Or Brook ‘Struggling with Article 101(3) TFEU: Diverging Approaches of the Commission, EU Courts and Five Competition Authorities’ (2019) Common Market Law Review 56: 121

Since May 2004, the European Commission and national competition authorities (NCAs) have applied the EU competition provisions in parallel. Nowadays, almost 90% of antitrust investigations are carried out by NCAs. This decentralised enforcement regime builds on the assumption that the obligation to apply the same competition provisions is sufficient to ensure the uniform administration of the law. This paper, available here, argues that this assumption does not hold, as least as regards efficiency justification/defences. Since the application of the EU competition provisions involves a wide margin of discretion, national, economic and political traditions risk leading to the fragmented application of competition law. The paper presents empirical evidence that the Commission, EU courts and five national competition authorities have followed very different interpretations of Article 101(3) TFEU, which regulates efficiency justification/defences in Europe. The paper is structured as follows: Section 2 outlines the study’s empirical methodology. The paper uses a database comprising: (i) all European Commission and court decisions until 2017;…

Giuseppe Colangelo and Mariateresa Maggiolino ‘Applying Two-Sided Markets Theory: the MasterCard and American Express Decisions’ (2018) Journal of Competition Law & Economics 14(1) 115

The first judgments to apply the economic theory of multisided markets to the payment card industry have been recently adopted in the UK and in the US. This paper, available here, uses these cases to try to show that antitrust authorities should take into consideration the two-sided nature of the credit-card industry, and to explain how this can be done. Taking the multisided nature of payment systems into account is necessary to arrive at a realistic description of these markets, and to develop solid theories of harm and procompetitive justifications that can explain some business practices involving credit cards. It is structured as follows: Section II briefly describes the main economic features of multisided business models. Different authors have defined multisided markets differently, as they looked at different markets and business models. Nonetheless, the following generic traits tend to characterise all such markets: the presence of indirect network externalities that cannot be internalised through a bilateral exchange (usage and membership…

Peter Davies ‘Economic Evidence and Procedural Fairness’ (2018) Journal of Competition Law & Economics 14(1) 1

Economists have a large stake in the judicial and competition systems getting the scope and nature of disclosure right, both as a matter of public policy and as a practical matter. Access to information in the form of data, documents and analyses is critical to economists engaging with the substance of competition and regulatory cases. However, the extent and nature of information available to each party to a competition investigation varies widely, and is affected by important practical and legal considerations. In particular, the extent of disclosure is influence by a multiplicity of factors, such as the relevant statute, competition agency practice and the nature of judicial oversight of competition agency decision making. This paper, available here, considers the extent of disclosure required to ensure a fair process, while taking into account the practical realities of undertaking economic and econometric analyses in competition cases. It does so as follows: Section II explains why disclosure is fundamental to the application of…