Dr. Marco Botta, LL.M.Affiliated Research Fellow
Immaterialgüter- und Wettbewerbsrecht
Competition law enforcement in digital markets; Private enforcement of EU competition and IP law; Public enforcement of EU competition law; Competition and State aid law enforcement in new and candidate EU Member States; Competition law enforcement in emerging economies.
Privatdozent, Institut für Europarecht, Internationales Recht und Rechtsvergleichung, Universität Wien (Österreich)
Affiliated Research Fellow, Max-Planck-Institut für Innovation und Wettbewerb
04.2017 – 03.2019
Wissenschaftlicher Referent, Max-Planck-Institut für Innovation und Wettbewerb, München (Deutschland)
10.2016 – 03.2017
Gastwissenschaftler, Max-Planck-Institut für Innovation und Wettbewerb, München (Deutschland)
2011 – 2016
Assistant Professor, Institut für europäische Integrationsforschung, Universität Wien (Österreich)
Promotion in Rechtswissenschaften, European University Institute, Florenz (Italien)
LL.M. in European Business Law, Universität Leiden (Niederlanden)
Bachelor in International Relations, Universität Turin (Italien)
10.2016 - 03.2017
Post-doc-Stipendium, Max-Planck-Institut für Innovation und Wettbewerb, München (Deutschland).
Gastwissenschaftler an der Juristischen Fakultät, Universität Macau (Volksrepublik China).
04. - 07.2010
Gastdozent an der Juristischen Fakultät, Universität Utrecht (Niederlanden).
04. - 07.2008
Gastwissenschaftler an der Juristischen Fakultät, Universidad San Andrés, Buenos Aires (Argentinien).
Nicht-staatlicher Berater für die Bundeswettbewerbsbehörde (BWB) in Österreich, International Competition Network (ICN)
Mitglied UNCTAD Partnership Platform on Competition and Consumer Protection
Mitglied European Law Institute (ELI)
Mitglied Academic Society for Competition Law (ASCOLA)
Mitglied Competition Law Scholars Forum (CLASF)
Mitglied Asian Competition Forum (ACF)
Mitglied Italian Society of Law and Economics (SIDE)
European Networking and Training for National Competition Enforcers: ENTraNCE for Judges 2020 Selected Case Notes (EUI Working Paper RSCAS, 2020/105) 2020, 120
- This working paper includes a collection of case notes written by those national judges who attended the European Networking and Training for National Competition Enforcers (ENTraNCE Judges 2020). The training programme was organised by RSCAS between November 2019 and October 2020, with the financial contribution of the DG Competition of the European Commission. The case notes included in the working paper summarise judgments from different EU Member States that relate to diverse aspects of competition law enforcement. The working paper thus aims to increase the understanding of the challenges that are faced by the national judiciaries in enforcing national and EU competition in the context of the decentralised regime of competition law enforcement that was introduced by Reg. 1/2003.
EU State Aid Law - Emerging Trends at the National and EU Level, Edward Elgar Publishing, Cheltenham, UK; Northampton, MA, USA 2020, XV + 246
Private Enforcement of EU Competition Law. The Impact of the Damages Directive, Edward Elgar Publishing, Cheltenham, UK; Northampton, MA, USA 2018, XIV + 232
Abuse of Dominance in EU Competition Law: Emerging Trends, Edward Elgar Publishing, Cheltenham, UK; Northampton, MA 2017, XV + 192
Beiträge in Sammelwerken, Kommentierungen, Handbüchern und Lexika
State Aid Enforcement in the Energy Community, in: Leigh Hancher, Adrien de Hauteclocque, Francesco Maria Salerno (
Access to Justice as Abuse of Market Power? Injunctive Relief for Standard-Essential Patents under US Antitrust and EU Competition Law, in: Paul Nihoul, Pieter Van Cleynenbreugel (
Sanctioning Excessive Energy Prices as Abuse of Dominance; Are the EU Commission and the National Competition Authorities on the Same Frequency?, in: Pier Luigi Parcu, Giorgo Monti, Marco Botta (
Introduction, in: Pier Luigi Parcu, Giorgo Monti, Giorgo Monti (
Competition Policy: safeguarding the Commission's competences in State aid control, in: Gerda Falkner (
Enforcement of Competition Rules in Regulated Industries: Abuse of Dominance Practices in the New EU Member States, Candidate Countries and Potential Candidates, in: Fabiana Di Porto, Josef Drexl (
Enforcement of State aid rules in the Energy Community: Going beyond Formal Compliance?, in: Dirk Buschle, Kim Talus (
The Right of Fair Trial in Competition Law Proceedings: Quo Vadis the Courts of the New EU Member States?, in: Paul Nihoul, Tadeusz Skoczny (
Competition Policy: EU and Global Competition Networks, in: Gerda Falkner, Patrick Müller (
The Standard of Judicial Review in EU Competition Law Enforcement and Its Compatibility with the Right to a Fair Trial under the EU Charter of Fundamental Rights, in: Tanel Kerikmäe (
The Impact of Multi-Jurisdictional Concentrations on the New Competition Law Jurisdictions, Case Study on Brazil, in: Richard Whish, Christopher Townley (
The Principle of Differentiation in the First Seven ENP Action Plans, in: T. van der Vijver (
Sanctioning Unfair Pricing under Art. 102(a) TFEU: Yes, We Can!, European Competition Journal 2020, 1 - 33, 18.12.2020. DOI
- Traditionally, unfair pricing cases were considered a “taboo” in EU competition policy. During the recent years, however, the European Commission and a number of National Competition Authorities have investigated unfair pricing cases. Therefore, national and EU courts had the opportunity to rule on unfair pricing cases, by thus clarifying the legal test. The paper shows that United Brands is not the “only” legal test to assess unfair pricing cases; the CJEU has endorsed alternative “benchmarking” methods. Recent jurisprudence has also introduced some “safeguard tools” to minimize the risk of false negative errors, such as the requirement for the competition agency to verify its findings under “multiple” tests and the possibility for the dominant firm to put forward “objective justifications”. The paper argues that the legal test of unfair pricing cases is becoming “clearer”, by thus contributing to a further shift from the traditional non-enforcement paradigm.
To Discriminate or Not to Discriminate? Personalised Pricing in Online Markets as Exploitative Abuse of Dominance, European Journal of Law and Economics 50 (2020), 381 - 404 (
- The advent of big data analytics has favoured the emergence of forms of price discrimination based on consumers’ profiles and their online behaviour (i.e. personalised pricing). The paper analyses this practice as a possible exploitative abuse by dominant online platforms. The paper argues that, in view of its “mixed” effect on consumers’ welfare, personalised pricing requires a case-by-case assessment under EU competition law and thus it should not be banned a priori. However, in view of the recent case law of the European Court of Justice on price discrimination, the National Competition Authorities (NCAs) and the European Commission would face a high burden of proof to sanction this conduct under Art. 102(c) TFEU. Finally, the paper argues that, due to its case-by-case approach, competition law seems more suitable than omnibus regulation to tackle the negative effects that personalised pricing could have on consumers’ welfare. In particular, an NCA/the European Commission could negotiate with online platforms different kinds of behavioural commitments: transparency requirements, limits on data collection/user profiling, rights to opt out of personalised pricing and the obligation to share customers’ data with competitors could significantly tame the risks of personalised pricing.
The Economic Succession Doctrine in Private Enforcement of EU Competition Law: 'Nothing Extraordinary' After Skanska Industrial?, Market and Competition Law Review 3, 2 (2019), 171 - 186. DOI
- The article analyses the recent judgment of the Court of Justice of the European Union (CJEU) in Skanska Industrial. In its preliminary ruling, the CJEU recognised for the first time the so-called “economic succession doctrine” in damage claims concerning a breach of EU competition rules. In the judgment, the CJEU relied on its well-established case law. From this point of view, the ruling is “nothing extraordinary”. Nevertheless, the judgment represents an important milestone that contributes to the development of damage claims in Europe. The article first discusses the origins of the economic succession doctrine, which derives from the broad concept of “undertaking” developed by the CJEU case law and the so-called “single economic entity” doctrine. Afterwards, the article discusses the Skanska Industrial case, in particular by comparing the opinion of Advocate General (AG) Wahl with the CJEU ruling in the case. The article concludes by discussing the potential consequences of the CJEU ruling in Skanska Industrial on private enforcement of EU competition law, as well as the questions that remain open after the judgment. After Skanska Industrial, it remains unclear how the disclosure of evidence will take place in practice in the context of a damage claim following a corporate restructuring. Secondly, the limits of the economic succession doctrine remain unclear: it is unclear when a corporate restructuring indeed leads to the establishment of a “new” undertaking, free from the antitrust liability acquired by its predecessor. Finally, it remains unclear whether Skanska Industrial case law could also be extended to other remedies besides damage claims, such as actions requesting a court injunction, compensation for unjust enrichment, or a declaration that a contract is null and void. The article argues that in the coming years the CJEU will probably be called to clarify Skanska Industrial case law in order to answer these remaining questions.
Exploitative Conducts in Digital Markets: Time for a Discussion after the Facebook Decision, Journal of European Competition Law & Practice 10, 8 (2019), 465 - 478 (
The Interaction of EU Competition, Consumer, and Data Protection Law in the Digital Economy: The Regulatory Dilemma in the Facebook Odyssey, The Antitrust bulletin 64, 3 (2019), 428 - 446 (
- This article analyzes the interaction of EU competition, consumer and data protection law in the digital economy. We compare the objectives, rules and enforcement structures of these legal regimes, and we discuss market failures that justify regulatory intervention in digital markets. In particular, the Facebook investigations in Germany and Italy are selected as a case study. The Bundeskartellamt’s investigations are remarkable, being the first in which an exploitative abuse of dominance involving a digital platform has been decided under competition law. These we compare with their Italian counterpart, where the AGCM has recently sanctioned Facebook for behavior similar to that investigated in Germany. Yet, the Italian case has been decided under consumer, rather than competition law. This shows the regulatory dilemma faced by European antitrust authorities, which are currently struggling to find a solution to the market failures arising in digital markets.
Standard di valutazione, interessi nazionali ed operazioni di concentrazione in Europa e negli Stati membri, tra spinte centrifughe ed effetti di spill-over, Rivista delle società 63, 4 (2018), 1074 - 1088 (
The European Inquisitor - The Application of Right of Defence by Central and Eastern European NCAs, Competition Law Insight 17, 9 (2018), 13 - 16 (
- During the past few years, a number of practitioners have criticised DG Competition for not providing sufficient guarantees of right of defence. By comparing the application of the right of defence by the National Competition Authorities (NCAs) from seven EU member states, this article aims to show that the procedural safeguards offered by DG Competition provide a higher level of protection of parties’ right of defence. In other words, the European Commission is not the worst “inquisitor” in Europe. Secondly, the article discusses whether a legislative harmonisation of national procedural rules in this area would be desirable, including analysis of the draft Directive published by the European Commission in March 2017 to harmonise the enforcement powers of NCAs, the ECN+ Directive. At the time of writing, the representatives of the Council and the European Parliament have recently achieved a political agreement concerning a shared text of the legislation. The Directive, however, still needs to be approved by both legislative bodies and later transposed by the EU member states.
The Right of Defense in the Decentralized System of EU Competition Law Enforcement: A Call for Harmonization from Central and Eastern Europe, World competition 41, 3 (2018), 309 - 334 (
- The article compares the application of the right of defence in competition law proceedings by seven National Competition Authorities (NCAs) of Central and Eastern Europe (CEE). In particular, the article focuses on four sub-rights that are part of the right of defence: right to be informed; right to access the file; privilege against self-incrimination (PASI) and legal professional privilege (LPP). The article shows that the NCAs selected as case studies generally provide lower procedural guarantees in comparison to DG Competition of the European Commission. The findings of the article are relevant in view of the Directive aiming at harmonizing the powers of NCAs (‘ECN Directive’). The legislation aims at strengthening the investigatory tools of NCAs, while it pays limited attention to the procedural guarantees followed by NCAs. In view of the diverging application of the right of defence by the NCAs selected as case studies, the article challenges such policy choice, claiming that stronger investigative powers should be counterbalanced by a more homogenous application of the right of defence by NCAs of the EU Member States.
The "Dark Matter" in EU Competition Law: Non-Infringement Decisions in the New EU Member States Before and After Tele2 Polska, European Law Review 43, 3 (2018), 424 - 446 (
The Principle of Passing on in the Aftermath of the Damages Directive, European Review of Private Law 25, 5 (2017), 881 - 907.
The Draft Directive on the Powers of National Competition Authorities: the Glass Half Empty and Half Full, European Competition Law Review 38, 10 (2017), 470 - 477.
Competition Policy – Safeguarding the Commission's Competences in State Aid Control, Journal of European Integration 38, 3 (2016), 265 - 278. DOI
- The article analyses the impact of the financial crisis on the decision-making and content of State aid control. The urgency and the extraordinary size of the subsidies committed by member states to save national banks in 2008 let the Commission modify its ordinary decision-making practices and adopt a new set of soft law, which represented an important change in the goals of this sub-policy in comparison to the pre-crisis period. Once the urgency of the crisis disappeared in mid-2009, the Commission returned to its ordinary decision-making and forced the financial institutions to be restructured, as under the pre-crisis rules. Therefore, by accommodating the initial requests of the member states which demanded the Commission to ‘speed-up’ its review approach and to enforce State aid rules in a more lenient way, the Commission managed to safeguard its exclusive competence in State aid control.
Umbrella Pricing in Private Enforcement of EU Competition and U.S. Antitrust Law: Another Transatlantic Divergence?, European Law Review 41, 3 (2016), 399 - 411 (
- The present work aims at comparing the assessment of umbrella pricing under US antitrust law and EU competition law in the aftermath of the landmark Kone judgment delivered by the European Court of Justice (ECJ). By comparing the reasoning of the ECJ and of the US federal courts on the availability of damages for the private plaintiffs in umbrella pricing cases, the article discusses whether umbrella pricing could represent a new example of transatlantic divergence between EU competition law and US antitrust law. The authors demonstrate that umbrella pricing claims have encountered two types of issues: while in the US the main obstacle for an umbrella pricing claim concerns the legal standing of the plaintiff, in Europe the main issue concerns the existence of a direct causal link between the anti-competitive conduct and the harm suffered by the customers of the non-cartelists. In Kone, the Court ruled that national procedural rules cannot exclude a priori an umbrella pricing claim and introduced a presumption on foreseeability of damages that cartellists would have caused to third parties. However, the Court left to the national courts the task of establishing the nexus of causality between anti-competitive conduct and harm suffered by the purchasers of non-cartellists. In the US, owing to a lack of clear guidance from the US Supreme Court, the federal courts have followed diverging approaches on this issue. In this respect *400 the ECJ’s approach in Kone, if followed by the US courts, could represent another instance of the mutual learning process across the Atlantic in the field of competition law.
Enforcing State Aid Rules in EU Candidate Countries: A Qualitative Comparative Analysis of the Direct and Indirect Effects of Conditionality, Journal of European Public Policy 22, 3 (2015), 335 - 352 (
- The article analyses the effectiveness of EU conditionality regarding the enforcement of state aid rules in candidate countries during the pre-accession phase. Theoretically, conditionality should be able to overcome the reluctance of governments to implement control systems that restrict their ability to freely allocate subsidies. Effective conditionality can take two causal paths: first, it can directly influence the political decisions of governments in candidate countries regarding state aid, independent of any domestic institutional set-up; second, the reduction of state aid levels can be the indirect effect of the establishment of domestic monitoring authorities. To test these hypotheses, the article undertakes a multi-value qualitative comparative analysis (mvQCA) of the conditions for the reduction of annual state aid levels with regard to either the credibility of conditionality expressed by different stages in the accession negotiations, or domestic institutional factors such as the independence and operability of state aid monitoring authorities.
Enforcement of State Aid Law in the Area of Services of General Economic Interest in EU Candidate Countries; Neglecting and Misapplying the Altmark Criteria, European state aid law quarterly 2 (2015), 213 - 223 (
- The article examines the decisions of the State aid monitoring authorities established during the last decade in the EU candidate countries in South-East European (SEE) in the field of services of general economic interest (SGEI). SEE countries have traditionally heavily subsidized providers of SGEI operating in a number of industries (e.g. postal sector, public transports, public broadcasting, water and energy supply). The article compares the national State aid decisions with the case law of the Court of Justice of the European Union (CJEU) and the Decisions and the soft law adopted by the EU Commission in the area of SGEI. The article concludes that the SGEI acquis has either being 'neglected" or 'misapplied" by SEE monitoring authorities. The European Commission should thus not simply check whether EU candidate countries transpose the relevant State aid legislation and established a monitoring authority; it should also assess whether the local institutions enforce "correctly" the EU State aid acquis during the pre-accession phase.
The Assessment of the Effect on Trade by the National Competition Authorities of the "New" Member States: Another Legal Partition of the Internal Market?, Common Market Law Review 52, 5 (2015), 1247 - 1276 (
- Under Regulation 1/2003, NCAs of EU Member States must apply Articles 101–102 TFEU to anti-competitive conducts with an effect on intra-Community trade, and must notify the Commission of investigations and envisaged decisions based on Articles 101–102 TFEU. In the last decade, the NCAs of the “new” EU Member States have notified a lower number of envisaged decisions in comparison to “old” EU Member State; this has been explained by the institutional constraints of the individual NCAs. However, the paper shows that the NCAs of the “new” EU Member States have not been “less active” in terms of enforcement, but have adopted most of their decisions under the national competition rules. Also, there is significant divergence in the assessment of the effect on trade by the NCAs of the selected jurisdictions. Some NCAs have not taken account of the relevant ECJ case law and the 2004 Commission Notice on the effect on trade concept. The paper calls for a reform of Article 3(1) Regulation 1/2003, supplementing the effect on trade criterion with quantitative thresholds.
The New EU Commission Approach vis a vis State Aids to Renewable Energy Sources. Striking a Fair Balance between Promotion of Green Energy and the Safeguard of Market Competition, Concorrenza e Mercato 2015, 38 - 50 (
- The article analyzes the new approach followed by the EU Commission in assessing aids granted to support the production of electricity via Renewable energy sources (Res). In order to meet the EU 20-20 goal and to compensate the higher investment and operational costs faced by Res generators, EU Member States have substantially subsidized green energy during the past years. However, the high degree of subsidization generates a risk of overcompensation, which distorts the competition between fossil fuels and green energy producers. This risk has recently been recognized by the EU Commission in the Environmental and energy aid guidelines (Eeag) adopted in April 2014. The article aims at analyzing the new Eu Commission approach vis à vis the treatment of State aids to Res. Finally, the article takes Italy as case study in order to assess the future impact of the new EU approach on Res support schemes.
Competition Policy in Regional Trade Agreements. What is Missing? A Comparative Analysis of Caricom, Andean Community and Mercosur, Revista do Instituto Brasileiro De Estudos De Concorrência (Review of the Brazilian Institute for Studies on Competition, IBRAC) 23 (2013).
State Aid Control in South-East Europe, the Endless Transition, European state aid law quarterly 1 (2013), 83 - 94.
- Since the Treaty of Rome, State aid rules have been enforced at a supranational level in the EU. However, in the framework of the past EU enlargement to the countries of Central and Eastern Europe (CEECs), the European Commission has tried to decentralize the enforcement of State aid rules by requiring CEECs to establish national State aid monitoring authorities. Similarly, during the recent years the European Commission has encouraged countries of South-East Europe(SEE) to introduce an internal system of State aid control. Through a cross-country comparative analysis the paper analyzes the effectiveness of national State aid monitoring systems in SEEs. In particular, the paper argues that the lack of a clear timing for EU accession which is currently affecting more of the SEE countries has hampered the degree of enforcement of State aid rules. The paper concludes that State aid control should thus be carried out exclusively by a supra-national institution, even during the EU pre-accession phase.
Decentralization of State Aid Enforcement in the Context of the EU Enlargement, Mediterranean Competition Bulletin (published by DG Competition of the European Commission) 8 (2012), 100 - 114.
Article 102 TFEU as a Tool of Market Regulation: 'Excessive Enforcement' Against 'Excessive Prices' in the New EU Member States and Candidate Countries, European Competition Journal 8, 3 (2012), 473 - 496 (
AG Kokott's Opinion in the Case Toshiba: Towards an "Extreme Decentralization" of the EU Competition Law Enforcement?, Österreichische Zeitschrift für Kartellrecht 6 (2011), 203 - 208.
Merger Remedies Imposed by the Competition Authorities of the Emerging Economies, World competition 34, 2 (2011), 321 - 338.
El Poder Judicial y la Ley 25.156: Conflictos de Jurisdicción y Falta de Comprensión a una Década de la Aprobación de la Ley, Boletín Latinoamericano de Competencia (Latin American Competition Bulletin published by DG Competition of the European Commission) 27 (2010), 12 - 26.2010.
Five Years of Enforcement of the Competition Law in the Republic of Macedonia, Time for an Assessment, Mediterranean Competition Bulletin (published by DG Competition of the European Commission) 2 (2010), 56 - 72 (
La Protezione dei Dati Personali nelle Relazioni tra UE e USA, Le Negoziazioni sul Trasferimento del PNR, Diritto dell'Informazione e dell'Informatica 26, 2 (2010), 315 - 341 (
The Definition of the Relevant Market and the Degree of Market Concentration in the Emerging Economies. Case Study on Brazil and Argentina, World competition 33, 4 (2010), 663 - 682.
- The paper analyses the challenges faced by the National Competition Authorities (NCA) of the emerging economies in the application of the econometric tests usually relied on in the merger control analysis. The relevant market and the degree of market concentration are usually defined on the basis of two econometric tests, namely, the Small but Significant and Non-Transitory Price Increase (SSNIP) test and the Herfindahl-Hirschman Index (HHI). Following the example of the US and the EU Merger Guidelines, the newly established NCAs of the emerging economies often refer to these two econometric tests in their merger guidelines without taking in consideration the challenges that they will have to face in applying them. The paper is a case study on Brazil and Argentina, and it aims at defining such challenges. The paper argues in favour of granting a broader margin of discretion to the NCAs of the emerging economies in applying such tests and in favour of the possibility to introduce alternative parameters to apply such tests in comparison to those ones identified by the US and the EU Merger Guidelines.
The Judiciary and the Enforcement of Competition Law in the Emerging Economies. Case Study on Brazil, Revista do Instituto Brasileiro De Estudos De Concorrência (Review of the Brazilian Institute for Studies on Competition, IBRAC) 16.2 (2009), 5 - 29.2009.
- The last twenty years recorded the proliferation of the competition law regimes in several emerging economies. The article explores the issues related to the involvement of the judiciary in the enforcement of the competition law in the developing countries, taking Brazil as a case study. During the last years the Brazilian competition authority (CADE) pursued an active enforcement policy against cartels and other forms of anti-competitive conducts. Consequently, a large number of appeals against CADE’s decisions were initiated in the Brazilian federal courts. The slowness of the Brazilian judicial system and the lack of understanding of competition law by the Brazilian courts has hampered the enforcement policy of CADE. A number of initiatives have been adopted in the country in order to solve these issues. The article critically analyzes these initiatives, and in the conclusion it proposes a number of policy lessons for other emerging economies.
The Cooperation between the Competition Authorities of the Developing Countries: Why it does not Work? Case Study on Argentina and Brazil, The Competition Law Review 5.2 (2009), 153 - 178.2009.
- The last fifteen years have recorded a proliferation of multi-jurisdictional competition law cases. Moreover, a number of bilateral agreements have been concluded between different National Competition Authorities (NCAs). However, the degree of bilateral cooperation between the NCAs of different developing countries is still quite limited. The article analyzes these issues taking Brazil and Argentina as case study. These countries have enforced a competition law since 1994 and 1999 respectively. However, while Brazil has improved the quality of its enforcement action during the last years, in Argentina little progress has been recorded. The NCAs of the two countries have adopted a number of initiatives at the Mercosur and bilateral level in order to increase the degree of coordination. Nevertheless, to date these initiatives have not been successful. This article argues that the lack of cooperation has been caused by the different stages of development of the competition law in the two countries, and due to the lack of personal contacts between the officers of the NCAs. In its conclusions the article identifies a number of lessons applicable to the NCAs of other developing countries which aim at strengthening their bilateral cooperation.
Fostering Competition Culture in the Emerging Economies, the Brazilian Experience, World competition 32, 4 (2009), 609 - 327.
- The lack of competition culture is one of the keys factors which undermine the enforcement of the competition law in an emerging economy. The lack of competition culture may only be ‘cured’ through activities of competition advocacy vis-a-vis the different stakeholders: State's agencies, regulators, business community and consumers' association. The paper analyzes this broad issue through a case study on the Brazilian experience in the field of competition advocacy. During the last years Brazil sensibly progressed in the enforcement of the competition law, and one of the reasons of this development was the functions of competition advocacy carried out by the Brazilian competition authority. The paper argues that the Brazilian success was mainly due to the institutional framework provided by the Brazilian competition act, which splits the activities of enforcement and of competition advocacy between two different agencies. While a fully independent authority enforces the competition law, an advisory body part of the Ministry of the Economy monitors the anti-competitive regulations adopted by other State agencies. The conclusions provide a number of lessons applicable to other emerging economies which have recently started to enforce a competition law regime.
Multi-Jurisdiction M&As in an Era of Globalization, the Case Telecom Italia-Telefónica, Global Antitrust Review 1 (2008), 97 - 116.
- The article offers a case study concerning the effects of the entrance of Telefónica among the shareholders of Telecom Italia in the Brazilian and Argentinean telecom markets. Through this case study, the article aims at showing that the competition authorities of the emerging economies have a limited range of remedies available when reviewing multi-jurisdictional transactions and that more international cooperation is, thus, needed in this area.
The Ruling of the Court of Justice in Genentech – The Arbitrability Paradox in EU Competition Law, IIC 48, 2 (2017), 235 - 244. DOI
The Judgement of the European Court of Justice in Kone; Any Real Added Value?, Revista da Concorrência e Regulação (Review of Competition and Regulation published by Portuguese Compeition Authority) 20-21 (2016), 373 - 385 (
Competition Law Analysis of Standard-Essential Patents after Huawei v. ZTE: A New European Approach?, Österreichische Zeitschrift für Kartellrecht 3 (2016), 96 - 104 (
- The Huawei v ZTE preliminary ruling gave the Court of Justice of the European Union a first opportunity to rule on the competition law analysis of the enforcement of standard-essential patents (SEPs). The Court assessed under which circumstances the enforcement of a SEP could constitute the abuse of a dominant position contrary to Article 102 TFEU. The ruling represents an important milestone in European competition law, setting out a detailed set of obligations for both SEP owners and potential licensees when negotiating license terms for FRAND-encumbered SEPs. The Court seized this opportunity to harmonize national case law and Commission enforcement practice which had been developing in quite different directions, but left several questions unresolved. The Court also carried out a balancing exercise between the intellectual property rights at stake and free competition, showing how fundamental rights considerations can play into competition law analysis.
Poena sine culpa? Comment on Schenker, European Law Review 39, 4 (2014), 553 - 566 (
- This article discusses the role of fundamental rights in EU competition law and, in particular, of the principles of fault and legitimate expectations in view of the judgment of the Court of Justice in Schenker. The article argues that the different approaches followed by Advocate General Kokott and by the Court of Justice in the case signal two diverging views emerging within the Court on this issue. The Court rejected the test proposed by the Advocate General to assess when incorrect external legal advice and a decision of a national competition authority (NCA) generated a legitimate expectation for the sanctioned undertakings concerning the lawfulness of the conduct, and thus justified their breach of art.101 TFEU. The Court of Justice has thus confirmed its previous case law considering a price-fixing cartel as an object restriction, which could not be subject to any justification. The article argues that the Court followed this approach in order to safeguard an administrable enforcement of art.101 TFEU, since the test proposed by the Advocate General would not be feasible to apply in practice. However, in consequence, the Court has left open some questions concerning the role of the principles of fault and legitimate expectations.
Opinion of AG Kokott in the case Schenker: ignorance as a new defense in competition law proceedings?, Österreichische Zeitschrift für Kartellrecht 2 (2013), 73 - 78 (
- On 28th February 2013, Advocate General (AG) Kokott delivered her Opinion in the Case Bundeswettbewerbsbehörde (hereinafter Austrian National Competition Authority; Austrian NCA) v. Schenker. The case originates from a request for a preliminary ruling submitted in 2011 by the Austrian High Cartel Court to the Court of Justice of the European Union (CJEU).
Testing the Decentralisation of Competition Law Enforcement: Comment on Toshiba, European Law Review 38, 1 (2013), 107 - 117.
Commission acting as plaintiff in cases of private enforcement of EU competition law: Otis – Case C-199/11, European Commission v. Otis NV and others, Judgment of the Court of Justice (Grand Chamber) of 6 November 2012, Common Market Law Review 50, 4 (2013), 1105 - 1117.
Unfair Pricing and Standard Essential Patents (RSCAS Working Paper, 2020/60), 2020, 48
- Technical standards that are agreed within a Standard Development Organization (SDO) often cover several ‘essential’ patents for the implementation of a standard (i.e., Standard Essential Patents, SEPs). In order to allow for the standard implementation, the SEP holder commits to license its patents to any potential licensee on the basis of Fair and Reasonable and Non-Discriminatory (FRAND) conditions. In view of the recent ruling of the UK Supreme Court in Unwired Planet and the judgement of the German Bundesgerichtshof in Sisvel v. Haier, the paper assumes that the FRAND commitment implies a ‘range’ rather than a ‘single’ royalty rate. On the other hand, a royalty rate ‘beyond the outer boundary of the range’ should be considered ‘unfair’, and thus incompatible with the FRAND commitment. Besides representing a breach of the FRAND commitment, an ‘unfair’ royalty rate might also be considered an abuse of a dominant position by the SEP holder, in breach of Art. 102(a) TFEU. This paper analyses whether, and under what circumstances, Art. 102(a) TFEU can be relied upon by a competition authority in Europe to sanction a case where an ‘unfair’ royalty rate has been set by the SEP holder. To this regard, the paper provides a detailed analysis of the EU Court of Justice’s jurisprudence on Art. 102(a) TFEU. In particular, the latter jurisprudence is relied as a ‘yardstick’ to assess ‘when’ competition policy should sanction a request of unfair royalty rate by the SEP holder, ‘how’ a competition agency should assess the case and, eventually, ‘what’ remedies the competition authority might adopt. Economists have elaborated a number of ‘filters’ to define ‘when’ EU competition policy should sanction unfair pricing cases. In particular, antitrust intervention would be justified only in markets that are characterized by high and stable entry barriers, in which a firm enjoys a super-dominant position. Due to the phenomenon of over-declaration, not every SEP is indeed ‘essential’; the market power of the SEP holder thus requires a case-by-case analysis of the ‘essentiality’ of every SEP. A number of authors have also argued that excessive pricing cases should not be sanctioned in industries characterized by dynamic efficiencies. The paper argues that innovation considerations could be considered as efficiency defences in the context of antitrust investigations, rather than in excluding a priori competition policy enforcement in this field. The paper argues that a competition agency should rely on the case law of the Court of Justice of the European Union (CJEU) on Art. 102(a) TFEU to analyse a case of unfair royalty rate. In particular, United Brands cost/price test is not suitable for assessing an unfair royalty rate requested by the SEP holder, since it is de facto impossible to determine the ‘costs of production’ of individual SEPs. On the other hand, in accordance with the CJEU case law, the competition agency might rely on a number of benchmark methods with which to assess the alleged unfairness of the rate. In particular, the agency should verify its findings under multiple benchmark tests, in order to minimize the risk of false negative errors. Finally, the SEP holder could argue that the requested royalty rate is justified by its past R&D investments. In terms of remedies, the paper argues that a competition agency could require the SEP holder to license its ‘essential’ patent; such behavioral remedy is well established in the practice of the European Commission. In light of the recent Broadcom interim decision, if the competition authority was confident about its preliminary findings of unfair pricing, the agency might require the SEP holder to license its ‘essential’ patents via an interim decision; the scope, duration and exact obligations of such a duty would later be refined in the final commitment decision.
EU Competition Law Enforcement Vis-À-Vis Exploitative Conducts in the Data Economy Exploring the Terra Incognita (Max Planck Institute for Innovation & Competition Research Paper, No. 18-08), 2018, 90
- This paper analyses the enforcement of EU competition law vis-à-vis exploitative conducts by dominant online platforms. Firstly, it looks at the case law of the Court of Justice of the European Union (CJEU) concerning excessive and discriminatory pricing, as well as unfair contract clauses under Art. 102 TFEU. Afterwards, the challenges faced by National Competition Authorities (NCAs) and the EU Commission in investigating exploitative conducts in data markets are discussed with a view to the CJEU case law. Finally, the paper looks at potential remedies that NCAs and the EU Commission could design in relation to exploitative conducts in data markets. The paper does not discuss the definition of the relevant market and the issue of market power of online platforms. It is argued that the data economy is characterized by a number of market failures that, in principle, justify EU competition policy intervention. Contrary to a view expressed in the literature, the authors argue that EU competition law should be enforced in digital markets, in spite of the overlaps with data protection and consumer law. In particular, it is argued that these three policy areas pursue different goals, have different scopes of application and different enforcement structures. Consequently, in spite of their “family ties”, one policy area should not prevent the enforcement of the others. At the same time, the authors recognize that – in view of the CJEU case law – Art. 102 TFEU should only be enforced vis-à-vis exploitative conducts in exceptional circumstances – i.e. in relation to “super dominant” online platforms and in markets characterized by high and stable entry barriers. Secondly, the paper argues that in view of the existing CJEU case law on excessive and discriminatory pricing, the NCAs and the EU Commission would face a very high burden of proof to sanction these practices in data markets. At the same time, the enforcement of Art. 102 TFEU might indeed be expected as regards unfair contractual terms. The current investigations by the Bundeskartellamt in the Facebook case and the recent Facebook/WhatsApp merger case could indicate a new enforcement trend to this regard. Finally, in terms of remedies, the paper argues in view of the lack of precedents in this area that NCAs and the EU Commission should conclude behavioural commitments with dominant online platforms, rather than imposing financial penalties coupled with cease and desist orders. In particular, when designing these remedies, the NCAs and the EU Commission should take into consideration the new General Data Protection Regulation (GDPR), in order to fill the gaps in the current regulatory system via behavioural commitments.
- Available at SSRN
Does the EU Competition Model Satisfy the Needs of the Emerging Economies? Lessons from Countries without a Carrot, Framework for Economic Development in EU External Relations 2012.
- The paper discusses the institutional aspects of transplantation of the EU competition model to emerging economies which has taken place during the last two decades within the enlargement and the European Neighbourhood Policy (ENPI). The model which was designed to satisfy the needs of developed economies characterized by well functioning markets has been implemented by both the States under enlargement and the ENP conditions as well as other third countries. The paper relies on the experience of two emerging economies – Brazil and Argentina - which did not have any “carrot” of EU membership or closer economic relations with the EU, to adopt the EU competition model. The case studies showed that the non-orthodox institutional model established in Brazil, where an independent NCA enforces the competition law together with two bodies connected to the executive branch, proved to be more successful than the Argentinean model. The latter, which referred directly to the EU institutional model, opted for a fully independent Competition Tribunal. This institution, however, has never been established in this country. In particular, the Brazilian institutional model proved to be more successful in terms of competition advocacy of the NCA vis-à-vis other State bodies. A lesson, in the view of the discussed experiences should also be learnt when considering adoption of the EU competition model by the EU partner countries.
The EU Digital Markets Act
3rd “International Conference on Competition and Innovation”
Instituto Brasileiro de Concorrência e Inovação (IBCI)
CJEU Case Law in the Field of State Aid: The Role of National Courts in State Aid Enforcement
European Judicial Training Network (ETJN)
Online Webinar series on “Recent case law of the EU Court of Justice”
Non Discrimination in Standard Essential Patents, Nd Prong V. Art. 102 (C) TFEU
Florence School of Regulation, European University Institute
Online Webinar “Conversation of Patents, Innovation and Competition”
Excessive Versus Unfair Prices During the Coronavirus Crisis
Florence Competition Programme European University Institute
The ND Prong Non Discrimination in Standadrd Essential Patents, An Assessment under EU Competition Law
15th Annual Conference of the Academic Society for Competition Law (ASCOLA)
19. — 21.12.19
To Discriminate or not to Discriminate? Personalised Pricing in Online Markets as Exploitative Abuse of Dominance - 15th Annual Conference of the Italian Academic Society of Law and Economics
Veranstalter: Universität von Mailand
Ort: Mailand (Italien)
12. — 13.12.19
German Facebook Case: Interaction Between Competition, Consumer and Data Protection Policy - 6th Competition Law and Policy Conference
Veranstalter: Universität von Zagreb
Ort: Zagreb (Kroatien)
L'Interazione del Diritto della Concorrenza, Consumatori e Protezione dei Dati Personali nell'Economia Digitale. Il Caso Facebook - Conference on "Le Categorie Giuridiche dinnanzi alla Sfida dei Big Data"
Veranstalter: Juristische Fakultät der Universität von Neapel
Ort: Neapel (Italien)
27. — 29.06.19
What is "Fair" and "Reasonable"? Lessons on the Concept of FRAND from EU Competition Policy and Regulation of Electronic Communications - 14th Annual Conference of ASCOLA
Veranstalter: Universität von Aix-en-Provence
Ort: Aix-en-Provence (Frankreich)
The Interaction of EU Competition, Consumer and Data Protection Law in the Digital Economy. The Regulatory Dilemma in the Facebook Odyssey - Meeting of the Croatian Association of Competition Lawyers
Veranstalter: Universität von Zagreb
Ort: Zagreb (Kroatien)
06. — 07.05.19
The Interaction of EU Competition, Consumer and Data Protection Law in the Digital Economy. The Regulatory Dilemma in the Facebook Odyssey - Annual meeting of the Law and Technology Consortium
Veranstalter: Universität von Trento
Ort: Trento (Italien)
The CJEU Ruling in Skanska Industrial. The Doctrine of the Single Economic Entity in Private Enforcement of EU Competition Law - Conference on the "Directive 2014/104/EU on Antitrust Damages Actions and Beyond"
Veranstalter: Universität von Porto
Ort: Porto (Portugal)
28. — 29.03.19
To Discriminate or Not to Discriminate? Personalised Pricing in Online Markets as Eploitative Abuse of Dominance
Veranstalter: Mannheim Centre for Competition and Innovation
Ort: Universität von Mannheim (Deutschland)
To Discriminate or Not to Discriminate? Personalised Pricing in Online Markets as Exploitative Abuse of Dominance - Workshop on Law and Economics of Big Data and Artificial Intelligence
Veranstalter: Autorità per le Garanzie nelle Comunicazioni (AGCOM)
Ort: Rom (Italien)
Competition Policy in Zero-Price Markets. Updating the Analytical Toolkit
Veranstalter: OECD Wettbewerb/Ausschuß für Verbraucherpolitik
Ort: Paris (Frankreich)
Antitrust Damage and Passing On - Judicial Training on EU Competition Law
Veranstalter: European Judicial Training Network (EJTN)
Ort: Rom (Italien)
EU Competition Law Remedies vis-à-vis Exploitative Conducts in the Data Economy: Exploring the Terra Incognita Remedies - 35. Jahreskonferenz
Veranstalter: European Association of Law and Economics (EALE)
Ort: Universität von Milan-Bicocca (Italien)
EU Competition Law Remedies vis-à-vis Exploitative Conducts in the Data Economy: Exploring the Terra Incognita Remedies - Conference on Competition, Digital Platform and Big Data
Veranstalter: Universität von Valencia
Ort: Valencia (Spanien)
EU Competition Law Remedies vis-à-vis Exploitative Conducts in the Data Economy: Exploring the Terra Incognita Remedies - 13. ASCOLA Konferenz (Vortrag mit Klaus Wiedemann (MPI))
Veranstalter: Universität von New York
Ort: New York (USA)
Protectionism and national champions v. European merger control; the possible spill-over effects of the draft ECN+Directive - 13. ASCOLA Konferenz (Vortrag mit Federico Ghezzi (Bocconi University))
Ort: Universität von New York (USA)
16. – 17.12.17
12th annual conference of the Italian Society of Law and Economics
Ort: Universität von Turin (Italien)
15. – 17.06.17
12th annual conference of the “Academic Society of Competition Law” (ASCOLA)
Ort: Universität von Stockholm (Schweden)
Workshop organized by the “Competition Law Scholars Forum” (CLASF)
Ort: Universität von Warschau (Polen)
30.06. – 02.07.16
11th annual conference of the “Academic Society of Competition Law” (ASCOLA)
Ort: Universität von Leiden (Niederlanden)
Seminar on “Private Enforcement of Competition Law in China”
Ort: Universität von Macau (VR China)
Seminar on “Private Enforcement of Competition Law in China”
Ort: Universität von Honk Kong City (VR China)
8th annual conference on “Competition and Regulation in Network Industries” (CRNI)
Ort: Delft Technical University (Niederlanden)
02. – 04.07.15
International conference on Harmonization of Private Antitrust Enforcement: a Central and Eastern European Perspective
Ort: Centre for Antitrust Regulatory Studies, Universität von Warschau (Polen)
19. – 22.05.15
12th international conference on “European Energy Markets” (EEM)
Ort: Polytechnik von Lissabon (Portugal)
05. – 07.03.15
Biannual conference of the “European Union Studies Association” (EUSA)
Ort: Universität von Boston (USA)
26. – 28.06.14
9th annual conference of the “Academic Society of Competition Law” (ASCOLA)
Ort: Universityät von Warschau (Polen)
Inter-Department Workshop on “Private Enforcement of EU Competition Law – Actions for Damages between ECJ and National Courts”
Ort: Universität Wien (Österreich)
27. – 28.05.14
Annual Conference of the “South East European Law Schools Network” (SEEL)
Ort: Universität von Rijeka (Kroatien)
Workshop on “Access to the Leniency File in EU Competition Law Enforcement: Public and Private Enforcement Considerations
Ort: Universität Wien (Österreich)
23. – 25.05.13
8th annual conference of the “Academic Society for Competition Law” (ASCOLA)
Ort: Universität von Salento, Lecce (Italien)
09. – 11.05.13
Biennial Conference of the “European Union Studies Association” (EUSA)
Ort: Universität von Baltimore (USA)
20. – 23.03.13
14th Mediterranean Research Meeting organized by the Robert Schuman Centre for Advanced Studies. Presentation at the workshop on “Regulatory Implants and Local Legal Regimes in the Mediterranean Region”
Ort: Universität von Mersin (Türkei)
03. – 05.09.12
Annual Conference of the “University Association of Contemporary European Studies” (UACES)
Ort: Universität von Passau (Deutschland)
25. – 27.06.12
Bi-Annual Conference of the “European Consortium of Political Science Research” (ECPR) on “New Perspectives on Regulation, Governance and Learning”
Ort: Universität von Exeter (Großbritanien)
21. – 24.03.12
13th Mediterranean Research Meeting” (MRM)
Co-Director of the Workshop on “The EU Competition Law Model and the Mediterranean Countries: Lessons from South-East Europe and the EuropeMed Countries”
Ort: Robert Schuman Centre for Advanced Studies, Montecatini Terme (Italien)
01. – 02.07.11
Annual Conference of the “Academic Society for Competition Law” (ASCOLA)
Ort: King´s College, London (Großbritanien)
Annual Conference of the “Amsterdam Centre for Law and Economics” (ACLE)
Ort: Universität von Amsterdam (Niederlanden)
09. – 10.05.11
Annual Workshop “Competition Law and Economics European Network” (CLEEN)
Ort: Europäisches Hochschulinstitut, Juristische Fakultät, Florenz (Italien)
15. – 16.04.10
“Fourth International Graduate Legal Research Conference” (IGLRC), panel on “Competition Law”
Ort: King’s College, London (Großbritanien)
22. – 23.01.10
Workshop on the “Framework for Economic Development in the EU External Relations”
Ort: Europäische Hochschulinstitut, Juristische Fakultät, Florenz (Italien)
14. – 15.05.09
Annual Workshop “Competition Law and Economics European Network” (CLEEN)
Ort: Universität Tilburg, Law and Economics Centre (Niederlanden)
"Comparative Law, Economics and Finance Annual Conference"
Ort: Università degli Studi die Torino, Juristische Fakultät, (Italien)
workshop organized by the “Competition Law Scholars Forum”(CLASF)
Ort: City University of London (Großbritanien)
Workshop organized by the “Competition Law Scholars Forum” (CLASF)
Ort: City University of London (Großbritanien)
Ort: Juristische Fakultät der Presibeterian University Mackenzie, São Paulo (Brasilien)
Presentation at the "Annual Doctoral Workshop in Competition Law"
Ort: Interdisciplinary Centre for Competition Law and Policy of the Queen Mary University, London (Großbritanien)
Presentations at policy events:
Event organized by the Slovak Competition Authority with the support of DG Competition of the European Commission
Veranstalter: EU Competition Day
Ort: Bratislava (Slowenien)
Inter-Departmental Workshop on “A Cornerstone of the EU Enlargement Policy; the Energy Community Ten Years After”. Event organized with the financial support of DG Near of the European Commission
Ort: Universität Wien (Österreich)
Presentation at the Workshop on “State Aid in the Energy Sector”
Ort: Europäische Energiegemeinschaft, Wien (Österreich)
Presentation at the Conference on “The New Directive on Private Enforcement of EU Competition Law: Consequences for the Austrian Legal System”
Ort: Bundewettbewerbsbehörde, Wien (Österreich)
Annual Meeting of the International Section of the New York State Bar Association
Ort: Wien (Österreich), Abteilung "Wettbewerb"
Presentation at the Conference on “Prevention and Antitrust Compliance”
Ort: Bundewettbewerbsbehörde, Wien (Österreich)
Presentation at the 3rd meeting of the UNCTAD Research Partnership Platform on Competition Policy
Ort: UNCTAD, Genf (Schweiz)
01. – 02.12.11
Presentation at the round table on “Competition Law Enforcement in the Mediterranean Countries: Challenges and Future Perspectives”
Ort: Bundewettbewerbsbehörde, Wien (Österreich)
21. – 22.10.11
9th Euro-Latin Study Network on Integration and Trade (ELSNIT) on “Revising Regionalism”
Veranstalter: Interamerikanische Entwicklungsbank
Ort: Universität Saint Gallen (Schweiz)
Lehrveranstaltungen an der Juristischen Fakultät der Universität Wien (Österreich):
WS - SS 2019
Praktische Übung in Europäisches Recht
EU State Aid Law
Bis 2019: Pflichtübung EU-Recht - EU Wettbewerbspolitik - EU Kartellrecht - EU State aid law - EU Competition v. US Antitrust Law - International Aspects of Competition Law Enforcement - EU Regulatory Policies - International Institutions and International Political Economy - Academic writing