Weekend Edition Nº62 by eulawlive

Nº62

JUNE 12

2021

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FRISO BOSTOEN

EU COMPETITION LAW AND ONLINE PLATFORMS:

WHERE DO WE STAND? www.eulawlive.com

Nº62 · JUNE, 12 2021

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EU Competition Law and Online Platforms: Where Do We Stand? Friso Bostoen

At rst sight, these cases may seem to have li le in common beyond the fact that they are situated within the digital economy. However, two important factors underlie almost every case. Firstly, the rms in question are not just digital, but more speci cally constitute online platforms. Platforms are intermediaries that connect two or more user groups (suppliers on the one hand, consumers on the other) so that they can interact directly with each other. Unlike in traditional distribution scenarios, suppliers retain control over the key terms of the interaction. For some platforms (such as marketplaces and app stores), the facilitated interaction consists of a transaction between supplier and consumer; for other platforms (for example search engines and social networks), the facilitated interaction consists of advertisements shown by suppliers to consumers.

Google, Amazon, Facebook, Apple, Microso what do these rms have in common? For one, they were the ve most valuable rms in the world by market capitalisation during the last quarter of 2020. is is one of the reasons these digital economy titans have their own acronym: GAFAM. Also, each of them is in the crosshairs of competition authorities at EU and national levels. e decisions and investigations are too numerous to list, but I can give you a taste of just those from the European Commission. More than a decade ago, the Commission decided that Microso abusively bundled its Windows operating system with separate apps (Windows Media Player and Internet Explorer) - and such concerns are now resurfacing. Google has been ned over 5 billion euros in three separate decisions, among others for promoting its comparison shopping service, Google Shopping, over those of competitors (similar cases involving job and local search services are ongoing). Amazon is under investigation for relying on third-party seller data and for forcing sellers to use its logistics services. e Commission is also looking into whether Facebook gives its Marketplace services an unfair advantage within its social network. And nally, Apple is under scrutiny for the way in which its App Store rules - which apply to independent developers but not its own apps - may distort competition.

Secondly, the cases described above generally concern the exclusion of suppliers that make use of the platform (sellers, app developers, speci c search services, advertisers). In one word, these are cases of ‘intra-platform exclusion’ (another popular epithet for this kind of conduct is ‘self-preferencing’). e origin of such conduct is vertical integration: when the platform enters the market of its suppliers, it may have an incentive to exclude their products or services in favour of its own. e methods of exclusion are varied: they can be implemented through the plat-

1. Consumer Competition Market, KU Leuven; Research Foundation – Flanders. Correspondence: <friso.bostoen@kuleuven.be>. In accordance with the ASCOLA Declaration of Ethics, the author has nothing to disclose.

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e Commission is increasingly considered an example for authorities in other jurisdictions

sition in one market (for example the platform market) to distort competition in a second market (such as the suppliers’ market). In EU competition law, leveraging has been thought of as a category of abuse, which includes the diﬀerent forms of leveraging: refusal to supply, margins squeeze, tying, and certain forms of price discrimination and predatory pricing. e question is whether these forms of abuse are suﬃciently malleable to capture the seemingly new types of conduct engaged in by online platforms.

form’s terms of service, or they can be technically implemented (such as by degrading the compatibility between the platform and certain suppliers’ services). Given that suppliers rely on the platform, these methods also tend to be effective. e above cases have the potential to determine the direction of the digital economy, especially given that the Commission is increasingly considered an example for authorities in other jurisdictions. To resolve these cases under Article 102 TFEU (the abuse of dominance provision under which they are brought), two questions are key. Firstly, which type of abuse offers the correct framework to assess these cases? Secondly, how should the legal test for that abuse - developed in an analogue world - be applied to online platforms? An additional question, addressed at the end of this article, is whether competition law suffices to address the relevant concerns.

e Commission apparently believed this was not the case. In the aforementioned Google Shopping decision, it quali ed Google’s conduct not as one of the existing forms of abuse, but rather as leveraging in itself. Some - including myself - have argued that a case based on non-price discrimination (as prohibited by Article 102 (c) TFEU) would have been more appropriate. Others have argued that intraplatform exclusion is only illegal when it meets the stringent conditions of the refusal to supply-test. At the end of the day, however, there is unlikely to be one single form of abuse—and thus legal test—that captures the variety of potentially abusive conduct in the platform economy, so a case-by-case assessment is recommended.

Instances of intra-platform exclusion usually t the label ‘leveraging’, which means using a dominant po-

ere is no single legal test that can capture potentially abusive conduct in the platform economy

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e abuse of margin squeeze was developed in the telecom sector through cases such as Deutsche Telekom (C-280/08 P) and TeliaSonera (C-52/09). In that sector, (former) national monopolists had to give entrants access to their network (wholesale) so that these entrants could compete in providing services to end-users (retail). Given that refusal was not an option, network owners would adapt the spread between their wholesale and retail prices so that the pro t margins of entrants were ‘squeezed’. However, if those entrants are as eﬃcient as the owner of the network, such a margin squeeze infringes Article 102 TFEU.

Once abuse has been found that aligns with the conduct in question, the next diﬃculty is applying its established test to novel conduct. Let us consider three leveraging abuses in more detail, namely refusal to supply, margin squeeze and tying. App stores serve as a useful case study. Refusal to supply is illegal under the conditions set out in cases such as Oscar Bronner (C-7/97). In short, the platform must be indispensable for competition in an adjacent market (such as that of the supplier) up to the point that a refusal of access eliminates eﬀective competition. Interestingly, sometimes forgo en or at least ignored case law including United Brands (27/76) and Sot. Lélos (C-468478/06) holds that a less stringent test applies when access is later disrupted rather than refused from day one (de novo). Relatedly, the recent judgment in Slovak Telekom (C-165/19 P) appears to con rm that the Oscar Bronner test only applies to outright refusals and not more subtle forms of discrimination.

Platforms are also networks that o en compete with the suppliers that rely on them, which provides the structural conditions for margin squeeze. Consider, for example, how Apple - through its App Store - levies a 30% fee on iPhone subscriptions to music streaming services such as Spotify, which depresses their already thin margins. However, its own service - Apple Music - is not subject to such a fee (or to other restrictive conditions). Should Spotify be as eﬃcient as Apple Music, there may be a margin squeeze here. But it remains to be seen whether the Commission, in its aforementioned investigation, also takes this perspective. Moreover, the current margin squeeze test is centered around price, while many advertising-based platforms (for example Google Search and Facebook) do not charge endusers an explicit price, which engenders methodological diﬃculties.

ese distinctions are highly relevant when examining intra-platform exclusion. Take the example of Epic Games, a developer that wants to place its own app store in iOS (the operating system of iPhones). Given that Apple has always reserved iOS access to its own App Store, such a refusal is de novo and outright. As a consequence, the stringent Oscar Bronner test is ing. By contrast, when Apple rst lets developers on the App Store and subsequently kicks them out, a less stringent test should apply. Apple removing several parental control apps from the App Store, which happened to coincide with the introduction of Apple’s own alternative, seems to qualify as such a situation. A less stringent test is justi ed given that such ‘open early, closed late’ strategies are particularly pernicious from an economic perspective.

Tying is the most traditional form of leveraging, developed through cases such as Hilti (T-30/89) and Tetra Pak II (C-333/94 P), and has also been tested repeatedly in the platform economy, for example in the Microso case (T-201/04). It refers to situations where customers that purchase one product (the tying product) are also required to purchase a se-

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popular argument that ‘competition is one click away’, holding that consumers (but not most phone makers) could always download additional search engines and web browsers. However, the observation that consumers tend not to do so does not necessarily mean Google Search is the superior search engine. Indeed, the majority of consumers that had a diﬀerent search engine (Microso ’s Bing) installed did not switch either. In short, status quo bias

cond product from the rm (the tied product). When that rm has market power in the tying market, the two products are truly separate, and there is foreclosure in one of the markets concerned, tying constitutes an abuse. In the digital ecosystems managed by the largest platforms, the integration of two previously separate products is particularly prevalent. e strategy is

It must be stressed that prima facie abuses may still be objectively justi ed

made a ractive by the economies of scope on the supply and demand side that tying can realise - procompetitive eﬀects that should be duly taken into account in any abuse of dominance assessment. Importantly, the eﬀects of digital ties are o en not explained by the impossibility of purchasing the tied product separately. Rather, the anticompetitive mechanism is one of status quo bias (well-known in behavioural economics), meaning that consumers do not move away from the default, even when superior alternatives exist. is came to the fore in Google Android (AT.40099), which concerned a tie between Google’s ‘must-have’ app store (Google Play) and its suite of additional apps (in particular Google Search and Google Chrome). Google relied on the

means that digital defaults can be sticky without being superior, and thus exclude competitors. While I have so far focused on legal tests, it must be stressed that prima facie abuses may still be objectively justi ed. Given that the value of a platform is determined by its users (and in particular its suppliers), owners need to strictly manage the users and interactions on their platform as ‘private regulators’ - and exclusion is an inherent part of that governance. A platform can thus not be faulted for removing ‘bad actors’ that threaten the overall quality, security and privacy of users. Apple, for example, relies on these grounds to justify not allowing alternative app stores and removing parental control apps.

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Of course, such justi cations should not be taken at face value. e burden of proof lies on the platform, which must also show that its actions are proportionate.

medies that eﬀectively restore competition has proven particularly diﬃcult in digital markets. e continuing discontent with the remedy in Google Shopping provides an example once more.

As the above shows, applying Article 102 TFEU to the conduct of online platforms is feasible. Of course, interpretational changes should be made, but the exibility of the abuse of dominance provision leaves plenty of room for this. Some of those changes were put forward here; many more are found in my recently defended Ph.D. thesis. However, while Article 102 TFEU may be substantively up to the task, there are at least two more institutional concerns. Firstly, abuse of dominance investigations take a relatively long time (the Google Shopping decision took seven years, but recent investigations are moving more quickly). By contrast, the digital economy moves at a fast pace. erefore, anticompetitive conduct may have already cemented a dominant position before competition authorities have the chance to intervene. Secondly and relatedly, designing re-

Due to these (perceived) de ciencies, policymakers are increasingly adopting new instruments. ese can be situated within the framework of competition law. In Germany, for example, the 10th Amendment to the German Competition Act gave the German competition authority (Bundeskartellamt) the power to intervene earlier and more eﬀectively. In particular, it can designate certain platforms as having ‘paramount signi cance for competition across markets’ and then prohibit speci c categories of conduct including self-preferencing. Proceedings based on the new law against Facebook, Amazon and Google are already underway. Other instruments go beyond competition law. e Commission’s Digital Markets Act (DMA) Proposal, for example, does not pursue competition law’s

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Online platforms have now been the enforcement focus of the Commission for around a decade. e Google Shopping investigation started in 2010 and when Commissioner for Competition Vestager took oﬃce in 2014, she made it an explicit priority. While new areas of interest (like sustainability) are slowly coming to the fore, digital markets are likely to remain a priority for some time. is is also true globally. A er a period of dormancy, antitrust agencies in the United States are now once more bringing monopolisation cases - a revival that is spurred by concerns around Big Tech. Indeed, a broader movement has even coalesced around this shi : the ‘New Brandeis Movement’, which seeks to return to the more ambitious interpretation and enforcement of antitrust law that the US knew in the past.

goal of undistorted competition but rather the complementary objective of contestable and fair platform markets. While Article 102 TFEU applies to dominant rms, the DMA applies to ‘gatekeepers’, which are designated by the Commission based on more quantitative criteria (for example turnover and number of users). However, while the setup of the DMA may allow for quicker intervention, its substantive provisions do overlap signi cantly with ongoing competition law investigations. For example,

Digital markets are likely to remain a priority for some time

I hope the above can serve as a useful primer on where we stand - and perhaps even where we are going when it comes to EU competition law (in particular Article 102 TFEU) and online platforms during these exciting times.

Article 5(c) may allow developers to bypass the App Store’s 30% commission fee, Article 6(1)(k) may prohibit discrimination by the App Store, and Article 6(1)(c) may oblige Apple to allow other app stores within iOS. ‘May’ remains the right word for now though given that, rstly, the DMA is only a proposal at this point, and secondly, those obligations (in particular in Article 6) need be further speci ed once the DMA is operational.

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News Highlights Week 7 to 11 June 2021

Commission publishes Implementing Decisions on standard contractual clauses in data transfers Monday 7 June

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AG Szpunar: clari cation of EU travel document and penalty-rules for EU citizens travelling between Member States through international waters

Oﬃcial publication was made of two Commission Implementing Decisions on standard contractual clauses for international data transfers to be in compliance with the GDPR.

Monday 7 June

Council approves its mandate for negotiations on the e-CODEX system

AG Richard de la Tour: refusing to work while being physically present is not an ‘unauthorised absence’ under the Staﬀ Regulations

Monday 7 June

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e Council of the EU approved its mandate for upcoming negotiations on the e-CODEX system, a computerised system for communication in cross-border civil and criminal proceedings, proposed by the European Commission.

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In his Opinion for Syy äjä last week, Advocate General Szpunar advised the Court of Justice to rule that EU law does not prevent the requirement of travel documents when travelling by boat via international waters, but associated criminal penalties must be proportionate.

Monday 7 June

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Advocate General Richard de la Tour’s Opinion in WV v EEAS (C-162/20 P) last week advises the Court of Justice to declare the arguments of a member of the European External Action Service to be well-founded, in an appeal against an order of the General Court (T-471/18).

Horizontal Block Exemption Regulations: Commission invites comments in context of upcoming legislative review of EU competition law

Council approves negotiating mandate on the amendments to the Fundamental Rights Agency Regulation

Monday 7 June

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e European Commission is inviting stakeholders to comment on its inception impact assessment in the light of a planned upcoming legislative review of the EU’s competition law Horizontal Block Exemption Regulations.

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e Council of the EU approved its negotiating mandate on Monday for the amendment of Regulation 168/2007, which established the EU Agency for Fundamental Rights, to enhance the Agency’s mandate and improve its functioning through more eﬃcient procedures.

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Parliament challenges Council’s Regulations on shing opportunities for 2021: action published Tuesday 8 June

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e European Parliament’s action for annulment (C259/21) against the Council of the EU’s Regulation (2021/406) establishing certain provisional shing opportunities for 2021 in Union waters and non-Union waters was oﬃcially published.

ABLV Bank’s appeal against General Court judgment on recalculation of ex ante SRF contributions published Tuesday 8 June

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Vacancy positions for référendaire at the General Court Tuesday 8 June

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A vacancy announcement was made for two référendaires to join the cabinet of future Judge Brkan at the General Court of the Court of Justice of the European Union.

ECtHR: ideologically-driven parliamentary refusal to grant State recognition to a religious association breaches human rights

ABLV Bank AS, a Latvian bank in liquidation, brought an appeal (C-202/21 P) against the General Court’s judgment in case T-758/18, which dismissed an action for annulment against the Single Resolution Board’s decision refusing to recalculate and to repay that bank’s ex ante contributions to the Single Resolution Fund.

Tuesday 8 June

Commission proposes EU budget for 2022

No State aid rules infringement: ESA concludes investigation on tax-ruling practices

Tuesday 8 June

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e European Commission proposed the EU annual budget for 2022, which amounts to 167.8 billion euros, and will be complemented by an estimated 143.5 billion euros in grants under NextGenerationEU.

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e European Court of Human Rights ruled in Romuva v. Lithuania (application no. 48329/19), that the refusal by the Lithuanian authorities to recognise a State-recognised religious association breached Article 9 ECHR, the prohibition of discrimination (Article 14), the freedom of thought, conscience and religion (Article 9) and the right to an eﬀective remedy (Article 13).

Tuesday 8 June

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e EFTA Surveillance Authority closed its investigation into tax-ruling practices of Norway, Liechtenstein and Iceland, with no evidence found of State aid-related infringements.

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Commission adopts report on progress in Romania under the Cooperation and Veri cation Mechanism Tuesday 8 June

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European Court of Auditors concludes that FRONTEX has not eﬀectively supported Member States in managing EU external borders

e European Commission made public a report on developments in Romania concerning judicial reform and the ght against corruption, pursuant to its commitments under the Cooperation and Veri cation Mechanism.

Tuesday 8 June

Commission launches public consultation on abusive use of shell companies in the EU

Ombudsman approves CINEA’s reply concerning complaint on public access

Tuesday 8 June

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e European Commission announced a public consultation concerning a new initiative to ght ‘the abusive use’ of socalled shell companies, which have no real economic activity and are used to provide a more bene cial tax treatment to the companies to which they belong.

General Court annuls Commission decision that there was no Danish State aid in the failure to collect an environmental charge from shops operating on the border Wednesday 9 June

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e General Court granted a Danish trade association in Dansk Erhverv v Commission (T-47/19), its request for annulment of the Commission’s decision that the non-charging of a mandatory deposit scheme to shops on the Danish-German border was not State aid.

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e European Court of Auditors concluded in a special report that FRONTEX has not eﬀectively supported Member States in the management of the EU’s external borders, particularly with regard to the ght against illegal immigration and cross-border crime.

Wednesday 9 June

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e European Ombudsman welcomed the reply of the European Climate, Infrastructure and Environment Executive Agency to her proposed solution concerning a refusal to grant public access to a cost-bene t analysis of the Brenner tunnel project.

Ryanair appeal: Commission decision approving German State aid for Condor annulled by General Court Wednesday 9 June

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In Ryanair v Commission (Condor; Covid-19) (T-665/20), the General Court annulled a decision of the Commission approving German State aid in favour of the airline Condor Flugdienst, on the ground of inadequate reasoning.

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Commission initiates infringement proceedings against Germany over German Constitutional Court’s Weiss judgment Wednesday 9 June

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e European Commission sent a le er of formal notice to Germany, the rst step in infringement proceedings, concerning the German Constitutional Court’s Weiss judgment of 5 May 2020, that declared a Court of Justice judgment ultra vires and not applicable in Germany.

Council’s decision to extend freezing of former Ukranian president’s assets annulled by General Court Wednesday 9 June

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In Yanukovych v Council (cases T-302/19 and T-303/19), the General Court annulled a decision of the Council of the EU extending EU sanctions against Ukraine’s former president and his son.

Infringement proceedings against Member States before Court of Justice concerning EU citizens’ electoral rights

General Court: need to await outcome of criminal trial in staﬀ disciplinary cases is not a general principle of EU law

Wednesday 9 June

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e European Commission announced it will be commencing infringement proceedings against Czechia and Poland before the Court of Justice for banning EU citizens who are not nationals of those countries but are resident there from fully exercising their right to stand as candidates in local elections and European Parliament elections under the same conditions as nationals.

European Ombudsman publishes annual report ursday 10 June

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e European Ombudsman’s 2020 annual report was published, providing detailed insight into how EU institutions responded to the COVID-19 crisis, and highlighting that transparency and accountability complaints made up the biggest proportion of inquiries examined.

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e General Court, si ing in Extended Composition, rendered its judgment in staﬀ case DI v ECB (T-514/19), dismissing an action by which the applicant sought his reinstatement a er criminal proceedings involving him were closed.

ECtHR: declaration of unlawfulness of workers’ boyco did not breach ECHR, but EEA freedom of establishment is not a fundamental right to be weighed against human rights ursday 10 June

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e European Court of Human Rights ruled in Norwegian Confederation of Trade Unions v. Norway (application no. 45487/17) that the Supreme Court’s declaration as unlawful of a workers’ boyco in opposition to a shipping rm did not breach the freedom of assembly and association enshrined in Article 11 of the ECHR.

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Internet of ings: Commission publishes initial ndings of competition inquiry ursday 10 June

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e European Commission published the preliminary results of its competition sector inquiry into markets for Internet of ings-related consumer products and services in the EU.

EU and UK discuss Brexit Agreements in Joint Commi ee and Partnership Council meetings ursday 10 June

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European Commission Vice-President Šefčovič met yesterday with his counterpart Lord Frost in the Joint EU-UK Commi ee and the Partnership Council, the political bodies established, respectively, under the Withdrawal Agreement and the Trade and Cooperation Agreement, to deal with issues arising from the implementation of both instruments.

Commission con rms that Spain needs to recover incompatible aid from digital terrestrial operators ursday 10 June

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Following an in-depth investigation, the European Commission announced its decision to order Spain to recover illegal State aid received by operators for the digitisation and extension of the terrestrial television network in remote areas of Spain, insofar as it infringed the principle of technological neutrality.

Existence of a ‘serious and individual threat’ to an applicant of subsidiary protection must be assessed in view of all relevant circumstances of the case, Court of Justice rules ursday 10 June

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e Court of Justice clari ed in Bundesrepublik Deutschland (C-901/19) the way in which national authorities must assess a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed con ict’ under Articles 15(c) and 2(f) of Directive 2011/95.

Repayment of loan in foreign currency on the basis of unfair contractual term cannot be subject to limitation period, rules Court of Justice ursday 10 June

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e Court of Justice ruled in BNP Paribas Personal Finance (C-609/19 and Joint Cases C-776/19 et al.) that loans granted in a foreign currency, where consumers ignore that one of the contractual terms was unfair, cannot be subject to any limitation period for the repayment of sums paid on the basis of that term.

Broad interpretation of excise duty liability for transporters of goods under Excise Duty Directive according to Court of Justice ursday 10 June

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e Court of Justice clari ed in e Commissioners for HMRC v WR (C-279/19) the interpretation of the Excise Duty Directive: the transporter in possession of goods at the time the excise duty has become chargeable is liable and it is irrelevant that it has no right or interest in the goods, is not aware of the duty, or is not aware it has become chargeable.

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AG Bobek advises to dismiss appeals against General Court judgment annulling regulation on excessively high limits on oxides of nitrogen emissions

Court of Justice: no EU liability for harm arising from national criminal investigation involving participation of OLAF and Commission

Friday 11 June

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Advocate General Bobek advises the Court of Justice in Allemagne – Ville de Paris and Others v Commission (Joined Cases C-177/19 P, C-178/19 P and C-179/19 P) to dismiss the appeals against General Court judgments that annulled a Commission Amending Regulation se ing excessively high limits on oxides of nitrogen emissions for real driving tests.

e Court of Justice in Commission v De Esteban Alonso (C591/19 P) set aside the General Court’s judgment in De Esteban Alonso v Commission (T-138/18) awarding compensation to a former Commission oﬃcial for the non-material harm alleged as a result of the unlawful conduct of OLAF and the Commission.

Alleged unlawful Portuguese aid to Azores Airlines: Commission’s invitation to submit comments

Case law of the CJEU on transfers of personal data to third countries: European Data Protection Supervisor’s Digest

Friday 11 June

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e Commission invited interested parties to submit comments in the context of the investigation procedure under Article 108(2) TFEU regarding State aid case SA.62043 C/2021 (ex 2021/N): restructuring aid awarded by Portugal to Azores Airlines Sociedade Anónima (SATA).

Friday 11 June

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e European Data Protection Supervisor published a digest of the Court of Justice of the European Union’s case law on data protection law, focusing on the rules governing transfers of personal data to third countries or international organisations.

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Insights, Analyses & Op-Eds Advocate General Rantos in Council v Hamas: Council’s lack of signature of the statement of reasons for restrictive measures is not a valid ground for annulment

Mealworms for Dinner? e Authorisation of First Insect as Novel Food by Anna Volpato

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Analysis of Commission Decision 2021/882, the rst time it has authorised the placing on the market of an insect for human consumption, likely to be followed by a number of similar decisions touching a vast array of delicate and con icting instances – innovation and safety in the agri-food sector, sustainability concerns and ethical values – as well as cultural sensibilities and consumer perceptions.

by Celia Challet

Analysis of AG Rantos’s Opinion in Council v Hamas (C833/19 P) concerning the validity of the counter-terrorism restrictive measures imposed against Hamas, a classic action for annulment against EU restrictive measures that has become a case of particular importance for the procedural rules applicable to these sanctions.

e EU Commission’s Guidance on Article 17 of the Copyright in the Digital Single Market Directive

Hungary v European Parliament (C650/18): Enhancement of the Protection of the Rule of Law and ProcessOriented Review: Constitutional Business as Usual? by Xavier Groussot and Anna Zemskova

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by Bernd Justin Jü e and Christophe Geiger

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Op-Ed on the Commission’s guidance on Article 17 of the Copyright in the Digital Single Market Directive, which comes as an annulment action (C-401/19) concerning certain parts of that article is pending before the Court of Justice, and the usefulness of that guidance.

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Op-Ed on the recent Hungary v European Parliament (C650/18) judgment of the Grand Chamber of the Court of Justice on the ‘rule of law backsliding’ saga, an annulment action aimed at ending extensive elaborations on the concept ‘votes cast’ in the context of the calculation of one of the constituents of the double majority, indicated in Article 354 (4) TFEU.

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Recylex v Commission – e Court of Justice reduces the scope of potential strategies for leniency applicants to increase the amount of ne reductions”

CV-Online Latvia v Melons: In search of exibilities under the Database Directive” by Sabine Jacques

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Analysis of the Court of Justice’s case CV-Online Latvia v Melons (C-762/19) on whether the display of a third party’s database through a specialised search engine and redirecting users of the search engine to the original website constitute ‘reutilisation’: a case at the crossroads between intellectual property law and competition law, revisiting the legality of meta search engines that allow searches to be made in databases belonging to others.

by Jokin Beltrán de Lubiano

Ex Oﬃcio Application of EU Choice of Law Rules: Should the Interests of the Parties Ma er?

e new EU Global Human Rights Sanctions Regime: shortcomings and limitations”

by Gilles Cuniberti

by Juan Jonás de Gil

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Analysis of the Court of Justice’s case Recylex v Commission (C-563/19 P) on the eﬀect that the company’s leniency application should have on the ne ultimately imposed by the Commission, the Court closing the door to such company strategies, reducing incentives to le for leniency when there is no certainty that the application will be the rst one.

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Op-Ed on the French Cour de cassation’s judgment of 26 May 2021 that ‘the principles of primacy and eﬀectiveness of European Union law’ require that French courts apply ex oﬃcio certain choice of law rules contained in EU Regulations, a signi cant evolution from the doctrine that the court had adopted 20 years ago.

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Insight into the main weaknesses and shortcomings of the EU’s new global human rights sanctions regime, relating to national interference; the Commission's limited enforcement powers; the lack of sanctioning criteria; and the lack of coordination with other existing sanctions regime.

Judgment of the General Court, Ryanair v Commission (Condor) by Fernando Pastor-Merchante

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Analysis of the General Court’s judgment in the Ryanair v Commission (Condor) (T-665/20) case, which oﬀers some interesting insights on the interplay between the rules that govern two types of State aid, and demands from the Commission a be er analysis of the causal link between the pandemic and the frustration of Condor’s sale.

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Library - Book Review

By Jochem de Kok READ ON EU LAW LIVE

ALEXANDR SVETLICINII

Chinese State Owned Enterprises and EU Merger Control Review of a book that is ‘well-researched, detailed yet succinct’ on ‘the treatment of Chinese SOEs under EU law, uniquely from the perspective of both EU and Chinese law’ and the added value of which ‘lies in the combined approach of the subject from the perspective of both spheres of law and the impressive degree of systematic analysis’.