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Simeon Thornton, Chris Jenkins and Marie-Madeleine Husunu
Digital advertising, both display advertising and search advertising, represents a very important part of the overall advertising market in the United Kingdom. Google and Facebook have a high degree of market power in search and display advertising, respectively. On 1 July 2020, the Competition and Markets Authority published its Final Report on its market study into online platforms and digital advertising, in which it looked in some depth at digital advertising markets, assessing whether a lack of transparency, conflicts of interest, and the leveraging of market power undermine competition in digital advertising. This article examines the issues considered by, and the findings of, the CMA in its Market Study and set out in its Final Report, and describes the policy options identified in the Market Study for promoting competition and other policy goals, such as data protection and privacy and ensuring the viability of news publishers, in digital advertising markets.
The end of the Transition Period following the UK's exit from the European Union and COVID-19 are major catalysts for the Competition and Markets Authority's future work, including in the fields of merger control and antitrust enforcement. This article considers how these, and other events, will influence the CMA's work, including the establishment of the Digital Markets Unit and the Office for the Internal Market, enforcement priorities and international cooperation.
Noel Beale and Paschalis Lois
The Trade and Cooperation Agreement broadly sets out the nature of the relationship contemplated between UK and EU competition law and policy following Brexit. The question is whether the UK will capitalize on its newfound discretion to deviate its competition policy from the EU in the future. This article considers some of the potential new directions that might be taken within the UK's competition law landscape, specifically in relation to merger control, antitrust and subsidy control. It explores some of the problems and opportunities created in the wake of Brexit, as well as the legal and practical ramifications of future divergences between UK and EU competition policy. Furthermore, it considers how the Competition and Markets Authority may fare in enforcing new policy, as well as its potential interactions with regimes both within and outside the EU.
Andreea Antuca and Robin Noble
There has been a data revolution: the combination of sensors, processing power and mobile communications means that there is more of it, and it is having a greater impact on our lives than ever before. Across the world, there have recently been many new initiatives and legislative proposals for opening up access to some of that data. This is often driven by two different motivations: the desire to create new positive outcomes with existing resources, and the desire to correct negative impacts on competition in markets. To regulate data access properly, it is necessary to understand what makes data different and what its value is. If data access is going to be mandated, how can one value the data that a business holds, and set fair and reasonable charges for access to it? Economic tools that analyse the cost of creating the data, and the benefits derived from it, provide critical insight into this question.
Nima Lorjé and Ariela Stoffer
Commission inspections pursuant to Article 20(4) of Regulation 1/2003 (i.e. dawn raids) interfere with the privacy rights of companies and individuals. This interference is disproportionate when it is not consistent with the requirements laid down in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for Human Rights. In its recent judgments in the French Supermarkets cases, the General Court partially annulled four Commission inspection decisions for constituting an arbitrary and unjustified interference with the privacy rights of the inspected companies. The General Court found that the Commission had initiated inspections without having sufficiently serious evidence in its possession. This article examines this finding of the General Court and its practical implications for the protection of companies’ privacy rights in the context of dawn raids. In addition, this article examines possible remedies for challenging the seizure and copying of documents containing personal information of raided companies’ staff during a dawn raid.
This article explores the impact of the General Court's judgment in CK Telecoms and the Commission decision in T-Mobile NL/Tele2 on the assessment of four-to-three mobile mergers. The unconditional clearance in the Dutch case energized some telecoms executives, but the Commission stressed that it was largely due to the very specific circumstances of the case. Then, in CK Telecoms, the General Court delivered a blow to the framework developed by the Commission to assess mobile mergers. The Court's interpretation of the concepts of ‘important competitive force’ and ‘closeness of competition’ raises the threshold for the Commission to challenge mergers and implements the principle that there is no ‘magic number’ of mobile network operators. Though some commentators compared CK Telecoms to the Airtours case, CK Telecoms has not provoked similar soul-searching at DG Competition. Some senior Commission officials criticized the judgment and indicated that the Commission will continue applying the same framework. On appeal, the Commission has challenged all key aspects of the judgment. The Dutch case, however, confirms that the Commission may entertain unconditional clearance in some four-to-three mobile mergers and, while CK Telecoms might not bring an overhaul of the current framework, we can expect some refinements.
James Crawford, Andrew Sanger, Rumiana Yotova, So Yeon Kim and Tom Boekestein
Vineet Hegde, Jan Wouters and Akhil Raina
Since its establishment, the World Trade Organization has suffered numerous blows. Today, however, it is going through a perfect storm: from a paralysis in its lawmaking function to the demise of the Appellate Body. Powerful economies such as the United States, China and the European Union are moving away from multilateralism, in different ways, in order to shape novel approaches. Non-transparent practices like informal trade instruments, geoeconomics, and the domestication of international trade rules are appearing as new tools of global economic governance. How to make sense of these practices and approaches from a legal perspective? The common thread in all these factors is the relative decline of the rule of law. This article explores and critically assesses these developments and calls for urgent action in order to remedy and strengthen the multilateral rules-based trade order.
Lavanya Rajamani and Jacqueline Peel
This article examines the profound ways in which international environmental law has evolved over the last decade in response to a shifting geopolitical context, as well as a better understanding of the possibilities and limits of global regulation to address complex, polycentric and intractable environmental harms. It identifies as emerging trends in the field the maturation of the customary norms and fundamental principles of international environmental law, in addition to changes in its modes of implementation and the actors involved in those processes. This article also highlights the increasing activity at the interface with other fields of law and policy that has expanded the sites at which international environmental law is made, applied and implemented. It concludes by asking whether this body of international law remains ‘fit for purpose’ as it seeks to adapt to constraints on its nature and operation imposed by the current architecture of international law and politics.