Abstract Sustainability-related considerations play an increasingly important role in competition assessments, as reflected by the European Commission’s 2024–29 mandate situating competition law within the EU’s climate and industrial strategy, the Clean Industrial Deal. During this mandate, the European Commission will revise its 2004 Horizontal Merger Guidelines and 2008 Non-Horizontal Merger Guidelines. Updating the guidelines provides an opportunity to address the relevance of sustainability-related considerations in relation to market definition, competitive assessment, efficiencies, and remedies. We analyse the economic evidence on the role of sustainability-related considerations in merger control, the Commission’s case practice, and its published guidance on merger assessments. We discuss challenges and provide practical recommendations to agency staff and practitioners, with the objective of facilitating the incorporation of sustainability-related considerations in the revised guidelines.

Abstract Infamously, a tiny portion of society in most nations and across the world own most of the wealth, earn most of the income, and enjoy the lion’s share of economic opportunity. Is market competition a cause? Can competition law usefully contribute to solutions? Two decades ago, the competition law community answered, ‘Not my problem’. But gradually, it began to make connections, both on causes and solutions. This article identifies the various dimensions of the inequality problem, summarizes the literature, interrogates claims of rising inequalities and linkages to market power and antitrust violations, reviews how selected competition laws apply an equality value, and offers a list of possible competition law reforms or emphases that could help push back the rise of disparities rather than facilitating them. While the through-line from rising inequalities as a problem to markets as a problem to competition law as a solution is not as robust as many scholars contend, this article argues for an inequality consciousness of competition law, lest the exploitations, exclusions and deprivations continue to fall predominantly on the lower middle class and poorer populations and their plights are obscured by the meme of aggregating welfare.

Abstract Competition authorities’ potential role in providing redress for victims of competition infringements has attracted growing interest in Europe. This is attributed to the perceived lack of compensation for victims and the attendant deterrent effect due to the continued shortcomings of private enforcement. The increasing use of alternative regulatory techniques in certain fields has also contributed to this discourse. This article discusses and puts forward a typology of possible public redress mechanisms, from compulsive disgorgement to voluntary redress, drawing on lessons from the USA and other fields. Public redress aligns with competition authorities’ role, helps promote access to justice, fills deterrence gaps, and cultivates a competition culture. While the article focuses on the UK and how public redress might be implemented in that jurisdiction, the analysis may also apply to European Union Member States, especially those with less developed collective proceedings regimes.

Abstract Despite the popularization of the concept of ‘ecosystems’ among academics and practitioners, ecosystems have so far failed to become a coherent unit of analysis in competition law. One of the reasons is that it is not yet apparent when ecosystem analysis should be preferred over standard market-based analysis, and we also lack empirical methodologies to define their boundaries. In this article we first describe contexts where formal definition of ecosystem boundaries (similar to market definition) is necessary or at least desirable to achieve quality analysis, and then describe methodologies on how to achieve that (hierarchical clustering, K-means clustering, network of complementarities, factor analysis, and snowball selection). Furthermore, we provide guidance on when each of the methodologies is pertinent. We describe the limitations of the substitutability, aftermarkets, and connected markets approaches in cases in which ecosystems are the main unit of analysis. Finally, we provide four examples of how, in such cases, these methodologies presented can be useful to practitioners: i) market inquiries, investigations, and pro-competition interventions; ii) designation of undertakings as having strategic market status; iii) conglomerate mergers and iv) calculation of fines and quantification of harm/effects.

Abstract Digital technologies and platforms have brought a much-needed plurality to communications and the press, but have also opened the door to increased manipulation, misinformation, and distortion in the marketplace of ideas. The worrying erosion of citizens’ autonomy has progressively intensified with the evolution of certain business models. This article explores the ways in which the digital economy contributes to distortion of information, and the role competition law may play in safeguarding democracy.

Abstract Competition law enforcement is continuously being fine-tuned to serve two important goals: compensation and deterrence. This is true for the European Union, where the discussions about this balancing exercise are far from final and also for other parts of the world. This article focuses on a currently neglected damage component in litigation and its potential in this regard: the deadweight loss. It emerges for those consumers at the end of the supply chain that would have bought the product at the market price but for the cartel but do not acquire it at the cartelized price (anymore). Importantly, this article will outline how it can simultaneously serve both, the compensation and deterrence goals. It is a challenging damage component. However, a Chilean court in 2019 awarded final consumers compensation for the deadweight loss that others suffered aside from the price mark-up that some paid. The article exemplifies what aspects of Chilean law enabled this judgment and briefly assesses the latest European developments in collective redress in this regard.

Journal Article Platform regulation beyond DSA and DMA: Which role for the P2B Regulation? Get access Christoph Busch Christoph Busch European Legal Studies Institute, University of Osnabrück, Osnabrück, Germany Corresponding author: E-mail: christoph.busch@uos.de Search for other works by this author on: Oxford Academic Google Scholar Journal of Antitrust Enforcement, jnae016, https://doi.org/10.1093/jaenfo/jnae016 Published: 12 April 2024

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Abstract This article analyses the context of the first Brazilian antitrust law, between 1930 and 1945. Its goal is to clarify how the ‘popular economy’—a constitutional and legal concept of the time—functioned as a protective instrument for the internal market. The study explores the hypothesis that the legislation was directed at foreign economic power, already embedded in national economic structures at the time. The research demonstrates that the antitrust legislation arose not only to control prevailing economic power but also to provide meaning to it within the framework of the Estado Novo and its intent to reformulate the internal market. Furthermore, this article highlights the influence of constitutional and administrative doctrines in this movement, indicating how the antitrust system was modulated on liberal bases, assuming the curious figure of a strong State subsidiary to the private sector. The work demonstrates that, aside from the question of supply, a crisis in the insurance policy market throughout 1938 was crucial to drafting the first antitrust law.

Abstract The Digital Markets Act (DMA) aims at promoting contestable and fair markets for core platform services by setting out obligations for designated gatekeepers. As the DMA does not clearly define these objectives, it comes into conflict with national legislation with overlapping objectives. This may include unfair competition laws and sector-specific regulation. Article 1(5) DMA addresses this conflict by stipulating that Member States may not impose further obligations on gatekeepers for the purpose of ensuring contestable and fair markets. The effect this has is that national provisions vis-à-vis gatekeepers may not be applicable anymore, and competences are centralized on the European level more broadly than potentially envisaged by the European legislature. This centralization of competences runs the risk of inadvertently privileging gatekeepers by blocking national laws that are, however, still applicable to small and medium-sized enterprises (SMEs) and other firms competing with gatekeepers. This article suggests solutions to mitigate such a risk.