Since their creation, corporations have proven to be vehicles for incredible aggregate wealth creation. It was, however, recognised at the outset that in creating a unique set of legal features that would make the company attractive for private investment, the state was not only creating a co-investor in public wealth but there was also the possibility that the company would pose a threat to the state itself. As such, since its inception, the corporation has been involved in a delicate dance with the state both to route its productive capacity towards socially desirable ends and to control the corporation’s power. Today, as technological development and the mobilisation of international financial capital allow the power of the corporation to transcend that of the state, the tools of the past that were used to constrain the corporation are increasingly relevant. Corporate law and antitrust were once used to maintain the balance between the power of the corporation and the power of the state. The now-separate conversations about corporate responsibility in the corporate governance sphere and about corporate power within competition policy circles have always, in fact, been fundamentally connected and targeted at the same set of risks.

Environmental, social and corporate governance (ESG) have been at the core of the global academic debate throughout the last decade, while affecting several fields of knowledge, among which legal jurisprudence. Although much has been said about ESG policies in different fields of the law, less has been said about their multidisciplinary dimension. In this Chapter we analyse ESG policies at the intersection of corporate governance and competition policy, focusing especially on technological innovation – given the centrality of dynamic efficiency for the solution of the environmental crisis. We also highlight other potential intersections of ESG themes across competition and corporate law and governance, while suggesting the need for an integrated policy-making in this area.

This chapter looks at the political economy effects of the knowledge economy. Because the knowledge economy gains from scaling, it pushes states to adopt measures that increase the size of markets as well as increasing the security of cross-border transactions. The chapter reviews the evolution of such measures and how they might further change to satisfy the stakeholders of the knowledge economy.

We conclude with an analysis of the constraints that the connections world imposes on Asia’s growth prospects, and the policy options for relaxing them. One is the ability of powerful businesses and families to entrench themselves by virtue of their connections to government and/or politicians. Both parties gain so there is no incentive to change. Because marginal changes are unlikely to be credible, we propose a series of interrelated radical measures to disrupt and refashion the connections world including prohibitions on cross-holdings and inheritance taxation, as well as boosting competition policy and improving political transparency. We also outline some of the main pressure points in Asia going forward. These include the ability to innovate and construct effective entrepreneurial ecosystems and the pressure to create sufficient jobs. There is also the ballooning inequality of income and wealth. High inequality is associated with economic under-performance and susceptibility to political turmoil. Progressive taxes can mollify inequality, but permanent solutions rest in targeting their source: the connections world.

Nuno Castro Marques presents the Portuguese competition law framework. Portugal was one of those European countries opting to introduce a misdemeanour law, inspired by the German Ordnungswidrigkeit law, but this has now evolved a long way. EU and Portuguese competition laws establish the same potential sanction for all competition infringements: a fine up to 10% of the undertaking turnover. Not only companies but also natural persons may be liable for competition law infringements, and fines applicable to natural persons can go up to 10% of their annual income. Portuguese competition law is fully aligned with the European framework, with the Portuguese Competition Authority (PCA) armed with strong investigation powers, an experienced leniency regime and the full set of mechanisms for speeding up enforcement, such as the settlement or commitment procedures. The results are visible, with general deterrence also making an important contribution, and whenever the PCA adopts a sanctioning decision, especially in cartel cases, it makes front-page news. That was recently the case with a banking cartel, where fourteen banks were fined for exchanging sensitive business information and even the Parliament felt the need to openly condemn the situation in public hearings.

Polish competition law is characterized by the strong predominance of public enforcement. The crucial component of the Polish system of sanctions has always been administrative corporate fines regulated in much the same way as under EU Law. So far, however, the Polish competition law does not recognize the concept of the single economic unit. This means that the amount of fine is always calculated on the basis of the whole or a part of a direct infringer's turnover. Similarly the fines imposed on associations of undertakings are calculated exclusively on the basis of an association’s turnover. Such a concept of undertaking contributes to the intensification of one of the problems related to enforcement of Polish competition law: the low level of fines imposed by the Competition Authority (CA). The 2014 ACCP amendment introduced into the Polish system individual administrative fines of up to PLN 2 million (c. EUR 450,000) for intentional infringements of the prohibition of anticompetitive agreements, and remedies which may be imposed with or without a fine. These amendments may have significant impact on the effectiveness of the Polish competition law system, in particular by strengthening the deterrent effect of the decisions of the CA.

For those countries or industries in which a rise in (measured) market power actually translates into an effective restriction of competition and increasing profits, as it seems to be the case for the US, a significant slowdown of investment, business dynamism, fall in labour share and wages has been observed. The latter in turn has several policy implications, from obvious considerations of reduced consumers' welfare, to low productivity growth, to severe implications for the transmission mechanism of monetary policy. However, one has to question the nature of such an increase in market power. If the latter stems from “good” market forces in which industries experience a reallocation of economic activities towards the largest and most productive firms, as some research shows, a debate opens up on the necessary reform of competition policies.

This chapter provides an overview of how the Irish Sea customs border established under the Protocol functions in practice and what impact this new border has on companies trading between Great Britain (GB) and Northern Ireland.Given the ‘unique circumstances on the island of Ireland’,the border dividing Ireland and the UK was always going to be unlike any other border. The Irish Sea border, established under the Protocol, is a result of an imperfect compromise – an attempt to consolidate a range of requirements which, to a large extent, were contradictory.

The chapter assesses the possible role of market investigation endowed with broad remedies, when a market suffers from competition problems and infringement cases under competition law provisions are infeasible or ineffective. It lays out a number of theories of harm, i.e., reasons why certain market features or behavior by market participants may lead to consumer harm compared to a relevant counterfactual. It identifies theories of harm in markets (i) where none of the firms is dominant and (ii) with a dominant firm but article 102 TFEU is not effective or applicable or (iii) a dominant firm may arise. It also argues that the European Commission should look for simple “intervention triggers” for a market investigation. While some of the identified harms are more likely or more pronounced in digital markets, a presumption that market investigations primarily addresses competition problems in digital markets is misguided. Finally, when sector regulation is, in principle, applicable, market investigations may fill a gap between standard competition tools and sector regulation.

There is a growing international consensus that standard competition law is inadequate for addressing the panoply of competition problems arising in digital platform markets. Alongside a proposal for ex ante regulation in this arena, the European Commission is considering the introduction of a ‘New Competition Tool’ which is broadly modelled on the UK Market Investigation instrument. This chapter abstracts from the specifics of the EU situation and considers the pros and cons of market investigations in the context of the UK regime. It concludes that the tool is a valuable addition to the standard competition law toolkit, and that this is likely to be true also at EU level, both for digital platforms and more widely. However, because the tool is potentially so powerful and flexible, it merits strong procedural checks and balances, to guard against confirmation bias or politicisation. The tool also has important limitations and thus should not be viewed as a full solution to the issues raised by digital platforms, but rather as a valuable complementary tool alongside new ex ante regulation. Interoperability is discussed as one area where the tools may act in a complementary way.

This chapter assesses the South African record with market inquiries, the equivalent of market investigations. Market inquiries have been an important tool to address competition problems reflecting entrenched positions of firms with market power in key sectors. Inquiries have been completed into banking, private healthcare, liquefied petroleum gas, grocery retail, and data services (inquiries in passenger transport and online intermediation platforms are underway). The authors find that the inquisitorial process has been very valuable in identifying and remedying competition issues more expeditiously than the adversarial process in enforcement investigations. This has been the case both where independent panels and the Commission’s own team conducted the inquiries. Issues relating to competition policy questions such as barriers to entry and the ability of smaller firms to compete have also been canvassed in inquiries. Recommendations on these ‘competition-plus’ issues have tended to require improved regulation and/or related policy measures, for which inquiries have played an important agenda-setting role. Inquiries have also been used to address wider questions of public policy, and here, while important data and analysis have been brought into the public domain, the impacts are less clear.

This chapter seeks to explain the Trans-Pacific Partnership (TPP) Agreement’s Competition Policy Chapter by providing negotiating context and background. The context is important as Chapter 16 needs to be understood as a Chapter to an agreement of twenty-nine other Chapters. It is also important to understand that it is a Chapter negotiated between twelve economies in the Asia-Pacific with varying competition law and stages of policy development. The chapter will then step-through the Chapter 16 provisions, and outline how the TPP competition policy achieves competition law convergence through upholding fundamental WTO principles of non-discrimination and transparency. It also considers the likely impact of the TPP Competition Policy Chapter on world and regional trade policy-making and rules, regardless of whether the TPP enters into force in the near future. Whilst the TPP contains other new and novel provisions that seek to enhance competition in the region, this chapter focuses on Chapter 16.

Chapter 3 identifies the defining features of the internal market – the characteristics that distinguish the internal market from any single market constellation and serve as a possible benchmark for determining the degree of homogeneity in the expanded internal market. The Chapter focusses on the principles that form the economic core of the internal market, such as the four fundamental freedoms and competition policy, and their interaction with horizontal provisions, fundamental rights and EU citizenship. In addition to looking at the internal market as a whole, the Chapter also explores whether the specific sectors of the internal market feature distinctive cores.

This chapter introduces the competition policy debates on market power and concentration in digital platform markets and explains the rationale for the application of the natural monopoly framework as developed in this book.

The IBM antitrust case is usually viewed as a cautionary tale of wasteful government overreach into fast-moving technology industries. The case extended from the end of the 1960s to the beginning of the 1980s, when it was dropped by the Department of Justice. Far from being a failure, the Justice Department’s efforts to rein in IBM led to the creation of independent markets for software and personal computers. IBM’s fall from dominance, necessary to open the door for Microsoft, Apple, and the entire Internet industry, was not a foregone consequence of Schumpeterian forces, but the outcome of sustained government action. Unrelenting technological progress is not inherently self-actualizing. While regulators should consider potential innovation harms of intervention, they should not shy away from bold action to promote innovation in protomarkets that otherwise might never develop.

This chapter discusses alternative policy approaches that may be pertinent to digital platform markets at large. It evaluates the strengths and limits of ex ante regulation, franchise bidding, public ownership, and competition policy enforcement, and highlights critical institional constraints that set the limits of desirable policy approaches in digital industries. This chapter suggests in particular the neeed to support ex post enforcement with complementary forms of ex ante intervention.

This chapter provides a concise overview of European competition policy, with a focus on financial services. The chapter first defines competition and describes the objectives of EU competition policy, i.e. maintaining competitive markets and a single market in the EU. The ultimate goal of competition is to offer consumers a greater choice of products and services at lower prices (i.e. to enhance consumer welfare). The second part of the chapter analyses the economic rationale for competition policy by examining the difference between a perfectly competitive market and a monopoly. The third part of the chapter elaborates on the four tools of EU competition policy. The fourth part of the chapter discusses a framework for investigating the abuse of dominance