Chapter 8 traces the EU governance of transport services from the Treaty of Rome to the new economic governance (NEG) regime adopted by the EU after the 2008 financial crisis. Initially, European public sector advocates were able to shield transport from commodification, but, over time, the Commission gradually advanced a commodification agenda one transport modality after another. Sometimes, however, the Commission’s draft liberalisation laws encountered enduring resistance and recurrent transnational protests by transport workers, leading the European Parliament and Council to curb the commodification bent of the Commission’s draft directives. After 2008 however, NEG provided EU executives with new means to circumvent resistance. Despite their country-specific methodology, all qualitative NEG prescriptions on transport services issued to Germany, Italy, Ireland, and Romania pointed towards commodification. But the more the Commission succeeded in commodifying transport services, the more the nature of counter-mobilisations changed. Accordingly, the European Transport Workers’ Federation’s Fair Transport European Citizens’ Initiative no longer targeted vertical EU interventions, but rather the social dumping pressures created by the horizontal free movement of services and fellow transport workers. This target made joint transnational collective action more difficult.

The legal treatment of autonomous algorithmic collusion in light of its technical feasibility and various theoretical considerations is an important issue because autonomous algorithmic collusion raises difficult questions concerning the attribution of conduct by algorithms to firms and reopens the longstanding debate about the legality of tacit collusion. Algorithmic collusion, namely, direct communication between algorithms, which amounts to express collusion, is illegal. Intelligent and independent adaptation to competitors’ conduct by algorithms with no direct communication between them, which is tacit collusion, is generally legal. There should be ex ante regulation to reduce algorithmic collusion.

There are often claims that competition law does not or should not apply to entities that operate on a not-for-profit basis. Operating on a not-for-profit is not however accepted as a reason to exclude an entities activities from the scope of competition law. Competition law is applied to non-profit providers and this essay identifies a number of ways in which not-for-profit status can influence the way the law is applied. It then considers whether, particularly when not-for-profit entities are competing with for-profit entities, whether and why modifications in the application of the law are justified.

While company law makes great efforts to maintain the separation of different legal entities, other areas of law increasingly emphasise the common responsibility of corporate groups. One of the fields shaping this emerging principle is competition law, where focusing on the whole group rather than its individual members is increasingly becoming the norm. But this approach is still far from being uniformly accepted. While EU competition law is pushing ahead, US antitrust law is said to take a rather critical stance. Against this background, this chapter examines the functions performed by a unitary perspective on corporate groups. The main goal is to show that at least three important functions must be distinguished in EU competition law, each of which has its own implications. Only when these are properly understood can it be determined where the group perspective is appropriate and where it is not. This is shown by the example of current discussions, for example, on the liability of sister companies and on possible applications in the area of liability for damages. Finally, the analysis in this chapter also aims to contribute to a better understanding of the different approaches in EU and US competition law.

Since their creation, corporations have proven to be vehicles for incredible aggregate wealth creation. It was, however, recognised at the outset that in creating a unique set of legal features that would make the company attractive for private investment, the state was not only creating a co-investor in public wealth but there was also the possibility that the company would pose a threat to the state itself. As such, since its inception, the corporation has been involved in a delicate dance with the state both to route its productive capacity towards socially desirable ends and to control the corporation’s power. Today, as technological development and the mobilisation of international financial capital allow the power of the corporation to transcend that of the state, the tools of the past that were used to constrain the corporation are increasingly relevant. Corporate law and antitrust were once used to maintain the balance between the power of the corporation and the power of the state. The now-separate conversations about corporate responsibility in the corporate governance sphere and about corporate power within competition policy circles have always, in fact, been fundamentally connected and targeted at the same set of risks.

Discusses alternatives to traditional economic regulation, including competition for the market, contestability, state ownership, reliance on competition law, deregulation and negotiated agreements

This chapter explores the interaction between the director’s duty of loyalty and competition. It suggests that the interaction between corporate opportunity rules, which protect the company against the exploitation of business opportunities by the director, and its effects on competition and innovation require closer empirical analysis. This chapter provides a basic overview of corporate opportunity rules and then shows how such rules, which exist in numerous jurisdictions, may in certain cases have negative unilateral effects on competition and how they might also affect dynamic competition.

Generally, it might seem that the problem of a few system leaders hoarding data should be addressed by competition law. Market power and monopolizations generally trigger competition-law remedies. However, as will be discussed below, when it comes to accessing data, and especially when access to data should be granted as a continuing service, competition law is generally the wrong platform to use. Access or forced collaboration is difficult to establish under competition law. The case law of the Court of Justice of the European Union (CJEU) makes it difficult to succeed in arguing that a refusal to grant access to data is an abuse of market dominance under Article 102 TFEU. Proving market dominance in data-related markets is a challenging undertaking and is highly case specific. Similarly, the very stringent requirements defining abuse were developed for different situations and may need to be adapted to circumstances of the data-driven economy. More importantly, only undertakings would be able to rely on a right to access data under Article 102 TFEU, which would generally exclude access claims of consumers. Finally, the enforcement system of competition law does not seem to be sufficiently effective to guarantee competitive markets for the mass phenomenon of data lock-ins caused by connected devices.1

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.

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.