's (now Microsoft's) in-game purchases in video games. He proposes and tests whether dark patterns constitute criminal fraud under §§ 146, 148 of the Austrian Criminal Code.

The open access article is available here.

Vicky Robertson’s chapter on the judicial review of competition law decisions in Austria was just published by Kluwer Law. It focuses on the review of Cartel Court decisions by the Supreme Cartel Court since the entering into force of Regulation 1/2003. The chapter is part of a pan-European project that studied the judicial review of the public enforcement of competition law in all EU Member States as well as the UK, and uncovered patterns of judicial review as well as opportunities for harmonisation. The Austrian part of the project was supported by funding from the Austrian Federal Competition Authority. The book is available here, and the Austrian chapter is also available on SSRN.

Ariel Ezrachi (Oxford University) and The Hub’s Vicky Robertson have just published their paper entitled “Can competition law save democracy? Reflections on democracy’s tech-driven decline and how to stop it” in the Journal of Antitrust Enforcement. The paper explores the ways in which the digital economy contributes to distortion of information, and the role competition law may play in safeguarding democracy. It does so against the background of digital technologies and platforms that have brought a much-needed plurality to communications and the press, but that have also opened the door to increased manipulation, misinformation, and distortion in the marketplace of ideas. The paper is available in open access here.

There are two different notions of “undertaking” in competition law, argues our former Visiting Research Fellow Eva Fischer: One is the undertaking in the sense of Articles 101 and 102 TFEU, which is also the addressee of competition law sanctions. The other one, according to Groupe Gascogne (C-58/12 P), is used to determine the upper limit for fines based on Article 23(2) of Regulation 1/2003. In its recent judgment Deutsche Wohnen (C-807/21), the CJEU wrongly assumed that the concept of the economic entity, as derived from Articles 101 and 102 TFEU, should be applied to determine the fine under Article 83 GDPR. This calls for a clarification: The concept of the economic entity as it was developed in the aftermath of Sumal (C-882/19) should be limited to determining the addressee of the obligations imposed by Articles 101 and 102 TFEU. Applying the economic entity doctrine to determine a price cap under the GDPR or competition law severely limits the preventive effect of fines. Eva Fischer just published her findings, for which she conducted research during her stay at The Competition Law Hub and which she discussed in our Jour fixe in January 2024, in the German Zeitschrift für die gesamte Privatrechtswissenschaft (ZfPW 2024, pages 306-322).

In his recent article in the Austrian Law Journal, Fabian Ziermann and his co-authors Dwayne Bach and Patrick Petschinka discuss whether the Superleague decision could lead to a de facto divestiture of monopolies, in the sense that monopolists would have to divest control rather than assets. This follows from two main pillars. First, the CJEU lowered the bar for a by object infringement under Art. 101 TFEU in Royal Antwerp, with Superleague holding that the Meca Medina exception does not apply to by object infringements, significantly limiting the type of conduct that can be exempted. Second, in the context of Art. 102 TFEU, Superleague introduced obligations similar to those of the Digital Markets Act (DMA) on dominant undertakings that have the ability to regulate markets or market entry. Consequently, under Superleague any dominant undertaking may be subject to DMA-like criteria that limit the control it can exercise over markets.

The open access article is available here (in German) and here (in English).

The Journal of Antitrust Enforcement (Oxford University Press) is launching a call for papers for a Special Issue on the implications of the new Market Definition Notice (EU 2024) and the Merger Guidelines (US 2023), guest edited by Magali Eben and Vicky Robertson.

Topics include new approaches to market definition and how to rely on it, against the background of the recent Market Definition Notice and Merger Guidelines. Submissions in law as well as in economics are welcome!

Submit your abstracts with ideas for papers until 17 June 2024.

At The Competition Law Hub, we will host a workshop to discuss the draft papers on 20 November 2024 – stay tuned!

Find out more in the pdf below: