This article critically analyses the introduction and development of a system of competition law in Poland prior to 2016, a period when the country underwent two fundamental transitions: from a centrally planned economy to free markets and from communism to democracy. In particular, the study focuses on the competition agency’s setup, advocacy and enforcement efforts. It also examines the position and input of the judiciary, practitioners and the broader epistemic community. The study uniquely benefits from in-depth interviews with individuals who shaped the Polish system over nearly 30 years of its existence (inclusive of all former heads of the agency, judges, leading practitioners, and agency advisors) and from analysis of newly gathered data and statistics. It also draws on broader scholarship on new competition regimes. The findings are aimed to inform refinements in Poland and other countries establishing or developing competition law systems. This study will be particularly salient in countries that are undergoing or have undergone similar economic and/or political transitions.
Marek Martyniszyn, Maciej Bernatt, Implementing a competition law system—Three Decades of Polish Experience, Journal of Antitrust Enforcement, 2019, https://doi.org/10.1093/jaenfo/jnz016
Block exemption regulations (BER) survived the modernisation of EU competition law. According to the Commission, they play a major role in the system instituted by Regulation 1/2003. Some authors consider that BER are conceptually hard to nest within the new system, but that they provide legal certainty. Others adopt a more critical approach and propose their axing. This paper adopts the latter approach. In view of the mixed messages that the Commission has been sending in the review of existing general and industry specific BER, this paper revisits the institution of BER, its justification and need in the decentralised system brought forward by Regulation 1/2003 and the more economic approach to EU competition law. After stating the initial justification for BER under the prior enforcement system, the paper stresses the difficulties for their fitness within the new paradigm, focusing on the distortions that they may generate for an effective and consistent enforcement of EU competition law. In order to complete the modernisation of EU competition law in a second wave (that is, as a consequence of the current revision of Regulation 1/2003), the paper recommends a clear-cut policy to abrogate all BER and to issue substitutive guidelines in exchange.
together with A. Sánchez
The Competition Journal, vol. 6/2, July 2010, pages 183-201.
Inherent Defects Insurance (“IDI”) for new housing buildings has been mandatory in Spain since 2000. The institution of this requirement prompted an upsurge in the IDI market in following years. Having been confronted with competition, major insurance carriers active in the property insurance market formed a cartel, which involved IDI reinsurers. This article examines the features of the Spanish IDI cartel, as uncovered by the National Competition Commission (“NCC”) in 2009. The companies involved in the cartel were punished with a fine of over €120 million, the largest fine ever imposed by competition authorities in Spain. This article describes how the cartel was organized and operated, and emphasizes the reinsurers’ key role in assuring and propagating the effectiveness of the minimum price agreement throughout the property insurance market. It also critically analyzes the Spanish NCC’s assessment of the cartel, and how it dealt with the arguments submitted by the reinsurers to defend their behavior.
Connecticut Insurance Law Journal, vol. 18, issue 2, Spring 2012, pages 79-101.
This paper provides an empirical study of private enforcement of competition law in Spain from 1999 to 2012. So far, the Spanish literature on competition law private litigation is based on qualitative assessments and analysis of some key cases, but has not discussed all cases in depth.
Therefore, by broadening the scope of the inquiry, this paper aims to contribute to the policy discussion on the effectiveness of private enforcement of competition law in Spain. It gives a clearer picture of how private competition litigation is evolving in Spain. Any legal intervention or other policy decisions in this area should be based on an investigation of what is going on, what is working and what is not working in private litigation.
Evidence produced in this paper challenges the traditional view that private litigation in Spain is underdeveloped, amounting only to a few noted cases. The number of cases reported here suggests otherwise: there are many more private claims than previously thought, making the Spanish experience somehow comparable to that of certain other EU Member States.
Nevertheless, although the case-law reported here depicts an evolution of private litigation, with a conspicuous growth in the last five years; that should not be taken as meaning we already have a mature private competition system. Many court opinions (and lawyers’ pleas) still demonstrate some confusion of the aims of competition law, occasionally mixing it up with unfair competition law (and even, consumer protection law).
On the other hand, private competition litigation in Spain has particular features that this paper aims to describe.
Most of the litigation involves conflicts in contractual settings and lawyers have cunningly thrown in competition law as another argument in disputes. However, many of the anti-competitive claims are flimsy or simply inappropriate. In general, courts have done a good job rejecting meritless or unsubstantiated pleas.
Therefore, criticism of judicial performance in private competition litigation (based on the theoretical complexity of cases and lack of preparation) is in most of the cases unfounded and unwarranted. Judges have displayed considerable pragmatism in rejecting the strategic misuse of competition law.
On the other hand, the case-law reported here also challenges the view that private enforcement of competition law has mainly a compensatory aim. Although some competition claims request damages, most of the remedies awarded by judges are declaratory (of unlawfulness/nullity). Naturally, in the few cases where pecuniary claims have been argued, the normal issues issues of effectiveness, proof and quantification of harm have arised.
Finally, the paper shows consumer group litigation to be still absent in the competition law arena. Available mechanisms for collective and representative claims, strongly reliant on opt-in by potential victims may be too burdensome or rigid. Enhancing collective redress seems to be a major loophole in the current competition law system and some flexibility may be necessary to make them more attractive and operational.
Global Competition Litigation Review, 2013, Issue 4: pages 167-208.
This article looks at the commonalities and disparities in the rules against single-firm market abuses in the US and in the EU and their enforcement. Despite they target the same type of business behaviour, the US and the EU have always followed divergent paths. This article will examine alternative explanations for the differences and will also look at the different forms of conduct caught under the prohibition, underlining the most recent enforcement discordances
International Company and Commercial Law Review 2017/9: 338-345
A number of EU counties have adopted specific rules on the abuse of economic dependence: Germany , France , Italy , Portugal , Czech Republic and Greece. In most countries the economic dependence provisions are included in the respective competition act and are more or less conceptually associated with the notion of abuse of dominance. In Greece, the provisions regarding economic dependence formed part of the former Competition Act. Notably, the Hellenic Competition Commission (HCC) received, in the 12 years of its competency for the enforcement of said provision, numerous complaints and issued over forty economic dependence decisions - mostly dismissing the respective claims. Due to this burden on the authority , and also because it was too often invoked by enterprises with only minor impact on competition and, more often than not, involved private disputes which could have easily been resolved by civil courts, it was abolished from the Competition Act in the year 2009. Voices from the legal theory had seconded this development expressing concerns about the private interests of the weaker party which the provision sought to protect, unlike the main goals of competition law . As a result, the economic dependence provision was transferred to Law 146/1914 on Unfair Competition Practices.
When a particular provision changes position, it is interesting to see what the effect on its application may be. Possible changes include changes in the requirements of a provision, its legal consequences (sanctions, commitments etc.), protection scope, and other conditions of enforcement. In this regard, the paper builds on the Greek example to touch upon a number of points of interest for European law enforcement, and in particular: How does the inclusion or exclusion of a particular provision from the competition act affect its enforcement? Which would be an optimal allocation of responsibilities between private parties, the courts and competition authorities in relative abuse of dominance cases? Is the division between unfair trade practices and competition law entirely clear? And finally, how does the aim of competition law to protect competition versus competitors affect the application of the respective provisions?
Journal of European Competition Law & Practice, Volume 8, Issue 9, 1 November 2017, Pages 579–585,
Within the tool-box developed by originator companies in order to prepare and respond to generic
entry, a prominent position must be recognized to a category of patent strategies particularly
controversial under antitrust scrutiny, i.e. patent settlement agreements, in particular in the form
of reverse payment patent settlements (also called pay-for-delay settlements), due to the fact that
they provide for the patentee to pay the alleged infringer, rather than the opposite, with the aim of
delaying its market entry. It is a fact that reverse payment settlement agreements arise mainly in
the pharmaceutical industry. The article firstly analyses US and EU regulatory frameworks in
order to highlight similarities and differences between them. Then, it examines the relevant case
law in both contexts with a view to conducting a comparative study. Finally, the article discusses
the approaches to reverse payment patent settlements adopted by antitrust authorities and courts
and their clashes with intellectual property law, and contains a final proposal for the
assessment of these agreements.
Colangelo, Margherita. ‘Reverse Payment Patent Settlements in the Pharmaceutical Sector Under EU and US Competition Laws: A Comparative Analysis’. World Competition 40, no. 3 (2017): 471–504.
Recent case law concerning intermediation activity in digital markets shows that one of the key concerns of competition authorities is the use by online platforms of a type of agreement generally traced to the category of Most Favoured Nation clause (MFN), typically included in B2B long-term contracts, where the supplier undertakes to guarantee the best price conditions to the intermediary concerned as compared with any other dealer. The competitive assessment of such clauses (also known as parity clauses) is controversial in both traditional and digital markets. At first sight, they appear to offer potential benefits to consumers, at least in terms of price transparency and reduction of transaction costs; however, they also give rise to competition concerns, as they may serve to acquire or strengthen monopoly pricing. Their recurrence in the digital environment has revitalized an ongoing debate on the likely effects of these clauses on competition.
The article first analyzes the business models adopted by intermediaries in e-commerce and the concerns that have arisen under competition law, with particular regard to the increasing use of some forms of MFN clauses. The analysis is conducted in the light of several cases in the field of online hotel booking brought before national competition authorities (NCAs) for alleged violation of competition rules. The article then questions the theories of harm and the main critical issues deriving from such case law, highlighting the difficulties hidden in the adoption of a generalized approach in the competitive assessment of the clauses at issue.
M. Colangelo, Parity Clauses and Competition Law in Digital Marketplaces: The Case of Online Hotel Booking, (2017) 8 (1) Journal of European Competition Law & Practice 3-14 (published online on 27/07/2016)
This paper shows how supermarket location, size and format are regulated privately by major supermarket chains and publicly by government planning and competition agencies. The inquiry is spurred by the tenacity of the competition policy prescription that public regulation of supermarket siting be wound back so that private regulation has a free hand. Having conducted case studies in the field, within a framework of regulatory studies, the paper finds that public regulation is often only a mild restriction on private strategies to site. Yet public regulation, and land-use planning law especially, remains a crucial point at which collective processes and social values may exert an influence over food provision and the social spaces of our suburbs and towns. The paper recommends that regulatory law reform be holistic rather than narrow minded.
Christopher Arup, Caron Beaton-Wells and Jo Paul, 'Regulating Supermarkets: The Competition for Space' (2017) University of New South Wales Law Journal (forthcoming)