Julian Nowag

From Better Regulation to Better Adjudication? Impact Assessment and the Court of Justice's Review

The paper examines the role of the EU’s Impact Assessments in the adjudicative process of the CJ with regard to subsidiarity and proportionality. The paper first explores and explains Impact Assessments as part of the Better Regulation Agenda and its role for the rule of law. Second, it explores the Impact Assessments in the Courts review of proportionality as a procedural element. Then ways to improve the use of Impact Assessments in the case law are explored. Finally, constitutional limits to the use of Impact Assessments by the Court are explored. The paper cautions against extending the adjudicative scope of subsidiarity and proportionality to a more substantive review of the merits. Instead, we suggested to take the Commission’s commitment to Impact Assessments more seriously and hold the Commission to account with regard to this commitment thereby starting a feedback loop where better regulation leads to better adjudication and vice-versa.

How the Uber & Lyft Case Provides an Impetus to Re-Examine Buyer Power in the World of Big Data and Algorithms

For competition lawyers, Uber is an interesting subject to study. Not only does Uber change the dynamics of the transportation market but it also raises interesting competition law questions. Last year for example, a class action suit against Uber in New York raised the question whether Uber is possibly arranging a hub and spoke cartel amongst the drivers by coordinating their selling prices. 2017 has continued to be litigious and interesting. One of these new class action lawsuits might also raise thought-provoking antitrust issues related to big data and buyer power. Uber, the maverick firm that revolutionized passenger transportation services across the world has been now sued over its alleged use of its “Hell” software before the U.S. District Court for the Northern District of California filed on April 24th, 2017. The suit alleges a breach of privacy laws due to interception of private communications and unfair competition. This software apparently allowed Uber to track Lyft drivers, its main competitor, create fake Lyft accounts, determine which drivers drove for both companies, and “execut[e] a plan meant to entice double-appers to drive exclusively for them”. In this paper we explore such behaviour from a different perspective, the antitrust one. The focus of this paper is on exploring relevant behavior from a buyer power-oriented focusing on reverse rebates and overbuying, while not engaging in a concrete analysis of Uber’s conduct. This analysis provides us with the opportunity to re-explore traditional antitrust concepts, anchored on the purchasing of raw material, in the data and algorithm driven world, in particular, how companies can use big data in anticompetitive strategies, such as granting supra-competitive bonuses, overbuying, and raising rival’s costs through overbuying input.

Environmental Integration in Competition and Free-Movement Laws

Environmental Integration in Competition and Free-Movement Laws engages in a comprehensive analysis of the obligation of Article 11 TFEU (integration of environmental protection requirements) in the three core areas of EU internal market law: competition, state aid, and free movement. It develops a theoretical framework for integrating environmental and other policies and compares how environmental integration takes place within competition, state aid, and free movement law. In turn, it paves a way for a more transparent and consistent integration of environment protection in these three core areas of law.Structured in three parts, this volume (I) offers a detailed analysis of the historical development of environmental integration including discussions of the various intergovernmental conferences which led to a number of Treaty changes, shaping the obligation itself. (II) It investigates which provisions and concepts within competition law, state aid law, and the market freedoms can be interpreted in order to provide a clear demarcation of environmental protection and these areas of law. (III) It analyses how competition, state aid, and free movement law allow for a balancing of the environment against restrictions in cases of conflict. (Less)

EU Law, Constitutional Identity, and Human Dignity: A Toxic Mix?

This paper examines the Bundesverfassungsgericht’s decision (BVerfG) in Mr R on the relationship between German constitutional law and EU law. The case concerned an extradition under the European Arrest Warrant (EAW) and the Court found a violation of human dignity as protected by the German constitution. Some creatures release toxins when threatened and as Paracelsus explained dosis sola facit venenum, the dose alone makes the poison. While this quote is related to toxicology, it is equally relevant to the judgment. The, therefore, paper first describes the relevant facts of the judgment and the threatening environment which may have contributed to this reaction of the Court. Then, the paper highlights the venomous qualities of the BVerfG’s judgment and how it effects the body of EU law. Finally, the treatment of mutual trust and acte clair will be analysed, before it will be shown that if used in the right dosage the judgment might help curing some illnesses of the current human rights protection in the EU.

Can two wrongs make a right? Reconsidering minimum resale price maintenance in the light of Allianz Hungária

Minimum resale price maintenance (RPM) agreements constitute hard-core vertical restraints and are treated as object restrictions in EU competition law. This article suggests that the time may have come where this approach is revised. After, first, discussing the economic theory behind RPM and the EU courts approach to object restrictions, it argues that the recent widening of the object analysis and the concomitant blurring of the object and effect categories may aid EU competition law to reconceptualise the approach to minimum RPM.

Changing the Competition Regime Without Altering the Treaty's Chapter on Competition?

The paper examines whether the changes in the objectives of the EU means a change in the competition acquis. A three step analysis leads to the conclusion that this has not to be expected. Initially the status of competition in the constitutional hierarchy under the old EC Treaty is examined before the detailed changes under the Lisbon Treaty are set out. The paper then investigates whether the amendment of the Lisbon Treaty changes the relationship between competition and other EU goals and suggest that a weakening is not to be feared. Instead an argument for a increased relevance of competition in the Treaty could be made. Finally, the paper addresses the fear of whether the case law that relied on the deleted and transposed initial ‘common provisions’ needs to be changed.