What Is ‘Competition Law’? – Measuring EU Member States’ Leeway to Regulate Platform-to-Business Agreements

CRC TR 224 Discussion Paper Series 2020, final version Yearbook of European Law (YEL) 39 (2020) 320-386

58 Pages Posted: 8 Sep 2020 Last revised: 3 Nov 2021

See all articles by Jens-Uwe Franck

Jens-Uwe Franck

University of Mannheim - Department of Law

Nils Stock

University of Mannheim - Department of Law

Date Written: August 14, 2020

Abstract

If both national competition law and article 101 TFEU apply to an agreement, the former must not set rules that are stricter than the latter. Member States remain free, though, to impose stricter rules if they are not classified as ‘competition law’. We analyse relevant jurisprudence by the English and French courts that have dealt with potential conflicts between, on the one hand, EU competition law and, on the other hand, the common law restraint of trade doctrine and the pratiques restrictives de concurrence under French commercial law. We develop criteria that allow (national) ‘competition law’ to be distinguished from similar regulatory interventions into agreements that pursue purposes distinct from article 101 TFEU and which, therefore, must not be regarded as ‘competition law’. This paper illustrates and elaborates on the challenges for the implementation of our approach by focusing on the ban on the use of parity clauses by hotel booking platforms in France, Austria, Italy and Belgium. We map a possible way forward to prevent further regulatory fragmentation in the internal market with regard to the regulation of platform-to-business agreements.

Keywords: Competition Law; Regulation; Article 3(2) of Regulation 1/2003; Objective Pursued by Article 101 TFEU; Restraint of Trade Doctrine; Pratiques Restrictives De Concurrence; Platform-to-Business Agreements; Price-Parity Clauses; Regulation 2019/1150

JEL Classification: K21

Suggested Citation

Franck, Jens-Uwe and Stock, Nils, What Is ‘Competition Law’? – Measuring EU Member States’ Leeway to Regulate Platform-to-Business Agreements (August 14, 2020). CRC TR 224 Discussion Paper Series 2020, final version Yearbook of European Law (YEL) 39 (2020) 320-386, Available at SSRN: https://ssrn.com/abstract=3676271 or http://dx.doi.org/10.2139/ssrn.3676271

Jens-Uwe Franck (Contact Author)

University of Mannheim - Department of Law ( email )

Schloss Westflügel
Mannheim, 68131
Germany

Nils Stock

University of Mannheim - Department of Law ( email )

68131 Mannheim
Germany

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