Ignacio Herrera Anchustegui

Bio: Ignacio Herrera Anchustegui is an academic researcher from University of Bergen. The author has contributed to research in topics: Competition law & Competition (economics). The author has an hindex of 5, co-authored 20 publications receiving 56 citations.

Division into lots and demand aggregation – extremes looking for the correct balance?

Abstract: Directive 2014/24 aims at increasing efficient public spending and ensuring best value for money for contracting authorities. To achieve these goals the Directive promotes fostering small and medium enterprises (SMEs) participation in public procurement tenders, and adopting a demand aggregation policy. The 2011 Proposal incorporated as specific SME-friendly tool a suggestion to divide public contracts into lots which resulted in the adoption of Article 46 in the 2014/24 Directive. This rule comes as a compromise between a position proposing a “near total obligation” for contracting authorities to divide contracts and a softer approach. As a result, division into lots is not mandatory in all cases, but Member States can impose an obligation to divide procurement requirements into lots for certain contracts under national law. Concomitantly, the 2014 Directive also promotes and encourages demand aggregate techniques such as framework agreements, dynamic purchasing system, centralised purchasing and joint procurement. However, by aggregating demand to reduce costs and increase buyer power contracting authorities are not incentivized to divide contracts into lots, and therefore, SME participation may be hindered and competition in the long term impaired. This contribution discusses how these provisions have been incorporated into Directive 2012/24 and which stakeholders have shaped their contention; also the contribution shows how there is a clash between these trends to raise awareness on the need of balancing them to avoid a policy conflict.

Revisiting the concept of undertaking from a public procurement law perspective: a discussion on EasyPay and finance engineering

Abstract: In EasyPay and Finance Engineering (C-185/14), the Court of Justice of the European Union (CJEU) has revisited the concept of undertaking for the purposes of the application of EU competition law. It has clarified the test applicable to economic agents engaging in ‘mixed’ economic and non-economic activities. The EasyPay test determines that, in order not to be qualified as “economic” because of its links with another activity that fulfils an exclusively social function based on the principle of solidarity and entirely non-profit making, an activity must, by its nature, its aims and the rules to which it is subject, be inseparably connected to it. In the paper, we discuss how the CJEU has arguably given a stricter interpretation and adopted a less lenient approach to the severability or separation of activities than in previous cases like FENIN, Selex or Compass-Datenbank. In our view, this interpretation is anchored on a functional analysis of the concept of undertaking, and it is a welcome development that will have far reaching implications. Beyond that general discussion, the paper focuses on the potential implications of the EasyPay test in the area of public procurement and, in particular, for the activities of central purchasing bodies. We submit that EasyPay facilitates a revision of the current position regarding the direct applicability of EU competition law to entities carrying out public procurement activities and, in particular, central purchasing bodies. We also submit that this is highly desirable because it grants legal certainty to economic operators when dealing with a central purchasing body, to the effect that the purchasing activities will be under competition law and the derived constrains on the market behaviour of large public buyers that may abuse of their buyer power.

Oil as Currency: Venezuela’s Petro, a New ‘Oil Pattern’?

Abstract: The socio-economic and political crisis that has been wreaking havoc on oil rich Venezuela since 2010, coupled with low oil prices since 2015, has generated hyperinflation on an enormous scale, rising to 500,000% in September 2018, and likely to reach 1,000,000% by the end of 2018. In response to its economic woes and hyperinflation, on February 20, 2018 the Venezuelan ‘Petro’ was officially born. The Petro, Venezuela’s new government-backed ‘cryptocurrency’, is a financial instrument whose value is pegged to the Venezuelan oil barrel and which attempts to create an alternative to the traditional currency system. While the idea appears novel – or to put it in ‘Venezuelan’ terms, ‘revolutionary’ – it is not. The Petro is a public debt instrument structured as a ‘cryptocurrency’ backed up by Venezuelan oil reserves and whose ‘intrinsic value’ is allegedly based on the Venezuelan international oil basket price as discretionarily decided by the Venezuelan Executive, not on trust of the currency itself or its demand or supply. The Petro’s relationship to Venezuela oil assets is important for the energy community not only due to its implications concerning Venezuelan oil reserves and infrastructure, but more so because the modality of this new ‘currency’ might be replicated by other raw-material dependent countries. They might do so to ‘mortgage’ their natural reserves to obtain financing by the sale of a raw-material pegged cryptocurrency. Much uncertainty accompanies the Petro and for very good reason. Hence, the aim of this paper is to present an academic analysis of the Petro. We discuss a number of critical aspects of the Petro, including an examination and clarification of its legal status, the regulatory regime is it subject to, the nature of the Petro (a currency or a debt), its relation to the future of energy markets, and risks associated with this creative measure.

Regulation of Electricity Markets in Europe in Light of the Clean Energy Package: Prosumers and Demand Response

Abstract: Traditionally, European energy market regulation has dealt with electricity and gas from a market-oriented perspective in the effort of creating a common internal energy market to foster economic efficiency, security of supply and competitiveness. To a lesser extent, EU law also deals with oil, shale gas and other unconventional hydrocarbons – industries outside of this contribution’s scope. The content of EU energy market regulation initially focused on the transition from public monopolies of vertically integrated energy companies to a competitive market. The new set of rules contained in the CEP go a step further in the strengthening of the Energy Union, and they seek to adapt the rules dealing with electricity, renewable energy sources, energy efficiency and regulatory energy agencies to rapid the technological changes we have witnessed over the past decade in Europe. Two factors are key in understanding the reasons behind the regulatory changes and the content of the CEP, which we discuss in this chapter. Energy markets in Europe have been and are currently being transformed due to the integration of renewables into the grid. This brings forth technical and legal challenges for the transformation of "smart markets" in energy as already seen in 2011 by the German Bundesnetzagentur. These changes in generation and consumption require that the market sends the right signals to guide both the generation, consumption and transmission patterns for the future grid. The second guiding element of the CEP is also connected to those technological changes as they now have made possible the active participation of the end-consumer as a responsive and responsible ‘prosumer’.

Centralizing Public Procurement and Competitiveness in Directive 2014/24

Abstract: Centralized purchasing benefits contracting authorities and society in general as it may reduce purchasing prices and transaction costs, lead to administrative economies of scale, and help specializing procurement officers across Member States. Centralization techniques are also used to pursue broader economic goals, such as fostering innovation, create competitive markets and sustain development. Directive 2014/24 reinforces the impulse given to central purchasing bodies due its popularity and establishes two different types: either wholesalers/wholebuyers or intermediaries that carry out procurement on behalf of other contracting authorities. However, the competitive benefits that may be generated by centralization can also be eroded by its abuse and inadequate implementation, particularly when dynamic efficiency is jeopardized by focusing on pure cost-saving and short term results. This paper addresses the benefits and concerns derived from centralized purchasing from a microeconomic and legal perspective and proposes that centralization should be carried out in a pro-competitive manner with an emphasis on long term efficiency, benefiting all stakeholders, and not purely tender cost saving. To do so, central purchasing bodies and their purchasing power should be regulated by adopting conducts in line with competitive standards and public procurement "best-practices" guaranteeing that buyer power is not abused and the competitive playing field is preserved.

Market strategies used by processed food manufacturers to increase and consolidate their power: a systematic review and document analysis.

Abstract: The public health community has become increasingly critical of the role that powerful corporations play in driving unhealthy diets, one of the leading contributors to the global burden of disease. While a substantial amount of work has examined the political strategies used by dominant processed food manufacturers that undermine public health, less attention has been paid to their use of market strategies to build and consolidate power. In this light, this paper aimed to systematically review and synthesise the market strategies deployed by dominant processed food manufacturers to increase and consolidate their power. A systematic review and document analysis of public health, business, legal and media content databases (Scopus, Medline, ABI Inform, Business Source Complete, Thomas Reuters Westlaw, Lexis Advance, Factiva, NewsBank), and grey literature were conducted. Data extracted were analysed thematically using an approach informed by Porter’s ‘Five Forces’ framework. 213 documents met inclusion criteria. The market strategies (n=21) and related practices of dominant processed food manufacturers identified in the documents were categorised into a typological framework consisting of six interconnected strategic objectives: i) reduce intense competition with equivalent sized rivals and maintaining dominance over smaller rivals; ii) raise barriers to market entry by new competitors; iii) counter the threat of market disruptors and drive dietary displacement in favour of their products; iv) increase firm buyer power over suppliers; v) increase firm seller power over retailers and distributors; and vi) leverage informational power asymmetries in relations with consumers. The typological framework is well-placed to inform general and jurisdiction-specific market strategy analyses of dominant processed food manufacturers, and has the potential to assist in identifying countervailing public policies, such as those related to merger control, unfair trading practices, and public procurement, that could be used to address market-power imbalances as part of efforts to improve population diets.

Self-Governance in Science: Community-Based Strategies for Managing Dangerous Knowledge

Abstract: Commercial and academic communities use private rules to regulate everything from labor conditions to biological weapons. This self-governance is vital in the twenty-first century, where private science and technology networks cross so many borders that traditional regulation and treaty solutions are often impractical. Self-Governance in Science analyzes the history of private regulation, identifies the specific market factors that make private standards stable and enforceable, explains what governments can do to encourage responsible self-regulation, and asks when private power might be legitimate. Unlike previous books which stress sociology or political science perspectives, Maurer emphasizes the economic roots of private power to deliver a coherent and comprehensive account of recent scholarship. Individual chapters present a detailed history of past self-government initiatives, describe the economics and politics of private power, and extract detailed lessons for law, legitimacy theory, and public policy.