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Blog o’ Blogs January 2015

 |  January 20, 2015
January 2015, Volume 5, Number 1
We’re starting the new year with controversy, debating Uber’s surge pricing. Then moving on to a hot FTC topic— trade associations; two looks back at 2014; a couple of questions regarding Apple’s pricing; and some thoughtful commentary on privacy, government conduct, choice, SEPs, and exclusive dealing.  
Surge pricing and political ignorance
Many types of public ignorance about economic and political issues have persisted for decades with no sign of abating, and this case might turn out the same way.
Ilya Somin (Washington Post)
Is Opposition to Uber’s Surge Pricing Irrational?
Although a practice may be efficient, it doesn’t follow that everyone is made better off by it. 
Eric Posner (Posner Blog)
Unflattering Resemblance
Recent FTC settlements involving trade association rules serve as a reminder that sometimes, a close family resemblance to bad kin can attract unwanted antitrust attention.
Geoffrey Green (FTC’s Competition Matters)
The Ethics of Trade Association Code of Ethics
To the FTC, however, they amounted to nothing more than unlawful limits on free competition.
Mark Katz (Kluwer Competition Law blog)
And the 2014 winner is…

I don’t know whether one can accurately describe there being ‘winners’ and ‘losers’ in cartels, but the article…certainly highlights some interesting general trends in global cartel fining.

Sam Villiers (Chillin’Competition)

A Look Back at U.S. Antitrust Enforcement in 2014
The Federal Trade Commission and Department of Justice Antitrust Division had another active year in antitrust enforcement in 2014.
Jeffrey May (AntitrustConnect
)
A Small Bite at the Apple
But I felt the government’s story may have been easier to understand and perhaps more persuasive (including in the court of public opinion) if Apple had been charged with aiding and abetting. 
Robert Connolly (Cartel Capers)
Something is wrong with Apple’s International app pricing
This may help consumers but it would, more importantly, likely help developers in keeping those app store revenues high.
Joshua Gans (Digitopoly)
Dancing around data
Privacy and competition issues shouldn’t neatly fall into distinct compartments – but most enforcers have blithely left them there.
Maurice Stucke & Allen Grunes (The Hill)
Challenging Anticompetitive Government Action, in Light of Constitutional Constraints on U.S. Antitrust Law
It may be possible to further tweak antitrust to apply a bit more broadly to governmental conduct, without upsetting the constitutional balance.
Alden Abbott (Truth on the Market)
EU competition law and choice: falling back into old habits
It is not clear why choice as such would be advocated after the experience acquired over many decades.
Pablo Ibáñez Colomo (Chillin’Competition)
Reasonableness Of Licensing Royalties Is On Trial As Courts And Standard-Setting Organizations Wrestle With Standard-Essential Patents
The recent Federal Circuit and IEEE decisions are cause for some optimism for companies that build products based on industry standards that are encumbered by standard-essential patents.
David Golden (Antitrust Today)
McWane in the 11th Circuit: When Is Exclusive Dealing Anticompetitive?
Who would have thought that ductile iron pipe fittings would make for such an interesting antitrust case? 
Steven Cernak (AntitrustConnect Blog)
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On the Article 102 TFEU Guidelines (V): Competition on The Merits as an Irritant On the Article 102 TFEU Guidelines (V): Competition on The Merits as an Irritant | PYMNTS.com

On the Article 102 TFEU Guidelines (V): Competition on The Merits as an Irritant

 |  January 20, 2025

By: Pablo Ibañez Colomo (Chillin’ Competition)

In his article, Pablo Ibañez Colomo examines the recent push to operationalize “competition on the merits,” transitioning it from an abstract aspiration into a tool for assessing lawful versus abusive conduct under Article 102 TFEU.

One of the most notable developments in recent years is the revival of the concept of competition on the merits. For a long time—particularly over the past decade—competition on the merits remained little more than an abstract aspiration, a “general umbrella,” as Heike Schweitzer and Simon de Ridder aptly described it, with no concrete substantive content.

Recently, the author notes, there has been an effort to transform this abstract notion, which is difficult to disagree with, into a practical and operational concept. The goal was to move beyond the “general umbrella” and develop competition on the merits into a functional tool, enabling courts and authorities to delineate lawful from abusive conduct in specific cases.

The roots of this effort can be traced back to case law. Defendants in cases such as Google Shopping and Servizio Elettrico Nazionale invoked competition on the merits in hopes of (i) narrowing the scope of Article 102 TFEU and/or (ii) increasing the burden of proof for competition authorities.

However, these efforts have not yielded the desired results. Following the Google Shopping case, it has become evident that conduct not inherently inconsistent with competition on the merits can still fall within the scope of Article 102 TFEU, depending on the economic and legal context. Moreover, competition authorities are not universally required to demonstrate that the contested practice deviates from competition on the merits. Instead, where a legal test exists, showing that the conditions of that test are met suffices to establish abuse to the required legal standard.

The attempt to render competition on the merits an operational concept has failed and may have even backfired. This vague notion can now be weaponized against defendants, as portraying conduct as a departure from competition on the merits effectively implies abuse, even if only as a rhetorical strategy.

Although the effort to revive competition on the merits has fallen short, it has left a legacy of confusion for the competition law community to navigate. The Commission, for instance, has had to engage with the concept in its Draft Guidelines, dealing with a challenging and complex issue…

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