Competition and Consumer Law
Agnolucci, Irene, ‘Will COVID-19 Make or Break EU State Aid Control? An Analysis of Commission Decisions Authorising Pandemic State Aid Measures’ (2022) 13(1) Journal of European Competition Law & Practice 3–16 Abstract: This article analyses Commission Decisions authorising State aid between March and December 2020 in order to explore their possible consequences on the internal market and the level playing field.1 The research is aimed at evaluating whether the relaxation of State aid control due to coronavirus disease 2019 (COVID-19) has produced disparities between the Member States and unfair advantages—or disadvantages—for EU companies. Even though final calculation of aid can only be finalised when undertakings actually receive the specific aid, however, the Commission’s decisions assessing State measures do give a clear indication of at least two phenomena—first, the geographical distribution of aid in the EU and second which policy objectives were favoured by the Member States in the period of time considered.
Ainsworth Caruso, Kaitlin, ‘Price Gouging, the Pandemic, and What Comes Next’ [2023] Boston College Law Review (forthcoming) Abstract: Whenever there is a disaster, there are complaints of price gouging — that is, of people selling critical goods at grossly inflated prices. Over the last half-century, states and territories have increasingly responded by adopting anti-gouging laws that limit how much sellers can increase prices on at least some goods and services during an emergency. An overwhelming majority of jurisdictions now have such laws, and all share a few common characteristics. The laws vary considerably between jurisdictions, however, including on what products, services, and sellers they cover, how long they last, and how strictly they limit price increases. This Article assesses how the states changed their laws during, and in response to, the unprecedented challenges of the COVID-19 pandemic. It surveys 56 state and territorial jurisdictions and finds that more than one-third made changes to their anti-gouging laws between 2020 and 2022, mostly to adopt new laws or strengthen existing regimes. Although the state laws faced the same challenges in responding to the unique circumstances of COVID-19, there was no marked trend toward convergence on a single best approach to regulating price gouging. Instead, the laws are increasingly diverse, which provides both opportunities for policy learning and more pressure for a uniform standard. While the states and territories overwhelmingly favor anti-gouging regulation, economists oppose them nearly as consistently. Critics blast the laws as at best unnecessary (because many businesses voluntarily freeze prices) and at worst as triggering and worsening consumer shortages and derailing important market forces that can speed up disaster recovery. This Article explores both the criticism and support of anti-gouging regulation from both the economic and moral perspectives. It concludes that critics and supporters alike have overlooked a potentially important impact of anti-gouging regulation: the possibility that such rules can help equalize the risk that people will face unjustified price hikes in the event of an emergency between wealthier and poorer communities.
Alderman, Richard et al, ‘Consumer Law and Policy Relating to Change of Circumstances Due to the COVID-19 Pandemic’ (2020) 43(3) Journal of Consumer Policy 437–450 Abstract: An unprecedented number of consumer problems has been caused by the COVID-19 pandemic, not least with regard to refunds of prepayments and the ability of consumers to keep up their monthly payments under loan and rental agreements. Based on a notion of societal force majeure sketched in this paper, we propose guiding principles in respect of the introduction of moratoria on recurring payments, the use of refunds or vouchers in respect of prepayments, and associated enforcement challenges. This analysis draws on experiences around the globe.
Amerilis, Baiq Lisa and Kurniawan Kurniawan, ‘KPPU’s Role in Enforcement of Business Competition Law on Government Procurement of Goods/Services during the COVID-19 Pandemic’ (2021) 8(10) International Journal of Multicultural and Multireligious Understanding 228–235 Abstract: The purpose of this study was to determine the role of KPPU in Enforcement of the Competition Law for the Procurement of Government Goods/Services during the Coronavirus Disease (Covid-19) Pandemic in Indonesia. This type of research is normative legal research, by examining primary and secondary legal materials. The approach method used is a statutory approach, and a conceptual approach. The technique of collecting literature study materials and qualitative analysis using legal interpretations in an authentic and grammatical manner. Procurement of goods and services in emergency conditions has been regulated in Presidential Regulation Number 16 of 2018 concerning Government Procurement of Goods and Services, where the process of implementing PBJ is carried out through Direct Appointment. In addition to the Presidential Decree, PBJ LKPP has issued Head Regulation (PERKA) LKPP No. 13 of 2018 concerning Procurement of Goods/Services in Handling Emergency Situations, which states that in the procurement process during an emergency there are at least four important phases that must be passed, namely planning, implementation, settlement of payments, and audits. President Joko Widodo on March 20, 2020 has issued Presidential Instruction (INPRES) Number 4 of 2020 concerning Refocussing of Activities, Reallocation of Budgets and Procurement of Goods and Services in the context of Accelerating Handling of Corona Virus Disease 2019 (Covid-19). The difference between the ordinary PBJ process under normal conditions is that the direct appointment time is relatively faster, there is no need to announce it on the LPSE (Electronic Procurement Service) website, there is no need for a price evaluation process, and the officials who carry it out are PA, KPA, and PPK directly. And there is no need to form a Procurement Working Group.
Banks, Nicolo, ‘Competition Policy during Pandemics: How to Urgently Produce Healthcare Goods and Services While Avoiding Economic Disaster’ (2021) 9(3) Journal of Antitrust Enforcement 413–435 Abstract: Pandemics present two emergencies: a war against a pathogen and an economic recession. Historically, the US has been forced to relax its antitrust enforcement policies during its largest wartime mobilizations in order to urgently produce goods and services needed in the war effort. Likewise, when the COVID-19 pandemic began, companies should have been allowed to collaborate with each other and with the US government to adequately respond to the increased demand for healthcare goods and services. Guidance from antitrust agencies during the coronavirus pandemic suggested a willingness to allow such collaborations, but the guidance lacked specificity. This article suggests specific policies that the antitrust agencies should implement during pandemics in order to give companies confidence that they can legally engage in collaborations that will hasten the production and distribution of urgently needed healthcare goods and services. However, relaxing antitrust laws has historically caused and prolonged economic downturns. Thus, during a pandemic, the federal government should relax antitrust laws, but that relaxation could exacerbate the inevitable economic downturn caused by social distancing policies. Accordingly, this article suggests how the US government could use non-antitrust regulations to mitigate the systemic financial risk created by that relaxation in antitrust laws.
Barbier de La Serre, Éric and Eileen Lagathu, ‘The Law on Fines Imposed in EU Competition Proceedings: A Post-Pandemic Boost of Case Law’ (2022) 13(6) Journal of European Competition Law & Practice 448–458 Abstract: In Brussels, the number of decisions imposing fines for a breach of Article 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) is increasing, compensating last year’s decrease due to the pandemic. This year, the Commission issued 15 decisions, whereas it had imposed fines in six decisions in 2020. As in the previous year (2020), the Commission did not issue any decision imposing a fine for breach of Article 102 TFEU. As a result, the 15 decisions adopted this year all concern Article 101 TFEU (or Article 65 ECSC). Three of them concern the re-adoption of a decision following a partial annulment by the General Court. Most of the other decisions granted immunity or reduced the fine to take into account the cooperation of the undertaking concerned, pursuant to the leniency programme. Four decisions applied the settlement procedure in a cartel case.
Basaran, Bahriye, ‘A Closer Look on the Effectiveness of the EU Legal Framework for Excessive Pricing during the COVID-19 Crisis’ (2022) 18(1) European Competition Journal 82–104 Abstract: The unanticipated global mass panic that has arisen as a result of the rapid spread of the COVID-19 has had a major impact on the functioning of many markets. Many competition authorities around the world have faced with excessive pricing practices due to the dramatic price hikes of essential items, ranging from personal and medical equipment to basic food products particularly at the onset of the pandemic. The crisis has not been just about pricing, whether the public or the state is willing to pay for certain products or not; at the heart of the problem, there has been a sudden sharp asymmetry between the supply and demand. Based on this asymmetry, this article, by acknowledging that Article 102 (a) fails to deliver a swift and efficient response to this crisis due to conceptual and practical difficulties in its application, addresses other ways that competition authorities and governments use to deal with the virus-profiteers.
Begović, Boris and Nikola Ilić, ‘FTC v. Facebook or Breaking up Dominant Digital Platforms in the Time of Covid-19: Motives, Rationale, and Possible Alternatives from a Competition Law Perspective’ (2021) 5 EU and Comparative Law Issues and Challenges Series (ECLIC) (Special Issue: Competition Law (In Pandemic Times): Challenges and Reforms) 85–109 Abstract: The Federal Trade Commission of the United States (FTC) filed a Complaint against Facebook on 9th December 2020, in the midst of the COVID-19 crisis. While facing one of the biggest social and economic crises in American history, FTC has enough time and resources to (re)investigate Facebook’s acquisitions of Instagram and WhatsApp. This paper analyses motives and rationale behind the FTC’s Complaint requesting Facebook’s break-up and what could be possible alternatives from a competition law perspective. All the findings suggest that the FTC’s Complaint is politically motivated, and the competition authorities should enable digital platforms to expand. However, the expansion should be controlled, to ensure that the benefits for consumers are not undermined by relatively slower (not diversified) technological development.
Bhattacharya, Prateek, ‘Competition Commission of India’s “Control” Conundrum: Practice, Precedent, and Proposals’ (2021) 17(2) European Competition Journal 473–505 Abstract: The Competition Commission of India’s (CCI) journey with ‘control’ has been the subject of much discussion in Indian competition law circles. As we witness an increase in reliance on technology as well as a consolidation in conventional industries, both catalyzed by the Covid-19 pandemic, there is a marked increase of activity in the Indian merger market. It is therefore crucial for businesses contemplating mergers and acquisitions, to have a clear sense of the hurdles they need to cross, particularly if the merger activity in question falls in the same or a related industry. The CCI would thus need to provide clarity on what constitutes control, and when transacting parties should approach the CCI. The CCI must also be transparent about control transactions resulting in anti-competitive effects. This paper proposes that the CCI provide guidance on what amounts to control, from the perspectives of both notifiability and competitive effects, to resolve the CCI’s control quandary.
Biondi, Andrea, ‘Governing the Interregnum: State Aid Rules and the COVID -19 Crisis’ (SSRN Scholarly Paper ID 3703095, 27 August 2020) Abstract: This article focuses on the transformations and changes in the area of state aid control prompted by the COVID-19 pandemic. It attempts to provide a first assesment on the European Commission Temporary Framework on state aid measures to support the economy in the outbreak. It discusses whether the measures adopted have been effective and managed to guarantee on the one side the possibility of Member States to take swift and effective action as to ensure short and long term liquidity to undertakings affected by COVID 19 and on the other to preserve fair competition an respect of state aid rules control.
Bloomfield, Doni, ‘Competition and Risk’ (SSRN Scholarly Paper ID 3566661, 2 April 2020) Abstract: Merger review in the United States has overlooked a significant competition harm: increasing risk. Mergers can increase both counterparty risk and systemic risk—the risk of idiosyncratic firm shocks harming trading partners and the national economy. There is now clear evidence that negative shocks to a firm can impose significant harm to that firm’s trading partners, leading to national economic effects. And as the COVID-19 pandemic has shown all too clearly, how we structure our markets can, in a crisis, become a matter of life and death overnight. I argue that mergers that increase counterparty and systemic risk by harming the competitive process can be blocked as violations of the Clayton Act. Systemic and counterparty risk should therefore be treated like innovation in merger review as factors that can increase or decrease merger legality. I show when a merger is likely to change risk, to whom, and in what direction. Important factors include pre- and post-merger market power, counterparty exposure, and network centrality. When a merger increases risk because of a harm to competition, that increased risk is an antitrust harm under the consumer welfare standard and can therefore be used to condemn the merger. Moreover, the agencies’ prosecutorial discretion allows them to consider risk harms in merger review even when such harms are not directly caused by reduced competition. To illustrate, I apply merger risk analysis to a large generic pharmaceuticals deal. I conclude with recommendations on how to incorporate risk analysis into merger review. Bringing risk analysis into merger review reveals otherwise invisible but significant merger harms and demonstrates that merger efficiencies have not just benefits but also serious costs. In an Appendix, I propose language for a new section in the Department of Justice and Federal Trade Commission’s Horizontal Merger Guidelines.
Bonakele, Tembinkosi, ‘The South African Competition Agency Response to COVID19’ (2022) 10(2) Journal of Antitrust Enforcement 241–247 Abstract: South Africa, as with the rest of the world, faced an unexpected crisis on many levels with the onslaught of the Covid-19 virus. In addition to the human casualties, South Africa experienced a sharp rise in prices for essential goods, such as masks and sanitisers, threatening an economic crisis for South Africa’s poor and unemployed. The South African Competition Commission chose to intervene using the regulatory tools available in competition law to tackle excessive pricing. This resulted in the investigation and prosecution of several companies for charging excessive prices for a range of goods and services such as masks, sanitisers and Covid-19 testing services.
Bose, Anushka, Anousko Das and Rudranil Biswas, ‘Competition Law Being Spotlight Amidst Pandemic 2020’ (SSRN Scholarly Paper ID 3819457, 5 April 2021) Abstract: Due to the COVID-19 pandemic, competition laws were seen at the spotlight. Unnecessary increase in the prices due to increase in demand has led to profit for many businesses but also downfall of yet many.
Bradley, Christopher G and Hannah Oates, ‘The Multi-Level Marketing Pandemic’ [2021] Tennessee Law Review (forthcoming) Abstract: Among the many societal effects of the COVID-19 pandemic has been a sharp rise in the activities of multi-level marketing companies (MLMs). MLMs are business enterprises in which participants seek not only to sell products to friends, family, and social media contacts, but also to recruit them as MLM participants, with the promise of ‘building their own business from home.’ False promises often pervade MLM sales pitches. Evidence shows that few participants see even a dollar of profit from their MLM work; the vast majority of recruits quickly abandon their MLM dreams and lose their investments. Yet the pitch has become all the more appealing in the course of the COVID-19 pandemic. Many people are desperate—unemployed and in need of immediate earnings and also in need of flexible, at-home work due to health concerns and family responsibilities. MLMs have been particularly appealing to the working mothers who, evidence shows, have borne the brunt of the impact of COVID-19 both on employment and on childcare and other household-related responsibilities. Regulators have long scrutinized and fought the worst abuses of MLMs. They have sought to find and shut down the unscrupulous MLMs that are in fact nothing more than fraudulent pyramid schemes, and also to curtail the misrepresentations and exaggerations that are all too often the stock-in-trade of participants in more legitimate MLMs. But regulators, including the Federal Trade Commission, face significant legal and practical limitations in their ability to promulgate and enforce MLM regulations. This Article examines how regulators have addressed MLM activity and proposes means of stemming the pandemic-driven expansion of unlawful MLM activities. It assesses efforts by regulators, by social media companies, and by self-regulatory organizations set up by MLMs themselves. Comprehensive, long-term success at curbing the abuses of MLMs will require more significant regulatory action that is currently permitted by law. But immediate steps outlined here can provide some much-needed relief for consumers harmed by the unlawful MLM activities that have been fostered by the COVID-19 pandemic.
Buccafusco, Christopher, Daniel J Hemel and Eric L Talley, ‘Price Gouging in a Pandemic’ (University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No 922, 1 January 2021) Abstract: The ongoing COVID-19 pandemic has led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it has reawakened a debate about whether and how to regulate ‘price gouging.’ Animating this controversy is a longstanding conflict between laissez-faire economics (which champions price fluctuations as a means to allocate scarce goods) and perceived norms of consumer fairness (which are thought to cut strongly against sharp price hikes amid shortages). This article provides a new, empirically grounded perspective on the price gouging debate that challenges several aspects of conventional wisdom. We report results from a survey experiment administered to a large, nationally representative sample during the height of the pandemic’s initial wave. We presented participants with a variety of vignettes involving price increases, eliciting their reactions along two dimensions: the degree of unfairness they perceived, and the legal response they favored. Overall, we find that participants are more tolerant of price increases than either the existing behavioral economics literature predicts or most state price gouging statutes countenance. But we also find that price fairness perceptions can be highly sensitive to context. For example, participants are much more tolerant of moderate price increases if they previously are asked to contemplate large price increases. Moreover, participants are substantially more willing to accept a price increase when it is accompanied by an apology and/or a public-minded rationale (such as supporting furloughed employees). We explore the implications of our findings for behavioral economics, pricing practices, and legal reform.
Budi, Early Romance and Bambang Eko Turisno, ‘Legal Protection Effort Against Consumers Regarding Electronic Transaction Violations During The Covid-19 Pandemic’ (2022) 2(11) Eduvest - Journal of Universal Studies 2269–2277 Abstract: The development of technology has made all forms of life easy for humans. One of the technological advances is the existence of internet technology. The presence of e-commerce provides convenience that is very, very useful for consumers. In connection with the economic problems that resulted in the decline in the economy during the COVID-19 pandemic, in this case, it gave rise to new crimes and the level of criminalization in society was increasing. Fraud cases in electronic transactions are one of the crimes commonly committed on social media or e-commerce. The purpose of this paper is to find out the legal protection for consumers regarding violations of electronic transactions during the covid-19 pandemic. Legal protection for consumers due to violations including fraud through electronic transactions during the covid-19 pandemic is regulated through the provisions in the Indonesian Criminal Code, which is contained in Article 378 concerning Fraud and its provisions in the ITE Law as these regulations have regulated relating to an electronic transaction that is in Indonesia, this clause is part of positive law in Indonesia that can be used as an effort to protect the law.
Caruso, Kaitlin, ‘Price Gouging, the Pandemic, and What Comes Next’ (2023) 64(8) Boston College Law Review 1797–1857 Abstract: Whenever there is a disaster, there are complaints of price gouging—that is, of people selling critical goods at grossly inflated prices. Over the last half-century, states and territories have increasingly responded by adopting anti-gouging laws that limit how much sellers can increase prices on at least some goods and services during an emergency. An overwhelming majority of jurisdictions now have such laws, which share a few common characteristics. The laws vary considerably across jurisdictions, however, by what products, services, and sellers they cover, how long they last, and how strictly they limit price increases. This Article assesses how the states changed their laws during, and in response to, the unprecedented challenges of the COVID-19 pandemic. It surveys fifty-six state and territorial jurisdictions, and finds that more than one-third made changes to their anti-gouging laws between 2020 and 2022, mostly to adopt new laws or strengthen existing regimes. Although the state laws faced the same challenges in responding to the unique circumstances of COVID-19, there was no marked trend toward convergence on a single best approach to regulating price gouging. Instead, the laws are increasingly diverse, which provides both opportunities for policy learning and more pressure for a uniform standard. Although the states and territories overwhelmingly favor anti-gouging regulation, economists oppose them nearly as consistently. Critics blast the laws as unnecessary at best (because many businesses voluntarily freeze prices), and as harmful at worst, triggering and worsening consumer shortages and derailing important market forces that can speed up disaster recovery. This Article explores the criticism and support of anti-gouging regulation from both economic and moral perspectives. It concludes that critics and supporters alike have overlooked a potentially important impact of anti-gouging regulation: the possibility that such rules can help equalize the risk between wealthier and poorer communities that people will face unjustified price hikes in the event of an emergency.
Carvalho, Jorge Morais and Sandra Passinhas, ‘Consumer Law and COVID-19 in Portugal’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The periods of crisis have a negative impact on the level of consumer protection, with the emphasis on other objectives, in particular those linked to the functioning of the market. This text aims at demonstrating that. In Portugal, measures adopted to face the economic and social effects of COVID-19 can be characterised twofold: those that reduce the level of consumer protection and those that aim to protect particularly vulnerable consumers. Evidence will be given in the following fields: tourism (package travel, hotel or short-term accommodation bookings), services of general interest (specially, water, electricity, gas and telecommunications provision), credit agreements (both mortgage credit and consumer credit), electronic payments, sale of goods, and the price-reduction commercial practice of sales.
Chaiehloudj, Walid, ‘The New Caledonian Competition Authority Announces Pursue Competition Law Enforcement in the Context of COVID-19 Pandemic’ (2020) II e-Competitions Bulletin Article No 94154 Abstract: The coronavirus pandemic has and will have a huge impact on our economy. Undoubtedly, we face the worst crisis in our recent history. A major consequence is serious financial distress for a myriad of undertakings. A phenomenal number of companies are already close to bankruptcy. It is too early to accurately assess the economic damage caused by the Corona crisis. Nevertheless, competition authorities around the world have reacted swiftly to deal with this unprecedented challenge [1]. The crisis affects drastically both consumers and companies. On the one hand, consumers are prisoners of the containment imposed by their Government. They lost their freedom of choice and have to shop at the stores closest to their homes (pharmacies, food retail stores etc.). Thus, a higher price can be charged due to the inelastic demand from consumers. On the other hand, some companies no longer have consumers while others are seeing the demand for their products and services soar. This situation raises serious competition concerns for competition authorities. The main issue is whether competition law should apply or not in pandemic crisis. Most competition authorities answered yes.
Chakraborti, Rik and Gavin Roberts, ‘Anti-Price Gouging Laws, Shortages, and COVID-19: Big Data Insights from Consumer Searches’ (SSRN Scholarly Paper ID 3613726, 9 June 2020) Abstract: Several states have laws that prohibit large increases in prices on consumer good, or ‘price gouging,’ during emergency situations like pandemics. We investigate the impact of such laws on online consumer behavior using data from Google Shopping Trends during the onset of the COVID-19 pandemic. We focus on hand sanitizer and toilet paper, two staples predominantly bought in-stores in regular times, which experienced substantial in-store shortages since the onset of the pandemic. We find robust evidence indicating anti-price gouging laws are associated with significant increases in online searches for hand sanitizer, and some evidence that these laws increase searches for toilet paper as well. These results imply the possibility that anti-price gouging laws lead to shortages for consumer staples during pandemics. Our results inform the ongoing and rigorous debate surrounding anti-price gouging laws and their potential effects during public health emergencies like COVID-19.
‘Challenges for Competition Law during Prevalence of Covid-19’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: The emergence of Covid-19 disease has made a particular economic situating which by its turn has affected competition in different markets. This research is going to analyze the approach of competition law in front of competition challenges in the light of public interests and ensuring public health. In the present paper, the aspects of agreements, unilateral practices, concentrations, state aids and unilateral government interventions in the competition field are examined from the perspective of competition rules, regarding the particular situations imposed by Covid-19. This study reveals that competition law allows a great deal of flexibility to ensure economic efficiency in a crisis and provides significant block and ad-hoc exemptions, but it has strengthened its surveillance and governance in particular health markets and public essentials and commodities. Confronting unnecessary collaboration of competitors, especially exchange of commercially sensitive information, excessive pricing in pharmaceuticals and health products, prohibition of misleading statements about drugs or Covid-19 treatment methods, facilitating mergers between R&D undertakings or centers in health sector, regulating state aid to enterprises affected by the Covid-19 crisis and the regulation of unilateral and direct government interventions in competition is one of the important calls of competition law in the during particular period of time. Although it must be admitted that competition law is not ready for facing up to all aspects of the Covid-19 crisis and balancing between protection of its fundamental values on one hand and safeguarding economic activities and assuring public health in the other hand.
Cisneros, Ben, ‘Premiership Rugby’s Response to COVID-19: A Competition Law Analysis’ (2022) 20(1) Entertainment and Sports Law Journal Article 2 Abstract: Professional sport has undoubtedly been hit hard by COVID-19. Clubs and governing bodies have had to adapt rapidly to the public health emergency and have come under great financial and regulatory strain. Some sports have weathered the storm better than others, though, and professional rugby union experienced significant off-field turbulence, with wages reductions seen across the English Premiership. This article will examine the conduct of Premiership Rugby and its clubs during the COVID-19 crisis from a competition law perspective and will argue that, by acting in concert, Premiership and the clubs may have breached UK competition law.
Clarke, Philip H, ‘Prepayments, the ACL and the ASIC Act’ (2020) 48(2) Australian Business Law Review 180–188 Abstract: COVID-19 has resulted in the cancellation or postponement of sporting and entertainment events and fixtures, the virtual cessation of domestic and international air travel, and the closure of schools and most entertainment, exercise and sporting venues. What are the rights under the Australian Consumer Law (ACL) of those who have prepaid to attend events, or receive services, such as these? A significant part of the answer can be found in s 36 of the ACL. This article outlines the operation of that provision and applies it to COVID-19 scenarios. It also highlights the value of the provision to online shoppers, who frequently make prepayments for the goods or services they seek, as a precedent for reforms to address the ‘fees for no service’ scandal highlighted by the 2019 Banking Royal Commission.
Coorey, Adrian, ‘COVID-19 (Coronavirus): What Help, If Any, Can the Consumer Guarantees Have for a Consumer in Circumstances Where a Travel Ban Is in Effect?’ (2020) 23(8/9) Inhouse Counsel 110–111 Abstract: A consumer may be wondering what rights they may have under the consumer guarantees regime in the ‘Australian Consumer Law’ (ACL) where the Australian Government has placed a travel ban on a particular flight or cruise that the consumer made a booking. Unfortunately, for most, the consumer guarantees do not appear to be of great assistance in such circumstances. However, a consumer may have, or is likely to have, other options for remedies outside the consumer guarantee regime. This paper will provide some general analysis on the three consumer guarantee provisions in relation to services, namely sections 60 (guarantee as to due care and skill), 61 (guarantee as to fitness for a particular purpose), and 62 (guarantee as to reasonable time for supply) in circumstances where a travel ban is in force. Of course, this analysis is not intended to be legal advice, and will not apply to every circumstance. When dealing with consumer guarantees, each case must be decided on their own facts.
Cordray, Richard, Diane E Thompson and Christopher Lewis Peterson, ‘Consumer Financial Protection in the COVID-19 Crisis: An Emergency Agenda’ (SSRN Scholarly Paper ID 3569357, 6 April 2020) Abstract: The coronavirus pandemic is creating overwhelming needs, in three waves. First is the health crisis; second is the macroeconomic crisis created by the abrupt halt in much business activity; and now third is a consumer crisis, as households are faced with total or partial job loss, sharp income decline, and potential loss of health care. Millions of Americans are falling behind on their bills, including major obligations like mortgages, rent, car payments, and other forms of household debt. At the same time, they face a financial industry itself struggling to respond to the compounding crises and widespread confusion as to what the new rules of the road are as financial institutions, states, localities, and the federal government scramble to respond. The result is fertile ground for consumer scams. The authors call upon the Consumer Financial Protection Bureau to recognize and respond to this new consumer crisis, providing an action plan of more than a dozen practical steps that the CFPB can and must take immediately to prevent widespread consumer harm. The action plan starts with the most basic and essential step of collecting and disseminating timely and accurate information for both consumers and policymakers. The CFPB must address pressing consumer risks in four primary areas: foreclosure prevention, non-mortgage debt forbearance, oversight of debt collectors, and supervision of credit reporting companies. In each of these primary areas, and on all the issues discussed in this paper, the CFPB must use all of its authorities to ensure that crucial relief is delivered to distressed consumers.
‘Coronavirus (COVID-19): Cancellation and Refund CMA August 202 Guidance’ [2020] (September) Corporate Briefing 8–12 Abstract: Summarises the Competition and Markets Authority (CMA) guidance published 28 August 2020 on whether consumers who paid in advance for goods or services, affected by the coronavirus pandemic, can cancel and claim refunds. Considers holidays, gym memberships, the difference between lockdown laws and Government guidance, and variation of contract.
Cortes-Selva, Alma, Yipu Deng and Danyang Zhang, ‘COVID-19 and Consumer Animus towards Chinese Products: Evidence from Amazon Data’ (SSRN Scholarly Paper No 4360524, 15 February 2023) Abstract: Covid19 has tremendously affected all areas of our lives and our online shopping behaviors have not been immune. China is the first country to report cases of Covid19 and suffer from rising animus in the U.S. In this paper, we study consumer animus towards Chinese products post Covid19 using Amazon data. We tracked all face masks sold on Amazon between Sep. 2019 to Sep. 2020, and collect product information that is available to a real consumer, including reviews. By analyzing both seller-generated (e.g., product name, description, features) and user-generated (e.g., reviews and customer Q&A) contents, we collect information on the country-of-origin as well as consumer animus for the products. Under a fully-dynamic event study design, we find that the average rating drops significantly after a product is identified as made in China for the first time, while no such drop is found for products with other country-of-origin. This negative impact is U-shaped, which quickly expands in the first five weeks, and then gradually fades out within six months. An informative-animus reviews affects the average rating of a Chinese product both directly (through its own rating) and indirectly (through other future ratings), with both mechanisms supported in data. We also provide strong evidence that the drop in average rating is driven by consumer animus instead of product quality.
Costa-Cabral, Francisco et al, ‘EU Competition Law and COVID-19’ (TILEC Discussion Paper No DP2020-007, March 2020) Abstract: This paper explores how EU competition law enforcement might be affected by the COVID-19 pandemic. Each section of this paper reviews how various components of EU competition law are impacted. The paper evaluates the state of play and, where relevant, it makes policy proposals for how competition law might develop. It suggests that the Commission’s state aid policy is unprecedentedly lax but more tightening up might be welcomed to ensure state funds are not misspent. In the field of antitrust it recommends that competition authorities should be watchful of excessive prices and price discrimination, using interim measures more boldly. Collusion should remain an enforcement priority but a procedural pathway to review agreements that may be in the public interest is proposed, drawing on practices developed in the US in the aftermath of major natural disasters. In merger control, the Commission’s strict interpretation of the failing firm defense is appropriate but, in general, a more skeptical attitude towards mergers may be warranted during this period. Advocacy plays a key role: competition agencies can both point to existing regulations that limit competition and monitor proposed emergency legislation that would harm competition for no good reason. :
Costa-Cabral, Francisco, 'Future-Mapping the Three Dimensions of EU Competition Law: Modernisation Now and After COVID-19' (TILEC Discussion Paper No DP 2020-011, 21 April 2020) Abstract: EU competition law is traditionally understood in two-dimensions: judicial control and enforcement. This paper considers a third dimension: its normative concerns in the context of EU law. In mapping the future of these dimensions, the paper asks if the understanding behind the modernisation of the Commission’s enforcement is still tenable. In relation to judicial control, the effects-based approach of modernisation has either been incorporated by the case law at the cost of its coherence or ignored. Regarding enforcement, modernisation has resulted in the Commission having to step outside its guidance and in multiple proposals to adjust competition rules. As for the normative dimension, modernisation’s emphasis on consumer welfare has not prevented openness to broader concerns and setting this priority aside in reaction to COVID-19. The direction of modernisation will thus continue to raise judicial difficulties and, should it hamper enforcement, possibly lead to legislation that marginalises competition law. A better alternative would be, as was done for COVID-19, to reinforce the normative connection with the rest of EU law.
Cseres, Kati and Agustin Reyna, ‘EU State Aid Law and Consumer Protection: An Unsettled Relationship in Times of Crisis’ (Amsterdam Law School Research Paper No 2020-32, 2020) Abstract: As a result of the global lockdown, countries around the globe are now facing multiple crises at the same time: a health crisis, a financial crisis, and a collapse in commodity prices, which all interact in complex ways. As a reaction governments and policymakers are providing unparalleled support to firms, financial markets, and households. The effectiveness of these policies is considered central to project worse consequences. In order to coordinate the economic response of the Member States and to mitigate the negative repercussions on the EU economy, the European Commission has adopted a Temporary Framework, which enables Member States to use the full flexibility foreseen under EU state aid rules to support the economy in the context of the COVID-19 outbreak. However, in the current crisis the world economy and national economies are also shuttered in their micro-elements, at the demand side. As a result of the measures taken by governments to contain the virus, consumers have seen retail choices limited with hundreds of thousands of shops being required to close their doors, a situation that has exposed consumers to a floodgate of unfair, misleading or abusive business practices. Price gouging for essential consumer products coupled with unfair commercial practices have amplified forcing governments to take various measures, for example introducing price caps. Nevertheless, besides these unfair practices more indirect forms of consumer harm is taking place as a result of some of the current state aid measures that many policy makers may not have immediately realized and acted upon.The current flexibility offered in the State Aid law Temporary Framework has been used by some governments also to tolerate non-compliance with consumer protection rules by undertakings. Such exceptions in fact lead to double burden for consumers. Once as consumers and purchasers of, for example, travel or transport services and second, as taxpayers financing the state aid. Moreover, this may lead to a violation of EU law that lays down the obligation to take consumer protection requirements ‘into account in defining and implementing other Union policies and activities’ (Article 12 TFEU), a principle also laid down in the EU Charter of Fundamental Rights (Article 38). This normative precedent creates a constitutional basis for considering the requirements of consumer protection in the whole body of EU competition law and policy including the Treaty’s state aid provisions. The main question this article aims to answer is how state aid law and consumer protection rules interact in EU law and what lessons these interactions provide for managing the current economic crisis in a coordinated and balanced way that takes equal account of interests on the supply and demand side. While the interaction between consumer law and competition law has been subject to various legal and economic studies in the past, the relationship between state aid rules and consumer protection has not been studied so far. This article fills this gap, by making three novel contributions. First, the article sets out the EU law framework that structures the analysis of how state aid rules and consumer protection interact. It analyses the goals of these two legal areas and how these goals complement or conflict. Second, by presenting two case studies (air transport and energy) it explains and illustrates the constituents of the interaction between these two legal fields and offers an illustration why these intersections should be analyzed in-depth. Third, the article offers policy recommendations that can be applied not only in the current crisis but also beyond, on the coordination and enforcement of these two policies and legal fields.
Dannemann, Gerhard, Christoph Busch and Hans Schulte-Nölke, ‘Digital Platforms and COVID-19’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The present article discusses the impact of the COVID-19 pandemic on the platform economy and in particular on the triangular contractual relationships between online platforms, suppliers and customers. It places this discussion in the context of the ongoing debate about the future of platform regulation, including the Model Rules for Online Platforms which were recently adopted by the European Law Institute. Particular attention is given to ‘price gauging’ for products such as face masks or sanitizers, policies to prioritize essential products on platforms selling goods, and measures undertaken by accommodation platforms to regulate pandemic-related frustration and non-performance of supplier-customer contracts. The article explores the legality of adopted measures. It furthermore argues that imposing a general duty of transparency and fairness on platform operators as market-shapers could help platform operators, platform users and courts as guidelines when they have to adapt to unforeseen future developments. :
Darji, Raksha, ‘The Failing Firm Doctrine During COVID-19: A Perspective from South Africa’ Competition Policy International (7 September 2020) Extract from Introduction: The COVID-19 pandemic is likely to result in a large number of firms facing financial distress. This will likely lead to increased merger notifications appealing to the failing firm doctrine (“FFD”). The Commission will be faced with the difficult task of balancing future weakened competition in an already highly concentrated economy with possible firm exit in a country with an already high unemployment rate of 30.1 percent.
Davola, Antonio, ‘From the Black Swan, to the Snowball. Risks of Covid-19 Pandemic for Consumer Credit Scores in the Lack of a Harmonized Regulatory Intervention’ (2020) Special Issue - Impact of Coronavirus Emergency on Contract Law) Opinio Juris in Comparatione 1–13 Abstract: In light of the harmful and wide-ranging effect of the coronavirus pandemic, many governments in the European territory and on the global framework rushed to introduce forms of financial support for those groups that are susceptible to be economically affected by the current situation in order to limit the economic fallout of the pandemic. Still, and in spite of the significant level of regulatory intervention, no major normative change addressed the area of consumer spending and consumer credit. Considering the expected length of the phenomenon, and its impact on the economy and employment, the management of consumers’ economic exposure and of unpaid debt is though meant to emerge as a major consequence during and after the expiration of the pandemic: in particular, significant risks are related to the consequences that the deterioration of consumers’ exposure caused by the COVID-19 and the pandemic-related factors is likely to have on their credit scores (and, subsequently, in terms of outcome of future creditworthiness assessments). Scores have a major impact on consumer credit landscape, and badly determined/distorted scores invest both consumers and credit operators: consumers are precluded from accessing credit in a moment of financial distress; banks and other institutions are not able to properly discriminate between the quality of potential borrowers, therefore facing risks of overexposure to losses and unprofitable operativity. In order to prevent a further worsening of the (already distressed) global economic health, it is therefore pivotal to promptly introduce harmonized corrective measures to mitigate the risk of unsought deviation in the credit scoring sector. The research investigates the impact of the events related to the COVID-19 infection on the scoring software’s functioning, considering how the pandemic is likely to impact on both macro and microeconomic factors related to consumer behavior and indebtedness. The analysis is then developed in order to provide a set of recommendations for interventions with the aim to preserve algorithms’ stability, accuracy and predictive power over the pandemic and during its aftermath.
De Stefano, Gianni, ‘Covid-19 and EU Competition Law: Bring the Informal Guidance On’ (2020) 11(3–4) Journal of European Competition Law & Practice 121–123 Abstract: Societies and citizens have been hit hard by the public health emergency of the Coronavirus disease (Covid-19). Competition law enforcers have already taken up
Desiatnik, Ron J, ‘Editorial: Covid-19, The Australian Consumer Law and Serendipity’ (2022) 30(3) Australian Journal of Competition and Consumer Law 177–179 Abstract: It is a fact, a sad fact, that the COVID-19 pandemic has affected many sections of our society. Still, it is passing strange that this virus has produced, albeit indirectly, an elucidation of Australia’s consumer law. That fortunate result came about in the decision of the Federal Court in ‘Karpik v Carnival plc’, a case which, however, arose through most unfortunate circumstances.
Drake, Sara, ‘Delays, Cancellations and Compensation: Why Are Air Passengers Still Finding It Difficult to Enforce Their EU Rights under Regulation 261/2004?’ (2020) 27(2) Maastricht Journal of European and Comparative Law 230–249 Abstract: The aim of this article is to identify why air passengers travelling in the European Union, endowed with the highest standard of consumer protection in the world under EU law, are still being denied their rights and finding it difficult to seek effective legal redress. This article argues that the principal cause of airlines’ non-compliance is the poor regulatory design of Regulation 261/2004, which has been compounded by inadequate application by the Member States and regulatory resistance by the airlines. This contribution will then demonstrate how the European Commission (‘Commission’) has responded through the adoption of both deterrence and compliance-based enforcement strategies, and maps out the mechanisms, tools and actors harnessed by the Commission to create a complex hybrid, multi-layered system of enforcement. The article reveals that enforcement gaps persist and argues that the effectiveness of the regime is unlikely to improve without legislative reform.
Feliszewski, Tomasz, ‘Poland Safeguards Competition in Midst of COVID-19 Outbreak’ (2020) 4(2) European Competition and Regulatory Law Review 144–146 Abstract: Considers how the Polish competition authority has revised its priorities because of the coronavirus pandemic. Notes the introduction of maximum prices for goods, merger review, and co-operation between competitors.
First, Harry, ‘Robbin’ Hood’ (SSRN Scholarly Paper No ID 3724628, 22 September 2020) Abstract: Is it an antitrust offense to sell face masks at a high price in the midst of a pandemic? In this essay I address this question by examining two recent decisions in South Africa that found the high prices for face masks charged by two retailers were excessive under South Africa competition law, even though neither firm was shown to be dominant by traditional methods. In addition to discussing the two cases, I argue that South Africa’s effort to use competition law to prevent this kind of price increase has important lessons for antitrust enforcement elsewhere, including the United States. Specifically, the two cases remind us of the importance of price in antitrust analysis; the need to pay attention to justice in antitrust analysis; our over-willingness to rely on market corrections rather than acknowledging market failures; and our need to change our culture of antitrust enforcement. It may be that the ‘supreme evil’ of antitrust is not collusion, but a failure to pay attention to how antitrust can advance justice.
Flores da Silva, Marta and Sofia Rebelo Ladeira, ‘Portugal: Procedure - Continuity of Operations’ (2020) 41(7) European Competition Law Review N58–N59 Abstract: Notes measures adopted by the Portuguese Competition Authority to ensure continuity of its activities during the coronavirus pandemic, including suspensions of many judicial and administrative deadlines. Summarises the approach to issues including co-operation to ensure the supply and distribution of scarce products, and the pricing of products deemed essential for consumer’s health.
Folliot Lalliot, Laurence and Christopher R Yukins, ‘COVID-19: Lessons Learned in Public Procurement. Time for a New Normal?’ [2020] (3) Concurrences: Competition Law Review 46–58 Abstract: The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became ‘public’ goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first principles of transparency and integrity to preserve governments’ fragile legitimacy in a crisis.
Frank, Lior, ‘Prohibiting Monopolistic Excessive Pricing during the Time of COVID-19’ (2020) 41(7) European Competition Law Review 317–322 Abstract: Discusses whether competition authorities should rigorously enforce prohibitions on excessive pricing during the coronavirus pandemic. Reviews the international approach to such a prohibition, why its strong enforcement is justified during the pandemic, and the methods which competition authorities should use to assess whether specific prices are unfair or excessive. Examines the arguments for a ‘safe harbour’ protection.
Freckelton, Ian, ‘COVID-19: Fear, Quackery, False Representations and the Law’ (2020) 43(September-October) International Journal of Law and Psychiatry: Special Issue on Mental health, Mental Capacity, Ethics and the Law in the Context of Covid-19 (Coronavirus), Article 101611 Abstract: Fear, anxiety and even paranoia can proliferate during a pandemic. Such conditions, even when subclinical, tend to be a product of personal and predispositional factors, as well as shared cultural influences, including religious, literary, film, and gaming, all of which can lead to emotional and less than rational responses. They can render people vulnerable to engage in implausible conspiracy theories about the causes of illness and governmental responses to it. They can also lead people to give credence to simplistic and unscientific misrepresentations about medications and devices which are claimed to prevent, treat or cure disease. In turn such vulnerability creates predatory opportunities for the unscrupulous. This article notes the eruption of quackery during the 1889–1892 Russian Flu and the 1918–1920 Spanish Flu and the emergence during 2020 of spurious claims during the COVID-19 pandemic. It identifies consumer protection strategies and interventions formulated during the 2020 pandemic. Using examples from the United States, Japan, Australia and the United Kingdom, it argues that during a pandemic there is a need for three responses by government to the risks posed by conspiracy theories and false representations: calm, scientifically-based messaging from public health authorities; cease and desist warnings directed toward those making extravagant or inappropriate claims; and the taking of assertive and well publicised legal action against individuals and entities that make false representations during a pandemic in order to protect consumers rendered vulnerable by their emotional responses to the phenomenology of the pandemic.
Fumagalli, Chiara, Massimo Motta and Martin Peitz, ‘Which Role for State Aid and Merger Control During and After the Covid Crisis?’ (2020) 11(5–6) Journal of European Competition Law & Practice 294–301 < https://academic.oup.com/jeclap/advance-article/doi/10.1093/jeclap/lpaa036/5881368 > Abstract: The Covid crisis has not only deeply affected our economies and disrupted markets, but also led to unprecedented state intervention. The role of competition pol
Gao, Anton Ming-Zhi et al, ‘Return to the Facemask Monopoly’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 297–312 Abstract: With the global outbreak of coronavirus disease in early 2020, authorities in every country advocated wearing facemasks to control the spread of the virus. However, a shortage of facemasks hit Europe, the US, and Asia. Using facemasks in Taiwan—with a 23-million population, and fewer confirmed cases than in other countries, is common. The export ban, a name-based rationing system, and particularly the facemask monopoly scheme, was responsible for maintaining Taiwan’s relatively modest supply of facemasks in early February 2020. Taiwan also used this opportunity to establish a national industry, producing facemasks during an economic downturn. This study uses document analysis to examine the historical development of this facemask monopoly scheme and conducts an in-depth critical review of such schemes using an interdisciplinary approach. The key research question is whether such a facemask monopoly scheme is better than the free market regime worldwide in dealing with such a facemask shortage.
Ghapa, Norhasliza binti and Farhanin binti Abdullah Asuhaimi, ‘A Study on Information Regulation as a Legal Instrument for Protecting E-Consumers During COVID-19 Pandemic Outbreak’ (2021) 618 Advances in Social Science, Education and Humanities Research 511–515 Abstract: The COVID-19 is an infectious respiratory disease caused by a novel coronavirus, severe acute respiratory syndrome coronavirus 2 (SARS- CoV-2) which is primarily transmitted between people through respiratory droplets and contaminated objects; airborne transmission may be possible in specific circumstances. The spread of Covid-19 significantly changed consumer shopping behavior from traditional retail shopping to new norm practice i.e. online shopping. Consumers shopped their basic needs using various platforms available such as Jaya Grocer Online, Tesco Online Grocery, Shopee. Lazada, Mudah.my and many more. However, these experiences of online shopping have not been very pleasant for many of the consumers. The common criticisms of online shopping are lack of enough and accurate information, lack of privacy and confidentiality, lack of refund policy and aftersales policy. This paper is focusing on information regulation as a measure to protect consumers from inadequate and inaccurate information supplied by the traders and sellers in online shopping platforms by analysing the concept of rights to be informed and the theory of informational regulation. This study is hope to provide a better mechanism for protecting the rights of e- consumers at all stages of transaction; pre-purchase, during purchase and post-purchase.
Giancaspro, Mark, ‘Perilous Fires, Pandemics and Price Gouging: The Need to Protect Consumers from Unfair Pricing Practices during Times of Crisis’ (2021) 44(4) UNSW Law Journal 1458–1481 Abstract: Recent crises affecting Australia, including the Black Summer bushfires and Coronavirus pandemic, have devastated social morale and crippled our economy. Countless lives and properties have been damaged or lost. These conditions have inflated demand for basic consumer goods and services, such as hygiene products, staple foods, and utility services. Sadly, some sellers have exploited public desperation, with widespread reports of price gouging. This notorious practice involves pricing high-demand essentials at levels significantly higher than what is commonly considered acceptable, reasonable or fair. This article critically analyses moral and economic arguments surrounding statutory controls before proposing a model law regulating price gouging during times of crisis. It argues that such a law is both essential and easily adaptable to Australia’s consumer law framework. The model law provides a basis for the federal government to consider desperately required change to ensure consumers do not suffer during current crises or those to come.
Giosa, Penelope-Alexia, ‘Price Regulation: An Alternative to Competition Law Enforcement in the Time of COVID-19?’ (2020) 39 Centre for Competition Policy Research Bulletin 24–27 Abstract: One way to deal with apparent Coronavirus-related profiteering, apart from competition law enforcement, is to use regulation to cap the wholesale and retail prices of some products in high demand. However, the use of price controls and price caps has been criticised for running against the spirit of competition policy. This policy brief explains why price regulation is a highly disputed in contemporary regulatory practice and argues that, in the presence of persistent excessive prices, pragmatism justifies price regulation.
Granatstein, Michele, ‘Using Competition Tools during the COVID-19 Pandemic: Are Merger Control and State Support Substitutes or Complements?’ (2021) 19(4) Competition Law Journal 201–205 Abstract: Many firms are facing financial difficulty as a result of COVID-19. However, we have not (yet) seen the predicted increase in merger activity or bankruptcies in some of the sectors most affected by the pandemic, includ- ing aviation. This may be, in part, a result of the substantial state support that has been provided to a number of companies in the sector. This article considers whether it is preferable to provide state aid to companies in order to allow them to continue operating, or should these ‘failing’ or ‘flailing’ firms be allowed to be acquired by others. It further considers whether there could be more alignment between these tools.
Grochowski, Mateusz, ‘Towards a Renaissance of Price Control in Contract Law?: Preliminary Observations on COVID-19 and Price Regulation on Consumer Market’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The text addresses the dilemma of retail price regulation on the consumer market in the economic realities triggered by the COVID-19 pandemic. The text discusses the reinvigoration of discussion over price control that ensued in numerous countries as a result of the rapid increase of prices of certain goods (such as medical products and every-day-use utensils). It attempts to preliminarily frame the underlying policy premises of price regulation triggered by the pandemic. It also seeks a more in-depth understanding of the rationale of price review in the extraordinary market conditions, as well as the general rules for allocation of tasks in this regard between public and private law. In so doing, the text focuses primarily on the EU consumer law and attempts to understand what concept of price control it rests on and to what extent it may provide a response to the price concerns in the outcome of COVID-19.
Gurgula, Olga, ‘Strategic Patenting by Pharmaceutical Companies: Should Competition Law Intervene?’ (2020) 51(9) IIC - International Review of Intellectual Property and Competition Law 1062-1085 Abstract: As the COVID-19 pandemic is affecting the lives of thousands of people worldwide, the problem of timely access to affordable medicines has intensified today. Based on past experience of accessing medicines for life-threatening diseases there is a justifiable fear that access to any vaccines and treatments that are eventually developed may be hindered by patents, leading to unaffordable prices. In particular, one of the reasons that typically leads to high prices is strategic patenting employed by pharmaceutical companies. While this practice is currently considered lawful, this article argues that strategic patenting requires a long-overdue intervention by competition authorities and aims to attract their attention to its harmful effects. It maintains that, along with a more immediate negative effect in the form of high drug prices, strategic patenting affects dynamic competition by stifling innovation of both originators and generic companies. The article outlines the current approach to strategic patenting and provides arguments for the intervention of competition law. This, in turn, will open the possibility for competition authorities to investigate this practice and prevent its harmful effect on drug prices and pharmaceutical innovation, for the benefit of consumer welfare.
Haganta, Raphael, ‘Legal Protection of Personal Data as Privacy Rights of E-Commerce Consumers Amid the Covid-19 Pandemic’ (2020) 4(2) Lex Scientia Law Review 77–90 Abstract: The use of e-commerce in the midst of the COVID-19 pandemic shows an increase. This is due to the publication of several regulations that limit everyone’s activities outside the home, affecting conventional trading activities online by utilizing e-commerce. Although providing benefits during the pandemic, e-commerce has a vulnerability to personal data protection. Through this paper, the authors use normative legal research methods, intending to know the concept of personal data as a right of privacy and the construction of Indonesia’s positive laws in legal protection of the personal data of e-commerce consumers.The use of e-commerce in the midst of the COVID-19 pandemic shows an increase. This is due to the publication of several regulations that limit everyone’s activities outside the home, affecting conventional trading activities online by utilizing e-commerce. Although providing benefits during the pandemic, e-commerce has a vulnerability to personal data protection. Through this paper, the authors use normative legal research methods, intending to know the concept of personal data as a right of privacy and the construction of Indonesia’s positive laws in legal protection of the personal data of e-commerce consumers.
Guy, Mary, ‘Rethinking Competition in Healthcare: Reflections from a Small Island’ [2021] (May) Competition Policy International: Antitrust Chronicle pre-published version available on SSRN
Abstract: After approximately 30 years, and following a decisive move towards integrated care systems, competition reforms in English healthcare seem to be rejected, even though the underlying relationship between the public healthcare system and private healthcare market remains. This paper explains how competition in English healthcare has developed to involve the Competition and Markets Authority and a sectoral regulator (NHS Improvement), and how general UK merger control and the prohibition on anticompetitive agreements have been applied. Current legislative proposals call for a substantial refocusing of competition authority involvement and removal of the regulator’s competition powers. These proposals are developing against a backdrop of closer cooperation between public and private healthcare providers in response to COVID-19. This paper concludes by suggesting that the current opportunity to rethink how competition works in English healthcare is a welcome development.
Hanby II, Michael J, ‘The Future of Forced Arbitration’ (2022) 65(5) Advocate 18–21 Abstract: The article looks at study found that 81 companies in the Fortune 100 use arbitration agreements to force their customers to give up their right to go to court. It mentions widespread use of inserting arbitration agreements in consumer contracts has only accelerated during the COVID-19 pandemic. It also mentions Consumer Financial Protection Bureau studied the issue in 2015 and consumer advocates have raised serious concerns with the fairness.
Harjono, Dhaniswara K et al, ‘Legal Protection for Vaccine Recipient Consumers: Perceptions of Health and Non-Health Workers After the Covid-19 Vaccination’ (2023) 11(6s) Russian Law Journal 1419–1430 Abstract: The goal of Covid-19 vaccination is to decrease the spread of the virus, lower the severity and death rate caused by Covid-19, attain collective immunity within the community, and safeguard individuals from Covid-19 so that they can continue to be socially and economically productive. The research method employed is normative juridical research in conjunction with empirical research in the form of quantitative research using a survey design. Covid-19 vaccine access accelerates pandemic response. Regarding disarmament implementation, several things have happened in the field, including a) the procedure for implementing disarmament has not fully followed the health protocol, b) the procedure for withdrawing vaccination has not been carried out properly, c) there has not been a thorough socialization of vaccines to recipients. Thus research on Importance of legal protection for Indonesian vaccine recipients because of the legal protection of consumer rights.
Hawa, Faten, ‘Consumer Protection and the Covid-19 Challenges: Paving the Way for Effective Legal Enforcement: A Case Study in the Qatari Legal System’ (2021) 24(S4) Journal of Legal, Ethical and Regulatory Issues 1–12 (Jurisdiction: Consumer Protection and the Covid-19 Challenges) Abstract: This research paper examines the legal protection of consumer rights at the time of the Corona pandemic (COVID-19) in the State of Qatar as a model to demonstrate the effectiveness of government efforts taken since the beginning of 2020. In a brief review of the legal framework, that governs the protection of consumer rights in Qatar; one finds that the Consumer Protection Law constitutes the main legislative framework that guarantees this protection. This law thoroughly defines the general rules pertaining to the consumer’s health, safety of goods and quality of services. The law is designed to protect the consumer from fraud and deceptive advertising, etc. I will advocate for forming specialized committees to settle consumer disputes, enhancing electronic consumer rights protections and strictly enforcing penalties in the event of a violation of consumer rights in these exceptional situations that we are facing and are struggling to overcome.
Hosseini, Mina, ‘The Evolution of EU Competition Law and Policy in the Pharmaceutical Sector: Long-Lasting Impacts of a Pandemic’ (2024) Journal of Antitrust Enforcement (advance article, published online 4 July 2024) Abstract: This article investigates the evolution of the European Union (EU) competition law and policy enforcement in the pharmaceuticals sector, focusing on the impact of the coronavirus disease 2019 (COVID-19) crisis as a turning point. Before COVID-19, EU competition authorities’ goals and priorities focused on pay-for-delay agreements between originators and generic pharmaceutical undertakings. During COVID-19, the European Commission developed soft laws (such as temporary frameworks and comfort letters) enabling undertakings to cooperate to increase access to essential health products and COVID-19 vaccines. In the post-pandemic era, initiatives like the Pharmaceutical Strategy for Europe, the Single Market Emergency Instrument (SMEI), the Health Emergency Response Authority (HERA), the compulsory licensing proposal and the upcoming changes in the pharmaceutical regulations reflect a patient-centred approach and diverse agenda. This article underscores the move towards a more inclusive EU competition law and policy framework in the pharmaceutical sector as part of this evolution.
Howarth, David and Harriet Alexander, ‘COVID Collaboration and Competition Policy: Authorisation vs Forbearance as Crisis Responses’ (2020) 48(2) Australian Business Law Review 189–201 Abstract: The COVID-19 pandemic created immediate and novel challenges for health professionals. Not as immediate but almost as significant have been the extreme disruptions to supply chains, distribution arrangements and demand conditions that have forced many industries to consider collaborative responses. The Australian Competition and Consumer Commission (ACCC) and competition regulators overseas have been called on to balance short-term measures designed to ensure businesses remain viable and can supply goods and services efficiently and fairly, with long-term efforts to preserve competition. This article outlines the ACCC’s approach of granting urgent interim authorisations and reviews the content and increasingly strict conditions on collaborative activity. It compares this approach to those adopted by competition regulators overseas before briefly addressing an alternative mechanism open to the ACCC in the (as yet untested) class exemption power. The article concludes by observing that the problems faced in the early adjustment period of the pandemic are likely to be very different to those that may emerge during post-pandemic economic contraction and recovery.
Husdanah, Akadiyan Aliffia et al, ‘Legal Protection for Business Placers of Agreements between Business Players Holding Dominant Positions during the Pandemic Era’ (2022) 49(8) Journal of Hunan University Natural Sciences 92–98 Jurisdiction: Indonesia
Abstract: A dominant position is a situation where a business actor does not have a significant competitor in the relevant market in relation to the market share controlled, or the business actor has the highest position among his competitors in the relevant market in terms of financial capability, ability to access supply or sales, and ability to adjust supply between the demand for certain goods or services (Article 1 number 4 of Law Number 5 of 1999). Abuse of a dominant position in the market further aggravates the economic situation during the pandemic era. The procedure for determining the existence of abuse of a dominant position can be carried out by measuring the reach or scope of the relevant market, the existence of a dominant position in the relevant market, and proving the behavior of abuse of dominant position. The Government issued Law Number 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition (hereinafter Law Number 5 of 1999) intended as a legal instrument to enforce the rule of law and provide equal protection for business actors in efforts to create fair business competition. The law also provides legal certainty, so that it can encourage the acceleration of economic development to improve general welfare, as well as the implementation of the spirit and soul of the 1945 Constitution of the Republic of Indonesia. The form of abuse of the dominant position by PT Forisa Nusapersada in the Pop Ice program The Real Ice Blender is PT. Forisa Nusapersada made IOM and an agreement with the owners of Beverage Kiosks and/or Market Stores not to sell competing products like Pop Ice, which has resulted in the lost or at least reduced choice of consumers to attain S’Cafe and Milkjus brand products in the market.
Hutchings, Michael, ‘Comments on Coronavirus and Competition Act Exclusion Orders’ (2020) 41(8) European Competition Law Review 413–425 Abstract: Discusses the significance of the co-operation arrangements between organisations that were excluded from classification as anti-competitive agreements under the Competition Act 1998 during the coronavirus pandemic. Reviews their public benefits, why such exclusions were not permitted in the past, and their potential future advantages if used to tackle matters such as energy saving, climate change and health improvements.
Imamović-Čizmić, Kanita, Elma Kovačević-Bajtal and Lejla Ramić, ‘Competition Law in Bosnia And Herzegovina: How Ready We are for the Challenges of the Modern Age?’ (2021) 5 EU and Comparative Law Issues and Challenges Series (ECLIC): Special Issue - Competition Law (In Pandemic Times): Challenges and Reforms 176–196 Abstract: Bosnia and Herzegovina, having an extremely complex state system and at the same time being a developing country and economy in transition with a commitment to membership in the European Union, faces numerous challenges in adapting national legislation to the acquis communautaire. One of the key segments of the introduction of European standards is the establishment of an effective mechanism for the protection of competition in legislative and institutional terms. With the adoption of the Competition Law in 2005, which brings new solutions and is largely in line with the acquis, Bosnia and Herzegovina has made a significant step forward from the previous state of legal irregularity in this important segment. However, sixteen years of the enforcement of the BiH Competition Law have shown certain shortcomings regarding the particular solutions contained in it. These shortcomings concern the part of the provision of the law that regulates procedural issues, but also the functioning of the authority responsible for the protection of competition in Bosnia and Herzegovina and it can be assumed that these are obstructive elements in response to the challenges of COVID-19 pandemic. In order to follow the international trends, companies in BiH have entered into a process of business digitalization, which, however, being accelerated due to COVID-19 pandemic, has created many challenges before the Council of Competition of BiH as the authority responsible for public enforcement of the competition law. The aim of this paper is to question the extent to which COVID-19 pandemic has affected the work of the Council of Competition BiH, as well as to address some of the particular issues it has faced before the pandemic, including growing market concentration, growing power of digital platforms, protectionism, consumer vulnerability and consequent loss of public confidence. In order to meet the set research goals, the first part of the paper will present an analysis of the legal solutions in the context of the legal and institutional aspect of competition protection and will provide an overview of the situation regarding the digitalization of business operations in Bosnia and Herzegovina. The second part of the paper will provide an analysis of the work of the Council of Competition of BiH with special reference to the period of declaring the pandemic COVID-19.
Irvine, Heather, ‘Minister of Trade Industry and Competition Responds Swiftly to COVID-19’ (2020) 20(3) Without Prejudice 6–7 Abstract: Unprecedented regulations have been passed by Minister Patel in order to exempt certain categories of agreements and practices in the banking, healthcare and retail sector in order to enable competitors in key South African industries to respond to the COVID-19 crisis. Regulations to deter unfair and excessive pricing of critical consumer goods and services have also been put into place.
Jane, Alex and Jeannie Marie Paterson, ‘Frustratingly Unclear? The Interplay between Common Law, Statute and the ACL in Assessing Consumer Rights in a Time of Crisis’ (2020) 48(2) Australian Business Law Review 169–179 Abstract: The spread of COVID-19 and subsequent government regulation have substantially impacted service-providing industries. State and federal regulations concerning social gatherings and travel have, in many instances, rendered performance of contracts illegal, economically unworkable or futile. This article considers the remedies available to consumers for service contracts affected by the COVID-19 crisis, with a particular focus on the response of the airlines, and the commonly offered option of credit vouchers. In these unprecedented circumstances, it examines the complex interaction of contract law, including the doctrine of frustration and accompanying statutory incursions on remedy, and consumer rights under the Australian Consumer Law. The article calls for a consistent approach by service providers and the Australian Competition and Consumer Commission that gives consumers a consistent and fair remedy, without the need to resort to the labyrinthine interplay of common law and statute.
Jenny, Frederic, ‘Competition Law Enforcement and the COVID-19 Crisis: Business As (Un)Usual ?’ (SSRN Scholarly Paper ID 3606214, 20 May 2020) Abstract: The unexpected shock provoked by the COVID-19 crisis and the measures taken to limit the spread of the pandemic have affected the functioning of many markets. Throughout the world, competition authorities which, in the last decade, had been enforcing their laws in the context of steady economic growth have had to adjust their enforcement practices not only to the difficulties of running their operations created by lockdowns but more importantly to collapsing markets or markets for essential goods characterized by severe shortages, in a context of deep economic depression with many firms facing severe liquidity constraints or even the threat of bankruptcy. Competition authorities have responded to these extraordinarily brutal circumstances by adjusting their enforcement priorities, exempting certain forms of cooperation, relaxing their standards for efficiency defence, adopting emergency procedures, allowing certain forms of state aids, accepting mergers because the target suddenly was a failing firm etc…. while at the same time insisting that these changes did not mean a weakening or an alteration of the competition law principles that they previously followed. This article describes in detail the responses of a number of competition authorities, analyzes the differences in the responses to the COVID-19 crisis of various governments and competition authorities and discusses whether these responses imply a departure from the traditionally accepted goals and enforcement principles of competition.
Jones, Amanda L, ‘The Dawn of a New Era: Antitrust Law vs. the Antiquated NCAA Compensation Model Perpetuating Racial Injustice’ (2022) 116(5) Northwestern University Law Review 1319–1364 Abstract: Two crises in 2020 fueled the fire underlying a debate that has been smoldering for years: whether student athletes should be compensated. The COVID-19 pandemic coincided with the Black Lives Matter movement and drew unprecedented attention to systemic racism permeating society, including college sports that rely disproportionately on Black men risking physical harm to support an entire industry. The Supreme Court’s decision in NCAA v. Alston opened the door for some athletic conferences to offer student athletes unlimited education-related benefits and called out the NCAA’s business model that relies on not paying student athletes under the justification of amateurism. Alston asserted that the NCAA amateurism model is not exempt from antitrust law, and a scathing concurrence by Justice Brett Kavanaugh said in no uncertain terms that ‘[t]he NCAA is not above the law.’ In the context of the ever-evolving landscape of student-athlete compensation, this Note examines recent changes to the NCAA compensation model and suggests that antitrust law should be used as a vehicle to change the game by correcting racial inequities perpetuated by this business model. This Note asserts that the ball is now in Congress’s court and advocates for federal legislation and collective bargaining to empower student athletes to seek the full value of their labor.
Journal of Antitrust Enforcement (2020) 8(2) Special Issue: Competition Law in Times of Crisis – Tackling The COVID-19 ChallengeThis open access special issue includes contributions from enforcement agencies in Australia, Germany, Hong Kong, Ireland, Russia, South Africa, UK and USA, as well as 14 scholarly and practitioner articles from around the world.
Contents:
I. COMPETITION ENFORCERS
- Igor Artemiev ‘Statement of Igor Artemiev, Head of the FAS Russia’
- Makan Delrahim ‘Tackling the COVID-19 challenge—a view from the DOJ’
- Isolde Goggin ‘How the Irish Competition and Consumer Protection Commission is responding to the COVID-19 challenge’
- Will Hayter ‘Tackling the COVID-19 challenge—a perspective from the CMA’
- Andreas Mundt ‘The Bundeskartellamt in times of COVID-19: adaption of workflows and implications for our enforcement practice’
- Hardin Ratshisusu and Liberty Mncube ‘Addressing excessive pricing concerns in time of the COVID-19 pandemic—a view from South Africa’
- Joseph J Simons ‘The Federal Trade Commission’s response to the COVID-19 pandemic’
- Rod Sims ‘Competition law in times of crisis—tackling the COVID-19 challenge: Australian Competition and Consumer Commission’
- Martijn Snoep ‘Competition enforcement in times of crisis—a perspective from the ACM’.
- Brent Snyder ‘Striking a balance between principle and pragmatism in COVID-19-related enforcement in Hong Kong’
II. ACADEMICS AND PRACTITIONERS
- David S. Evans ‘Planning for catastrophes’.
- Eleanor M. Fox ‘Developing countries, markets, and the coronavirus: two challenges’.
- Monique Goyens and Agustin Reyna ‘Public interest in EU policymaking after COVID-19: five short-term lessons from a consumer perspective’.
- Alberto Heimler ‘System wide health care shocks and regulatory interventions in the face of the emergency: are there some lessons to be learned from the COVID-19 crisis?’.
- Alison Jones ‘Cartels in the time of COVID-19’.
- Damien J Neven ‘The EU rescue and restructuring guidelines. Fit for purpose?’.
- John Noble ‘Tackling the Covid-19 challenge—a producer perspective’.
- Julian Nowag ‘Resilience and competition law, in times of emergencies and crises: two research agendas’.
- Peter Ormosi and Andreas Stephan ‘The dangers of allowing greater coordination between competitors during the COVID-19 crisis’.
- Jorge Padilla ‘A Keynesian antitrust response to the COVID-19 crisis’.
- Hassan Qaqaya ‘Sustainability of ASEAN integration, competition policy, and the challenges of COVID-19’.
- Fiona M Scott Morton ‘Innovation incentives in a pandemic’.
- Maurice E Stucke and Ariel Ezrachi ‘COVID-19 and competition—aspiring for more than our old normality?’.
- Masako Wakui ‘Free market versus state or something else?: civic sector and competition law’s roles during the COVID-19 pandemic in Japan’.
Abstract: The SARS-CoV-2 epidemic (COVID-19) poses a particular challenge to many disciplines and requires the state to take action at various levels of engagement. One of those specials is also a credit agreement. To mitigate the effects of the epidemic on the solvency of borrowers, the Slovenian legislator adopted the Intervention Measure Act on Deferred Payments of Borrowers’ Obligations. The essential measure is the deferral of payment as stipulated, what means the termination of the maturity of all obligations under the credit agreement until the end of the deferral period of 12 months. During this period, the interest shall be charged on the deferred part of the principal at the regular interest rate. The borrower may apply for the deferral of payment, if the epidemic affects his ability to repay the loan. The bank must offer him the conclusion of annex to the credit contract, if he fulfils all conditions for the application. In the deferral period, the borrower is bound by special reporting obligation concerning his solvency and ability to make a repayment.
Kedogo, Vellah Kigwiru, ‘Covid-19, Trade and Competition Law in Africa’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium III: Sovereign Debt, Finance and Competition Law) Extract: The link between competition law and trade cannot be overemphasized. Competition agencies at both national and regional level in Africa, play a key role in promoting trade in the region, through approving mergers, ensuring anti-competitive conduct do not occur and protecting consumers from exploitation.
Kigwiru, Vellah Kedogo, ‘COVID-19, Trade and Competition Law in Africa’ (SSRN Scholarly Paper ID 4035277, 9 May 2020) Abstract: There has been calls from various organizations and key policy makers arguing that, countries must adopt effective trade policies and measures that should seek to maintain the trade during the COVID-19 pandemic. So what is the way forward for Africa? This paper briefly discusses the role competition agencies in Africa are playing to maintain trade during the COVID-19 pandemic.
Komninos, Assimakis, Jan Jeram and Iakovos Sarmas, ‘A Re-Awakening of the Failing Firm Defense in the EU in the Aftermath of COVID-19?’ (2020) (5 April) Competition Policy International_ _Abstract: The COVID-19 crisis raises the question of how EU merger control will be adapted. In particular, whether the standards for accepting the so-called ‘failing firm defense’ will be relaxed by the European Commission. We discuss the case law and make a few observations on how the FFD is going to play going forward.
Koos, Stefan, ‘Legal Framework for the Post-Pandemic Tourism in Bali’ (Preprint of a Paper for the 2nd International Conference‚ Business Law and Local Wisdom in Tourism, Warmadewa University, Denpasar, Indonesia 28-29 July 2021, 2021) Abstract: Tourism can only thrive when customers feel welcome. Especially in the time of the restart of the tourism industry after the pandemic, there may be an opportunity for the Indonesian tourism industry to correct undesirable developments in the past in order to promote a type of tourism that is sustainable, honest and effective. This concerns economic and strategic marketing decisions, such as addressing specific target groups for tourism services, but also legal framework conditions. Corresponding legal framework conditions can be found particularly in consumer protection law and competition law, but also in the hierarchy between Indonesian federal law and local law. From the point of view of a foreign observer, the paper would like to highlight some legal aspects that could be important for a rebalancing of tourism.
Kovacikova, Hana, ‘How May COVID-19 Be (Mis)Used as a Justification for Uncompetitive Tendering? Case Study of Slovakia’ in New Legal Reality: Challenges and Perspectives. II (University of Latvia Press, 2022) 156–165 Abstract: The COVID-19 pandemic caused disaster in every area of life, public procurement notwithstanding. This article considers the problem of possible misuse of COVID-19 pandemic as a cover to justify uncompetitive tendering of public contracts. It contains the analysis of general conditions set by the EU law and also by national legislation, which must be met while using the method of direct awarding of contracts by contracting authorities, as well as specific conditions clarified by the European Commission in its 2020 Guidance for emergency situation procurement related to COVID-19. It also deals with the Slovak law applicable in this area, and the real practice of Slovak contracting authorities. In this regard, a quantitative analysis was realised to answer the question, whether Slovakia complies with the Union’s rules in both levels – legislative, as well as in practical.
Kozak, Małgorzata, ‘Competition Law and the COVID-19 Pandemic: Towards More Room for Public Interest Objectives?’ (2021) 17(3) Utrecht Law Review 118–129 Abstract: The article aims at analysing activities of the European Commission and the national competition authorities of the Member States of the European Union in response to the Covid-19 outbreak. This analysis is carried out in the light of the objectives of EU competition law. The specific research question of this article is whether the competition law framework is sufficiently resilient to the current COVID-19 crisis and allows for the inclusion of public or non-economic interests, particularly with regard to the application of Article 101 of the Treaty of the Functioning of the European Union. With a view to answering this question, the temporary framework that has been adopted because of the pandemic will be assessed in the light of the framework for the application of Article 101 TFEU. Then the actions of competition authorities undertaken EU-wide will be analysed against the background of the current debate on the goals of EU competition law.
Lande, Robert H and Sandeep Vaheesan, ‘Can COVID-19 Get Congress to Finally Strengthen U.S. Antitrust Law?’ (SSRN Scholarly Paper No ID 3610880, 26 May 2020) Abstract: The COVID-19 pandemic could cause Congress to strengthen our merger laws. The authors of this short article strongly urge Congress to do this, but to do this in a manner that ignores 5 myths that underpin current merger policy: Myth 1: Mergers Eliminate Wasteful Redundancies and Produce More Efficient BusinessesMyth 2: Current Merger Enforcement Protects Consumers Myth 3: Merger Remedies Preserve Competition Myth 4: The Current Merger Review System Offers Transparency and Guidance to Businesses and the Public Myth 5: Corporations Need Mergers to Grow
Lasting, Hannah M, ‘Big Pharma, Big Problems: COVID-19 Heightens Patent-Antitrust Tension Caused by Reverse Payments’ (2021) 44(2) Seattle University Law Review 601–631 Abstract: In the wake of COVID-19, pharmaceutical companies rushed to produce vaccinations and continue to work on developing treatments, while the tension caused by reverse payments intensifies between patent and antitrust law. Lawmakers must address this tension, and the current pandemic should serve as a catalyst to prompt reform at the legislative level. By amending the Hatch-Waxman Act, lawmakers can ease the increasing strain between patent and antitrust policy concerns. In 2013, the U.S. Supreme Court attempted to resolve this tension in its landmark decision, F.T.C. v. Actavis, but the tension remains as lower courts struggle to produce a uniform standard when applying Actavis to reverse payment settlements arising as a result of the current Hatch-Waxman Act provisions. Much scholarship exists explaining and addressing the lingering issues surrounding reverse payment settlements. However, no better time exists to address this heightened problem in the pharmaceutical context than now--amidst the COVID-19 pandemic devastating the United States. Lawmakers must act now to shield consumers from big pharma barring public access to affordable medications through reverse payment settlements.
Lianos, Ioannis, Timo Minssen and Christy L Kollmar, ‘Tackling Grand Challenges with Competition Law: Lessons from the Pandemic’ in W Sauter, M Canoy and J Mulder (eds), EU Competition Law and Pharmaceuticals (Edward Elgar, 2022) (forthcoming) [pre-print chapter available on SSRN] Abstract: All across the globe antitrust authorities responded quickly, determined to tackle the worst impacts of the COVID-19 outbreak. While regulators and courts can apply competition and antitrust rules both as enforcing ‘swords’ to achieve public health goals and ‘enabling’ shields to promote specific collaborations, it appears that the ‘enabling collaborations’ function has been particularly important to rapidly facilitate much needed pandemic responses. This chapter describes these developments from a past, present and future perspective. Specifically, it analyses (1) the interaction between competition law and public health, (2) the immediate response of antitrust authorities during the crisis, and (3) new approaches and solutions models. Special emphasis will be placed on the question of whether current pandemic responses could provide competition authorities a future blueprint and toolkit for action and a new role in the public ecosystem to implement needed sustainable development objectives.
Loos, Marco, ‘Homeward Bound: Package Travel and Unforeseen Circumstances Case Note to Geschillencommissie Reizen 22 September 2020, Reference Code 9916/33919, and to Geschillencommissie Reizen 30 September 2020, Reference Code 28181/33982’ [2021] REDC - European Journal of Consumer Law (forthcoming) Jurisdiction: Netherlands
Abstract: Since the outbreak of the Covid-19 pandemic, package travel contracts have been cancelled throughout the world, both before and after departure of individual consumers. In this paper I will discuss whether and to what extent courts and recognised ADR entities may rely on national contract law rules on unforeseen circumstances in other to tackle the consequences of the pandemic for package travel contracts or whether the 2015 Package Travel Directive does not allow for the application of such rules.
Loos, Marco, ‘One Day I’ll Fly Away… Voucher Schemes for Cancelled Package Travel Contracts after the Outbreak of the Covid-19 Pandemic’ [2021] REDC: Journal of European Consumer and Market Law (forthcoming) Abstract: When the Covid-19 crisis erupted, in order to prevent instant bankruptcy, throughout the world tour organisers issued vouchers representing the value of the cancelled holiday to consumers instead of reimbursing them in cash. Tour organisers in the EU did the same. In this paper, I will address the legal aspects of these vouchers and discuss whether vouchers can only serve as stopgaps or whether they can form a serious alternative for reimbursement in the future.
Luna, Álvaro and Pablo Salvador Coderch, ‘The Spanish Consumer Law in the COVID-19 Emergency’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: As a consequence of the Covid-19 emergency, the Spanish law on consumer contracts has been mainly modified by one legal provision, Section 36 of Royal Decree-Law 11/2020, of 31st March. Paragraphs 1, 2 and 3 of section 36 generally provide the possibility to adjust sales and services consumer contracts. If the parties to the contract do not reach an adjustment or adaptation agreement within 60 days, the consumer can terminate the contract. Nevertheless, both the adjustment and termination requests must clearly fulfill a standard of good faith and fair dealing.
MacKenzie, Neil, ‘South African Competition Law in the New World’ (2020) 20(7) Without Prejudice 8-9 Abstract: The South African Competition Tribunal recently found a firm guilty of abusing its dominance. The firm was a small trader with a market share of 4.7%. The illegal conduct comprised excessive pricing of face masks for a period of just over one month. The investigation, prosecution and adjudication took less than three months. The fine was R76 040.
Maier-Rigaud, Frank P, Robert Lauer and Laura Robles, ‘Innovation Incentives in the Pharmaceutical Sector: Rethinking Competition and Public Policy?’ (2021) 44(3) World Competition: Law & Economics Review 307–332 Abstract: The incentives of pharmaceutical companies to innovate and how competition affects these incentives has been topical in recent years: for the general public, as evidenced by a patent race at an unprecedented pace during the ongoing Coronavirus disease 2019 (COVID-19) pandemic; and more specifically for competition authorities, as demonstrated for example by the role innovation played in the assessment of the Bayer/Monsanto (2018), Dow/DuPont (2017), and the Novartis/GSK (2015) mergers. This article contributes to the innovation debate, notably in the pharmaceutical industry, by giving an overview on firm and market-level incentives to carry out research and development (R&D). Understanding these innovation incentives is relevant for a proper competition assessment where the effect of a particular conduct or structural change on these incentives is considered, but also more generally in the context of public policy or regulatory questions. We review the fundamental elements driving innovation incentives and tentatively relate these to the development of new drugs for neurodegenerative diseases (NDD), in particular Parkinson’s disease (PD) and Alzheimer’s disease (AD).
Malnar, Vlatka Butorac, Mihaela Braut Filipović and Antonija Zubović, ‘Rethinking Unfair Trading Practices in Agriculture and Food Supply Chain: The Croatian Perspective’ (2021) 5 EU and Comparative Law Issues and Challenges Series (ECLIC): Special Issue - Competition Law (In Pandemic Times): Challenges and Reforms 2–28 Abstract: In recent years, the need for a systematic and harmonised way of preventing unfair trading practices (hereinafter UTPs) in the food supply chain has intensified at the European level due to many diverging national legislative solutions. These efforts resulted in the Directive 2019/633 on unfair trading practices (UTPs) in business-to-business relationships in the agricultural and food supply chain. Croatian UTPs Act, enacted already in 2017, was just amended to conform with the requirements of the named Directive. Generally speaking, the UTPs Act sets out rules and measures to prevent the imposition of UTPs in the food supply chain, establishes the list of such practices and sets up the enforcement structure and sanctions. Comparing the Directive to the UTPs Act, the authors discuss the outcome of the transposition pointing to the incorrect scope of application of the national legislation, its potential consequences and de lege ferenda solutions. Further, the authors anlyse the legal nature of the adopted UTPs system concluding that it does not fit into the traditional systematisation of laws jeopardising the coherency of the intricate and complex relationship between relating legislative frameworks. New rules are diverging and overlapping with both competition and contract law, leading to possible undesirable spill over effects in contract law, and unresolved concurring competence with competition law. Authors suggest precautionary interpretative measures as a means of solving the identified legal conundrum.
Mallela, Navya and Sai Samatha Jyothsna Behara, ‘Consumer Protection Act and Hurdles Faced by Consumers during Covid 19 Pandemic’ (2021) 1(4) Jus Corpus Law Journal 525–540 Abstract: In the past few years, there have been numerous amendments and bills that have been legislated and made. Some of the bills have not yet been implemented, and some have not even been acknowledged, while some have been enacted. One bill that has become an act in recent times is the ‘Consumer Protection Act, 2019’. Over the period, there has been an enormous change concerning the consumers. One of the common and standard definitions used is, a person who buys goods and services is called a Consumer. The function of the term has evolved in tandem with its definition. Furthermore, the producers’ and other auxiliaries’ positions have been too expanded. These developments can be linked to the civilization’s technical achievements and improved living. Consumers have various rights, and if these rights are violated, they can file a petition in the Court. These Consumer related cases have specialized courts for them. They are known as Consumer Courts. In this article, we are going to analyze about Consumer Protection Act of 2019 in detail and also would illustrate the various changes that have been introduced in the new enactment with comparison to that of the old Consumer Protection Act 1986. Additionally, we will discuss the problems faced by Consumers in the COVID-19 Pandemic and cases regarding Consumer Protection Act.
Mangku, Dewa Gede Sudika, Rahayu Subekti and Ni Putu Rai Yuliartini, ‘Legal Protection for Consumers Recipient of COVID-19 Vaccine in Indonesia’ (2022) 6(2) International Journal of Health Sciences 956–964 Abstract: The purpose of this study was to determine the legal protection provided to COVID-19 vaccine recipients under the Indonesian consumer protection law. This study employs normative legal research methods. This study was a qualitative descriptive study and described the level of quality of infectious waste management in the household which was reviewed based on the relevant laws and regulations. The article used secondary legal materials, namely books, journals, articles, and other written works from print and internet media, and the phenomena that occured in the field. According to the findings of this study, the type of consumer protection for recipients of the COVID-19 vaccination under Indonesian consumer protection law is the application of preventive and repressive legal protection and civil and criminal liability in line with existing laws and regulations.
Marchisio, Emiliano, ‘EU Competition Law Response to the Coronavirus Crisis’ (2020) 41(8) European Competition Law Review 373–383 Abstract: Examines how EU competition law has adapted its approach in response to the coronavirus pandemic, including the exemptions granted to TFEU art.101. Reviews the Commission’s approach to scarce products, the exchange of commercially-sensitive information, co-operation between firms, and the responses to situations involving cartels, state aid, mergers and abuse of a dominant position.
Marchisio, Emiliano, ‘Price Increases During the Pandemia and EU Competition Law’ (2021) 5 EU and Comparative Law Issues and Challenges Series (ECLIC) (Special Issue: Competition Law (In Pandemic Times): Challenges and Reforms) 137–175 Abstract: The debate about the ‘just price’ has ancient origin and returns forcefully to the scene when, in the event of crises of various kinds, there is a rapid and significant increase in prices of given goods or services. In this article it is examined the problem of whether price increases of such a nature could, or should, be considered illicit under EU competition law. The central part of the article reviews different theories on what a ‘just price’ should be and focuses on the idea that a price is ‘just’ when it functions as index of relative scarcity in free markets. It is claimed that such a function deserves protection by EU law. Therefore, price adjustments in response to shocks cannot and should not be considered illegal: it is unacceptable to sanction private firms by attributing them the wrong of not having substituted, at their own expense, for the exercise of a public function (that of making sure that price increases do not put at risk solidarity and other constitutional principles).
Massey, Patrick and Moore Mcdowell, ‘EU Competition Law: An Unaffordable Luxury in Times of Crisis?’ (2021) 44(4) World Competition: Law & Economics Review 405–432 Abstract: The paper rejects arguments advanced in some quarters for a relaxation of EU competition policy to promote economic recovery. Economic theory and historical experience indicate that competition is likely to assist rather than impede recovery. While the Covid-19 induced recession necessitated increased State Aid, there is a serious risk that such aid will seriously distort competition within the internal market, given differences in the financial capacity of Member States to support businesses. The paper argues that policies designed to promote national champions and greater self-sufficiency are not justified and that action to secure reciprocal market access for EU exports is preferable to protectionist measures. An important lesson from the financial crisis is that actions based on immediate needs are a poor substitute for policy intervention based on sound economic analysis.
Mehra, Salil K, ‘Price-Discrimination Driven Algorithmic Collusion: Platforms for Durable Cartels’ Stanford Journal of Law, Business and Finance (forthcoming) Abstract: Algorithmic competition has arrived. With it has come the specter of algorithmic collusion – rapid detection of co-conspirators’ defection via technologically enhanced price monitoring and setting capability can encourage anticompetitive collusion. Strikingly, the ability to track consumers’ willingness-to-pay and price discriminate among them may synergize with algorithmic collusion into something antitrust scholars had previously thought impossible: stable cartels. In particular, consumer-facing digital platforms increasingly can determine consumers’ individual willingness to pay. Doing this allows them to deploy sophisticated forms of price discrimination, and thereby effect large welfare transfers from consumers to producers. This Article is the first to describe and analyze the potential interaction between price discrimination and algorithmic collusion. Algorithm-driven platforms now knit together large numbers of previously-independent firms and agents; some platforms set the price these participating firms and agents will charge. Crucially, if the gains to producers from collusive price discrimination are big enough, a qualitative change may take place: participants may find that they are no longer are in a Prisoner’s Dilemma tempting them to undercut each other on price, but rather in a coordination game with a single, rational choice: keep their collusion going. This Article sets forth how this dynamic can produce agreements by competitors, facilitated by price-discriminating, price-setting platforms that transfer wealth from consumers to producers – arguably a violation of Section 1 of the Sherman Act. Indeed, in contrast to the traditional view that firms need to first obtain Section 2 monopoly power, and only then can implement price discrimination, the model presented here shows the causation can run the other way: The ability to price discriminate effectively can drive the joint maintenance of monopoly power by colluding competitors. This dynamic takes on new urgency as more and more commerce shifts to the Internet and smartphone apps, a trend that has been accelerated by the COVID-19 pandemic and its associated acceleration of the shift to e-commerce. Potential solutions to this problem will be complicated by antitrust law’s current relegation of price discrimination to the dead letter office – no Federal Trade Commission complaint under the Robinson-Patman Act, the main relevant statute, has been brought this century. Indeed, during the past decade, the most recent edition of the leading antitrust casebook in the U.S. deleted its section on price discrimination and the Act. This Article proposes three actions: (i) revive some enforcement against price discrimination, (ii) prioritize action against price discriminating platforms that inhibit switching by participants, including scrutinizing mergers between firms whose Big Data-based ability to gauge willingness-to-pay may, if combined, have negative ramifications for consumers, and (iii) factor price discrimination-driven algorithmic collusion into the current reevaluation of vertical restraints.
Meyer, Susan, Preanka Gounden and Charissa Barden, ‘More Bark and Bite: Competition Law as an Additional Means of Post-Pandemic Support’ (2020) 20(5) Without Prejudice 29–30 Abstract: The Competition Act (89 of 1998) and its noble purpose of, among other things, supporting historically disadvantaged persons (HDPs) and small, medium and micro enterprises (SMMEs), has been in force for just over two decades. Certain 2019 amendments to the Act specifically sought to strengthen efforts to promote economic inclusiveness of SMMEs and HDPs. It is in this regard that competition law may provide additional support, a proverbial bark and bite, to existing government efforts aimed at achieving a more equitable society. This has particular relevance in a post-pandemic context.
Mina, Hosseini, ‘A Covid Competition Dilemma: Legal and Ethical Challenges Regarding the Covid-19 Vaccine Policies during and after the Crisis’ (2021) 6(1) Public Governance, Administration and Finances Law Review 51–63 Abstract: The Covid-19 pandemic has impacted multiple facets of our lives and created a number of legal and ethical dilemmas. One of the greatest challenges at present is the production and distribution of the Covid-19 vaccine. Refusing to supply Covid vaccines widely could affect millions worldwide, and the pandemic may last for a long time. The competition authorities’ monitoring of the health sector in many countries has been subject to changes in the current crisis. The question is whether we can force the Covid-19 vaccine manufacturers, legally and ethically, to sell their products and share their information with their competitors. Furthermore, what are the post-pandemic consequences of policies adopted during the pandemic? This paper employs a descriptive-analytical method to examine the importance of competition and intellectual property policies as they relate to Covid-19. It concludes that instead of focusing on individual rights in a crisis, public rights need to be emphasised. However, we should not underestimate the post-pandemic consequences of policies adopted during the Covid-19 pandemic.
Montero-Pascual, Juan J, Matthias Finger and Teodora Serafimova, ‘Short- and Mid-Term Covid-19 Effects on the Aviation Sector: A Competition Law Perspective’ (European University Institute, Florence School of Regulation, RSC Policy Brief No 2022/08, 2022) Abstract: On 19th March 2020, the European Commission adopted a Temporary Framework for State Aid measures, which is based on Article 107(3)(b)TFEU and complements other possibilities available to Member States to mitigate the social-economic impact of the COVID-19 outbreak in line with EU State aid rules, notably the possibility under Article 107(2)b TFEU to compensate specific companies or specific sectors for the damages directly caused by exceptional occurrences, such as the pandemic. The 17th Florence Air Forum, co-organised by the Florence School of Regulation’s Transport Area together with the Commission’s DG Competition, examined the hard impact of COVID-19 on the air sector while exploring possible ways forward to ensure its recovery. More specifically, it sought to analyse whether special needs exist in the short- and mid-term period, until the Aviation Guidelines are reviewed. Drawing on the policy debates, this brief explores investment aid and support to green investments for airports and airlines with a view to meeting the European Green Deal objectives. Furthermore, the brief looks at operating aid to regional airports, which have been particularly heavily hit by the crisis, and more specifically discusses how long these regional airports might need public support. Another aspect examined here concerns air connectivity, which constitutes an essential component of the European Single Market, as it can foster cross-border trade, promote economic growth and European integration. The pandemic’s impact on the sector has raised concerns about a substantial loss of air connectivity. In view of this, the brief reflects on the need to adopt a temporary set of rules in the short-term to restore connectivity after the COVID-19 outbreak and to adjust existing rules on start-up aid in the mid- and long-term. Last but not least, this policy brief delves into the timely topic of remedies in mergers. A new round of consolidation in the industry can be expected as a result of the financial difficulties of many airlines. In order to protect competition, effective remedies will have to be identified.
Moreira, Teresa, ‘Competition Policy’s Role in the Economic Recovery Process from the Covid-19 Pandemic Crisis: Insight from UNCTAD’ (2021) 9(3) Journal of Antitrust Enforcement 407–412 Abstract: The COVID-19 pandemic outbreak disrupted markets and had a serious negative impact in economies across the world. Competition Authorities were at the forefront of initial public response measures through strong law enforcement and active market monitoring actions, temporary exemptions from competition provisions, merger control procedural adjustments and advocacy, an increasingly important function vis-à-vis Governments and all relevant stakeholders. Competition law and policy have therefore remained highly relevant during this period in both developed and developing countries. Current common challenges faced are raised by the increased digitalization of the economy and the dominance of digital platforms, especially considering the number and market share of micro and Small and Medium Sized enterprises (SMEs), the most seriously affected by the pandemic lockdown measures. Several jurisdictions and international organizations are equipping themselves with new legislation and instruments to address these challenges, namely supporting SMEs fair access to digital markets and promoting competitive public procurement, but less experienced and resource-constrained authorities of developing countries must prioritize otherwise. Competition advocacy is now more than ever a priority for them so that the economic recovery packages preserver open, fair, and equitable markets. International cooperation, bringing together developed and developing countries authorities, provides a crucial framework of support especially at this time. UNCTAD is particularly well placed to support developing countries’ Competition Authorities contributions to ‘building back better’ in times of crisis.
Morton, Sophie, ‘Competition, Co-Operation and COVID-19’ (2020) 24(1) Inhouse Counsel 6–8 Abstract: The public health response and the economic response to the impact of the COVID-19 pandemic are inextricably linked. In order to support businesses in implementing social distancing measures, with the effects of supply chain disruption and other consequences of the outbreak, the Government has developed numerous policy measures aimed at lessening the economic impact. The Australian Competition and Consumer Commission (ACCC) has also identified several regulatory priorities arising from the outbreak, establishing a COVID-19 Taskforce. As a result of the pandemic, the ACCC has granted permission for organisations in several sectors to behave in a way which would ordinarily be prohibited, so that businesses can work together to co-ordinate and strengthen Australia’s response to COVID-19. ACCC Chair Rod Sims told the ‘Australian Financial Review’ Banking & Wealth Summit Crisis Briefing that
Moss, Diana L, ‘From Competition to Conspiracy: Accessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector’ (SSRN Scholarly Paper No ID 3701158, 3 September 2020) Abstract: Prescription drugs safeguard Americans from numerous life-threatening maladies. Competition in pharmaceutical R&D, and for generic entry, produces essential drugs and ensures that medications are accessible and affordable. That promise is fading. There is mounting evidence that connects high market concentration and high drug prices. Price gouging for important drugs, conspiracies to fix generic drug prices, and ever more innovative schemes by branded drug manufacturers to keep generic rivals out of the market put merger control at center stage.The AAI White Paper ‘From Competition to Conspiracy: Accessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector’ examines a major root of this problem—the Federal Trade Commission’s (FTC’s) policy of settling virtually all challenged horizontal pharmaceutical mergers with consent orders requiring divestitures. This stands in contrast to agency decisions to seek injunctions to stop highly concentrative, harmful mergers—arguably the most effective remedy for fully restoring competition. AAI’s macro-analysis of pharmaceutical mergers challenged by the FTC between 1994-2020 (to date) reveals that many drug makers engaged in serial mergers and/or repeatedly went to the till to purchase divestiture assets in other challenged mergers. Many of these firms were subsequently acquired by other pharmaceutical manufacturers, sometimes shortly after purchasing divestiture assets.The effect of the FTC’s policy has been the swapping of assets within a relatively small group of large and increasingly powerful firms. Just under 20% of all unique branded and generic firms that engaged in repeated mergers and acquisitions (M&A) and/or purchases of divestiture assets account for almost 45% of pharmaceutical assets ‘changing hands’ from 1994-2020. Many of the very firms that were the most active in M&A, and as purchasers of divestiture assets, appear as defendants in private, state, and federal non-merger antitrust litigations and in federal criminal indictments. These accumulating lawsuits serve as powerful evidence that something has gone awry with merger policy in the pharmaceutical sector, leading to the exercise of market power by dominant firms and oligopolies.The FTC’s role in managing the allocation and ownership of important pharmaceutical assets through its extraordinary approach toward merger control has unduly involved it in shaping the industry. This resembles a form of ‘industrial planning’ rather than antitrust law enforcement, which is designed to deter future anticompetitive conduct and relies on market forces to determine market structures. The FTC’s policy has also deprived the antitrust community and public of important transparency. Because no challenged merger between 1994-2020 was litigated in federal court, there is no judicial record detailing how highly concentrative mergers were likely to have survived a presumption of illegality. There is thus no way to evaluate claims that pharmaceutical mergers were likely to have delivered lower prices through claimed cost savings or consumer benefits due to improved quality and innovation.This White Paper begins with background on drug pricing and competition in the pharmaceutical supply chain. It then turns to the drug mergers themselves and the asset divestitures required in FTC consent orders. Next is an assessment of private, state, and federal antitrust cases against the companies involved in M&A and as buyers of divestiture assets. It concludes with policy recommendations on reframing competition policy in the pharmaceutical sector. The FTC, which has devoted considerable resources and expertise to understanding the pharmaceutical sector, should take the lead in reforming its own policy on merger control.Competition problems in pharmaceuticals now rise to the level a public policy concern, addressable only through a coordinated policy response, of which stronger antitrust enforcement and legislative reform should be central components. The imperative for wholesale change in the FTC’s merger policy in the pharmaceutical sector is more pressing than ever. Only robust competition among drug makers will result in the availability and affordability of drugs more generally, but also essential drug therapies and vaccines relating to the COVID-19 pandemic.
Mpe, Palesa and Jeremy de Beer, ‘What’s with the Price Gouging?’ (2020) 20(7) Without Prejudice 6-7 Abstract: COVID-19 has brought with it some legal developments in South Africa. Along with citizens navigating nationwide lockdowns, prohibitions and curfews, competition authorities also find themselves in uncharted territory. The Competition Tribunal has, to date, heard and delivered judgment on two COVID-19 related excessive pricing matters. These matters have introduced a new concept into the South African competition law landscape: “price gouging”.
Nicolaides, Phedon, ‘Application of Article 107(2)(b) TFEU to Covid-19 Measures: State Aid to Make Good the Damage Caused by an Exceptional Occurrence’ (2020) 11(5-6) Journal of European Competition Law & Practice 238-243 Abstract: On 12 March 2020, the European Commission approved the first state aid measure to combat the Covid-19 pandemic (case SA.56685 notified by Denmark). Two months later the Commission authorised more than 120 measures, mostly in the form of grants and subsidies for loan guarantees and interest rates.1 The vast majority of those measures were authorised on the basis of Article 107(3)(b) TFEU which allows state aid to ‘remedy a serious disturbance in the economy of a Member State’. Only 10 measures were authorised on the basis of Article 107(2)(b) TFEU for the purpose of making ‘good damage caused by a natural disaster or exceptional occurrence’. Covid-19 is both an exceptional occurrence and a serious economic disturbance. This suggests that Member States could choose to notify their aid measures on the basis of either Article 107(2)(b) or Article 107(3)(b). In theory, they should have chosen Article 107(2)(b) because the discretion of the Commission in this instance is narrower than under Article 107(3)(b). The Treaty itself declares aid to make good the damage caused by an exceptional occurrence compatible with the internal market, whereas aid to remedy a serious disturbance may be compatible with the internal market. Therefore, the discretion of the Commission is much wider in assessing whether the latter is or is not compatible.
Nigam, Mudit and Shreya Chandhok, ‘COVID-19 Crisis and CCI’s Response: Lessons to Be Learned from Australian and British Regulators’ (2020) 41(8) European Competition Law Review 419–421 Abstract: Reviews the approach of the Competition Commission of India (CCI) towards co-operation and concerted actions between competitors in response to the coronavirus pandemic. Considers whether the CCI has tended to penalise or exempt such conduct, compares the approaches adopted by the Australian Competition and Consumer Commission and the UK Competition and Markets Authority, and suggests lessons they could offer India.
Nithyananda, KV, ‘COVID-19 Vaccines Legal and Consumer Issues’ (2021) 56(15) Economic and Political Weekly 17–21 Abstract: The Epidemic Diseases Act, 1897 and National Disaster Management Act, 2005 grant the Government of India a great deal of autonomy and control in declaring an infectious disease as a pandemic and in suspending citizen’s rights. Three distinct but related legal issues regarding the government’s handling of intellectual property rights under the Trade Related Aspects of Intellectual Property Rights Agreement of the World Trade Organization, consumer rights, and product liability for the COVID-19 vaccines are discussed, as the raging pandemic has created uncertainties in the implementation of these laws.
Olesea, Plotnic, ‘Interaction between Consumer Law and Competition Law in Pandemic Times’ (2021) 5(Special Issue: Competition Law (in Pandemic Times): Challenges and Reforms) EU and Comparative Law Issues and Challenges Series 387–401 Abstract: If in the case of consumer law, as protected persons are the consumers, then in the case of competition law, the protected entities are the competitors. A combination of actions in competition law presupposes that the same commercial offer satisfies several individual interests of consumers. In the strictest sense, such a combination implies the same legal fact, simultaneously opening up more possibilities for the consumer to choose due to loyal offers from a professional, if he is monopolistic or dominant in the market. More broadly, it can also be accepted that offers can be combined from several competing professionals relating to the same product or service and concerning the same individual interest of a consumer. The possible complementary effects of common law, which would justify the non-limitation of a specific piece of legislation, can never lead to a new monopoly. In some cases this will make competition law more effective and, in other cases, provide marginal and non-exclusive protection to consumers who do not have a direct right guaranteed by competition law. The purpose of this article is to demonstrate the interdependent relationship between competition law and consumer law, from the perspective that both have the same common goal, namely to limit abuses by professionals in their economic activity, especially during pandemic times
Ormosi, Peter and Andreas Stephan, ‘Should Competition Law Be Suspended to Help Deal with the COVID-19 Crisis?’ (2020) 39 Centre for Competition Policy Research Bulletin 28–33 Introduction: When the escalation in Covid-19 sparked panic buying and shortages of key products, UK supermarkets asked the government to consider suspending competition law, to allow them to co-ordinate supplies and reduce shortages. On 25 March 2020, the UK’s Competition and Markets Authority (CMA) published a document stating that, ‘Throughout the UK, businesses are… providing essential goods and services to consumers, to ensure key workers can carry out their important tasks and in getting the country through this crisis. The CMA understands that this may involve coordination between competing businesses. It wants to provide reassurance that, provided that any such coordination is undertaken solely to address concerns arising from the current crisis and does not go further or last longer than is necessary, the CMA will not take action against it.’ (paras 1.4 and 1.5) (emphasis added) This article examines the consequences of providing this reassurance and asks whether it is a good idea.
Othman, Imtiyaz Wizni Aufa binti and Izyan binti Nazim, ‘Modifications to Hire Purchase Act 1967 and Housing Development (Control and Licensing) Act 1966: Protection to Purchaser and Financial Institutions Interests During Covid-19 in Malaysia’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 72–83 Abstract: In containing the spread of Covid-19, the Malaysian government has imposed the Movement Control Order (MCO) starting from March 2020, which led to a halt in the progress of several sectors, including the hire purchase and housing development sectors. Realising several parties’ financial and legal implications due to the MCO, the government has recently enacted new legislation as a temporary measure to curb the issue. The new Covid-19 Act received two-edged feedback from the society as some claimed that the Act is just too late, and the others argued on its efficiency to help the consumers due to its lack of clarity. Thus, the question that this paper seeks to resolve is whether the new Act does protect the interest of the parties involved? To answer this, this paper analyses the modifications made to the existing Hire Purchase Act 1967 and Housing Development (Control and Licensing) Act 1966 by discussing four sub issues, namely (i) whether the relief given in section 23 forms unfair leniency against the owners, (ii) whether section 24 of Covid-19 Act is a necessary clause (iii) whether the Act protects the interest of the housing developers and purchasers because of the existence of Section 37 and (iv) whether the lack of the consequences in the event of contravention and guidelines for application limit the Act’s effectiveness. Literature review methodology is applied to identify the gaps in the modification to the existing law by studying publications and news articles on the matter. By the end of the study, this paper finds that the Covid-19 Act does have the provisions intended to protect consumers but with the absence of specific provisions covering financial institutions. The saving clauses in the said modifications are found to be highly questionable and calls for analysis and amendment. This paper finds critical points within the Covid-19 Act, such as the need to study and amend the saving clauses and improving the clarity and exactness of the provisions.
Packin, Nizan Geslevich and Srinivas Nippani, ‘Ranking Season: Combating Commercial Banks’ Systemic Discrimination of Consumers’ (2022) 59(1) American Business Law Journal 123–174 Abstract: The recent disbursement of COVID-19 pandemic-related federal relief funds to businesses and individuals under the CARES Act exposed significant problems in the U.S. system of money and payments. U.S. banks’ wealth maximization objectives clashed with the federal government’s goals of diversity, equity, and inclusion (DEI). The discriminatory, self-interested behavior of banks, which essentially served as the federal government’s long arm in these transactions, worsened the pandemic-induced economic crisis for many, especially women and minorities, and intensified racial injustice. The U.S. government’s inability in 2020 to successfully execute its stimulus plan and give all its intended recipients the benefits it had designated due to the role played by banks begs the question: Should U.S. banks be subject to any legal obligations when they help the government execute its fiscal goals? This article argues that U.S. banks should help advance the federal government’s fiscal policy, including the DEI social agenda, especially during critical junctures such as the economic crisis instigated by COVID-19, and proposes an agency theory approach to mandate the implementation of government social policy goals among commercial banks via a CAMELS rating-like system that includes social goals, such as DEI. This DEI rating system would create public consequences for noncomplying banks, including depositors withdrawing their funds from lower-rated banks and redepositing them in top-rated banks, resulting in higher-rated DEI banks overtaking lower-rated banks. This DEI rating system will also provide an incentive for banks to compete for more diversity and inclusion, which would solve many of the systemic discrimination-related issues that led to economic inequality and intensified the 2020–2021 crisis. Lastly, DEI-based scores could help prevent banks from finding themselves on the losing side of the growing public banking movement in the United States, enabling banks to reposition themselves and avoid future radical changes in the banking industry.
Papazova, Mariya, ‘Bulgaria: Competition Protection Commission, Antitrust Activity and the COVID-19 Outbreak’ (2020) 4(2) European Competition and Regulatory Law Review 115–119 Abstract: Reports on the Bulgarian competition authority’s response, in line with EU guidance, to the challenge of the coronavirus pandemic. Notes the investigation of mass fuel markets, and supermarkets’ obligations to sell locally produced food.
Pardede, Marulak et al, ‘The Settlement of Consumer Disputes by Virtual Mediation Particularly on Banking and Buying Services Online’ (Proceedings of the 1st International Conference on Law and Human Rights 2020 (ICLHR 2020), 2021) 294–307Jurisdiction: Indonesia
Abstract: The increasingly massive spread of the Coronavirus Dissease 2019 (COVID-19) virus in Indonesia has led the government to adopt a large-scale social restrictions (PSBB) policy in a sustainable manner. This policy limits human mobilization as an effort to break the chain of spreading Covid-19. Community movement was limited by being asked to stay at home. For offices, both private and government, apply working from home for some employees. Limit movements due to concerns over the Covid 19 virus have made most people shop for home needs online. According to Analytic Data Advertising (ADA), online shopping activities have increased by 400% since March 2020 due to this pandemic. Bank Indonesia (BI) noted, purchase transactions via e-commerce in March 2020 reached 98.3 million transactions. That figure is an increase of 18.1% compared to February. Not only that, the total value of e commerce transactions also increased by 9.9% to IDR 20.7 trillion from February 2020. In today’s digital era, people easily make virtual transactions in shopping, for example cash on delivery (COD), e. -wallets, joint accounts, transfers, and credit cards. The ease of virtual transactions is very helpful for people to get their daily needs by shopping online without leaving the house. They only make payments by wire transfer or credit card via bank or marketplace applications. However, the convenience of shopping online has been abused by many traders by committing fraud such as ordering goods that do not match the image or what has been promised. Even the form of fraud that often occurs is what is called phishing, which is tricking the target with the intention of stealing the target’s account, such as website forgery and online registration. Then account abuse through One Time Password (OTP) is carried out by hijacking consumer accounts so that the criminals use them to shop. The question is, can virtual mediation be done in resolving legal issues between consumers and banks and online sellers? The purpose of this paper is to provide an idea of the use of virtual mediation in resolving consumer protection disputes in the era of the Covid 19 pandemic.
Plotnic, Olesea, ‘Interaction Between Consumer Law and Competition Law in Pandemic Times’ (2021) 5 EU and Comparative Law Issues and Challenges Series (ECLIC) (Special Issue: Competition Law (In Pandemic Times): Challenges and Reforms) 387–400 Abstract: If in the case of consumer law, as protected persons are the consumers, then in the case of competition law, the protected entities are the competitors. A combination of actions in competition law presupposes that the same commercial offer satisfies several individual interests of consumers. In the strictest sense, such a combination implies the same legal fact, simultaneously opening up more possibilities for the consumer to choose due to loyal offers from a professional, if he is monopolistic or dominant in the market. More broadly, it can also be accepted that offers can be combined from several competing professionals relating to the same product or service and concerning the same individual interest of a consumer. The possible complementary effects of common law, which would justify the non-limitation of a specific piece of legislation, can never lead to a new monopoly. In some cases this will make competition law more effective and, in other cases, provide marginal and non-exclusive protection to consumers who do not have a direct right guaranteed by competition law. The purpose of this article is to demonstrate the interdependent relationship between competition law and consumer law, from the perspective that both have the same common goal, namely to limit abuses by professionals in their economic activity, especially during pandemic times.
Pollicino, Oreste and Agustin Reyna, ‘How EU Consumer Law Can Contribute to the Great Post-Pandemic Recovery?’ (2021) 10(2) Journal of European Consumer and Market Law 45-47
Power, Vincent, ‘Ireland: Competition: COVID-19 Crisis’ (2020) 31(8) International Company and Commercial Law Review N66–N69 Abstract: Notes the March 2020 online publication by Ireland’s Competition and Consumer Protection Commission (CCPC) of the joint statement by the European Competition Network (ECN) concerning the relationship between the coronavirus pandemic and competition law. Details the ECB’s views on the flexibility of competition rules, its awareness of the impact and consequences of the coronavirus pandemic, and the importance of co-operation between undertakings.
Priya, M Dhivya, ‘Sustainability and Competition Law in the Aftermath of Covid-19: Toward Ethical Market Practices’ (2024) 2 Innovative Research in Social Sciences, Humanities, Arts & Languages [no pagination] Abstract: The COVID-19 pandemic not only exposed vulnerabilities within global economies but also illuminated the significance of sustainable practices within competition law frameworks. This paper delves into the post-pandemic landscape, exploring the nexus between sustainability and competition law, envisioning a trajectory toward fostering ethical market practices. As the world grapples with the aftermath of the pandemic, there is a pressing need to recalibrate competition law to integrate sustainability considerations. This involves reassessing traditional notions of competition that primarily focused on efficiency and consumer welfare. The paper scrutinizes the role of competition authorities in promoting sustainability, recognizing that fostering ethical market practices requires a redefined approach. The discourse navigates through the potential synergies between competition law and sustainability goals, emphasizing the need for collaborative endeavours among regulators, businesses, and civil society. It highlights the relevance of addressing environmental concerns, social impacts, and corporate responsibility within the scope of antitrust enforcement. In conclusion, this paper advocates for a paradigm shift in competition law that embraces sustainability as a cornerstone. It envisions a future where antitrust measures not only safeguard market competition but also endorse responsible and ethical conduct among market players. By integrating sustainability principles into competition law, there lies an opportunity to shape a more resilient, equitable, and morally conscious marketplace in the aftermath of the pandemic.
Puksas, Andrius, Raimundas Moisejevas and Andrejus Novikovas, ‘COVID-19 Affected State Aid Provision in the EU’ (2022) 15(1) Baltic Journal of Law & Politics 98–116 Abstract: The EU State Aid regulation is based on the premise that the market and the entities within it must operate independently without additional unnecessary intervention by the state. In other words, state intervention must be kept to a minimum. Unjustified aid to one or another entity may distort the situation in the market and lead to a number of undesirable consequences, including market advantage acquired by the aided entity. The willingness of the state and its institutions to help those who face difficulties may be understandable, but not always justified. However, the prohibition on a state and its institutions to grant aid is not unconditional and, in some cases, may cause serious undesired consequences. The coronavirus disease (COVID-19), which hit EU member states in the first half of 2020, led to a re-thinking of the rules in force and a broadening of the scope for state aid exemptions. However, there are a number of questions about the nature of the EU State Aid regulation and its correlation with COVID-19 outbreak-conditioned decisions. The article analyses the state aid granting practices across the EU (including the UK) related to COVID-19. It covers approximately two- year period—from the start of the pandemic in Europe to March 2022.
Raganelli, Biancamaria, ‘Public Procurement in Times of Emergency: Transparency, Accountability, and Anticorruption Goals to the Test’ (SSRN Scholarly Paper No 4633944, 15 September 2023) Abstract: In times of emergency, rules, principles, and even fundamental rights could be questioned feeding protection and reaction mechanisms. The Covid crisis that hit Europe in early 2020 followed by economic and social consequences and the Ukrainian conflict to the East later have triggered reactions in different Member States and fueled debates about the proper reactions required to deal with these exceptional circumstances and their compatibility with the internal market. Emergency issues to be faced posing new grounds to be debated and new tensions to be managed. This paper places attention on the effects of the emergency on the public procurement sector. It highlights the increased use of discretionary power by contracting authorities and some reduced level of transparency in the procedures adopted during the period and the related potential risk of corruption. Italy in managing the pandemic and dealing with the discretionary power in general is a landmark case that deserves attention. How do countries balance the need for rush and flexibility with transparency, accountability, and anticorruption goals? Which remedies are to be implemented to reduce the risk of corruption and organized crime phenomena infiltrations in the public procurement sector? It is worth investigating the possible distortive effects that the introduction of derogations aimed at speeding up may affect. The aim is not to fight the more flexibility and discretion required in public procurement procedures even in non-emergency times, but to understand the best way to manage the potential for discretion, and the consequent potential reduction in transparency.
Rakic, Ivana, ‘Competition Law in the Age of Covid-19’ (2020) 68(2) Anali Pravnog fakulteta u Beogradu 25–61 Abstract: The aim of this article is to provide a short overview and analysis of some competition authorities’ responses to the COVID-19 emergency, by evaluating the state of play and, where relevant, making proposals for how competition law and its enforcement might develop worldwide. The article contributes to the existing international debate about the consequences of the current COVID-19 crisis on competition law. The analysis is limited to restrictive agreements, abuse of dominance and merger control.The undertakings must primarily be aware of that current crisis is not an excuse to breach competition laws and that competition laws continue to apply, with no general crisis exemption, nor during the COVID-19 crisis. The competition authorities are accommodating their practice in addressing restrictive agreements (cooperation between competitors in times of economic crisis), abuse of dominance (measures to protect against exploitative pricing), and merger control (procedural and substantive aspects of control).
Ribeiro, Amadeu, ‘Brazilian Competition Law and M&A: Key Elements to Bear in the Current Context of the Global Economy’ Competition Policy International (9 December 2020) Abstract: The level of antitrust scrutiny of M&A transactions in Brazil has significantly increased over the past few years, with several transactions being subject to in-depth review, remedies, or even rejected by the Administrative Council for Economic Defense (“CADE”). This has made antitrust a key aspect in the negotiation of many M&A transactions. One must evaluate in advance the likelihood of a given transaction being unconditionally cleared by CADE, and what types of remedies might be imposed if there is a concrete probability of conditional clearance. This all of course also impacts the expected timeline of CADE’s merger review, and affects the substance of negotiations between parties, such as issues regarding price, investment exit strategies, as well as issues regarding the allocation of antitrust risk, bringing about discussions on break-up fees, hell-or-high water clauses, among other related contractual mechanisms. This discussion becomes even more relevant in times of crisis, when timing, flexibility and creativity to find reasonable solutions become critical for practitioners and enforcers alike. However soon the end of the current health crisis will come, its negative effects on the Brazilian economy are visible and will likely worsen. Against this background, we cover in this article a few key elements in Brazilian competition law and practice that may be of particular relevance during these times of economic crisis.
Riefa, C, ‘Coronavirus as a Catalyst to Transform Consumer Policy and Enforcement’ (2020) 43(3) Journal of Consumer Policy 451–461 Abstract: A review of the unfair commercial practices (including price gouging) that have emerged in the context of the pandemic lead us to reflect on how effective consumer law enforcement is at this juncture. This article calls for the pandemic to act as a catalyst to review the way consumer law has so far approached markets and their regulation. It argues that now, more than ever, consumer law needs to protect the vulnerable and public enforcement mechanisms must be able to prevent harm as much as possible rather than repair it. Fairness should be by design and not something that is offered to consumers simply as a remedy. The article explores some viable solutions to effect this transformation of consumer policy and enforcement beyond the pandemic.
Riyadi, Sugeng and Suparno Suparno, ‘Legal Protection for Umrah Pilgrims During the Covid-19 Pandemic’ (Proceedings of the 1st International Conference on Law, Social Science, Economics, and Education, ICLSSEE 2021, March 6th 2021, Jakarta, Indonesia, 2021)Jurisdiction: Indonesia
Abstract: The Covid-19 pandemic causes religious activities to be delayed, even though, over time, religious activities are carried out adaptively to the virus. This paper discusses the legal protection of pilgrims who canceled their departure due to the Covid-19 pandemic. The method used in this study is empirical juridical, which uses a descriptive-analytical approach as an analytical knife. The data used in compiling this paper is literature and legislation data, and the analysis used is the qualitative analysis method. The study results obtained are the cancellation of Umrah’s departure in 2020 due to the Covid-19 pandemic while the pilgrims have paid in full. Legal protection in the form of compensation reimbursement, both material and immaterial and rescheduling, is in Law No. 8 of 1999 on Consumer Protection.
Rystemaj, Jonida and Eniana Qarri, ‘The Response of the Albanian Competition Authority to the Covid-19 Crisis’ (2021) 5 EU and Comparative Law Issues and Challenges Series (ECLIC) (Special Issue: Competition Law (In Pandemic Times): Challenges and Reforms) 280–294 Abstract: The outbreak of COVID-19 pandemic was a shock for the global economy. It affected almost every country, but certainly in developing countries its impact was harder. The immediate effect was the shortage of several medical and paramedical equipment which were necessary to prevent the virus spread. This shortage was felt in Albanian markets as well and was rapidly followed by a sharp increase of prices in paramedical products. The consumers suffered the highly increased prices amongst fear that in absence of these products, their life was threatened. This behaviour of the market participants was considered suspicious by the Competition Authority which decided to initiate a preliminary investigation to find out whether this behaviour was abusive, or it normally reflected the sudden shortage and the state of emergency. The instigation of this procedure was based on several complaints reported in the media and complaints directly submitted by consumers to the Competition Authority. At the first glance, the traders were exploiting the health emergency to maximise their profits. Subsequently, the Competition Authority (CA) decided to apply some preliminary measures on the wholesale market operators. Furthermore, the CA intervened even in a case of a company in dominant position which was furnishing selected pharmacies. These interventions aimed at restoring somehow the distorted competition in paramedical and medical products. This article will try to shed light on the current market situation and on the effectiveness of the interventions of the CA. How should the Competition Authority behave to restore the distorted competition? Are the current introduced measures enough to help all market participants overcome this state of health emergency? These questions and other issues related with the peculiar situation will be addressed in the current article. The article will be organized as follows: First, a glimpse of the regulation of Albanian competition law will be given. Second, the situation under COVID-19 emergency will be elaborated taking into consideration the guidelines of Communication of the Commission on ‘Temporary Framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID-19 outbreak’ (2020/C 116 I/02). Lastly, the evaluation of the measures introduced by the Competition authority will be analysed and recommendations will be provided.
Santos Silva, Marta and Luisa Cortat Simonetti Goncalves, ‘Nudging Consumers towards Sustainable Practices Regarding Plastics in a Post-COVID-19 Europe’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: Producers and consumers play an important role in the fight against plastic pollution, particularly as far as single-use plastics (SUPs) are concerned, that depend on product eco-design and change in consumption patterns. The EU acknowledges this role of producers and consumers, and established goals for Member States, often in the form of rules addressed to the industry. The challenges caused by SUPs were, however, increased by the COVID-19 pandemic that led to an exponential production of protective equipment, such as masks and gloves, food packaging and take-away containers. This paper thus purports to address the question of how nudging can foster sustainable practices regarding plastics in Europe during and after the coronavirus crisis. Based on the understanding that behavioural insights are useful to both policy and lawmakers and on statistical information available on the impact in consumer choice and the environment, this paper demonstrates the utility of nudges in the particular COVID-19 scenario and concludes that consumers shall be given a prominent role in the orchestration of the transition to a sustainable plastics economy. In order to do so, the paper (1) describes the omnipresence of plastics in the products offered to consumers; (2) contextualizes the European approach to SUPs on the search for a circular economy; (3) summarises the impacts of the coronavirus crisis on the environment and on the law in Europe; (4) describes the role of stakeholders in a sustainable plastics economy; and (5) sets the importance of addressing consumer behaviour through nudging in the fight against SUPs.
Schaper, Michael, Rachel Burgess and Benjamin McCarthy, ‘Covid and Competition: The Role of Competition Law and Regulation in ASEAN During and After the Pandemic’ in Himachalam Dasaraju and Tulus T. H. Tambunan (eds), COVID-19 and Its Reflection on SMEs in Developing Countries (Nova Science Publishers, 2021) 161–190
Schinkel, Maarten Pieter and Abel d’Ailly, ‘Corona Crisis Cartels: Sense and Sensibility’ (SSRN Scholarly Paper ID 3623154, 9 June 2020) Abstract: Western competition authorities responded quickly and unanimously to the COVID-19 pandemic with a generous exemption from cartel law for any companies that aim to solve pressing scarcities through collaborations that restrict competition. However there is little reason to expect more supply, fair distribution, or wider use of personal protective equipment faster or at all from anticompetitive horizontal agreements. Traditional crisis cartels are about reducing excess supply, not excess demand. Embracing the policy may well have been about public image, rather than high expectations of collaboration amongst rivals contributing to solving the needs associated with COVID-19. This remarkable field experiment is not without side effects. By relaxing the first article of antitrust, the agencies undermined their own authority, just when we need them to effectively control the many markets that are rapidly consolidating as a result of the lockdowns and asymmetric state aids. The agencies should have stood by competition instead. On the other hand, this case could become a rich source of learning about the effectiveness of public interest cartels.
Scott, Jonathan, ‘Competition Law Post-Brexit’ (2021) 20(2) Competition Law Journal 51–54 Abstract: 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.
Silber, Norman I and Jeff Sovern, ‘Placing Consumers at the Front of the Relief Effort: Redirecting Credit Card Interest Charges’ (Hofstra University Legal Studies Research Paper No No 2020-04, Hofstra University, 2020) Abstract: Catastrophes including the COVID19 pandemic of 2019-2020 impose great financial stress on consumers. This op-ed proposes the distribution of economic relief directly to consumers by authorizing credit card issuers to bill Congress for portions of the interest that otherwise would be charged to cardholders. Significant benefits include expanding access to consumer credit when it otherwise would be expected to diminish, reduced consumer default rates and bank charge-offs, and greater stimulus to overall economic welfare.
Sims, Rod, ‘Competition Law in Times of Crisis: Tackling the COVID-19 Challenge: Australian Competition and Consumer Commission’ (2020) 8(2) Journal of Antitrust Enforcement 264–266 Abstract: The COVID-19 pandemic has completely changed the economic landscape in Australia and the focus of the Australian Competition and Consumer Commission (ACCC). In recent weeks, I have often been asked ‘will competition survive the current crisis’? I have stated that it must and it will, as it is fundamental for the recovery phase of the crisis. An open, well-functioning economy is essential to the prosperity of all Australians, and such an economy depends completely for its success on robust competition.This short note explores the ACCC’s response to the challenges posed by COVID-19, which have led to many ‘crisis collaborations’ across sectors in the Australian economy.
Šimunović, Lidija and Dubravka Aksamovic, ‘The Temporary Framework for State Aid and Competition Law Enforcement in the Air Transport Sector during the COVID-19 Crisis’ (2021) 5(1) EU and Comparative Law issues and Challenges Series (ECLIC): Special Issue - Competition Law (In Pandemic Times): Challenges and Reforms_ _Abstract: Paper provides for a systematic overview of the EU temporary scheme for the State aid and Public service obligation rules applicable to the air transport sector during pandemic. The air transport sector, along with the tourism and service sector, is among the economic sectors that are probably the most affected by the COVID-19 crisis. According to some estimations, the drop in passenger traffic in April 2020 compared to April 2019 rose up to 94.4%. In order to help air transport companies in Europe to overcome the financial troubles, to preserve jobs, to ensure the basic connectivity for passenger during COVID-19 crisis and to secure supply of essential food, medicals or other items EU Commission adopted a special legislative instruments allowing that way member states to support their air transport industry. Since in normal circumstances such practice would be considered as prohibited State aid the intention of this paper is, firstly, to analyse in what situation and under what conditions member states are under temporary State aid scheme entitled to support air transport sector during pandemic. Secondly, to explore to what extent and for what purposes different member states granted State aid to their airline industry. Special focus will be on the State aid measures provided by the Croatian government to Croatian Airlines. Authors will examine whether these state aid was in line with the EU temporary competition law and the legal framework for state aid. In the conclusion, authors will, in light of Ryan air allegations bring their own views as to whether thereby the member states with regard to State aid contrary to rules prescribed by the EU Commission’s Temporary framework.
Šmejkal, Václav, ‘Impact of the COVID-19 Pandemic on European Antitrust: Mere Adaptations or Real Changes?’ (Charles University in Prague Faculty of Law, Working Paper No No 2020/11/1, 2020) Abstract: The European Commission and the competition authorities of the EU member states responded to the coronavirus crisis with assurances about sufficient flexibility of their instruments. They enabled temporary cooperation between competitors to ensure the supply of essential medical products and services. At the same time, they warned against any misuse of the crisis for overpricing or other monopolistic practices. However, the crisis has also intensified long-term pressures for a fundamental adaptation of European competition rules. The first challenge is represented by Chinese state-backed enterprises as potential acquirers of weakened European competitors. The second source of pressure is the increasingly dominant role of global online platforms. Their role as an irreplaceable infrastructure for management, communication, counselling and distance learning was reinforced in the coronavirus crisis. The Commission and other experts are already discussing appropriate responses. This paper maps the discussion on possible EU responses to these challenges and tries to show the strengths and weaknesses of the proposed solutions and on this basis to estimate the future development of EU antitrust in the post-coronavirus period.
Smith, Gregory, ‘Pandemic Pirates: An Essay Calling for Legislation Curbing Pandemic Profiteering’ (2021) 8(2) Lincoln Memorial University Law Review 1–32 Extract: When Pandemic Pirates enjoy prosperity, at the expense of the needy, this disparity only increases already mounting tensions because emergency control corruption statutes are designed to address pilfering, not petulance.
Subroto, Wandi, ‘Hoarding of Personal Protection Tools during the Covid-19 Pandemic: Criminal Law Study on Consumer Protection’ (2022) 5(1) Budapest International Research and Critics Institute (BIRCI) Journal: Humanities and Social Sciences 6551–6561 Abstract: During the pandemic, some unscrupulous perpetrators hoard Personal Protective Equipment (PPE), which then causes a shortage and an increase in the price of PPE. This is a problem that is quite worrying for consumer protection. This study will examine how criminal law in consumer protection looks at the issues regarding the hoarding of PPE by these elements. The research will be carried out using a normative juridical method. The approach used is a statute approach and a conceptual approach by looking at the law, research results, and previous studies related to this research. The study results found that criminal law plays an essential role in consumer protection. Then this criminal law can be used to take action against the perpetrators of hoarding PPE based on the Trade Law and the Business Competition Law.
Suherman, Septian Arif Suryanto, ‘Legal Protection to Consumers Against Hoarding Masksas Consequences of The Spread Of Covid-19’ (2021) 4(7) International Journal of Social Science and Human Research 1680–1686 Jurisdiction: Indonesia
Abstract: This study discusses issues regarding consumer protection, especially legal protection to consumers as masks purchaser based on Law Number 8 of 1999. It also discusses dispute settlement towards business actors as masks hoarders which is clearly affecting consumers. Researcher implemented the normative juridical research, which used library method by examining various secondary data sources in the form of books, journals, legislation and other legal writings related to research discussion. The results of this study indicate that legal protection for consumers who purchase masks based on Law Number 8 of 1999 is to guarantee and strictly regulate consumer rights and impose obligations on business actors who selling masks in the form of aspect which is allowed and prohibited. The settlement of disputes against business actors who hoard masks that harm consumers are executed through the General Court (litigation)by filing a lawsuit, and also through the Consumer Dispute Settlement Agency (nonlitigation) which is carried out by conciliation, mediation, or arbitration.
Suriyani, Irma, ‘Legal Protection For Consumers During Covid-19 Pandemic From E-Commerce Perspective Of Fiqh Muamalah’ in Heru Susetyo and Fahrul Fauzi (eds), Hukum Islam Hukum Yang Hidup Di Indonesia (Badan Penerbit Fakultas Hukum Universitas Indonesia, 2021) 107–115 Abstract: Business development has produced various types of goods and services that can be consumed and protected with consumer protection, an inseparable part of healthy business activities or economy. During the Covid-19 pandemic, the utilization of Information Technology, communication media has changed society’s behavior and human civilization. It is urgent to examine how consumer protection in the viewpoint of Fiqh Muamalah is part of national economic development. Guided by the normative research method with a doctrinal approach, this research paper aims to examine and analyze how legal protection toward consumers in the COVID-19 pandemic era, from the e-commerce perspective of fiqh muamalah. The Results OF this Article that if a legal buying and selling contract will have an impact on the transfer of ownership of goods from the seller ownership is transfered due to an agreement/contract between the two parties even though There has been no qabadh, this is in line with what Sheikh Wahbah Az-zuhaily explained that Qabadh in securities trading is sometimes haqiqi (legal ownership) and sometimes Al-qabdh al-hukmi (beneficial ownership). Al-qabadh alhukmi is anything that states the transfer of ownership rights or asset management rights according to ’Urf, which applies without the involvement of traditional hand or acceptance elements. the consequence of qabadh is. The responsibility for the goods is transferred from the seller to the buyer. If the item disappears or is damaged after it occurs sale and purchase and before the qabadh occurs, the goods are borne by the seller because the goods are still under warranty, unless damaged or lost is caused by the buyer/consumer. This is in accordance with the rule of "goods purchased before being accepted by the buyer are still the seller’s guarantee.
Svetlicinii, Alexandr, ‘State-Controlled Entities in the EU Merger Control: The Case of PKN Orlen and Lotos Group’ (2020) 13(22) Yearbook of Antitrust and Regulatory Studies 189–209 Abstract: The economic downturn caused by the coronavirus pandemics is expected to result in the increased participation of the state in the functioning of markets. One of the forms of this participation is the recapitalization and state shareholding in commercial enterprises, which could lead to anti-competitive effects to the detriment of competitors and consumers. In this regard, the effective enforcement of merger control rules at the EU and national levels gains in importance. The present paper questions the adequacy of the available merger control standards and assessment tools for taking into account potential anti-competitive effects stemming from ownership and non ownership forms of state control over undertakings. The analysis is focused on the experiences of Polish state owned enterprises under the EU and national merger control assessment. It was prompted by the notification of the PKN Orlen/Lotos merger that received conditional clearance from the EU Commission.
Tagara, Myrto et al, ‘The EU Commission and EU Member State Competition Authorities Issue a Joint Statement on the Application of Competition Law during the COVID-19 Crisis in the Context of the European Competition Network’ [2020] (Preview) Concurrences e-Competitions Bulletin_ _Abstract: The life sciences industry is facing unprecedented demands due to COVID-19. From front line carers to researchers and scientists, significant efforts are being put towards caring for those suffering from COVID-19 and preventing the spread of the virus. Amidst the fierce competition to develop vaccines and treatments, there may also be the need to collaborate. As companies develop testing kits, trial drugs, manufacture ventilators, and step up medical supply distribution, they may be concerned about whether their collaboration efforts could draw the scrutiny of competition law enforcers. The European Commission and EU Member State competition authorities have issued a joint statement on the application of competition law during the COVID-19 crisis in the context of the European Competition Network. While there is recognition that in these extraordinary times cooperation may be necessary, the competition rules remain relevant and fully applicable.
Togo, Federica, ‘Italy: Anti-Competitive Agreements - Coronavirus’ (2020) 41(9) European Competition Law Review N77–N78 Abstract: Notes the Italian Competition Authority’s April 2020 communication on co-operation agreements between companies operating in response to urgent situations created by the coronavirus pandemic, including the general criteria to be applied in such circumstances. Highlights the Authority’s May 2020 announcement that it was taking no further action over a co-operation project between pharmaceutical distributors involving single-use surgical masks.
Twigg-Flesner, Christian, ‘The Covid-19 Pandemic: A Stress Test for Contract Law?’ (2020) 9(3) Journal of European Consumer and Market Law 89–92 Extract: The consequences of this crisis have raised many legal issues, particularly for consumer and commercial contracts. For example, many consumers who prepaid for services to be provided at a later date (such as flights, accommodation, or venues for family celebrations) have struggled to obtain refunds from their service providers, with many offering vouchers instead in an attempt to preserve some of their cash reserves, thereby inadvertently turning consumers into unsecured lenders to business. Moreover, businesses and consumers with long-term loans or rental commitments may not be able to keep up their contractual instalment payments, and face being in default and, at worst, being evicted from homes or retail premises. Many long-term contracts, whether for the regular supply of goods or services or subscription-style contracts, cannot be performed on time, with performance either suspended or at least subject to delays. There are many other ways in which the crisis and its consequences have affected the performance of contracts, but this brief account suffices to set the scene. The central legal issue in respect of contracts can be boiled down to one seemingly simple question: what is the impact of the crisis and its consequences on the rights and obligations of the parties to a contract which can no longer be performed as expected? However, answering that question is far from simple and will depend on the reason why, and the extent to which, a contract can no longer be performed as expected, the relevant rules of the governing law which provide relevant legal solutions in respect of that reason, and any contract terms which might cover the circumstances which have arisen.
Urbanek, Anna, ‘Consumer Credit in Poland and France and the COVID-19 Pandemic: Prevention and Sanctions’ in Nadia Mansour and Lorenzo M. Bujosa Vadell (eds), Finance, Law, and the Crisis of COVID-19: An Interdisciplinary Perspective (Springer, 2022) 1–21 Abstract: We are facing an unprecedented economic crisis. Inequality between borrowers and entrepreneurs in the financial market is growing, especially as creditors use misselling and take advantage of their clients’ vulnerability. This chapter compares the sanctioning of granting credit in violation of Directive 2008/48/EC on consumer credit in Polish and French law and assesses its implementation in those regimes. It also compares the policies of both countries in the field of borrower protection during the COVID-19 pandemic. The research uses a dogmatic analysis of EU, Polish and French law and compares the implementation of directive 2008/48/EC. The analytical method was used to evaluate the commercial practices of creditors and the actions of national authorities. The results show that the sanctions and procedures adopted by these countries differ, although in each case the obligations of borrowers are identical. Different remedies have been adopted in the two countries to protect borrowers during the pandemic. This leads to the conclusion that consumer protection has not been sufficiently harmonised by the directive. Doubts as to whether the purpose of the directive has been achieved are confirmed by its planned revision. It must be concluded that the current economic crisis highlights the inconsistency in consumer protection. Binding sanctions for Member States should be specified in the directive. It would be more beneficial to the protection of the collective interests of consumers if the directive were to include remedial procedures, such as credit moratoria, which the Member States will be obliged to implement during the economic crisis.
Vodanović, Darija, ‘Temporary Regulation of Competition and Coronavirus’ (2021) 5 EU and Comparative Law Issues and Challenges Series (ECLIC) (Special Issue: Competition Law (In Pandemic Times): Challenges and Reforms) 341–363 Abstract: Competition law as one of the foundations of a market economy whose main purpose is to ensure an equal position of entrepreneurs in the market, regardless of the size, market power and other features of the implied system of state aid both at central and local and regional level. The aim and purpose of this research is a clear and tentative way of pointing out the importance of competition in relation to coronavirus. In order to achieve this goal, the paper seeks to provide scientifically based answers to a number of current issues, starting from detention from the definitions of competition and coronavirus. In addition to the above, it is necessary to consider how this disease affected entrepreneurship, which had positive and negative consequences. In addition, it is important to note that it has left a significant impact on our mental health. The main results of the research point to the fact that the coronavirus as a global, economic and health crisis suddenly caught us all overnight and as such changed our lives. In addition to greatly affecting the economy, there is also a blow to the company. In case of suspicion of infection, the obligation to call a doctor, ie a territorially competent epidemiologist, and the obligation to go to an outpatient clinic are determined as a preventive measure. In this paper, qualitative research in correlation with quantitative research was used. Starting from the fact that quantitative research is based on the description of individual conditions, ie the establishment of cause-and-effect relationships, the paper in a representative way seeks to simplify the concept of competition as the driving force of a market economy that entails many benefits consumer choice, innovation. In addition, considering the coronavirus from a quantitative point of view, it is manifested in how the coronavirus as a new strain of virus, discovered in humans, ‘stirred’ the whole world as such forced people to care about their health and the health of our loved ones. Also, an obligation to adhere to epidemiological measures to prevent the spread of coronavirus infection has been introduced. Qualitative research, as a term used to describe research that focuses on the way individuals and groups view and understand the world, also has a significant impact on this work, primarily because it considers how the pandemic affected the health of people interacting with each other.
Volpin, Cristina and Ruben Maximiano, ‘The Role of Competition Policy in Promoting Economic Recovery’ (SSRN Scholarly Paper ID 3917877, 1 December 2020) Abstract: This paper explores the interaction between the governmental policies adopted to face the COVID-19 emergency and competition policy. As the COVID-19 crisis develops and moves through different stages, governments, policymakers and regulators, including competition authorities, face different challenges in order to support a swift and robust recovery. In most jurisdictions, the state has been playing a role in minimising the direct hit from the crisis and can be expected to continue to play a role in the shaping of the economic recovery. In this context, the question therefore arises: how can competition policy and competition authorities contribute to a faster and more sustained economic recovery? The paper concludes that competition policy and competition authorities have a very relevant role to play to ensure a robust economic bounce-back and recovery in the long-term. Competition advocacy by competition authorities can be expected to play a more relevant role in the near future, helping policy makers make full and well-informed policy choices, accounting for competition distortions from state interventions, and designing support measures. Strong competition enforcement will also be important, and competition authorities will have to carefully prioritise in order to help ensure the drive for economic recovery.
Wakil, Omar, Dany H Assaf and Linda M Plumpton, ‘COVID-19’s Impact on Competition Enforcement and Foreign Investment Reviews in Canada’ (2020) 1 Emerging Areas of Practice Series: COVID-19 (Coronavirus), Westlaw Canada Abstract: The COVID-19 crisis is creating significant challenges for the Competition Bureau and Canadian government as they review competitor collaborations and M&A activity.
Wen, Wei, ‘Statutory Unconscionable Conduct under the “Australian Consumer Law”: A Remedy to Combat Non-Refundable Expired Gift Cards Post COVID-19’ (2022) 29(1) Competition and Consumer Law Journal 78–89 Abstract: Consumers cannot obtain refunds for the monetary value of expired gift cards. The ’Treasury Laws Amendment (Gift Cards) Act 2018 ’requires that gift cards sold on or after 1 November 2019 must be valid for at least 3 years, but it does not mandate expired gift cards to be refundable. The article argues that statutory unconscionable conduct (sections 21 and 22(1)) under the ‘Australian Consumer Law’ can solve the no refund problem. This powerful statutory relief is more necessary during the COVID-19 outbreak.
Wiganarto, Tri Utomo, Asenar Asenar and Elisatris Gultom, ‘Legal Aspects of Business Competition in the Procurement of Covid-19 Vaccine by Bio Farma Ltd’ (2021) 23(2) Kanun Jurnal Ilmu Hukum 193–209Jurisdiction: Indonesia
Abstract: The purpose of this research is to analyze the exclusion of monopoly by State Owned Enterprises (BUMN) based on the provisions of business competition law in the procurement of the Covid-19 vaccine by Bio Farma (Persero) Ltd. Indonesia is being hit by the Covid-19 outbreak. This condition has had a negative impact in various fields. To overcome this, one of the government’s efforts is to bring in vaccines to prevent the spread, and the procurement of vaccines is given to Bio Farma Ltd. There are indications of monopoly actions in the procurement of Covid-19 vaccines by Bio Farma Ltd. This research uses the approach statute approach and conceptual approach. The technique of tracing legal materials uses field study techniques and document studies (library research), as well as study analysis is using qualitative analysis. The results of the research and the discus-sion show that the procurement process for the Covid-19 vaccine is strictly regulated by the government. Even the quantity, procurement, and distribution are coordinated by the government in this case through the assignment of SOEs (BUMN) as regulated in Presidential Regulation Number 99 of 2020 as amended by Presidential Regulation Number 14 of 2021. The results of the study show that the actions taken by SOEs (BUMN) in this case Bio Farma (Persero) Ltd in procuring the Covid-19 vaccine is included in the excluded monopoly category, because it meets the elements of the provisions in Article 50 paragraph a. Law Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition.
Zdraveva, Neda, ‘Digital Content Contracts and Consumer Protection: Status Quo and Ways Further’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 398–421 Abstract: One of the effects of the COVID-19 crisis is the significant acceleration of e-commerce. The number of companies and the varieties of products in the online markets increased, as well as the numbers of consumers and consumers’ segments diversification. The e-commerce in pandemic times offered clear benefits and opportunities for the consumers. It also created situations where the lack of confidence in e-commerce may intensify. This comes from the consumers’ uncertainty on their key contractual rights and it is particularly a case when it comes to the contracts for supply of digital content and digital services. The European Union considered that legal certainty for consumers (and businesses) will increase by full harmonisation of key regulatory issues and that this would lead to growth of the potentials the e-commerce has on the common market. Aiming to achieve a genuine digital single market the Council of the European Union and the European Parliament in May 2019 have adopted the Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services (the ‘Digital Content Directive’) and the Directive (EU) 2019/771 on certain aspects concerning contracts for the sale of goods (the ‘Sales of Goods Directive’) that regulate the supply of digital content and digital services and sale of goods with digital elements, respectively. Both directives lay down specific rules on the conformity of digital content or a digital service i.e., goods with digital elements with the contract, remedies in the cases of a lack of conformity or a failure to supply, as well as the modalities for the exercise of those remedies. The paper analyses the mechanisms for regulation of the contracts for the supply of digital content and digital services and the specific rights and obligations of the parties to these contracts. The main objective of the research is to assess to which extent these mechanisms are novelty in the European Consumer Law and to examine the obstacles that the application of consumer law to digital content contracts may encounter.
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