Price-fixing policy

Data Protection and Competition Law: The Dawn of ‘Uberprotection’

This chapter examines the competition law implications of patent licensing, patent pools and patent thickets. Competition law is used in developed countries as a means of limiting the harmful effects of Intellectual Property Rights. Their competition laws are used to prevent price fixing by rights holders and predatory activities arising from a dominant market position. The important question in a food security context is the extent to which IP protection provides an incentive for agricultural innovation. It has been suggested that broad patents in the biotechnology field may have greater potential to impede innovation than in other industries. Licensing of proprietary goods or technologies could have anti-competitive effects where competitors agree to divide markets, fix prices or limit output or where the licence has an exclusionary effect, e.g. where it excludes other potential licensors of substitutable IP; or facilitates the licensee's accumulation of market power in competing technologies. An alternative to cross-licensing as a means of negotiating patent thickets is the creation of patent pools. This is an arrangement among multiple patent holders to aggregate their patents, which are shared by members of the pool and made available on standard terms to non-members of the pool. A study commissioned by the USPTO has suggested that patent pools are a solution to the problem of biotechnological patent thickets. The creation of patent pools was originally seen as an impermissible use of IPR beyond what was required to incentivize innovation. The increase in patenting in the biotechnological and other high technology industries has led to the development of 'patent thickets', which are defined as an overlapping set of patent rights requiring that those seeking to commercialize new technology obtain licences from multiple patentees. The IP Guidelines indicate that anticompetitive effects may also occur if the pooling arrangement deters or discourages participants from engaging in research and development which is more likely 'when the arrangement includes a large fraction of the potential research and development in an innovation market'. The Australian Competition and Consumer's Commission (ACCC) follows the US approach in finding that patent pools and cross-licensing arrangements could have either positive or negative implications for competition. The ACCC noted the potential for price fixing, market sharing, or agreements among competitors without any possible pro-competitive justification. It suggested that patent pools would be less likely to raise competition concerns if: they combine complementary patents; licensing arrangements do not restrict access to the pool's technology by competitors, potential entrants, or third parties; and pooling arrangements do not facilitate sharing or access to competitors' commercially sensitive information in the relevant or downstream markets.

This book explores the manner in which a variety of public benefits such as environmental protection and consumer safety have been accommodated through the authorisation process within competition law and policy in Australia. While the regulator’s use of its discretion can be explained as a triumph of practice over theory, this book explores the potential for competition principles to be imbued by the wider discourses of democratic participation and human rights. In doing so it makes a significant contribution to the Australian competition policy as well as reconceptualising the way in which discretion is used by regulators. … a very important and creative contribution to the literatures on both business regulation in general and Australian competition and consumer protection law in particular. It pays special attention to an everyday regulatory function that is often ignored in scholarship. And it is very important in challenging—on both empirical and normative policy oriented grounds—a narrowly economic approach to competition law, and proposing an alternative understanding and practice for the public benefit test in ACCC authorisations.
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\nProfessor Christine Parker
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\nThe data Vij Nagarajan has analysed is quite unique in its focus. It is a kind of data and analysis that has not been completed before in the international literature. It is well written, theoretically sophisticated and incisive in its policy analysis.
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\nJohn Braithwaite

Economic Approach to Counteracting Cartels

We investigated the production and trade in rattan along the supply chain. We focused our study on Indonesia, the global leader in natural rattan production, and more specifically, West Kutai in East Kalimantan. Our analysis of local livelihoods in 2004 and 2011 indicates that communities have abandoned rattan as their main source of income, primarily because of low rattan farm-gate prices. Our interviews and econometric analysis indicate that rattan prices are kept artificially low through price fixing within a cartel of rattan traders. Farm-gate prices are also kept low by export quotas. The result has been a substantial reduction in export volumes of Indonesian rattan products (as opposed to unprocessed and semi-processed rattan). Other contributing factors include reduced overseas demand, the relative strength of the rupiah and the loss of Indonesia's competitive edge over other countries. Compared to its competitors, Indonesia has higher transaction costs, including taxes, tariffs, administrative costs and transportation costs. We conclude that a lack of reliable data on rattan resources and unstable policy have hampered efforts to develop sustainable management strategies and annual allowable harvest volumes. We recommend the development of a national rattan action plan, based on reliable scientific data. This would require more accurate information on rattan trade, future development in the rattan products market, production capacity in forests and planted rattan gardens, and international trade, including illegal trade. Such information could guide rattan policies, specifically determining what trade legislation would have the best macro and microeconomic results for Indonesia.

Price fixing and corruption cause immense economic damage. Measures of competition law compliance present a possibility to prevent price fixing and cartelisation. Taking a psychological perspective may help to understand which individual, group, and organisational factors may foster compliance. We explore factors driving compliance and propose the psychological onion model of competition law compliance. The model contains individual, group, and organisational factors determining competition law compliance. These factors are influenced by environmental factors. Within each layer of the onion model, we focus on particularly relevant examples by discussing implicit motives and core self-evaluations (individual), justice (group), and corporate social responsibility (organisation) in detail. Practical recommendations for the establishment of compliance structures in organisations are given, accompanied by theoretical considerations and future research directions.

Does traditional antitrust law tally with the special sphere of the New Economy , and especially with phenomena connected with the Internet? This issue is a disputed one. Whereas the predominant opinion among the antitrust authorities and experts in antitrust law is that antitrust law provisions and principles of application are generally sufficient in order to assess the new phenomena adequately, there are also those who refer to the specific nature of the Internet economy and call for restraint when applying antitrust law provisions in this sphere. In order to resolve this disputed issue it is important to keep in mind the numerous problems in the border zone between antitrust law and the Internet. For example, one argument occasionally submitted is that the Internet medium facilitates inadmissible concerted action. In these cases it is considered very difficult to bring the offenders to justice. These fears are open to doubt. The Microsoft proceedings have shown that statements made on the Internet or within an intranet are stored in numerous places and are easier to trace than would be the case if an informal meeting were held. However, practical experience is still lacking with Internet-based hard-core cartels. At the conference of the US Federal Trade Commission in May 2001, one of the focal themes was price fixing on the Internet.

During economic reforms of 1990 in India, it was observed that ‘Monopolies and Restrictive Trade Practices (MRTP)’ has become out dated in context to international economic development relating to competition law and a new law which may reduce monopolies and promote competition was required. After 1990s, India witnessed a drastic increase in international trade laws. During this period, there was great increase in the volume and value of trade in goods and services, in cross border merger and acquisition (M&A) and in ‘foreign and direct investment’. With the passage of time, restriction on foreign direct investment(FDI) reduced and Competition Act came into force to replace MRTP Act, 1969. With effect from September 1, 2009, Government of India through ministry of external affairs notification repealed the MRTP Act. Enactment of competition law was with the purpose of providing a completion law which could meetand suit to changed economic demand of India and world. Keeping in mind these scenarios, the Competition Act was enacted to provide a competition law regime that would meet and suit the demands of the changed economic scenario in India and abroad. As we know that the MRTP Act was a gloom reminder of ‘licence raj or licence quota – permit system'the need was to do away with it. With the announcement, new economic policy chapter III of MRTP Act which was dealing with the restrictions on M&A policy was made inoperative. However, the cases which were filed prior to September I, 2009 were still in the purview of MRTP commission and the MRTP commission was debarred from dealing with new cases. The author wishes to analyse the provisions relating to M&A transaction (Sections 5 and 6 of new Competition Act dealing with regulation of combination) notified by Competition Commission of India in 2011. The question is to be analysed ‘whether new provisions of Competition Act will be applicable in the matters where conclusive agreement has been signed before notification of 2009 but transaction has not been completed’. The author specially wants to analyse the transitory transactions in this regard.

The protection of environment is mentioned already in the preamble of the Treaty on European Union, in the Maastricht Treaty version. The omnipresent climate change reminds us of the importance of this protection. Is it possible to take into account the protection of environment also during the application of competition law? If so, to what extent is this desirable? In order to answer these questions, the article focuses on horizontal agreements, namely the new Guidelines on Horizontal Agreements. After presenting the view on green horizontal agreements on the EU level, the article focuses on application of competition law in the Slovak Republic. The main finding of the article is that, first, the protection of environment may be taken into account when applying competition law. This is very desirable from the perspective of protection of environment. However, the devil is in the detail and it may prove to be a particularly difficult job for a competition authority such as the Antimonopoly Office of the Slovak Republic to enforce Article 101 TFEU with respect to a green agreement. At the same time, it is a tricky job for undertakings to stay in line with Article 101 TFEU when they conclude a horizontal green agreement.

Competition Law Remedies in Europe: Which Limits for Remedial Discretion?

Optimal Sequential Investigation Rules in Competition Law

From both the Commission's explanatory comments to the proposal for the new “Regulation 17” and the new approach towards horizontal co-operation agreements as witnessed in the Guidelines and the two group exemption regulations, it seems abundantly clear that the Commission holds the view that the time is not yet ripe for an overall safe harbour approach for horizontal co-operation agreements. That being the case, there would have been no objection—if only for an intermediate step and until the moment that the horizontal market would be ripe for an overall safe harbour approach—to the introduction of a notification system for such horizontal agreements similar to the one applicable for vertical restraints by virtue of Regulation 1216/1999.47 This would have considerably alleviated the Commission's workload as far as reducing the number of and dealing with notifications is concerned. If this system had been combined with the sharing of the exemption powers by the Commission with the NCAs—which would have been a truly appropriate and proportional signal regarding the application of the principle of subsidiarity—this would have left the complicated economic assessment under article 81(3) where it belongs, i.e. with the administrative authorities that would be best placed (and trained) to perform this task. The national courts could then continue to concentrate on their tasks as defined by the ECJ in Delimitis, with the result that these institutions would also be doing exactly that for which they are best placed and trained, i.e. the application of the legal norms provided for in article 81(1) and (2) and article 82. The proposals of the Commission are deemed to be premature—at least in the view of this author—in the light of the forthcoming enlargement of the EU, the enforcement puzzles as described above, the monitoring of the cohesion of Community competition law and all the problems of training that come with it. The Commission's workload is likely to increase as a result of all this, and not just for an intermediate period of time but expectedly forever.

In the ever-changing landscape of Indonesian business, the pursuit of profits drives actors to engage in intense competition, all regulated by the Business Competition Law. This unique legal field combines both conventional law and economics to address unfair business practices, such as agreements that manipulate prices to deceive consumers. This research focuses on the characteristics of indirect evidence utilized by the Business Competition Supervisory Commission (KPPU) when investigating cases of price-fixing. The goal is to gain a deeper understanding of the legal implications of using indirect evidence within the procedural framework of Business Competition Law in Indonesia. To achieve this, a Normative Research method is employed, utilizing a multi-faceted approach. Through case analysis, statutory examination, conceptual exploration, and comparative study, the research explores patterns, legal frameworks, theoretical concepts, and perspectives from different jurisdictions, all related to the use of indirect evidence in the context of price fixing. The results revealed that Indirect evidence, classified as clue evidence under Perkom No. 1 Of 2019, encompasses communication and economic evidence. When direct evidence is lacking, these components, including documents or electronic information, play a crucial role in proving allegations of price-fixing. The legal implications of indirect evidence in the Indonesian competition law evidentiary system highlight its widespread use in resolving cases. However, there is a legal gap that poses challenges to the admissibility of indirect evidence in court proceedings. This emphasizes the need for legal reforms to effectively accommodate the role of indirect evidence.

Oligopoly exists where a few firms between them supply all or most of the goods or services on a market without any of them having a clear ascendancy over the others. The purpose of this chapter is to examine whether oligopoly presents a particular problem for competition policy and, if so, how that problem should be overcome. The chapter discusses the theory of oligopolistic interdependence and how oligopolies can lead to a well-known problem for competition law and policy: oligopolists are able, by virtue of the characteristics of the market, to behave in a parallel manner and to derive benefits from their collective market power without, or without necessarily, entering into an agreement or concerted practice of the kind generally prohibited by competition law. This phenomenon is known in economics as ‘tacit collusion’ and is the result of each firm’s individual and rational response to market conditions. The chapter identifies possible ways of dealing with the ‘oligopoly problem’, before considering the extent to which Articles 101 and 102 can be used to address that problem. The chapter also discusses UK law and, in particular, the possible use of the market investigations to address market failure that may arise in oligopolies.

This study questions how ESG data arrangements among businesses, currently advanced by the European ESG regulations, stand to currently evolving European competition policy, as moved by the recalled “twin enforcement transition”. The analysis takes the emerging market of ESG data as a use case so as to contribute to the current evolutive perspectives of European competition enforcement vis à vis consolidating sustainability interests at several levels. First of all, the case of ESG data markets opens up new prospects for reflections about the interplay between European competition enforcement and its interaction with public ex ante regulation in the field of European sustainable markets: while European regulators are demanding the disclosure and the free circulation of ESG related data, the question arises whether these disclosure obligations are in contrast or align with competition enforcement objectives. In second stance, in respect to the possible patterns to “greening” competition law, the evaluation of ESG-data related exchanges under the new guidelines for horizontal cooperation sheds further light over the still persisting uncertainties of qualifying an agreement as pro-sustainable in derogation to the traditional opposition towards horizontal agreements. Third, the consideration of ESG-related data markets’ potential treatment under the European competition framework proves relevant to identify some prospective synergies between the seemingly separate policy realms of sustainable and digital competition