On 23 October 2025, the UK’s Competition Appeal Tribunal (CAT) handed down a landmark judgment in Kent v. Apple in which it concluded that Apple had abused a dominant position by charging excessive and unfair prices. In reaching its conclusion, the Tribunal sought to rely on a profitability analysis carried out by the claimant’s experts and rejected Apple’s argument that no meaningful analysis could be carried out. The difficulties in conducting a profitability analyses have been identified many times in UK market investigations, with the issues being particularly pronounced in digital and knowledge-based industries. This article seeks to highlight some of the key challenges in carrying out this type of analysis, which have resulted in the CMA either abandoning or deciding not to pursue the analysis in certain market studies and market investigations, and the relevance of those challenges to excessive pricing cases under the Competition Act 1998. In particular, at what point do the measurement errors become so great that that the results are neither robust nor reliable?
India’s digital economy is increasingly governed by dominant platforms such as Google, Amazon, and Zomato, which use pre-drafted, non-negotiable contracts to impose terms that can significantly shape market dynamics. These contracts often include practices such as tying, bundling, and exclusivity, which, while potentially anti-competitive, are assessed by the Competition Commission of India (CCI) using the Appreciable Adverse Effect on Competition (AAEC) standard. This framework, which focuses on demonstrable output or price-based harm, is ill-equipped to capture subtler forms of exclusion rooted in contract design. Although the CCI has acknowledged contractual practices in cases like Google v. ADIF, enforcement remains hindered by high evidentiary burdens. This paper critiques the limitations of the AAEC standard in digital markets and introduces a new tool; the Digital Market Unconscionability Test (DMUT) to address these gaps. Grounded in Indian contract and competition law, DMUT offers a structured, ex-ante framework to identify and assess contractual abuse based on bargaining asymmetry, data-driven lock-in, and absence of real choice. The paper argues that adopting DMUT would enable the CCI to act pre-emptively, align enforcement with India’s constitutional commitment to economic justice, and better address the realities of digital platform dominance.
Article 20 of China’s Anti-Monopoly Law (AML) expressly permits exemptions for agreements pursuing environmental protection, commonly referred to as the ‘green exemption’, but this mechanism has remained largely dormant in practice. This article examines whether China’s competition law regime suffers from a ‘sustainability deficit’, a concept that has emerged prominently in debates over the objectives of EU competition law. It argues that, despite the statutory recognition of environmental protection in Article 20, the green exemption remains difficult to invoke in practice due to conceptual ambiguity, procedural deficiencies, and institutional constraints. In particular, the AML provides no clear standards for identifying environmental agreements, assessing environmental benefits, or reviewing exemption claims, while existing exemption cases reveal a judicial tendency to prioritize conventional competition analysis over uncertain or long-term public-interest benefits. Against the backdrop of China’s rapidly evolving environmental governance framework and the newly promulgated Ecological and Environmental Code, this article proposes targeted reforms to ssolve the sustainability deficit and facilitate the practical application of the green exemption. These include clarifying substantive standards, incorporating environmental expertise into competition review, and establishing structured review mechanisms supported by ex ante consultation and ex post monitoring.
This article offers an analysis of the specific challenges that direct financial markets, such as money markets, markets for derivatives, currencies and bonds, pose to competition policy. These markets often fall outside the scope of tools developed in the context of traditional competition analysis, particularly those derived from theories based on the Structure-Conduct-Performance (SCP) paradigm. Drawing on a comprehensive review of the theoretical and empirical literature, we examine several fundamental issues related to competition policy in direct financial markets. First, we explore the question of market power and concentration in this sector from the theory point of view. Second, we discuss specific types of anticompetitive behaviour, such as collusion on benchmark prices, the potentially anti-competitive effects of information-sharing mechanisms and the growing role of algorithms and artificial intelligence (AI). We highlight the need to adapt the analytical frameworks and tools of competition policy in order to ensure effective competition, as well as legal certainty for financial market participants, both of which are essential to the proper functioning of these markets in a rapidly evolving environment.
The judgment of the Court ofJustice (ECJ) in Android Auto has reshaped the law of refusal to deal. In particular, it has significantly reduced the scope of application of the Magill and Bronner doctrines, which are, in the aftermath of the ruling, only relevant where a dominant undertaking operates a fully closed system. This article identifies the ways in which Android Auto has transformed the case law and expands the reach of intervention under Article 102 TFEU. It also identifies the distributional and institutional consequences of the substantive choices made by the ECJ at a time when private enforcement is on the rise across the EU.
This article examines the emergence, development and implications of the taxpayer harm test as a novel jurisdictional basis in United States antitrust enforcement. Developed entirely through agency practice, without legislative or judicial grounding, it extends the extraterritorial reach of US law to anticompetitive conduct abroad where foreign transactions are substantially funded by the US government. Unlike the effects doctrine, which grounds jurisdiction in competitive harm within the forum market, the taxpayer harm test relies on fiscal injury to the US treasury, and by extension its taxpayers. The article traces the origins of the test in agency guidelines and early cases, including US military procurement abroad, its recognition in the 1995 and 2017 Guidelines, and its application in recent enforcement actions. It shows how the test has been used to support expansive assertions while avoiding judicial scrutiny at home. The article highlights the absence of legislative mandate or judicial endorsement, and assesses the test’s compatibility with established principles of jurisdiction under international law. It argues that while the test advances US enforcement goals and strengthens deterrence, it stretches extraterritoriality beyond recognized limits. By analysing this unexplored doctrine, the article contributes to wider debates on unilateral innovation in competition law and the governance of cross-border economic activity.
Digital platforms, ecosystems, and Research&Development-intensive industries challenge conventional, one-shot merger control. In fast-evolving markets, competitive constraints and innovation trajectories can shift after clearance, while behavioral commitments - often imposed for long durations - are exposed to obsolescence, moral hazard during implementation, and adverse selection rooted in imperfect information at notification. We propose a conceptual model of adaptive merger control that introduces structured ex post flexibility through a review clause attached to conditional clearance. The clause can be activated within a predefined window when observable triggers indicate that the original package has become ineffective or disproportionate. We outline governance options for initiation by authorities, merging parties, or affected stakeholders; information tools for dynamic counterfactuals; and a continuum of remedy designs distinguishing fixed commitments, adaptable behavioral remedies, and regulation-like constraints. The framework highlights two symmetric enforcement errors - excessive restraint and excessive precaution - and shows how adaptive design can mitigate both while preserving legal certainty via transparent procedures and bounded discretion. We discuss implementation challenges, including monitoring capacity, strategic gaming, and the potential transition from behavioral to structural measures. The article provides a framework for remedy design in dynamic markets and for the assessment of merger chains in digital and innovation markets.
Among the rights undertakings enjoy when sanctioned due to antitrust violations in the EU is the right to be presumed innocent. Although it may seem a concept easy to apply, the presumption of innocence imposes on the authorities a rule on evidence assessment. In this sense, the subjectivity of the evaluation of evidence entails that the application of concepts as the burden and standard of proof becomes dependent on the personal beliefs of the judge. Furthermore, as competition law is inherently technical, it is difficult to ascertain what a reasonable doubt is. To an expert something may be evident, but to the layman, even spurious evidence may generate doubts. Against this background, the aim of this paper is threefold. First, it will provide an overview of the requirements of the presumption of innocence regarding evidence assessment and fact-finding and its implications for the burden and standard ofproof. Second, since fact and law in competition enforcement are inextricably linked, it will argued that the presumption of innocence affects the substantive competition rules in the European competition order. Finally, this paper aims to provide an analysis of the compatibility discretion in complex economic assessments with the presumption of innocence.
In contemporary times, rapid globalization and increasing digitization have fundamentally reshaped market structures, leading to higher concentration levels and the emergence of oligopolistic markets across key industries. As competition increasingly falters not due to explicit collusion but due to information-aided and algorithmic conscious parallelism, traditional antitrust frameworks - designed primarily to punish conspiracies through overt agreements - find themselves inadequate to address these modern threats to competitive integrity. This enforcement vacuum has prompted antitrust jurisdictions to reconsider how competition law should evolve in response. The European Union (EU), recognizing the limitations of conventional positions, developed the concept of collective dominance to capture anti-competitive outcomes in oligopolistic settings without requiring proof of express concert. While the jurisprudence, beginning with the Italian Flat Glass case and clarified in Compagnie Maritime Belge (CMB) and perfected in Airtours, firmly established collective dominance within EU law, its practical enforcement has remained lacklustre. Conversely, the United States has categorically rejected the doctrine, upholding freedom of businesses and reiterating strict requirement of concert under the Sherman Act, thereby sacrificing its ability to regulate tacitly coordinated conduct in concentrated markets. India now faces a critical conundrum. Although its Competition Act is structurally modern, the persistent refusal to recognize collective dominance creates a significant enforcement gap in an economy where digital transparency and algorithmic facilitation of parallel conduct are becoming prevalent. As India aspires toward becoming the world's third largest economy, it must confront a pivotal question: where should it draw the line between preserving the freedom of trade and preventing the abuse of unbridled market power? This paper examines the global evolution of collective dominance and argues for a calibrated doctrinal and policy response in the Indian competition framework to address emerging structural threats.
This paper presents a systematic review of the literature on optimal fining methods for cartel infringements. Building on the PRISMA 2020 methodology, we analysed forty-seven articles to address three core themes: how optimal fines are defined, the ways different variables are incorporated in quantitative models, and comparative insights. We identified five prevailing approaches: revenuebased, overcharge-based, damages-based, profit-based, and a (recent) sophisticated revenue-based framework blending revenue- and overcharge-based elements. While each method has distinct advantages and challenges, the sophisticated revenue-based approach appears particularly promising in balancing deterrence against proportionality concerns, offering a potential remedy to the shortcomings or implementation issues, found in strictly revenue-based or damages/overcharge-based regimes. This review underlines the importance of aligning fine structures with the overarching policy objective of mitigating wealth transfers from consumers to producers. To the best of our knowledge, this is the first systematic review to map how different strands in extant literature conceive an optimal fine.
Online search has long been dominated by Google Search. In several competition and regulatory proceedings across the globe, various remedies to increase competition are being discussed, including data sharing obligations or a ban on the exclusive default settings of Google Search. A key factor for the success of any remedy package will be the ability of competitors to add value by differentiating their services from Google Search. Up to now, almost all search engine competitors depend on Google's or Microsoft's search results by means of syndication agreements, as they cannot feasibly set up their own search engine infrastructure from scratch. To allow market entry and growth across all sections of the search value chain, the remedy package must enable competitors to build up their own infrastructure step by step, in accordance with the success of their market entry. The article outlines how the Ladder of Investment approach, successfully implemented in the telecommunications sector, can be applied to this end. The paper aims to provide guidance on how such a regulatory approach could be implemented either by means of new statutory regulations, such as in the United Kingdom, or through remedies imposed in competition cases on the monopolization of search services.
The balancing test under the Foreign Subsidies Regulation (FSR) has emerged as one of its most debated features, reflecting tensions between competition enforcement and broader EU policy goals. Initially conceived as the 'EU interest test' in the White Paper, its contours remained rather vague until the recent publication of the Draft Guidelines, in July 2025. These Draft Guidelines finally allow a glimpse into better understanding of the balancing test. This paper explores more broadly how the balancing test works and the policy objectives it may pursue. After mapping the legal sources and the FSR's relationship with broader EU law, a theoretical framework of the balancing test is developed, rooted in FSR broader assessment and in the general principles of EU law. The test's process and assessment, in particular the order ofpositive effects it can balanced, are examined. Some procedural points, i.e., the burden of proof and variations across FSR procedures, are discussed as well. Ultimately, the paper assesses how the Commission will use its discretion in conducting the balancing test and its policy implications.
Ireland is an increasingly interesting and prominent jurisdiction in merger control, both from a European and international perspective. Due to the level of multinational corporate investment into the country (particularly in digital and pharmaceutical industries), Ireland has a somewhat disproportionate level of importance when compared to other jurisdictions of a similar size in the EU. In addition, the Irish competition authority, the Competition and Consumer Protection Commission ('CCPC'), has recently been granted several additional powers when reviewing mergers. Further, it appears to be adopting a more aggressive and interventionist stance, for example, by taking the previously unusual step of prohibiting a number of transactions and requiring extensive remedies across several cases. Alongside the changes in Irish merger control, the EU Commission is faced with the resurrected challenge of below-threshold mergers as a result of the Court of Justice of the EU's ('CJEU') judgment in Illumina v. Commission. This decision has scuppered its ability to rely on Article 22 of the EU Merger Regulation ('EUMR') to access problematic acquisitions in digital and pharmaceutical markets. As a result, there is a strong possibility that national competition authorities ('NCAs') with the ability to 'call-in' transactions that fall outside the EU's notification thresholds may be required to do so to plug this gap that has re-emerged in European merger control. In this context, with Ireland positioned as an extremely important corporate hub and the CCPC likely to be faced with an expanding mandate over the coming years, this article offers a timely review of the Irish authority's activities over the past five years as a means of synthesizing trends that can be observed (as well as potential future developments). It does so by tracing through the assessments of mergers systematically over this period (2020-24) from their initiation by way of notification to the CCPC, all the way through to determinations, remedies, and prohibitions. By taking this approach, the article extracts information and points of interest from the various stages as a means of shaping merger parties' expectations of the process, as well as providing key advice for other NCAs in the EU.
This article examines how public interest considerations shape the design and enforcement of competition law, using Vietnam's National Competition Commission (NCC) as a case study. Public interest-balancing consumer welfare with state-driven economic goals-informs national competition policies. It enables competition authorities to pursue their objectives, yet it creates tensions in practice. The NCC's effectiveness in Vietnam is undermined by its subordination to the Ministry of Industry and Trade (MoIT), which oversees dominant state-owned enterprises (SOEs). This legal status fosters conflicts with sectoral regulators, influence from interest groups, and inconsistent enforcement, compromising the NCC's ability to address anti-competitive practices impartially. Drawing on global examples (e.g., Australia, South Africa) and Vietnam's Law on Competition (LoC) 2018, the study reveals a dilemma: the NCC struggles to reconcile public interest goals like SOE support with competition aims like market fairness. The article argues that the NCC's lack of independence-rooted in its MoIT ties-drives inefficiency and bias, necessitating reform. It proposes statutory changes to grant the NCC autonomy, ensuring its power and objectivity in enforcing competition law. These findings offer lessons for transitional economies navigating similar public interest-competition trade-offs.
This paper analyses the determinants of cartel duration by using a dataset of 120 cases sanctioned by the Brazilian Competition Authority (CADE) between 1999 and 2022, which corresponds to all cartels sanctioned by CADE in Brazil from its inception until December 2022. The research considers the starting and the ending dates of the infringement as indicated in the case files, and it reveals an average duration offour years per cartel. Around 20% of the cartels had a very short duration (less than three months), while the longest cartel durations were around twenty years per cartel (i.e., the cartels in the markets of cement, salt extraction and marine hoses). The research then focuses in exploring the key determinants that may affect the duration of cartels, including the affected economic sector, the number of defendants and the geographic scope (i.e., local, national or international cartel). For this purpose, the research provides a statistics description of the database, which includes more than 2,500 defendants and total fines of around ten billion BRL (two billion Euros). The paper also explores possible correlations between these key determinants and the duration of cartels, by applying tests to measure the intensity of the correlations and its statistical significance, in addition to a regression exercise using ordinary least squares (OLS) and weighted least squares (WLS) to complete the analysis. Last, a cartel survival estimation based on a Kaplan-Meier modelling indicates the probability of a cartel surviving after a given number of years, as done in similar academic work related to other jurisdictions. The paper concludes with a summary of the key findings and suggestions for future work.
This article critically assesses the Digital Competition Bill, 2024 ('DCB'), introduced by the Indian government proposing an ex-ante framework to regulate the digital economy. The article argues for a phased implementation of the proposed ex-ante framework, with revisions to the current draft based on market studies, practical realities, and jurisprudential prerequisites, especially in light of India's nascent digital economy. The article, recognizing that ex-ante law has become a mainstream tool to regulate the digital economy, highlights the need for extensive evidence-based assessment of market failures before imposing extensive regulations. It emphasizes the importance of measuring implementation costs and potential conflicts with existing regulatory frameworks. The article analyses the draft DCB's potential impact on the Indian economy, emphasizing the need to scrutinize provisions that could affect dynamic growth. For instance, the DCB's broad definitions and low thresholds for designating Systemically Significant Digital Enterprises ('SSDEs') could lead to over-regulation. The article suggests that the DCB should be optimized to avoid unintended negative consequences for India's digital economy. It calls for wider consultations and further studies on the DCB's impact before its full implementation.
