An area of uncertainty, and with differences of approach between competition authorities, is whether brand owners can prevent distributors from reselling their products via online marketplaces such as Amazon. This article considers the European Court of Justice's judgment in Coty and its implications for distribution arrangements, as regards both the application of Article 101 TFEU and the Vertical Restraints Block Exemption Regulation to selective distribution arrangements and restrictions on internet sales via third-party platforms. It also considers the European Commission's response to the Coty judgment (including its application to non-luxury goods) and the approach taken by national courts and competition authorities.
Yves Botteman and Daniel Barrio Barrio
Pinar Bagci, Lucrezio Figurelli and Pedro L. Marín
This article reviews recent merger decisions in the European Union telecoms sector and finds that the European Commission has adapted its approach since 2014 due to the experience of price increases or unfulfilled commitments with previous mergers. In recent decisions the Commission has indicated that it considers the negative effects of ‘4-to-3’ concentrations to outweigh any potential benefits. Remedies are becoming more structural, with the mobile virtual network operator model regarded as insufficient to remedy competition concerns. Parties must offer remedies which can be implemented with certainty and in a timely way, and upfront measures have been required to ensure entry of a fourth mobile network operator in the market. Efficiencies arguments have largely been rejected for not being merger-specific or unlikely to be passed on to consumers.
Simon Constantine and Vian Quitaz
This UK OECD Roundtable submission explores the potential effects on competition and consumers that may arise from the use of algorithms in the digital economy and summarizes recent relevant Competition and Markets Authority (‘CMA’) enforcement and research. The ability of algorithms to sort and process huge volumes of data has been key to the development of the online commerce sector, and can generate significant benefits for consumers. However, those algorithms could also have the potential to facilitate business practices that harm competition or consumers. The nature of algorithms and algorithm-driven markets, and the as-yet limited experience of applying competition laws and tools in relation to them, present challenges for competition authorities in effectively detecting, assessing and – where concerns are found – addressing such potential harm. By seeking to deepen its understanding of how algorithms affect competition and consumers, and by targeted use of its full range of competition and consumer powers, the CMA aims to meet those challenges and to ensure that online markets work well for consumers.
Edward Coulson and Andrew Leitch
The recent increased focus of the European Commission on cartels formed and operated outside of the EU, which nonetheless harm competition in the internal market, has led to a corresponding increase in private damages actions being pursued in the English courts for losses occasioned by those cartels. Those private damages actions have tested both the jurisdictional reach of the English courts and the territorial scope of EU competition law. This article discusses the successful appeal by iiyama against the partial strike out of its private damages claims in the English High Court for losses occasioned by the CRT Glass and LCD cartels. The impact of the Court of Justice's decision in Intel, which was handed down between iiyama's damages actions being struck out and its successful appeal, is also discussed, together with the High Court's subsequent decision in Unlockd, which followed Intel and iiyama. Taken together, these cases provide significant increased clarity on the issues of jurisdiction and applicable law in private damages actions before the English courts.
In June 2017, the European Commission imposed a €2.4bn fine on Google for abusing its dominant position in online search by giving preferential treatment to its own comparison shopping service. Such complex cases of leveraging of market power also arise in other digital markets, and raise several questions. How should competition authorities weigh benefits to consumers against harm to competition and competitors? How can competition concerns be remedied without affecting incentives to innovate? This article considers the Google Shopping case and how such questions may be resolved.
The United Kingdom Government has recently given its clearest indication yet that a domestic state aid regulatory regime, would have to be in place at the end of the Brexit process. The Competition and Markets Authority has been designated as the domestic state aid regulator. This article reassesses the importance of the provisions on state aid within the European Union legal order and reviews the control of subsidies in international trade law, both under World Trade Organization rules and in the EU's trade agreements with third countries. It further examines the challenges and opportunities presented by a process of decentralization of state aid control in the United Kingdom in the context of the negotiations for a future EU-UK trade agreement.
Xianwei Zhang and Xiequn Zhu
Due to the enormous extent of the e-commerce market in China, the problem of online patent rights infringement has become more severe and has received more attention from Chinese legislators. Therefore, in the latest Draft Patent Law Amendment, the ‘notice and takedown’ rule originally used in copyright law has now been transplanted into patent law to tackle online patent infringement issues. In our view, because there is a clear distinction between infringement of patent right and infringement of copyright, the notice and takedown rule cannot simply be transplanted without creating an unnecessary burden on internet service providers. Based on an evaluation of court rulings of the People's Republic of China, this article will provide recommendations for improving the application of the rule.
Inventions have been protected, in England, by patents since the sixteenth century. The patent system has undergone significant change since that time – in the nineteenth century, major legislative reforms were undertaken in the shadow of an abolitionist movement; and in the twentieth century, the system began to accommodate radical technological developments. This research applies insights from evolutionary theory, allowing a focus on the range of parties involved in the system and an acknowledgement of how these parties have changed as the system and society have developed.