Pinar Akman's Publications
The Concept of Abuse in EU Competition Law: Law and Economic Approaches (Oxford: Hart Publishing, 2012),
‘A Competition Law Assessment of Platform Most-Favoured-Customer Clauses’, Journal of Competition Law and Economics 2016 (Accepted),
Repository URL: http://eprints.whiterose.ac.uk/100401/
Most-favoured-customer (MFC) clauses adopted by online platforms in their relevant contractual relationships guarantee to an online platform that a supplier will treat the platform as favourably as the supplier’s most-favoured-customer concerning price, availability and similar terms of a given transaction. These clauses are a fundamental aspect of the business models of some of the world’s leading companies such as Apple, Amazon, Expedia, etc. The competition law implications of these clauses have been one of the key concerns of over a dozen competition authorities around the world in recent years. The competition authorities involved have adopted different approaches and reached different substantive and procedural outcomes, sometimes in proceedings that concern the application of the same legal rule to the same practice of the same company. This is best demonstrated by the line of investigations against certain online travel agents in Europe. This article posits that such diverging approaches lead to legal and business uncertainty, as well as to procedurally unfair and substantively incorrect assessments. In an effort to rectify this suboptimal situation, the article provides a comprehensive, principled approach for the assessment of platform MFC clauses under competition law – in particular, under EU competition law.
This article aims to assess one of the many contributions of 'Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law' by Richard Markovits to our understanding of U.S. and EU antitrust laws. That specific contribution is the tests of illegality adopted in Markovits’s study to interpret Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This article also examines the claim that none of these tests is an economic-inefficiency test of illegality. In order to achieve its aim, the article first comments on the “specific-anticompetitive-intent test” that is proposed to be the test of illegality under the object branch of the prohibition of Article 101 TFEU and under the abuse prohibition of Article 102 TFEU, before moving on to separate discussions of the tests of illegality in the specific contexts of Article 101 TFEU and subsequently of Article 102 TFEU. The article finds that there is still considerable ambiguity concerning some of the most fundamental concepts of antitrust law such as “competition on the merits” at least in the EU but perhaps also in the U.S. The article reaches the conclusion that there is significant scope for discussion and disagreement on what makes a conduct anticompetitive, irrespective of whether such conduct is of the type prohibited under Article 101 TFEU or of the type prohibited under Article 102 TFEU.
‘The Reform of the Application of Article 102 TFEU: Mission Accomplished?’, Antitrust Law Journal 2016 (Accepted),
Repository URL: http://eprints.whiterose.ac.uk/89404/
This article examines the European Commission’s recent reform of its application of Article 102 TFEU (the prohibition of abuse of dominance). Using the Commission’s own reform documents and in particular the Guidance on enforcement priorities as the benchmark, the article investigates the post-reform decisions to establish the potential impact of the reform. Thus, the article analyses whether the application of Article 102 has indeed been reformed as a matter of fact (which in this context refers to the Commission’s decisional practice under Article 102) in line with the Commission’s aspirations and rhetoric. The study leads to several significant findings. Specifically, it finds that: the Commission has become considerably more active post-Guidance (2009-2014) in comparison to the period between the publication of DG Competition’s Discussion Paper and the publication of the Guidance (2005-2009); commitments make up half of all decisions taken in the period 2005-2014 and have quadrupled in number since the Guidance paper; there is little to no explicit use of the Guidance in the decisions taken; and, the rejection decisions are potentially the most important type of enforcement in which the effects of any modernisation of the approach to Article 102 can be observed.
‘Period of limitations in follow-on competition cases: when does a ‘decision’ become final?’, Journal of Antitrust Enforcement, 2.2 (2014), 389-421,
A series of private competition law cases in the UK has demonstrated that there are significant procedural issues that need resolving before private enforcement can flourish in the way that the European Commission and the UK Government are currently encouraging. One of these issues is the calculation of the period of limitations in a follow-on case where there are multiple infringers some of whom appeal the infringement decision of the competition authority and some of whom do not. A closely related issue is that of when the underlying infringement decision of the competition authority becomes final and consequently binding on a national court deciding a follow-on case. This has been a recurring problem in the UK in the context of follow-on actions before the Competition Appeal Tribunal (CAT) culminating in the Deutsche Bahn decision of the Supreme Court. This article shows that this seemingly simple issue of establishing when a decision becomes final and the calculation of the period of limitations is in fact loaded with serious implications going well beyond a procedural, timing point. Although the issue is pertinent to all types of infringements of competition law with multiple infringers, it has particular implications for leniency recipients in cartel cases and therefore, for the overall relationship between private and public enforcement of competition law. This article demonstrates how suboptimal the current legal situation is and what the overall preferable solution is for establishing when an infringement decision becomes final and the period of limitations in follow-on cases based on infringement decisions in the presence of multiple infringers under UK and EU law.
‘The Role of 'Freedom' in EU Competition Law’, Legal Studies, 34.2 (2014), 183-213,
‘The Role of Intent in the EU Case Law on Abuse of Dominance’, EUROPEAN LAW REVIEW, 39.3 (2014), 316-337,
‘The new shape of the de minimis defence for anti-competitive agreements’, Cambridge Law Journal, 73.2 (2014), 263-266,
‘The Relationship between Economic Duress and Abuse of a Dominant Position’, Lloyd's Maritime and Commercial Law Quarterly,  (2014), 99-131,
This article investigates, for the fi rst time in the literature, the relationship between the doctrine of economic duress in contract law and the prohibition of abuse of a dominant position in competition law. It fi nds that these doctrines are substantively rather similar, albeit with different functions in different areas of law. The similarity has important implications, particularly for commercial litigants, who could avail themselves of more favourable remedies such as nullity, damages and compulsory dealing in competition law, in comparison to mere voidability in contract law. This makes it all the more interesting that claimants do not seem to pursue these two issues as alternative grounds in their disputes: this article investigates economic duress cases that could also have been dealt with as abuse of dominance and vice versa. Using this investigation and the relevant theories, the article demonstrates the similarities and the differences between these two legal doctrines, as well as the implications of the intersection of these two doctrines for both claimants in practice and the relevant legal disciplines (ie contract law and competition law) in theory.
‘When are excessive prices unfair?’, Journal of Competition Law and Economics, 7.2 (2011), 403-426,
A dominant firm can abuse its position by charging unfair prices under EU competition law. According to the Court of Justice of the European Union in United Brands, a price is abusive if (1) the price-cost margin is excessive and (2) the price is unfair compared with other prices. However, there is little guidance to determine whether a price-cost margin is excessive and, if so, when the price is unfair. We consider whether the "principle of dual entitlement", which is consistent with most people's perceptions of when prices are unfair relative to others, can be used to define explicitly what constitutes an unfair price in terms of the second stage of the United Brands test. We show that in general, this principle is in line with the goals of an effective prohibition on unfairly high pricing, and we develop a procedure that defines a price as unfair in terms of this principle. We also show that European competition law enforcers, in their attempts to define prices as unfair relative to other prices, have followed arguments similar to the procedure developed here. Therefore, this procedure could go some way to resolve one of a number of problems regarding the prohibition on unfairly high pricing. © The Author (2011). Published by Oxford University Press. All rights reserved.
‘Consumer' versus 'Customer': The Devil in the Detail’, Journal of Law and Society, 37.2 (2010), 315-344,
According to the European Commission, the objective of EU competition rules is enhancing 'consumer welfare'. In EU competition law, however, 'consumer' means 'customer' and encompasses intermediate customers as well as final consumers. Under Article 102TFEU, harming intermediate 'customers' is generally presumed to harm 'consumers' and where intermediate customers are not competitors of the dominant undertaking, there is no requisite to assess the effects of conduct on users further downstream. Using advances in economics of vertical restraints and, in particular, non-linear pricing, this article shows that there are instances where the effect on 'customer welfare' does not coincide with the effect on 'consumer welfare' and the presumption can potentially lead to decisional errors. Thus, if the law is to serve the interests of 'consumers', the Commission should reconsider this presumption and its interpretation of the 'consumer' in 'consumer welfare'; otherwise, it remains questionable whose interests EU competition law serves. © 2010 The Author. Journal Compilation © 2010 Cardiff University Law School.
‘The European Commission’s Guidance on Article 102TFEU: From Inferno to Paradiso?’, The Modern Law Review, 73.4 (2010), 605-630,
‘Myths and Myth-Making in the European Union: The Institutionalization and Interpretation of EU Competition Policy’, Journal of Common Market Studies, 48.1 (2010), 111-132,
EU competition policy has become so strongly institutionalized that it is easy to overlook its precarious status in earlier decades. This article argues, first, that the Commission responded to the imperative arising from the extraordinary powers created by the treaty and the novelty of competition policy in post-war Europe by developing a series of myths to provide justification for its prerogatives. Second, these myths have played a key role in securing acceptance of EU policy, though other factors have also been important. Third, the official mythology has been supplemented by an interpretation which has become dominant in the law and political science literatures; namely, that EU competition policy has ordoliberal origins. This article challenges this view. © 2010 Blackwell Publishing Ltd.
‘Searching for the long-lost soul of article 82EC’, Oxford Journal of Legal Studies, 29.2 (2009), 267-303,
This article has two interrelated purposes, one of historical and one of contemporary significance. It first seeks to challenge the common view in the literature that Article 82EC is a product of ordoliberalism. This is done by directly examining the travaux préparatoires of the competition rules of the EC Treaty to discover the intent of the drafters of Article 82EC. This inquiry is important for a modernized approach to Article 82EC since it must be determined whether Article 82EC can be applied with a 'consumer welfare' standard without a Treaty amendment. This is because, if the provision is 'ordoliberal', its objective cannot be the enhancement of 'consumer welfare'. As its second and policy-driven purpose, this article suggests that the intent of the drafters of Article 82EC provides the EC Commission and the courts with the means to apply Article 82EC in a modernized manner with a 'more economic approach'. The article shows that the drafters of Article 82EC were mainly concerned with increasing 'efficiency'. Hence, adopting a welfarist objective would not imply a fundamental change in the goals of Article 82EC. On the contrary, including efficiencies in the assessment would be a late but welcome recognition since efficiency is already imbedded in the provision. © The Author 2009. Published by Oxford University Press. All rights reserved.
‘Consumer Welfare’ and Article 82EC: Practice and Rhetoric’, World Competition: Law and Economics Review, 32.1 (2009), 71-90,
‘To Abuse, or not to Abuse: Discrimination between Consumers’, European Law Review, 32.August (2007), 492-512,
‘Article 82 Reformed? The EC Discussion Paper on Exclusionary Abuses’, Journal of Business Law, .December (2006), 816-829,
‘A Most-Favoured-Customer Clause with a Twist’, European Competition Journal, 2.1 (2005), 57-86,
‘Abuse of Dominance’, in Encyclopedia of Law and Economics, Springer Reference (Springer, 2015) (Accepted),
‘Criticisms and Suggestions: the Reform of Abuse of Dominance in Light of the Commission Guidance on Article 102TFEU’, in Abuse of a Dominant Position: Problems and Suggestions for Solutions ([n.pub.], 2011), 69-87,
‘The Role of Exploitation in Abuse under Article 82 EC’, in Cambridge Yearbook of European Legal Studies ([n.pub.], 2009), 11, 165-188,
Benchmarking the Performance of the UK Framework Supporting Consumer Empowerment through Comparison against Relevant International Comparator Countries' A Report prepared for Department for Business, Enterprise and Regulatory Reform, ([n.pub.], 2008),
Pros and Cons of Prepayment Meters', A Report for energywatch by ESRC Centre for Competition Policy, ([n.pub.], 2007),
An Analytical Framework for Media Mergers in Ireland', A Report to the Irish Competition Authority, ([n.pub.], 2006),
In its ongoing investigation into Google’s search practices, Google Search, the Commission alleges that Google abuses its dominant position on the web search market by giving systematic favourable treatment to its ‘comparison shopping product’ (namely, ‘Google Shopping’) in its general search results pages. This article analyses whether the conduct in question in Google Search can be an abuse under Article 102TFEU and if so, under what conditions. The article proceeds by first providing a positive assessment of the application of Article 102TFEU and the relevant case law to the issues involved in Google Search on the assumption that the Commission may seek to place the facts under an existing category of abuse. Three categories of abuse are analysed to this end: refusal to deal (including the essential facilities doctrine); discrimination; and, tying. The article then proceeds to a normative assessment of the circumstances under which Article 102TFEU should be applied in Google Search under a principled conceptualisation of ‘abuse’: one which requires exploitation, exclusion, and a lack of an increase in efficiency. The article finds that the facts in Google Search do not meet the requirements of the existing law to be found abusive unless the established frameworks for the types of abuse examined are unjustifiably disrupted. It also finds that under the conceptualisation of abuse adopted in this article, the facts in Google Search do not represent the type of conduct that should be found abusive either.
(Book Review) The Foundations of European Union Competition Law: The Objective and Principles of Article 102 by R Nazzini, in Common Market Law Review, ([n.pub.], 2013) 50.1: 298-301.,
Period of Limitations in Follow-On Competition Cases: the Elephant in the Room?, ESRC CCP Working Paper Series, ([n.pub.], 2013),
A series of private competition law cases in the UK has demonstrated that there are significant procedural issues that need to be resolved before private enforcement can take off in the way that the European Commission and the UK Government are currently encouraging. One of these issues is the period of limitations in a follow-on case where there are multiple infringers some of whom appeal the (infringement) decision of the competition authority and some of whom do not. This is an ongoing problem in the UK in the context of follow-on actions before the Competition Appeal Tribunal (CAT) and is currently awaiting resolution by the Supreme Court in Deutsche Bahn. This article shows that this seemingly simple question of period of limitations is in fact loaded with serious implications going well beyond a procedural, timing issue. Although the issue is pertinent to all types of infringements of competition law with multiple infringers, it has particular implications for leniency recipients in cartel cases and therefore, for the overall relationship between private and public enforcement of competition law. These implications demonstrate how far from desirable the current legal situation is. This article demonstrates what the overall preferable solution is regarding the treatment of period of limitations in follow-on cases based on Commission infringement decisions in the presence of multiple infringers from a UK and EU law point of view.
(Book Review) Identifying Exclusionary Abuses by Dominant Undertakings under EU Competition Law: The Spectrum of Tests by E Østerud, in European Law Review, ([n.pub.], 2012) 37.3: 363-365.,
(Book Review) Article 82 EC: Reflections on its Recent Evolution A Ezrachi (ed), in European Law Review, ([n.pub.], 2011) 36.1: 148-150.,
(Book Review) European Competition Law Annual 2007: A Reformed Approach to Article 82 EC CD Ehlermann and M Marquis (eds), in European Competition Journal, ([n.pub.], 2009) 5.2: 491-504.,
(Book Review) The Law and Economics of Article 82 EC by R O’Donoghue and AJ Padilla, in Journal of Business Law, ([n.pub.], 2007) .March: 219-221.,