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Edited by Gustavo Ghidini, Hanns Ullrich and Peter Drahos
The Continuing Influence of European Union Law
Marc Barennes, Tessel Bossen, Hans Bousie and Sarah Subrémon
Several legal topics regarding cartel damages litigation have drawn special attention over the last few years, including the passing-on defence. ‘Passing-on’ in competition cases is where overcharges caused by a cartel, which affect the customers of the cartelists (direct purchasers), are passed-on by these purchasers to buyers further down the supply chain (indirect purchasers). Cartel members regularly invoke this defence as a (partial) shield against a claim for damages. The EU Damages Directive contains two important presumptions in connection to passed-on damages. This article undertakes a comparative analysis of how the courts in the Netherlands, France and England and Wales apply these presumptions in practice in their case law.
Gönenç Gürkaynak, Kansu Aydoğan Yeşilaltay and Zeynep Ayata Aydoğan
This article examines the recent proposals and reports on the regulation of digital mergers in the European Union, United Kingdom, United States and other jurisdictions, with a particular focus on the proposals for presumptions against mergers. It argues that any intervention in digital mergers needs to calibrate a balance between preventing excessive levels of market concentration and promoting innovation and that any departure from existing laws should be justified. Against this background, this article concludes that the recent arguments for lowering the threshold for blocking digital mergers undermines the risk of chilling innovation and losing significant efficiencies, and does not rely on concrete evidence and sound economic theories.
Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.