Niels Philipsen

A Chinese non-governmental organisation ( NGO ), supported by other NGO s, filed a civil lawsuit against a non-compliant entity in China’s national greenhouse gas emissions trading scheme ( GHG ETS ). This action incentivised the non-compliant entity to surrender sufficient allowances and suggests that civil society can play a role in ETS enforcement. From a law and economics perspective, this paper examines the potential role of civil litigation against regulated entities – a typical private enforcement tool – to ensure compliance with China’s ETS . We argue that enforcement by civil society can contribute to ensuring compliance in China’s ETS but faces certain barriers. These barriers include information problems, low chances of success due to limited plaintiff standing, insufficient ETS expertise in NGO s, high court and/or lawyers’ fees, jurisdictional issues, the difficulty of prevailing against state-owned enterprises ( SOE s) in litigation, and potentially high litigation costs.

In digital markets, concentrated Big Data and analytical algorithms enable undertakings to predict each consumer’s willingness to pay with increasing accuracy and offer consumers personalized recommendations and tailored prices accordingly. In this context, concerns have arisen about whether and when AI-enabled price discrimination amounts to an abuse of dominance under competition law and would require a legal response. To address these concerns, this paper will analyze AI-enabled price discrimination from a comparative law and economics perspective. In economics, price discrimination is not always undesirable as it can increase static efficiency, and, on some occasions, it can promote dynamic efficiency and boost consumer welfare. Nevertheless, it may also lead to exclusionary and exploitative effects, especially once Tech Giants abuse their dominant positions in relevant markets. Since the protection of free competition and consumer welfare are objectives of competition law in China and the EU, competition law seems a proper instrument to step into digital markets to address these concerns. Indeed, the EU and China have established mixed regimes of competition law and other rules to tackle unfair and/or anti-competitive AI-enabled price discrimination. As such, AI-enabled price discrimination does not always require a competition law response and it requires competition authorities to make a trade-off between different considerations.

Statutory dominant firms, different from dominant firms that have gained their market power through competition on the merits, have derived their market position from choices made by the state. From an economic perspective, tying by this kind of firm typically generates significant anti-competitive effects that are likely to outweigh the possible pro-competitive effects. Both in China and the EU, such tying practices have frequently taken place. Nevertheless, the economic findings have not been fully reflected in competition provisions and competition practice in these two jurisdictions. This may lead to error costs and enforcement costs, which is detrimental to consumer welfare. It is thus important for competition authorities and courts to carefully consider the economic findings, while taking into account also the principles of proportionality and legal certainty. To enhance the effectiveness of competition law, this study proposes potential ways of applying a differentiated (stricter) scrutiny of tying by statutory dominant firms to reduce error costs and enforcement costs.

Tying has become a common practice in digital platforms. It may generate both pro-competitive effects and anti-competitive effects, which makes it difficult to distinguish between lawful and unlawful tying practices. The cases of Tencent and Android both involve tying conducts, but interestingly, the cases have different outcomes. This article explores reasons for these different case outcomes from a comparative law and economics perspective. By assessing the facts and legal rulings in Tencent and Android, we find that the different case outcomes result, on the one hand, from the different case facts, and on the other hand, from the different approaches used by the EU Commission and the Chinese Supreme People’s Court. The Court scores better in terms of ensuring legal certainty; nevertheless, it may face difficulties when it has to apply economic analysis. The Commission seemingly uses more economics, but the application is not full-fledged, as it disregards important case facts when assessing competition foreclosure, and employs asymmetric legal tests and evidence standards for anti/pro-competitive effects of tying. From a law and economics perspective, we provide suggestions for China and the EU, taking the recent Anti-Monopoly Guidelines on Platforms in China and the forthcoming Digital Markets Act in the EU into account.

Public funding is believed to play an important role in the development of science and technology. However, whether public funding and, in particular, competitive funding from public agencies actually helps to increase scientific output (i.e. publications) remains a matter of debate. By analysing a dataset of co-publications between China and the EU and a dataset of joint project collaborations in European Framework Programs for Research and Innovation [FP7 and Horizon 2020 (H2020)], we investigate whether different public funding agencies’ competitive assets have different impact on the volume of publication output. Our results support the hypotheses that competitively funded research output varies by funding sources, so that a high level of funding does not necessarily lead to high scientific output. Our results show that FP7/H2020 funded projects do not have a positive contribution to the output of joint publications between China and the EU. Interestingly, cooperation in the form of jointly writing proposals to these EU programmes, especially when they are not granted by the European Commission, can contribute significantly to joint scientific publications in a later stage. This applies in particular to cases where funding from China is involved. Our findings highlight the key role that funding agencies play in influencing research behaviour. Our results indicate that Chinese funding triggers a high number of publications, whereas research funded by the EU does so to a much lower extent, arguably due to the EU’s strong focus on social impact and its funding schemes as tools to promote European integration.

This Fourth SoLaR Working Paper looks at the reception of EU competition and State aid soft law in selected Member States. The paper draws on interdisciplinary methodologies and combines case law research and interviews to show how national authorities and judges deal with EU soft law. The overall conclusions, authored by Oana Stefan, are presented first, followed by the national reports authored by national PIs. The work has been completed by the European Network of Soft Law Research, and the co-authors acknowledge funding from the European Commission under 575097-EPP-1-2016-1-FI-EPPJMO-NETWORK.

This chapter examines standardisation from a law and economics perspective. Taking efficiency as the main criterion, the advantages and disadvantages of private standardsetting will be discussed. We also discuss how legitimacy fits into this economic framework. We argue that potential problems of output legitimacy could be addressed by increasing countervailing power to strong industry lobbying groups, and we explain how increasing the legitmacy of private standardsetting may come at the expense of certain economic advantages of private standards in terms of higher flexibility and lower costs. Then the important question is addressed of whether harmonisation of standards is required from an economic perspective. Finally, we address the question of whether it is possible to enjoy the benefits of standardisation without its disadvantages, by considering hybrid forms of regulation and competition between standardsetting bodies, and by discussing the idea of applying the criteria of Article 101(3) TFEU to an analysis of standardisation.

Smart Mixes for Transboundary Environmental Harm - edited by Judith van Erp March 2019