Young Competition Law Scholars Conference: 2024
From the 4th to the 6th of September 2024, 96 young scholars in competition law and economics, including PhD students, post-docs, and assistant professors gathered in Vienna for a discussion on a variety of current issues of competition laws. The second edition of the conference attracted attention from not only the DACH region but also beyond. This event was truly international as participants came from all over Europe and the globe. The conference was organized by Ranjana Achleitner, Eva Fischer, Lena Hornkohl and Bernadette ZELGER. They convened 13 researchers to present their work on six different panels. This was accompanied by two keynote speeches and one panel discussion featuring academics, enforcers and practitioners of competition law.
Keynote by Natalie Harsdorf (Bundeswettbewerbsbehorde)
The opening keynote by Natalie Harsdorf (Director General of the Austrian Competition Authority/Bundeswettbewerbsbehorde) highlighted the evolving landscape of competition enforcement, with a particular emphasis on the challenges posed by digitalization. The director general expressed doubts due to the complexity of digital markets. She stressed that national authorities would also have a role in the enforcement of competition in digital markets. She argued that strengthening the institutional framework is crucial to effectively address these issues. One step forward for the Bundeswettbewerbsbehorde was the recent establishment of a dedicated department for digital matters, the recruitment of specialized experts such as data analysts, and the general expansion of staff. Furthermore, cooperation with other national competition authorities (NCAs) is crucial for swift and effective action, as is the leveraging of technology to enhance enforcement capabilities.
The speech also touched on various other topics, including the role of public interests and sustainability in competition law. These factors are not typically considered to be competition law parameters but they can act as guiding principles when it comes to enforcement decisions. It was stressed that competition authorities must be clear and focused on their objectives. According to the Director-General, this could mean that other agencies are better suited to deal with certain issues. Non-economic factors can be important for the work of competition authority. Harsdorf gave an example of the potential relevance for gender considerations in Competition Law, namely applying a gender-lens to market definition and prioritization for agencies. This topic has been discussed extensively in recent times, including by OECD Working Groups. Several interesting points were also made about cartel enforcement. The Director General stressed that the authority’s investigations, as well as its leniency and whistleblower programs, provide a constant number of new antitrust matters to investigate. Looking ahead, the authority aims to increase its focus on abuse cases, which, although more complex, are necessary to address perceived underenforcement issues, according to Harsdorf.
Panel 1: Goals of Competition Law
Silvia Retamales (Chilean Competition Tribunal/Universidad de Chile) challenged the traditional view of competition law as solely focused on promoting consumer welfare and economic efficiency as being too narrow and argued that competition law should also consider non-economic public interest values. She examines the historical context of US and EU competition law, showing that the laws were originally designed to address economic and social issues, such reducing concentration and promoting competitiveness. She then focuses her attention on the South African case, where competition laws explicitly include public interest values. She proposes a way to incorporate these values into competition legislation. However, in the following discussion, there was agreement that further ex-post analysis of competition law regimes which already implemented public interests would be beneficial to assess the potential of such policy proposals.
Christiane Wakonig (Bundeswettbewerbsbehorde) explores the concept of fairness in European competition law, particularly in the context of Austrian competition law. She notes that despite fairness’ increasing importance in the competition law discourse, it is still unclear what it means and how to use it. She argues fairness is a concept with multiple dimensions that can be interpreted in many different ways. It can be viewed as a procedural (ensuring fairness in competition proceedings) or substantive (ensuring fairness in competition outcomes). She also suggested that the concept of fairness could be more open to considerations in terms of policy. Wakonig said that while the concept of fairness is vague, it can be used as a guideline to influence competition policy. Panel 2: Tools of Competition Law
Selcukhan Unkbas (European University Institute), in his presentation, argued that the current antitrust law aims to promote competitive markets by protecting efficacy. However, its focus should be more explicitly on dynamic efficiency. He suggests parameters such as cost reduction, innovation, and market entry, since these factors are important for long-term welfare. He criticizes the current mainstream static efficiency approach in EU law, which evaluates companies based on their short-term price/cost structures, and proposes incorporating a “capabilities” framework instead. This would enable a better understanding of firms’ potential to innovate and adapt, ultimately supporting dynamic competition more effectively, according to Unekbas.
Annika Stohr (TU Ilmenau) focused her presentation on Section 19a of the German Act Against Restraints of Competition (ARC) which targets large digital companies with “paramount significance for competition across markets.” Stohr discussed the two-stage process of designating such firms and prohibiting certain harmful behaviours, focusing on early cases involving companies like Alphabet, Meta, Amazon, and Apple. She sees some early successes in curbing anticompetitive behavior, but also notes challenges with enforcement and the need to refine. She highlighted the fact that Section 19a ARC is a competition law tool, while the DMA is primarily a regulatory tool. This highlights the complementary nature of both tools. Nonetheless, Stohr generally favoured the more flexible and more economics-driven approach of Section 19a ARC compared to the DMA, arguing that such a rule might achieve better results than the DMA if it was applied at the EU level.
Panel 3: Future of Competition Remedies
Elaine Dunne (DLA Piper, Dublin) critiqued the current approach to remedy design in EU competition law enforcement, arguing for a more proactive and flexible framework. Panel 3: Future of Competition Remedies
Elaine Dunne (DLA Piper, Dublin) critiqued the current approach to remedy design in EU competition law enforcement, arguing for a more proactive and flexible framework. Google Shopping is a good example. She proposes a iterative, or staggered, approach to remedy design. This includes the introduction of ex post review mechanisms to monitor remedies and adjust them based on their effectiveness in time. Dunne also advocates the creation of a separate independent monitoring unit within DG COMP in order to ensure compliance and improve enforcement at the EU level by better and more thorough ex-post reviews. He argues that this distinction, which was once clear, is blurring in the digital economy where value is extracted by information resources like data and web traffic. Hoffmann contends that corporate control or ownership does not necessarily guarantee control over these resources, and that remedy design should focus on increasing or decreasing corporate control over information resources, rather than distinguishing between structural and behavioural remedies.
Panel 4: Competition Law and the Twin Transition
Luca Graf and Giulia Aurelie Sonderegger (both Universitat Zurich) addressed the application of Article 102 TFEU to abuses in agricultural labour markets. They suggest that the concept can be adapted for labour markets where a single employer could be considered as a dominant player. The assessment of dominance would also take into consideration the special features of labour market, such as the vulnerability migrant workers. Graf and Sonderegger also argue that worker welfare can be considered a relevant factor in the assessment of abuse, similar to consumer welfare in product markets, and propose a labour theory of harm that extends the reasoning of the CJEU in its famous Meta-case on data protection law to labour law.
Panel 5: Competition Law, Crisis and Geoeconomics
Nicole Deneka (Doctoral School of the University of the National Education Commission of Krakow) examined the European Commission’s approach to state aid during international crises, such as the 2007-2009 financial crisis, the COVID-19 pandemic, and Russia’s aggression against Ukraine. She argues that temporary crisis frameworks are designed to balance the need for support to affected businesses or sectors with the need to preserve the integrity of the EU internal market. Deneka emphasizes the importance of monitoring obligations and reporting requirements to ensure that state assistance is granted in a manner that is aligned to EU competition goals. She concludes that the Commission’s approach to state aid during crises has consistently and successfully emphasized the balance between addressing immediate needs and preserving the integrity of the internal market.
Sophie Bohnert (Wirtschaftsuniversitat Wien) suggested in her presentation that the separation between trade and competition policy is artificial and problematic, and that a more integrated approach is needed to address the challenges of the current global economic order. She argues that the “more economical approach” to competition law, which emphasizes consumer welfare and allocative efficiency, is too narrow, and ignores important considerations like fairness, distributional questions, and public interests. Bohnert argues that a more comprehensive approach to policymaking is needed, which takes into account the interactions of trade, competition and industrial policy. This requires greater coordination and collaboration between authorities. She also argues that the EU’s competition policy should be more responsive to public interest considerations and that the EU’s geopolitical ambitions should be taken into account in the enforcement of competition law.
Pierfrancesco Mattiolo (Universiteit Antwerpen) analysed the Foreign Subsidies Regulation (FSR) and its implications for EU competition law, particularly in the context of mergers and acquisitions. He argues that FSR introduces new tools that complement traditional EU competition laws, allowing the Commission the ability to screen operations orchestrated and coordinated by foreign entities. Economic and geopolitical factors are also taken into consideration. Mattiolo questions whether the FSR has become a “continuation of policy with other means”, citing its potential to be used as a tool for foreign investment screening at the EU level, which could lead to “over-securitisation” and reduce the openness of the EU economy. He also highlights the differences and overlaps between the FSR and the EU Merger Regulation, and notes that the Commission’s enforcement of the FSR may involve a balancing test that considers both economic and policy objectives, potentially blurring the lines between legal and political considerations.
Panel 6: EU Competition Law Beyond the EU
Richard Bunworth (University College Dublin) argued that the European Union should leverage its influence through the “Brussels Effect” to promote its social values in competition law, going beyond the traditional economic focus of the discipline. The EU’s social value, such as gender equality, racial and economic equality, and sustainability of the environment, are reflected by its constitutional foundations. These values should be incorporated in competition law. The Brussels Effect, a term used to describe the EU’s ability shape global markets with its regulatory powers, offers a unique opportunity to the EU to diffuse social values through competition laws, especially in developing countries who are more receptive of the EU approach. By introducing social values into its competition law framework, the EU could shape global norms and promote a more balanced and socially conscious approach to competition policy, according to Bunworth.
Tamta Margvelashvili (Ivane Javakhishvili Tbilisi State University) discussed integrating competition enforcement trends for digital platforms into eastern partnership. She argues that EU should include digital market competition enforcement in the accession talks with Eastern Partnership nations, specifically Georgia Ukraine and Moldova. Margvelashvili believes that the traditional market dynamics-focused laws of EaP countries are insufficient for EU accession. The author suggests that the EU should provide targeted technical expertise and capacity-building programs to help these countries develop effective digital market regulation and enforcement mechanisms, and that adherence to the EU’s Digital Markets Act and Digital Services Act should be formalized as obligations rather than voluntary commitments.
Closing Keynote and Panel on EU-Competitiveness in a Globalized World
In his keynote speech on “EU-Competitiveness in a Globalized World: Competition Law and Innovation vs. Regulation”, Chris Meyers (Amazon) addressed the disparities between Europe and the U.S. in terms of innovation, pointing out Europe’s lower investments in R&D, fewer unicorn firms, and significantly less scaled-up AI companies compared to the U.S. He also expressed concerns about the politicization of competition law, blurring of fundamental legal concepts, and a lack uniformity of application between the EU and its members states. He also expressed doubts regarding the self-enforcement of the Digital Markets Act due to its vague and undefined concepts. From a business perspective, Meyers emphasized that regulation should incentivize innovation, support further integration of the single market, and ensure clarity, predictability, balance, non-discrimination, and verifiability in competition laws, especially with regard to national abuse provisions.
In a panel discussion Chris Meyers was joined by Tabea Bauermeister (Universitat Regensburg), Martin Gassler (Wolf Theiss), Heike Lehner (freelance economist), and Florian Tursky (former State Secretary for Digitization in Austria) to further discuss the topic. Participants emphasized the challenges Europe faces when it comes to fostering innovation. This is especially true in light of complex regulations like the DMA that may not always accurately reflect or achieve economic goals. Furthermore, concerns were raised about the rigidity of competition law generally, with calls for more flexibility to accommodate dynamic market developments.
Conclusion
After two intense conference days, an impressive width of current issues of global competition law have been covered and discussed. Panel discussions and keynotes provided an opportunity for participants and speakers to network and exchange ideas during the conference breaks and at the evening receptions. The success of the conference was made possible through the generous support of sponsors (Barnert Egermann Illigasch Rechtsanwalte, Binder Grosswang, Haslinger Nagele, Helmuth M Merlin Stiftung, Land Oberosterreich, Nomos, Schalast, Schonherr, Universitat Wien, and Wolff Theiss), who contributed in various ways to ensure a productive and enjoyable event for all participants.
The 12 papers presented at the conference will now be prepared for publication in the conference volume. Nomos will publish this as the second volume of its newly established series “Junges Kartellrecht”. The first volume in this series, based upon the presentations of papers made at the Young Competition Law Scholars Conference held last year, was published in 2024. It is open access
. Other than the first volume, this year’s conference volume will be published fully in English language.—
* All speakers at the conference spoke in a personal capacity. The views expressed in the report and at the conference may not reflect the views of their respective employer or institution.
