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.

Wind of Change: A Scandinavian Perspective on Energy Transition and the ‘Greenification’ of the Oil and Gas Sector

Abstract: The Scandinavian region – Denmark, Norway and Sweden – is a world-leading example of a rapid energy transition as a result of high rates of electrification. These three countries, along with Finland and Iceland, aim to be mostly ‘fossil free’ by 2050; Denmark, Sweden and Norway have some of the world’s most ambitious energy and climate policies. In October 2020 Denmark pledged to reach a 70% reduction in emissions by 2030 and reach climate neutrality by 2050. With less ambitious plans and a large oil and gas industry, Norway aims to reduce greenhouse gas emissions by at least 50%, and hopefully nearer to 55%, by 2030 compared to 1990 levels, having a minimum binding target of 40% by 2030 according to the Norwegian Climate Change Act. Sweden adopted the Climate Act in 2017, pledging to have zero net greenhouse gas emissions by 2045 at the latest, and have negative greenhouse emissions thereafter. In all these Scandinavian energy transition plans, electrification through renewable energy sources (RES) is the key to the green transformation of the energy system. Despite these plans and their ongoing success in reducing emissions, Scandinavia is not a fossil-free area; oil and gas remain the largest sources of energy in the region. Furthermore, Denmark and Norway are fossil fuel producers and exporters, with hydrocarbons being by far the largest source of income for Norway. However, Scandinavia is also leading the energy transition within the hydrocarbon industry. We aim to present this innovative aspect of the energy transition in Scandinavia. We show how these countries, and the Nordics in general, set a leading example in energy decarbonization with high electrification rates and blaze the trail in energy transition within the oil and gas industry, with Norway being the pioneer. Our contribution shows how Norway, due to a combination of its climate ambitions, including its aim to reduce greenhouse gas emissions, hydrocarbon regulation and economic dependence on petroleum, is leading the greenification efforts in the oil and gas industry, not by phasing it out but by making it more sustainable, at least as far as the extraction of oil and gas is concerned. Paradoxically, Scandinavia and Norway are at the forefront of the world’s energy transition thanks to a large share of renewable energy consumption. However, oil and gas extraction continues with the aim of not stopping it but making it greener.

The Scope for National Regulation of Unfair Trading Practices

Abstract: Many European countries have some form of national regulation of unfair trading practices (“UTPs”) in the business to business segment. These regulations are meant to prevent ‘big’ companies from treating ‘small’ companies unfairly by taking advantage of their gate keeper position and superior bargaining power. Some of these regulations are sector specific; the food supply chain being the prime example. One often sees allegations of inefficient or unfair competition in this sector, such as claims about supermarket chains taking advantage of their bargaining power to the detriment of small businesses or consumers. As a consequence, this sector is often the subject of regulation or at least proposals for regulation, such as for instance the EU Commission’s proposal for a Directive regulating unfair trading practices in business-to-business relationships in the food supply chain, currently being discussed in the EU-institutional trilogue between the European Commission, the Parliament and the Council. Regulations of UTPs or proposals of such regulations may have its basis in competition policy, agricultural policy, marketing law or ‘unfair competition’ law. Some of the background for these national regulations is that they are not necessarily prohibited by EU/EEA competition law. The prohibition of anticompetitive agreements in Article 101 TFEU and the prohibition of abuse of dominance in Article 102, only prohibit these practices if they are anti-competitive, but not on the basis of them being ‘unfair’. UTPs have been defined as “practices that grossly deviate from good commercial conduct, are contrary to good faith and fair dealing and are unilaterally imposed by one trading partner on another”. These practices are often considered as unilateral conduct exerted by the large undertaking on the smaller contractual partner and imposing unwanted contractual clauses or duties. Most of the existing regulations of UTPs also refer to expressions of unilateral conduct. What we have discovered is that many of these practices are not unilateral conduct sensu stricto, but rather agreements between undertakings. Whether these practices are agreements or unilateral conduct is decisive for the competence of the EU Member States to regulate them in national competition law. According to Article 3(2) of Regulation 1/2003, Member States may not have a stricter regime towards agreements, than what already follows Article 101 TFEU. In this paper we discuss to what extent Article 3 of Regulation 1/2003 limits the scope for Member States to regulate these practices. We do not discuss whether regulation of UTPs could conflict with the freedom of establishment or the provision of services. We analyse the regulation of UTPs in general, however, as these rules, or proposals or claims for such regulation, often are connected to the food supply chain we will use examples from this sector. Before discussing the content and implications of Article 3(2) of Regulation 1/2003, we start out by introducing the concepts of buyer power and UTPs in section 2. Then, we will present the different forms of existing regulations in Europe in section 3 before we discuss the extent of the limitations the Article 3 of Reg. 1/2003 impose on national authorities in section 4. Finally we present our conclusions in section 5.

The Social Market Economy and the European Union

Abstract: The German Ordoliberal School of Economics - also known as the Freiburg School - has had a profound influence in shaping Germany’s economic system and directly impacting the European integration process and single market model through two of its most well-known postulates: an Ordoliberal Competition Policy, and the Social Market Economy [For a discussion of Ordoliberal Competition in English see: 1; 2; 7; 8; 9; 10; 11]. In this short contribution I aim at introducing the Social Market Economy, discuss its origins and contents as well as highlighting its influence on the design of the European economic system by analyzing its impact in the provision of Services of General Economic Interests (‘SGEIs’).

Joint Bidding and Object Restrictions of Competition: The EFTA Court’s Take in the ‘Taxi Case’

Abstract: On December 22, 2016, the EFTA Court handed its Advisory Opinion in Ski Taxi SA, Follo Taxi SA og Ski Follo Taxidrift AS v Staten v/Konkurransetilsynet. In this case, the EFTA Court dealt with a preliminary question concerning the applicable test to determine whether a joint bid for a public contract constitutes an object restriction of competition under Section 10 of the Norwegian Competition Law, corresponding to Article 53 EEA – the equivalent to Article 101 TFEU. The Opinion discusses three issues. Firstly, it confirmed that for a conduct to qualify as an object restriction of competition it must reveal a sufficient degree of harm as determined by a limited context assessment, and be capable of having some market impact. Also, the ‘object’ concept must be given a restrictive interpretation – adding that this is only applicable for conducts “easily identifiable, in the light of experience and economics”. Thus, it is not sufficient that the conduct is simply capable of resulting in the prevention, restriction or distortion of competition. To constitute an object restriction a conduct must both reveal a sufficient degree of harm and be capable of having some market impact. Secondly, the EFTA Court offered guidance whether the submission of joint bids may restrict competition by object as a type of price fixing. To assess this, regard must be had to the nature of the cooperation, its objectives and its economic and legal context. Additionally, it must be determined if the parties are actual or potential competitors and whether the joint price setting may constitute an ancillary restraint with respect to a wider not anticompetitive operation. Lastly, it found that, although openly submitting a joint tender may reveal a lack of an anticompetitive intention, this is in itself not a prerequisite for determining whether an agreement restricts competition by its object.

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.