On 6 December 2024, Vicky Robertson will be discussing the interplay between democracy, competition law and digital markets at the OECD Competition Committee Roundtable on “The interaction between competition and democracy” in Paris. You can read the note she prepared for her intervention here.
The OECD’s Background Note on the topic is also already available here.
Petar Petrov’s article on the annulment by the General Court of the German support scheme granted to Deutsche Lufthansa in the context of the COVID-19 crisis was recently published in Zeitschrift für Beihilferecht. Petar’s contribution (in German) can be retrieved here.
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.
In the new and expanded edition of the Elgar Encyclopedia of International Economic Law, edited by Krista Nadakavukaren Schefer and Thomas Cottier, Vicky Robertson contributed a chapter on “International Competition Law?”, tracing attempts at harmonizing competition law on an international (UNCTAD, WTO) as well as on a regional (ECOWAS, EU, COMESA, CUSMA, OECD) level. She also addresses the work of the International Competition Network (ICN) as an informal inter-agency network, and the extraterritorial application of competition law. The chapter can be accessed 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.
In the Yearbook on Digitalization and Law 2024, Franziska Guggi discusses the possibilities of computational antitrust for uncovering bid rigging, especially against the background of the Austrian construction cartel. She argues that cartel screens, as for example used by the Swiss competition authority, could also prove useful for the Austrian Federal Competition Authority in its future work. Both the large amount of data obtained from the investigations into the construction cartel and the requirements of the Austrian Federal Procurement Act, which calls for the publication of results for certain tenders, provide a good basis for such efforts. The Yearbook can be obtained here.
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.
In the new Research Handbook on Sustainability and Competition Law, edited by Julian Nowag, Klaudia Majcher and Vicky Robertson contributed a chapter on competition law’s role in the twin digital and green transition. They discuss how digital and green competition law might interact to achieve the EU’s ambitious economic and societal transformation, while also highlighting the limits of coherence among the two. The chapter 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).
Vicky Robertson and Alexandre de Streel (Université de Namur) contributed to a new brochure on the Digital Markets Act (DMA) aimed at tech challengers (“business users”) and issued by the Belgian Competition Authority on the occasion of the ECN DMA conference in Amsterdam on 24 June 2024. The brochure aims to highlight the opportunities in digital markets that the DMA opens up, and how digital businesses could make use of them. The draft version is now open for consultation and available here.
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 first part of Fabian Ziermann’s three-part article on the nature of eSports and gaming ecosystems in SpoPrax, a German (e)Sports law journal, outlines the role of network effects and orchestration. Fabian discusses the evolution of gaming from hardware-centric to software-centric ecosystems, the intricacies of gaining and maintaining market power, and the economic cost thereof. The three-part series aims to highlight issues of economic fairness for non-publisher stakeholders. It can be accessed here.