This research considers the EU’s 21st century objective of mitigating climate change
by promoting renewable electricity and the multiple legal conflicts between this
objective and EU’s core legal principles of free movement, the prohibition of
distortion of competition and other forms of state aid.
This research fills a gap in academic literature by analysing the EU renewables
regulatory framework. The research finds renewable electricity is accorded a
‘special’ status, allowing export restrictions, price enhancements, priority market
access, tax exemptions and payment guarantees. This ‘special’ status is analysed
via case law and empirical research data.
The case law analysis confirms a lex specialis approach by the CJEU. This is
considered problematic from a legal consistency point of view, as it leads to unclear
investment signals and short-termism in an industry with long-term investment
horizons.
Uniquely, within the academic context, the empirical research considers how market
operators view these conflicts, via the findings of semi-structured interviews. The
research shows that market operators (i) prioritise regulatory stability to ensure longterm
asset business case validity, (ii) mitigate against uncertainty via higher financial
returns and (iii) lobby legislators and regulators to manage change. Market operators
recognise that diagonal conflicts exist and see the CJEU’s use of lex specialis as a
temporary expedient, surrounded by judicial and political risk.
The research proposes regulatory change to remove the ‘special’ status and outlined
diagonal conflicts, including carbon pricing mechanisms, removing fossil fuel
subsidies and enforcing network access rules. These proposals align the regulatory
framework with EU free trade principles - to create long-term regulatory stability,
valued by market operators.

The EU Renewable Electricity RegulatoryFramework and Its Legal Conflicts With FreeTrade Principles

This thesis is
a study of the development of the law relating to collective dominance and
other means of regulating oligopolies where competition may be ineffective or
weak. It examines the approaches adopted to regulate anti-competitive
arrangements in the context of oligopolies; and the way in which courts have
inferred ‘intentionality’ in relation to cooperation and collusion, and
distinguished this from conscious parallel behaviour that may otherwise develop
in oligopolistic markets. 
   The thesis focuses on the development of the concept of
collective dominance in the European Union, based on Article 102 of the
European Union Treaty. In the European Union the relevant case law is more
extensive than elsewhere and has not been constrained by the criminal law
settings that apply, for example, to antitrust law in the United States. 
   The telecommunications sector has been selected as a case
study to illustrate the application of collective dominance law and policy
because it is a sector characterised by persistent oligopoly. In addition, it
is a sector that is fundamentally important as a driving force for the
development of the online society and online economy that increasingly define
the way transactions are conducted. 
   The thesis examines the development of both the economic
literature and the case law on collective dominance in Europe before and after
the seminal Airtours case of 2002, and also examines more recent developments
that suggest a movement away from reliance on collective dominance law for
oligopoly regulation and control. A specific variant of this recent development
in the telecommunications sector in the European Union is examined. 
   The thesis concludes that the development of the concept of
collective dominance has involved adherence as far as possible to the explicit
agreement paradigm, with retention of the central notion of intentionality,
albeit in an increasingly attenuated form. Although collective dominance is a
structural concept it became conflated with the behavioural concept of tacit
collusion from an early date and has remained so since. The courts have failed
to effectively address the economic perspective on collective dominance, which
is concerned with outcomes not with the intentionality of the competitors
involved. 
   The research has explored the limits of collective dominance
and tacit collusion as useful means by which regulators might intervene for ex
ante regulation in oligopolistic markets, and has concluded that these concepts
can no longer be relied upon for their intended regulatory purposes and that
regulatory and legislative means will likely be required for effective
oligopoly control.

Collective dominance and oligopoly control in European competition law: Dealing with persistent oligopoly in markets such as telecommunications

The paper points out the relevance of competition law to international issues of Intellectual Property Law (IPR) and demonstrates how competition law internationally has come to function as an indispensable instrument to balance IPR. The perspective is international and focused on TRIPS. The rules in TRIPS which define the obligations of member states to protect rightholders are detailed, comprehensive, and aimed at a high level of protection. The few rules in the Treaty which deals with competition law and the role of competition as a balancing instrument to IPR are weak and imprecise. This disparity does not reflect the conclusion in national law where it is now generally acknowledged that IPR and competition law serve the same goal, viz. dynamic efficiency and consumer welfare and where competition law has come to function as a second tier of balancing norms. The paper claims that the weakness of the competition rules in TRIPS may be counterproductive towards the broader goals of IPR protection. From a development point of view it is pointed out that an effective and well function market is necessary in order for developing countries to reap any benefits arising out of IPR protection. To innovation it is submitted that IPR protection e.g. of interfaces or in markets characterised by network effects may involve risks of monopolisation which require access to effective rules of competition law. The paper finally recommends concrete changes to TRIPS in the form of mandatory rules which prevent abuse in licensing contracts and a rule which makes it possible to gain access to IPR which is indispensable for competition.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1339992_code110134.pdf?abstractid=1339346&mirid=1

Fire and Water Make Steam – Redefining the Role of Competition Law in TRIPS

Competition law has always formed a core pillar of the European integration process and so it was among the crucial EU requirements set for the candidate countries. Competition law had a significant influence on the way competition laws and institutions were shaped in the candidate countries. In the pre-accession phase this was due to conditionality, however once conditionality terminates and candidate countries become Member States they fall under the EU law and its governance mechanisms, in competition law under Regulation 1/2003. While pre-accession rule transposition is well documented and closely monitored by the EU in its Regular Reports on the candidate countries, the EU’s internal governance mechanisms are less visible and have not been examined in the light of its external model that developed in the course of its eastward enlargement. In EU competition law such internal mechanisms have developed within the framework of Regulation 1/2003. These post-accession compliance mechanisms are critical both with regard to the effectiveness of the EU’s external governance and the internal system of Regulation 1/2003.The aim of this paper is to analyse the interplay between the EU’s external (pre-accession) and internal (post-accession) governance model in the field of competition law and to arrive at a deeper understanding of the EU’s Europeanization strategy at the intersection of the external and internal governance models. Accordingly, the paper maps the EU’s external law and governance model that applies vis-a-vis third countries that wish to join the EU and examines to what extent and how this external model has shaped the EU’s internal governance model vis-a-vis its Member States. It analyses the role of Regulation 1/2003 in creating an effective implementation of EU competition law in the Member States and its governance mechanisms that framed the Europeanization process. In order to evaluate the effectiveness of post-accession compliance in the Member States the paper examines the compound procedural framework composed of EU and national administrative rules that underlies and challenges the enforcement of EU competition law and investigates how administrative capacity of the national competition authorities may effect competition law enforcement. This inquiry includes the detailed assessment of the European Competition Network as the EU’s main mechanism to monitor compliance of Member States with EU law in the post-accession phase.

/pdf/accession-to-the-eu-s-competition-law-regime-a-law-and-33zgqd3xw8.pdf

Accession to the EU's Competition Law Regime: A Law and Governance Approach

The article discusses the effectiveness and the intensity of judicial review in the Polish competition law system. First, it studies whether the judicial review offered by the 1st instance Court of Competition and Consumer Protection in Warsaw (SOKiK) is effective in practice. Next, the article analyzes whether Polish courts tend to defer to the findings of the Polish competition authority, UOKiK. Judgments of the Supreme Court concerning relevant market definition serve as case studies. Finally, the article discusses whether proceedings before the Polish competition authority ensure sufficient due process guarantees, the impartiality of decisionmakers, and the overall expert character of UOKiK’s decision-making process. On this basis the article examines whether there are grounds for the reviewing courts to defer to UOKiK’s findings. The article concludes that currently the review undertaken by SOKiK happens to be superficial and thus ineffective. At the same time, the Supreme Court’s review of the determination of the relevant market is not deferential towards UOKiK’s findings. The Supreme Court substitutes its own definition of the relevant market for that of UOKiK and that of the lower courts. However, the article shows that there are no grounds at the moment for arguing for greater judicial deference. Proceedings held before UOKiK, despite recently introduced improvements, still do not offer sufficient due process guarantees or a division between investigatory and decision-making functions. In addition, UOKiK’s expertise is not sufficient for both institutional and practical reasons.

Effectiveness of Judicial Review in the Polish Competition Law System and the Place for Judicial Deference

Article 267 TFEU : Celebrating the Jewel in the Crown of the Community Legal Architecture and Some Hot Potatoes

Tetra Laval à la Hongroise

Despite great strides in enforcement of the cartel prohibition of article 81 EC and major merger control reform, EC competition law still lacks clear standards for anti-competitive abuses under article 82 EC. In a masterful engagement with this issue, the thoughtful and original analysis in this book focuses on tying and bundling. Although these ubiquitous business practices are primarily addressed under article 82 EC as constituting abusive behavior, a wealth of economics literature emphasizes their strategic and efficiency motivations. However, there is a balance to be found, as this book ably demonstrates. In the course of the analysis, the author zeroes in on such central questions as the following: What tests are available to determine whether two products are distinct or not? Under which circumstances is anti-competitive leveraging feasible? Which efficiency motivations should be accepted? How does one valuate the possible efficiencies in the short run and the risk of leveraging effects in the long run? What factors should be considered when answering the separate product issue? What are the implications for the burden of proof under article 82 EC? Does the application of a more effects-based approach under article 82 also affect the dominance analysis? In his examination of the various responses to these probing questions, the author is able to formulate a very useful diagnosis of what factors determine whether a tied or bundled entity is likely to engender anti-competitive effects. The presentation is supported throughout by detailed reference to relevant legal-economic doctrine, laws, and judicial interpretation by European and U.S. courts, the European Commission, and antitrust agencies. In its development of effects-based tests for assessing tying and bundling practices, this important book will be of special value to policymakers and regulatory officials involved in enforcement of EC or Member State competition law. It will also be welcomed by academics in both law and economics as a truly cogent and workable approach to the solution of one of the most vital and intriguing debates in the antitrust field.

Tying and Bundling as a Leveraging Concern Under EC Competition Law

Airtours Judgment: a Welcome Lecture on Oligopolies, Economics and Joint Dominance

This paper assesses the degree of judicial scrutiny performed by administrative courts in Hungary when reviewing decisions by the Hungarian Competition Authority (Gazdasagi Versenyhivatal, ‘GVH’) in the light of the landmark ruling handed down by the European Court of Justice in Commission vs. Tetra Laval. The paper is divided into four parts. The first part provides an outline of the Hungarian Competition Act. The second part offers a brief overview of the general principles of judicial review of the Hungarian administrative authorities’ decisions. The third part examines whether the Tetra Laval ruling has influenced the judicial scrutiny applied by Hungarian courts. The fourth part concludes that although at first sight the Hungarian courts seem to draw little or no inspiration at all from the Community Courts’ case-law, a deeper analysis suggests that - irrespective of the developments in European jurisprudence - the Hungarian courts have in essence developed a finely tuned and restrained judicial review of the GVH decisions.The conclusions of this analysis point further than the Hungarian case and provides thoughts for the general discussion on the standard of judicial review of administrative authorities’ decisions.

Jurian Langer

Papers

Article 267 TFEU : Celebrating the Jewel in the Crown of the Community Legal Architecture and Some Hot Potatoes

Tetra Laval à la Hongroise

Tying and Bundling as a Leveraging Concern Under EC Competition Law

Airtours Judgment: a Welcome Lecture on Oligopolies, Economics and Joint Dominance

Judicial Review in Hungarian Competition Law -Tetra Laval Á La Hongroise