Margin squeeze has long been recognised as a potential form of exclusionary conduct under competition law. Traditionally associated with network industries such as telecommunications, the doctrine has generated extensive scholarship concerning its relationship with refusal to deal, predatory pricing and vertical foreclosure. The growing prominence of digital platforms has renewed interest in margin squeeze as these platforms control essential points of access for business users while competing with them in downstream markets. While the doctrine has been extensively analysed in the United States and the European Union, its development in emerging competition-law regimes such as India has received comparatively limited scholarly attention. This paper examines that, in the absence of a free-standing margin-squeeze offence under the Indian Competition Act, such allegations were assessed through unfair conditions, denial of market access and leveraging. It argues that the Supreme Court’s decision in CCI v. Schott Glass India (2025) provides the first coherent doctrinal framework and guiding principles for assessing margin squeeze in India.
The last decade has witnessed a changing scene of exclusionary abuse cases. As a result, competition authorities around the globe are now investigating new forms of exclusionary abuse in fast-evolving markets. These changes inevitably affect our understanding of the harm caused by exclusionary conduct and how redress is sought. Although there are many academic and practitioner papers on estimating damages in cartel and excessive pricing cases, they have limited applicability to exclusionary cases. This paper provides an overview of the main considerations that should apply in damage quantification in exclusionary abuse cases. We do this by giving a detailed account of the main characteristics of damage claims in these cases, reviewing the theories of harm and, building on these theories, discussing possible counterfactuals and methods for estimating the magnitude of harm.
This paper examines an antitrust dispute in the mobile gaming sector: Epic Games’ “Project Liberty” challenge to app store restrictions and mandatory in-app payment systems for its game Fortnite. Claims were brought against both Google and Apple in two very similar cases that, despite their parallels, produced completely different outcomes in the U.S. courts. The paper further highlights the contrasting logic of the European Union’s Digital Markets Act (DMA), which establishes proactive obligations for gatekeepers to prevent harm before it occurs. The analysis demonstrates how similar cases may produce divergent results depending on the interaction between ecosystem architecture (closed vs. contractually restricted) and whether they are adjudicated by judges, juries, or proactive regulators. Building on these observations, it contributes to the antitrust debate by examining which model most effectively ensures fairness, fosters innovation, and protects consumer welfare in digital markets, considering the perspectives of developers, platform owners, and consumers.
If competition policy interventions failed to substantially deter anticompetitive behavior, their overall impact on consumer welfare would be limited to remedying consumer harm only in the behavior detected and punished. This is likely to be modest. Therefore, effective deterrence must be the ultimate goal of competition policy. An antitrust authority has control of many, but not all, levers to ensure the potential perceived likely punishment can act as a sufficient deterrent. This article builds on the existing literature and the current approach in Europe and suggests that antitrust authorities should try to maximize the use of all the relevant elements of antitrust punishment to ensure that optimal deterrence could be achieved.
The rapid global diffusion of digital technologies has prompted jurisdictions to abandon traditional effects-based competition enforcement in favor of rigid ex ante regulatory regimes. The European Union’s Digital Markets Act (DMA), often viewed as a "model law," exemplifies this shift by imposing per se prohibitions on a catalogue of practices deemed inherently anti-competitive. Among these, the categorical condemnation of tying and bundling is particularly striking. Unlike other DMA-listed practices, tying has a long, contested history in industrial economics, where it is associated with both foreclosure risks and significant efficiency gains.This paper argues that the transplantation of per se prohibitions on tying into ex ante frameworks neglects economic nuance and misrepresents technological reality. Through a comparative analysis of EU jurisprudence, existing Indian competition law, and the proposed Indian Digital Competition Bill, the paper demonstrates that earlier effects-based approaches were better equipped to distinguish exclusionary tying from welfare-enhancing "technological integrations." It further contends that digital markets do not eliminate classical efficiencies; rather, they intensify them through deep product integrations. Using a brief case study of an AI product, the paper illustrates how rigid rules misclassify innovation as anti-competitive and shows how minor exemptions in draft laws often produce legal uncertainty. Ultimately, the paper contends that the per se illegality of tying reflects political choices over sound economics. It suggests that emerging economies, particularly India, should modernize their effects-based jurisprudence instead of adopting blanket bans.
In Cung Le v. Zuffa , a class of mixed martial arts fighters accused the major promoter of unlawful monopsonization of the MMA fighter labor market. Since the case settled before trial, we have not heard from the jury whether Zuffa was, in fact, a monopsonist. Similarly, Zuffa’s business conduct has not been found to be competitively unreasonable. The plaintiff’s damage methodology went unchallenged, and the settlement terms have gone unexamined. In this article, we explore some of these issues.
Claims of unfairness often arise when individuals’ expectations are violated. Evaluating such claims requires understanding the nature and basis of those expectations. This paper examines farmers’ fairness perceptions through two case studies: policy changes to water access rights and the use of dicamba in agricultural areas. We illustrate how expectations are rooted in identifiable bases, propose methods for uncovering those bases, and assess their presence in farmers’ statements. Our findings demonstrate the feasibility of identifying expectation bases, enabling more objective assessments of unfairness claims. This approach offers an alternative to normative fairness frameworks and has implications for antitrust and competition policy. In markets where concentration and power asymmetries are prevalent, fairness perceptions influence participation, trust, and regulatory legitimacy. Understanding expectation-based fairness claims can help policy-makers evaluate harms not captured by traditional metrics and design more responsive competition and contract policies.
This article critically examines the historical and institutional development of competition law enforcement in the Republic of Slovenia, highlighting persistent inefficiencies and challenges from its independence to the present day. Emphasizing Slovenia’s unique economic context within the European Union framework, the paper addresses how historical attitudes, ideological commitments to national economic interest, and institutional shortcomings have impeded the effectiveness of competition law. The analysis focuses on two primary institutional actors—the national competition authority and the judiciary—and their roles in enforcing competition law. Empirical data from judicial decisions between 2004 and 2024 underscore the courts’ limited application of fundamental economic and antitrust concepts, illustrating a critical gap in judicial competence and conceptual clarity. The paper concludes by stressing the necessity of sustained institutional reforms and enhanced judicial training to realize the full potential of Slovenia’s competition law framework, thereby fostering a more robust and competitive market environment
This paper examines the transformation of competition law systems in the Western Balkans within the framework of European integration. It explores how the Stabilisation and Association Process has driven legislative harmonization with the EU competition acquis , noting that while formal alignment has largely been achieved, it often involved uncritical transposition of EU provisions without full understanding of their enforcement implications. The paper also analyzes the use of EU standards in domestic enforcement, highlighting frequent references to EU case law and principles, but also significant variation in their interpretation and application by national competition authorities (NCAs) and courts. Furthermore, it discusses the institutional shift from a judicial to an administrative enforcement model, aligning with EU practice and enhancing the role of NCAs. Despite these advances, challenges remain in ensuring consistent application of competition rules.
The paper explores the development of the institutional capacity of the Serbian competition authority by observing the evolution of its competencies and assesses the impact of both external and internal drivers on its administrative capacity and enforcement. The analysis highlights the necessity of institution building for efficient competition policy enforcement and tracks the development and progress within the context of negotiations to join the European Union (EU), with special focus on proactive measures based on soft enforcement. The hypotheses of the paper are largely confirmed by the analyzed data, based on which further recommendations are given. Observing the gradual strengthening of institutional capacities of the Serbian competition authority, the key driver of development was the impact of guidance received in the context of EU negotiations and assistance provided through multiple capacity building projects. There is room for improvement, but the achieved progress is respectable.
This paper provides an overview of the changes in the regulation of vertical agreements in Croatian competition law from the adoption of the initial legislative act to the present day. Croatian competition law has evolved significantly since the 1995 enactment of the original Act on the Protection of Market Competition (ZZTN), which aligned with European Union practices and standards, particularly former Article 81 of the EC Treaty and its associated regulations. Vertical agreements, which are contracts between companies operating at different levels of the supply chain (e.g., manufacturers and distributors), have been subject to regulatory scrutiny due to their potential to limit competition. However, these agreements also have the potential to increase market efficiency, particularly by allowing new entrants to penetrate the market. The initial adoption of the block exemption regulation for vertical agreements marked the beginning of Croatia’s alignment with the EU’s economic approach, focusing on the balance between the pro-competitive and anti-competitive effects of these agreements. The evolution of the regulation of vertical agreements in Croatian competition law from the adoption of the block exemption regulation to the present day reflects a shift toward a more flexible, economically driven approach. Key milestones from 2003 to 2023, specially the amendments in 2009, 2013 and 2021, highlight a consistent effort to align with EU standards while fostering market competitiveness and reducing regulatory burdens. This shift aims to balance regulatory control with market freedoms, particularly for SMEs. Moving forward, the effective implementation of these changes will depend on how well stakeholders adapt to the new system of competition law enforcement, which emphasizes economic analysis and proactive compliance. Above amendments have further streamlined the regulatory process, removing the requirement for mandatory notifications of vertical agreements to the competition authority, thus fostering a culture of compliance among businesses. These changes are intended to promote greater efficiency, reduce administrative burdens and encourage companies to take an active role in ensuring compliance. The current regulatory approach maintains a focus on limiting anti-competitive effects while promoting market efficiencies and recognizing the importance of economic assessment over formal criteria. Companies are now responsible for conducting their own economic assessments to determine compliance, which requires a deeper understanding of the competitive impact of vertical agreements.
This article questions the extraterritorial scope of the Digital Markets Act (DMA) in relation to the Western Balkans. We argue that the complex interplay between the requirement to adopt the DMA as part of the European Union (EU) accession process and the region’s limited capacity to enforce it may harm competition and consumer welfare. Moreover, it could diminish the EU’s appeal in the region. Given the potential lack of beneficial effects even after formal adoption, countries in the Western Balkans may turn to alternative regulatory models for digital market competition. These developments raise concerns about the effectiveness of the EU’s digital regulatory agenda beyond its borders. In response, we propose that the EU reassess the DMA’s extraterritorial reach to support better adoption and enforcement in the Western Balkans. A more tailored approach could help ensure that the DMA achieves its goals without producing unintended negative consequences in candidate countries.
The elimination of double marginalization has been an important consideration in recent updates to the U.S. Horizontal and Vertical Merger Guidelines, in particular, and the evaluation of whether vertical mergers are pro- or anticompetitive, in general. This article extends frameworks for analyzing the effects of eliminating double marginalization on prices from situations with upstream and downstream monopolies to encompass Cournot oligopolies both upstream and downstream.
This Article summarizes and criticizes the DOJ/FTC’s 2023 Merger (M&A) Guidelines. Part I argues that the Agencies’ claim that the Guidelines are not binding, violates the antitrust laws’ addressees’ constitutional right to fair notice . Part II discusses the Agencies’ failure to articulate their understanding of the (M&A)-related tests of illegality the Clayton and Sherman Acts respectively, promulgate. Part III argues that the Agencies’ account of the U.S. antitrust law’s goals are ill-formulated and includes some goals of questionable desirability. Part IV explains why “market definitions” are inherently comprehensively arbitrary and why market-oriented approaches to analyzing the legality of (M&A)s are therefore inaccurate and their use by the Agencies is unconstitutional and avoidable. Part V delineates the various ways in which (M&A)s can affect the intensity of price-competition, analyzes the determinants of these possible impacts, and points out that the Guidelines mis-state the relevance of many such determinants and totally ignore many other such determinants. Part VI analyzes the various ways in which (M&A)s can affect the intensity of investment-competition, analyzes the determinants of the magnitudes of each of these possible impacts, points out that the Guidelines provide little information about the approaches the Agencies will take to these issues, and argues that the Agencies do not understand the determinants of the effectiveness of potential competition and may subscribe to the erroneous limit-pricing theory. Part VII delineates the correct way to analyze whether an (M or A) violates the Sherman Act and points out that the Guidelines provide almost no information about the way in which the DOJ will approach this issue. Part VIII criticizes various positions that the Guidelines take on the antitrust illegality of vertical (M&A)s.
The dynamic competition approach defines an improvement path for antitrust law. Interested in competitive realities more than political activities, the growing body of scholarship studying dynamic competition (i.e., competition through technology) wants to make antitrust diagnosis and analysis more accurate without sacrificing administrability. At a high level, the dynamic competition approach appears to some as a twenty-first-century equivalent of the Chicago school of antitrust. This article shows that the analogy is only partially correct. Unlike the Chicago school of antitrust law, the dynamic competition approach is innovation oriented, empirical, enforcement friendly, and interdisciplinary. To illustrate this distinction more concretely, the article reviews past cases through the lens of the dynamic competition approach. It concludes that the dynamic competition approach is the natural evolution for all systems of antitrust law that reassess doctrine in light of the progression of economic and technical understanding of competition.
Although Montenegro began its European Union (EU) accession negotiations in 2012, the chapter on competition law (chapter 8) was the last to be opened, doing so in mid-2020. Being considered one of the most challenging aspects of the integration process, it is anticipated to be closed among the last. The paper will present the transformative path of the Montenegrin market from a state-controlled model to the current market-oriented model. It will examine the role of competition law during the significant economic and political changes Montenegro has undergone during the transition and post-transition period, as well as the impact of competition regulation in establishing a stronger market. It will serve to analyze and present the impact of EU competition law on Montenegrin legislation and practice so far, highlighting the challenges and opportunities that have arisen in the process of harmonizing national competition law with the EU acquis.
Modern competition law in Bosnia and Herzegovina was introduced through the Competition Acts of 2001 and 2005, reflecting the country’s commitment to European Union (EU) membership. The 2005 Act addressed many shortcomings of the earlier law and marked a step toward alignment with EU legal standards. However, several anomalies remain that undermine the efficiency of the Competition Council, the national competition authority, and raise concerns about the Act’s consistency with the EU competition acquis. This paper identifies key deficiencies in Bosnia and Herzegovina’s competition law enforcement, focusing on both structural issues and the limitations of judicial review of the Competition Council’s decisions. It also highlights substantive inconsistencies between domestic competition law and EU rules. Finally, the paper discusses the legal and practical consequences of these deficiencies and proposes alternative approaches to improve enforcement, ensure legal certainty, and better harmonize national law with EU competition policy.
The Competition Commission of India (CCI) has a crucial role to play in reviewing, approving, modifying, or rejecting M&A transactions that are anticompetitive. M&A activity saw a huge increase in 2022 in India. However, high interest rates, and political uncertainty led to slump in M&A activity early 2024. The Parliament has passed various amendments to the Competition Act, 2002. One of the major amendments is the change in the standard of “control” from decisive influence to material influence standard. The material influence test, as adopted by the CCI, has various shortcomings. The authors, through this paper, highlight the impact of the material influence test on M&A in India and showcase the various shortcomings of this test. The authors conclude by providing a few suggestions as to how the CCI should approach the ambiguous position pertaining to “control,” keeping in mind its impact on M&A activity.
In June 2024, Japan enacted the Act on Promotion of Competition for Specified Smartphone Software, a new legislative measure aimed at regulating smartphone ecosystems. This article examines and compares the Act, commonly known as the “Japanese Smartphone Act,” to the European Union (EU) and U.S. regulatory approaches. The examination begins with the neutrality principle, which serves as the foundation of the Act, concluding that this principle should be refrained from since it prevents platform operators from governing their platforms. Next, the examination addresses regulations against unfair and exploitative conduct toward app providers, concluding that such conduct should be subject to regulation under competition law, adhering to the rule of reason principle. Finally, the examination outlines measures to facilitate app store openness, cautioning against micromanaging smartphone design details by regulators. It recommends that instead of ex ante rules, competition law should govern smartphone ecosystems.
This article demonstrates that there is not now, and there should not be, an efficiencies rebuttal, defense, or exception in merger cases. A textualist analysis demonstrates that it does not exist in the plain words of the anti-merger statute, which prevents mergers that “may be substantially to lessen competition or to tend to create a monopoly.” The relevant Supreme Court cases explicitly hold that no efficiency rebuttal exists. Although holdings in subsequent lower court cases are mixed, none provided a sound justification for ignoring Supreme Court precedent. The article also shows that antitrust economists have redefined efficiencies in a manner that conflicts with mainstream economic theory. But even under the conventional approach, economic studies show that mergers only extremely rarely result in efficiencies, and there is no evidence that merger efficiencies are ever passed to consumers. For these and other reasons, including the unpredictability, cost, and difficulties of efficiency analysis, sound public policy requires no efficiency rebuttal in merger cases. When the federal antitrust enforcers released their 2023 Merger Guidelines, they shocked the antitrust world by asserting, for the first time in more than forty years, that no efficiency rebuttal is available for mergers challenged under the “tend to create a monopoly” half of the anti-merger statute. Our article demonstrates that not only were the new Merger Guidelines authors correct to do this, but they should also have gone further. They should have abolished the efficiency rebuttal completely, for all corporate mergers.
