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Anna Masutti and Filippo Tomasello
Mariateresa Maggiolino and Maria Lillà Montagnani
This chapter examines how the abuse of rights fits within the twofold framework of EU competition law and Union law to investigate the actual scope of this long-standing general principle of law. To this end, the chapter begins by analyzing the EU case law to identify the conditions under which a firm abuses its rights and violates EU competition law. Then, taking inspiration from the US antitrust law, the chapter maintains not only that the case of the abuse of rights should be distinguished from the case of the conflict of laws, but also that the psychological inquiry into the intent motivating abusive business practices should be kept separate from the objective examination of the reasons explaining and justifying the abusive behaviors. The chapter discusses the EU case law that, moving from the analysis of many and diverse legal provisions, has over the years shaped the principle of the abuse of rights that is now applied in the EU. In particular, the chapter elicits the problems connected to the subjective and objective elements of the actual definition of the abuse of rights and concludes by comparing the tests adopted in EU competition law and Union law.
This chapter investigates the interface between abuse of dominance and abuse of economic dependence. When dealing with abuse-of-dominance cases there is a fundamental requirement that competition in the relevant market be affected. This approach does not address relative dominance in cases when abuse occurs without dominance and may affect competition. This happens in situations where a relatively dominant market participant enjoys a superior bargaining position with respect to its business partners and uses this position to its own advantage. Taking the example of the distribution sector, the chapter showcases how competition may be affected by an undertaking without a dominant position using a network of contracts. This situation can be illustrated in cases where a network of contracts is created by a relatively dominant firm whose sole objective is to lock in smaller or economically weaker business partners in a network and thereby limit their possibility to shift. Such networks of contractual relationships may hinder not only the economic freedom of the weaker party (vertical dimension), but may also strengthen the market power of the relatively dominant firm (horizontal dimension). As a consequence, the relevant market may be affected although the undertaking does not have a dominant position. Hence, there is a close link between economic dependence, freedom of contract and competition law. Situations of abuse by non-dominant firms are not captured by the requirements that the undertaking enjoy a dominant position and the relevant market be affected in abuse-of-dominance cases. This shows the limits of the concept of abuse of dominance as a legal tool used to protect competition in the relevant market. This chapter argues that, in addition to abuse of dominance, there is the potential to use the concept of relative dominance (by sanctioning abuses of economic dependence) to protect not only the freedom of competition of the market participants, but also competition itself.
Fabiana Di Porto
In this contribution I both review expert contributions from different jurisdictions pertaining to norms on abuse of dominance and norms on abuse of non-dominance, and assess to what extent these two families of dispositions are theoretically and practically reconcilable. As a matter of comparative law, the first question that arises is the risk of regulatory drift in the application of norms on abuse of dominant position. That happens, for instance, with commitment decisions (which I prefer to term ‘para-regulatory’ decisions), and with the particularly aggressive attitude toward the enforcement of exploitative ‘unfair’ prices (Article 102 lit. a) TFEU), by some national competition agencies. The latter may require them to (unduly) set, and thus regulate, ‘fair’ prices. To avoid that, a proposal is made to reinterpret the norm as prohibiting only supra-monopolistic prices (as effectively exclusionary, rather than exploitative). My conclusion on this is that such a reinterpretation would unreasonably eliminate any difference between a monopolistic price that is ‘exceptionally justified’ because it is welfare-enhancing and one that is not. On the side of norms on abuse of non-dominance, although differently constructed (as situations of economic dependence or of superior bargaining power), the core difference among jurisdictions resides on whether the abuse also amounts (as in Japan and North Korea) to an infringement of competition laws (ie has an effect on the relevant market), or not. In the latter case, unilateral conducts by non-dominant firms may still be scrutinized if the relevant market is defined in a very narrow fashion (and consequently dominance is ascertained). The two hypothesis taken together, however, risk transforming the competition agency into a regulator for policing detailed contractual terms and fairness. One might thus question whether intervening to protect weaker economic partners makes sense at all from a general welfare standpoint; or, on the contrary, it is legitimate to enforce the weaker party’s ‘right’ or freedom to compete in the market.On a normative ground, in order to reconcile norms on abuse of dominance and of non-dominance, I suggest for those jurisdictions that keep abuse of non-dominance within the realm of competition laws (by requiring an effect on the relevant market to be ascertained), either to remove this latter requirement or to expressly establish flexible thresholds of non-dominance.
John O. McGinnis
This chapter argues for government support for “friendly AI”—a kind of artificial intelligence that will not endanger humans. AI is not, contrary to some theorists, necessarily a threat to humans, because AI will not necessarily be anthropomorphic and possess an all-too-human will to power. Government support for friendly AI makes it more like that friendly AI will emerge before other more dangerous kinds. Moreover, such support is also justified because the acceleration of AI will aid in the analysis of the risks and benefits created by the many other kinds of technology that are also accelerating—from nanotechnology to biotechnology. Only AI of all the many accelerating technologies of our present day helps perform this crucial function. Alternative approaches to AI—relinquishment or regulation of kinds of AI that might be deemed harmful—are infeasible. Given that AI is so central to modern military power, relinquishing or inhibiting AI would empower the worst nations on earth.
Beatriz Huarte Melgar
Access to capital (ECT Art 9) is, like ECT Article 8, a significant instrument for international energy cooperation as well as energy trade and investments. This legal provision is fundamental to finance trade in energy materials and products and, therefore, to promote the investments of foreign enterprises and their operations. However, the drafting of this precept has been carried out so as to find a compromise among the ECT Contracting Parties; accordingly, it can be considered as a ‘best efforts’ clause. In this regard, this chapter makes a commentary on ECT Article 9 to understand its raison d’être and relevance for the access to capital markets in the energy sector.
Viktoria HSE Robertson and Marco Botta
Industries often establish technical standards via standard-setting organizations (SSOs) in order to ensure the interoperability of products and future innovations, so-called formal standards. Industry standards can also emerge from the market, in which case they will be referred to as de facto standards. Many of these formal or de facto standards rely on a wide range of innovations that are protected by patent law. Patents that read on technical standards are referred to as standard essential patents (SEPs). Standards are widely regarded as being pro-competitive, especially as they can encourage further innovation. However, there can also be reason for competitive concern in relation to standards: as other intellectual property rights, SEPs establish an exclusive right of exploitation for the patent owner. Within formal standard-setting procedures, a mechanism has been adopted in order to avoid a potential restriction of competition in the market: the SEP owner usually offers to the SSO its ‘commitment’ to license its SEPs to any interested third party under fair, reasonable and non-discriminatory (FRAND) terms and conditions. In the case of de facto standards, no such commitment is made. Both within the EU and the US the question increasingly debated concerns the consequences of the failure by the SEP owner to conclude a licensing agreement with an interested third party. This chapter starts by looking at the vital role that injunctive relief plays in intellectual property law in order to safeguard the patent owner’s exclusive rights. Against this background, it discusses possible anti-competitive consequences that injunctive relief might bring about both in terms of exploitative and exclusionary effects. Thereafter, it analyses whether and under which conditions the seeking of injunctive relief by the SEP owner could represent an abuse of market power, in breach of section 5 of the Federal Trade Commission Act and Article 102 of the Treaty of the Functioning of the European Union. Finally, it discusses the diverging treatment of SEP injunctions on both sides of the Atlantic. The chapter adopts a comparative legal approach in order to highlight the possible convergences or divergences of the approaches taken so far in the US and in the EU on this issue, and the possible cases of mutual learning. The findings are also of interest for other competition law jurisdictions, since the standards adopted by SSOs have an international dimension, and SEP owners increasingly ask for injunctions in various national courts in order to safeguard their rights. Taking into consideration that most of the countries in the world nowadays prohibit the abuse of market power, the current American and European debates on the compatibility of prohibitory injunctions with antitrust/competition law is also likely to take place in other countries of the world in the near future. In particular, the test defined by the CJEU in the Huawei v ZTE ruling could be an inspiration for courts and competition authorities of other jurisdictions called to assess similar issues.
Odysseas G. Repousis
Article 41 deals with accession to the Energy Charter Treaty. Specifically, unlike Article 38 (signature), Article 41 only applies to States and Regional Economic Integration Organizations that accede to the Energy Charter Treaty after 16 June 1995 (see Art 38). These parties may therefore become Contracting Parties to the Energy Charter Treaty without prior signature. However, instruments of accession must be deposited with the depositary. In all accession cases, prior approval of the Energy Charter Conference is required.
Where law is lawful, decision-makers must comply with the law. If administrative justice is to be achieved in the global space, administrative decision-makers must be committed to ‘legality’, meaning that their decisions are consistent with the existing body of law. A comparative analysis of prevailing functional understandings of administrative justice reveals that it contains a requirement that administrative decisions be made ‘according to law’. Global administrative justice requires cohesiveness, and cohesiveness implies stability, or an anchor to which standards can be tethered. If a requirement for decisions to be made according to law is incorporated into a model of global administrative justice, that anchor becomes the legal framework under which administrative decisions are made. The existing law in the global space, which is defined as international law, domestic law and institutional law, intersects with the United Nations to create legal obligations for its administrative decision-making.
Normative conceptions of administrative justice that are based on rights protection and good governance form the foundation for the second requirement of global administrative justice, which is that administrative decisions must be made ‘according to values the community accepts as just’. These procedural values, which are broadly defined as rationality, fairness, transparency and participation, are revealed through an analysis of the ‘acceptance’ of procedural values by the ‘global community’. A fragmented global community can be defined as both municipal and cosmopolitan in nature, meaning that the values that the global community ‘accepts as just’ will be identified through the codification, interpretation and practice of democratically legitimate international law that reflects the principles of human dignity. Procedural values that are accepted as just by the global community manifest in the global space as divergent standards, according to the functions and objectives of individual global decision-making bodies.