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This chapter aims to give some insights into how a group of transnational experts, Euro-lawyers, was formed and consolidated. According to most of the studies on the legal profession in the EU, the very existence of a set of European rules, and its both quantitative and qualitative development in the 1980s, would have produced a body of specialised professionals. Moving away from this narrative of an almost mechanical response by lawyers and law firms to external incentives, this chapter analyses how the legal profession has seized European law to offer new services and, in doing so, has made a new jurisdictional claim. Over the course of six decades of European integration, this chapter follow the emergence and development of this group of European legal experts. My findings are twofold: first, transnational legal experts did not come out of a vacuum and their engagement with European law must be contextualised by their national professional positions. Second, they actively participated in the building of the demand for their services.
The chapter describes how the legislator discussed whether to incorporate a leniency programme in the Trade Competition Act of 2017 (2017 Act). It is argued that there was an initial desire to introduce a leniency programme. The leniency programme would be applied to the criminal sanctions that the bill prescribed for hard-core cartels, such as those involved in price fixing or bid rigging. However, the Office of the Attorney General objected with reasons that giving immunity from a sanction is the constitutional prerogative of the court. In order not to jeopardise the creation of a leniency programme, the drafting committee was willing to limit the lenient treatment to just a reduction in the sanction or to the cartels for which only an administrative sanction would apply. But these initiatives were not incorporated into the 2017 Act. Instead, the 2017 Act gave tremendous flexibility to the enforcement agency by only prescribing maximum sanctions. This might allow a similar result to a leniency programme to be achieved, albeit without a well-defined formal framework.
Competition law is a significant legal transplant in East Asia, where it has come into contact with deeply rooted variants of Confucian culture. This timely volume analyses cultural factors in mainland China, Japan and Korea, focusing on their shared but diversely evolved Confucian heritage. These factors distinguish the competition law systems of these countries from those of major western jurisdictions, in terms of the goals served by the law, the way enforcement is structured, and the way subjects of the law respond to it. Concepts from cultural studies inform a new and eclectic perspective on these dynamics, with the authors also drawing on ideas from law and economics, comparative law, East Asian studies, political science, business management and ethics, and institutional economics. The volume presents a model for cultural analysis of comparative legal topics and contributes to a greater understanding of the challenges to deeper convergence of competition laws between East and West.
This chapter summarises the argument of the book. It has examined the EU’s competition regime and its application in times of crises. In each of these cases, the relaxation of the rules has been shown not to have assisted in solving the crises, and has exacerbated the effects of some crises. Further, as has been shown, the rules themselves do not provide an insurmountable barrier to the solution of ongoing crises (e.g. those associated with environmental and sustainability concerns). Rather, the problem is the need for competition authorities to provide additional guidance and to work with stakeholders in designing and implementing solutions. The work shows that its main lesson – that the introduction of further monopolisation into markets does not solve crises – has been established.
This chapter introduces the argument of the book. It sets out the problem, namely that in almost every crisis there are calls to relax the competition laws so that business can aid in the resolution of the crisis. This chapter challenges this claim. It does so by arguing that the aim of the competition regime is to increase social wealth, so that it can later be used or redistributed. The Introduction outlines the structure of the work, indicating what will be found in subsequent chapters.
There is a red thread that is of interest for antitrust experts, which links together the foundational elements of contracts, as comparatively detectable in modern systems of law, and the more specific notion of cartels or concerted practices. Both of these disciplines have as their basis some form of mutual understanding between parties aimed at coordinating the behaviour of two or more subjects according to a certain 'common meeting of the mind'.
The chapter highlights the main legal arguments under the European Convention on Human Rights and in the jurisprudence in the European Court of Human Rights which resulted in the Menarini judgment declaring Italian competition law to be quasi-criminal and thereby enabling the effective protection of Article 6 of the ECHR. Both EU and Hungarian competition law are quasi-criminal – mainly – due to the increased level of fines imposed by the relevant competition authorities. Article 6 requires effective judicial review in the form of full review, which however is a question that is still not answered satisfactorily in both Hungarian and EU law. This chapter only focuses on the review of fines, where the practical judicial oversight is compatible with the de facto full review requirement of the Menarini judgment.
This chapter gives an overview of UK competition law sanctions and their objectives, and provides a critical analysis of: the method for calculating fines; the Competition and Markets Authority (CMA)’s leniency and settlement policies; review by the appropriate court; private enforcement; the level of enforcement and compliance with UK competition law; and other sanctions against undertakings and individuals. The major issues in the UK centre on the comparatively low number of cases completed by the CMA and the potential chilling effect of its criminal cartel offence. Brexit creates new opportunities for the UK to design and apply its sanctions in a more effective way and outside of the constraints of EU Competition Law, but it also creates significant challenges – in particular in requiring the scaling-up of the CMA’s enforcement to include cases that were previously investigated by the European Commission on the UK’s behalf.
The chapter aims to answer the question in its title from a practical aspect, the perspective of a Hungarian criminal lawyer. First, it dsicusses the theoretical background and reasonableness of the criminalisation of anticompetitive conducts, including some thoughts about the type of sanctions that might make the threat of criminal liability a real deterrent. It goes on to summarise the main features of various criminal regimes with their own unique approaches to criminalisation. For this, it not only focuses on the regimes’ theoretical concepts, but also on their actual implementation and results, covering the difficulties and discrepancies deriving from their everyday practice. Based on this analysis, some general conclusions are drawn – both on the national and European Union level – regarding anticompetitive conducts’ criminalisation, and suggestions made as to how to improve the criminal regimes already introduced. Based on these findings, the study tries to answer its basic question, whether at the present stage of the (Hungarian) criminalisation of anti-competitive conducts, the ‘cartel crime’ could be deemed a somewhat theoretical danger, a so-called paper tiger, and whether even the present stage of criminalisation could be deemed satisfactory, and the present threat of criminal liability and sanctions already to have a real deterrent effect.
Labour lawyers are familiar with the binary divide between employees and the self-employed. Historically, this also demarcated the exclusion of competition law restraints on workers’ collective action. In recent times, growing numbers in the labour market are self-employed yet work in circumstances of economic disempowerment. They would benefit from collective bargaining, but competition law operates as a barrier to its realization. This chapter considers a ‘fundamental rights’ strategy for challenging competition law restraints. This strategy is based on the simple claim that the fundamental human right to bargain collectively is a right for ‘everyone’. The chapter identifies some weaknesses and problems with this approach within the European context. Abstractions like the ‘everyone’ argument can be counterproductive because human rights must be situated within existing power relations and economic structures in labour markets. Nevertheless, a suitably contextual fundamental rights strategy has an important role to play. On this contextual approach, reflected in the European Social Charter, entitlements to collective bargaining must be sensitive to substantive social and economic disadvantages. The exclusion of competition law would no longer be tied to specific contractual forms like ‘employee’.
The Indian Competition Act aims at promoting economic development through market freedom by curbing anti-competitive agreements, abuse of dominant market position, and combinations of businesses that have adverse effect on market entry and competitiveness. These practices are curbed because they are market-distorting, thereby stunting the freedom of trade and business, a justiciable constitutional right. By the same logic, worker associations, negotiating collective bargaining and using strike as a bargaining leverage, may be restricted. However, the right to association is also a justiciable right under the constitution. The Supreme Court resolves the trade off between two co-equal justiciable rights by creating a distinction between social function and economic function of worker associations. When worker associations act as collective bargaining agents promoting the principle of solidarity (a constitutional ideal), they are exempted from the operation of the competition law, but when they act as associations of enterprises with a business interest (i.e., profit motive) of their own, their associations become anti-competitive “combinations.” This chapter argues that although such a trade off might exonerate trade unions in industrial relationships from the scope of the competition law, it may impede worker associations of informal workers, the majority of whom are self-employed workers participating in market exchanges. However, since associations of informal workers primarily negotiate with the government, their “political negotiation” may be exempted from the operation of the competition law by governmental discretion permitted under the law.
In many countries, the analysis of economic coordination--for the purposes of competition law and otherwise--has been dominated by neoclassical economics. Building on heterodox economics and economic sociology, this chapter outlines an alternative perspective--a “market governance” framework--to make sense of the coordination of economic actors--including workers--with a focus on pricing decisions. The framework treats prices as always subject to the coordinating activities of market participants, and never emerging out of “free competition”, which is an illusion. Several implications of the account are sketched, including a reinterpretation of several domains that are commonly taken to be “free markets” and a critical reexamination of the contemporary approval of the “efficiency” of hierarchical centralized coordination in enormous multinational corporations.
As an introduction to the volume, this chapter begins by reframing the commonly held notion that labor and competition law exist in a kind of natural conflict, both historically and conceptually. It also draws together themes from many of the other ‘framing’ chapters, which largely present issues that cut across jurisdictions and international frameworks. Finally, it puts the geographical coverage of the volume in perspective, highlighting related areas of inquiry yet to be explored.
South African competition law has played a modest role in the arena of labour relations in response to agreements between companies relating to employees’ salaries, terms of compensation, employee benefits, and undertakings not to solicit or hire employees from companies that could be considered to be competitors. By contrast, the South African Constitution affords a comprehensive umbrella of rights protection to workers. These rights have been supplemented by far reaching provisions in a chapter of the Competition Act of 1998 which sets out the regulatory framework for mergers and which through its public interest provisions protect workers who are employed by the merging companies. This chapter examines this interface between these two areas of law. It locates this regulatory framework read as a whole within the context of traditional forms of employment .In turn this prompts an examination the question of the role of competition law in response to the changing nature of work which falls outside the scope of the constitutionally protected area of labour relations. In turn this raises questions about competition law and the regulation of these new forms of labour relations.
In Japan, the Labour Union Act (LUA) guarantees workers the right to associate, bargain collectively and go on strike and the Antimonopoly Act (AMA) does not apply to these actions. To determine whether individuals constitute workers under the LUA, the court assesses multiple factors such as whether they are integrated into a business organisation and if the contract terms are unilaterally decided by the employers. Once they fall outside the definition of workers, their practices fall within the scope of AMA to the extent that they carry out the business as enterprises. Only a practice that has an anticompetitive effect is deemed unlawful under the AMA. With the increase of self-employed workers, the distinction between employee (worker) and enterprise has become blurred. There is also no precedent which indicates how the anticompetitive effect would be examined under the AMA in the case of collective actions of a sole-trader and other microenterprises. Although the AMA exempts the actions of cooperatives, the cooperative may be ill-suited for the selfemployed. These legal environments create serious uncertainty, which may deter taking collective action in order to establish fair trading and working conditions
In common with many developed world countries, the regulation of labour markets in Australia has been characterised by a divide between workers governed by labour laws (employees) and workers governed by commercial laws, including competition law and policy (everyone else). This divide has meant that access to collective bargaining and the right to strike has largely only been accessible by traditionally employed workers. However, for many decades, Australian competition regulation has included a mechanism to enable self-employed workers and other businesses to seek permission from the competition regulator to engage in collective activities. The express statutory basis for permitting proposed conduct has been on the basis that it will produce ‘net public benefit’ – ie, produce more positive outcomes than harmful ones. In 2021, in recognition of the widespread public benefit that can be gained from collective action, the need for prior permission was removed, and a class exemption for small business collective bargaining was declared. This chapter examines the Australian competition law regime, and the regulation of workers and small businesses, with particular attention to the development and operation of the ‘public benefit’ exemption for collective bargaining.
Public interest issues have the potential to play a significant role in the evaluation of mergers and acquisitions in Africa's regional competition laws. A case in point is the Common Market for Eastern and Southern Africa (COMESA): its regional competition authorities have jurisdiction to evaluate transactions within the Common Market. To that end, COMESA's regional competition law enumerates specific public interest factors regarding mergers and acquisitions. Further, COMESA's regional competition law permits the consideration of additional factors under the rubric of public interest, without specifying what these factors are. On this basis, COMESA's regional competition authorities have gradually created precedents on incorporating public interest considerations. This illustrates the point that purist positions towards competition law do not serve Africa's socio-economic development goals. Therefore, the challenge facing COMESA's regional competition authorities is the application of the public interest in a manner that remains faithful to the economic doctrine that underpins competition law.
Chapter 18 provides a human rights’ narrative in envisioning the implementation of competition law in the food value chain. The authors argue that competition law, with its inherent focus on market regulation and providing a level playing field to market players, offers a credible conceptual and institutional response for addressing this challenge along transparent, predictable and sustainable lines. They argue that not only does the implementation of the right to food stand to benefit from a market-centred approach but also that competition itself becomes a more “holistic” and meaningful tool for social reform by taking into account values inherent in the progress towards the global right to food by integrating the multi-dimensional reality of the global food supply and retail chain in the assessment of specific commercial practices and/or sectors. The Chapter provides the “grammar” of a more holistic competition policy in this crucial sector for national and global economies and attempts to dissect the actual and potential impact of the right to food rhetoric on competition law enforcement.
Chapter 15 provides a glimpse of alternative approaches to deal with supermarket power, outside the competition law toolbox, by exploring the various Russian law instruments designed to protect the weaker party to a contractual agreement, which is subject to the principles of Russian law. The authors argue that both Russian law and Russian judicial practice dispose of all the necessary instruments to help contracting parties achieve economic justice in specific cases. The authors describe the genesis and further development of Russian legislation, judicial practice and legal policy regarding the protection of the weaker party, through a comparative law perspective. In particular, the authors describe the impact of the concept of ‘superior bargaining power’ in both contract law and competition law in Russia. They argue that this traditional civil-law concept may narrow down antitrust enforcement and make it more balanced and fair from the perspective of market actors. By fostering the expansion of the superior bargaining power concept, the authors contend that it will mitigate the problems that arise out of the complexity and excessive formality of the traditional antitrust enforcement criteria applied in Russia.
Chapter 11 offers a perspective from South Africa. In South Africa the pursuit of distributive justice is eminently permissible, if not compelled, by South African competition law and its unique responsiveness to the issues of distributional equity and fairness. For example, in merger regulation and exemption applications, the Competition Act permits consideration of equity issues such as empowerment, employment and concern for small- and medium-sized enterprises (‘SMEs’). The authors explore how the Pioneer/Pannar case provides an example of the effort made to take public interest factors and innovation competition into account in merger enforcement.