Competition and Markets Authority ‘Regulation and Competition – A Review of the Evidence’ (2020)

It is well established that effective competition is a key mechanism for improving outcomes for consumers. There is a concern that regulation can have the effect of stifling competition, and thereby deprive customers of these benefits, for example through raising barriers to entry. At the same time, different forms of regulation have an important role to play in supporting competition, for example by providing the legal and economic frameworks within which competition takes place. It is therefore important to take into account the benefits as well as the costs when considering the impact of regulation. The purpose of this report, available here, is to summarise existing evidence about the impact of regulation on competition, both in terms of the academic research and the way in which regulation is designed and implemented in practice. It does so as follows: Section 2 introduces the topic. Competition and regulation are sometimes portrayed as mutually exclusive; for instance, either you have competition policy to…

Howard Shelanski ‘Antitrust and Deregulation’ (2019) Yale Law Journal 127 1922

The relationship between antitrust enforcement and regulation depends on policy choices which must answer a question: how should antitrust enforcement and regulation relate to each other? This paper, which is available here, looks at this question in the context of deregulated industries. It argues that antitrust enforcement should run countercyclical to regulation, especially during strongly deregulatory cycles. The comparative importance of countering deregulatory shifts arises because, while increased regulation can keep antitrust enforcement out of regulated markets, reduced regulation triggers no such mechanism for pushing antitrust back into deregulated markets. It is argued that good reasons for antitrust enforcement to run counter to deregulation can be found in economics, legal doctrine, and current debates over competition policy. Part I discusses why deregulation can lead to enforcement gaps. A variety of institutions can govern economic competition. Decentralised, capitalist economies generally rely on markets to provide the incentives and discipline necessary to keep prices low, output high, and innovation moving forward. When…

Niamh Dunne ‘Dispensing with Indispensability’ (2020) Journal of Competition Law & Economics 16(1) 74

‘Indispensability’ is the central concept underpinning the treatment of refusal to deal claims under EU competition law. Firms can normally refuse to share their infrastructure with would-be competitors, to supply an input, or to licence their intellectual property. Where the requested access is, however, deemed indispensable to effective competition in an adjacent market—an exceptional circumstance—dominant undertakings may find their default market freedom constrained, the rationale being that control of such an essential facility renders any refusal to deal disproportionately harmful. However, the conventional wisdom that instances of refusal to deal constitute an abuse only in the presence of indispensability has been challenged from multiple directions. This article, available here, surveys the departures from the orthodoxy that can be found in the jurisprudence. Section II introduces refusal to supply as an antitrust theory of harm. It has long been acknowledged that Article 102 TFEU may, in certain instances, proscribe refusals to contract with rivals by dominant undertakings. Yet refusal to deal…