single firm conduct

On extraterritoriality and the Gazprom case

The European Commission's (EC) investigation of Gazprom's business practices in the EU raises a number of questions. This article comments on the issue of the EC's jurisdiction in transnational cases in general and in particular — in the context of the Gazprom case, in light of another contribution dealing with this matter. It also sheds some light on the considerations which might have informed Russia's legislative response to the EC's investigation.

Marek Martyniszyn, 'On extraterritoriality and the Gazprom case', 36(7) European Competition Law Review 291 (2015).

The EU-Russia relationship and the EU Energy Union: from Dependence and Vulnerability towards Competition and a Free Flow

This contribution discusses the proposed EU Energy Union in light of the swinging pendulum of EU-Russia's co-dependence.

Marek Martyniszyn, 'The EU-Russia relationship and the EU Energy Union: from Dependence and Vulnerability towards Competition and a Free Flow' in Raphael J Heffron and Gavin Little (eds), Delivering Energy Law and Policy in the EU and the US. A Reader (Edinburgh University Press, 2015).

Implementing a Competition Law System—Three Decades of Polish Experience

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,

The Prohibition of Single-firm Market Abuses: U.S. Monopolisation versus E.U. Abuse of Dominance

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

Relative Dominance and the Protection of the Weaker Party: Enforcing the Economic Dependence Provisions and the Example of Greece

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,

Verweigerung von Geschäftsbeziehungen: Kartellrechtliche Analyse nach Schweizer, EU- und US-Recht

Die Arbeit ist einer Analyse von Art. 7 Abs. 2 Bst. a KG zur Verweigerung von Geschäftsbeziehungen (refusal to deal) gewidmet. Sie klärt in einem ersten Teil die relevanten Begrifflichkeiten. In der Folge wendet sie sich der Frage zu, was die Missbräuchlichkeit einer Verweigerung von Geschäftsbeziehungen ausmacht. Die im Kontext von Geschäftsverweigerungen aktuellen Themenkreise der Systemmarkttheorie, der relativen Marktmacht, der Kosten-Preis-Schere (margin squeeze), der Lizenzverweigerung (refusal to license) und der Essential Facilities-Doktrin werden dabei dogmatisch eingeordnet und erörtert. Ein letzter Teil identifiziert geeignete kartellrechtliche Massnahmen. Die Untersuchung der Missbräuchlichkeit basiert auf einer umfassenden Auslegung von Art. 7 Abs. 2 Bst. a KG. Sie berücksichtigt insbesondere die einschlägigen entstehungsgeschichtlichen, verfassungsrechtlichen und ökonomischen Grundlagen. Die Perspektive ist dabei durchgehend rechtsvergleichend, wodurch Erkenntnisse aus dem Recht der Europäischen Union und der Vereinigten Staaten von Amerika in die Abhandlung einfliessen. Als zentrale Einsicht folgt aus der vorliegenden Untersuchung, dass eine Verweigerung von Geschäftsbeziehungen nur dann als unzulässig gelten sollte, wenn die nachgefragte Ressource unerlässlich ist für das Erbringen einer Innovationsleistung durch einen effizienten Nachfrager. Formalisiert wird diese Erkenntnis im Konzept der Innovationsindispensabilität.

Stämpfli Verlag AG, Bern 2017 (ISBN 978-3-7272-0520-0; 911 Seiten)

Regulating Supermarkets: The Competition for Space

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)

Problematising Supermarket-Supplier Relations: Dual Discourses of Competition and Fairness

The power asymmetryies that exists between major supermarket chains and suppliers, in Australia and abroad, have has been analysed largely through an economic-legal lens, focussed predominantly on consumer prices. This article takes a wider stance, considering the economic and then the social discourses that arise in response to the supermarket-supplier relationship, before examining how such discourses shape regulatory responses. We find that the two are not, as they appear on first blush, disconnected or in conflict. Rather, as with many socio-economic interactions, they are connected and interdependent. Applying a problematisation analysis, we interrogate the underlying assumptions and question the ways in which the issues relating to the imbalance in bargaining power between major supermarkets and suppliers are framed in mainstream policy debates, and then consider the implications. On our analysis, the problem that this imbalance is seen to pose has dimensions of both competition and fairness, creating challenges that require a range of responses. It is thus a problem that can be tackled by appealing to the traditional platforms of both the left and right of politics. A dual discourse also facilitates effective political risk management. While a neoliberal approach allows government to be seen as promoting competition to maximise efficiencies and consumer welfare, tough measures on socially unacceptable behaviour enables government to align with important social-cultural values.

Caron Beaton-Wells and Jo Paul, 'Problematising Supermarket-Supplier Relations: Dual Discourses of Competition and Fairness' (2017) Griffiths Law Review (forthcoming)

Predatory Bundling and the Exclusionary Standard

Recent decisions - all relying on a stylized example first provided by the Ortho court - hold that a multi-product seller that uses a bundled discount in a way that excludes an equally or more efficient competitor engages in predatory bundling. According to these decisions, a bundle can be considered predatory even when the price of the bundle exceeds its cost. The article offers evidence demonstrating that the Ortho's stylized example and its monopoly leveraging theory are erroneous. The article further shows that even when a bundle's price excludes more efficient competitors and even when a component in the bundle is priced below cost, and thus sold at a loss, it may still have welfare enhancing effects. The result is that bundles that fail the discount allocation test and even bundles that fail the Brooke Group test may still be desirable. The article provides a number of examples from the airline and telecommunication industries to illustrate that both exclusionary and below cost bundles can be not only welfare enhancing, but also very common. Keywords: Predatory Bundling, Bundled Discount, Package Discount, Predatory Pricing, Exclusionary Behavior, Antitrust, Industrial Organization JEL Classification: K21, L12, L41, L42

67 Wash & Lee L. Rev. 1231 (2010) (Lead Article)

Trademarks as a Media for False Advertising

This Article explores an unnoticed aspect of trademark law which in some instances may constitute a license to cheat. It shows that under certain circumstances a seller can use its own trademark to mislead its customers, free from legal sanction, in contexts where the same behavior would be sanctioned if the seller used other advertising media. The Article then explores how an alternate conception of the economic function of trademarks can be used to understand the informational value of trademarks and their advertising function. After identifying circumstances appropriate for legal intervention, the Article concludes with a proposal for a new interpretation of the false advertising provision in the Lanham Act to eliminate this disparity. Keywords: Fraud, False Advertising, Trademark Fraud, Fanciful Marks, Error Costs, Regulation of Information, Economic Analysis, Brands

31 Cardozo. L. Rev. 327 (2009) (Lead Article)