Niamh Dunne’s research while affiliated with London School of Economics and Political Science and other places

The United Kingdom, like many jurisdictions, is introducing more demanding ex ante regulation for the digital economy. Centered on the work of a Digital Markets Unit located within the existing copetition authority, the U.K. proposals are defined by an explicit commitment to “pro-competition” regulation. This article traces the evolution and emerging design of the forthcoming U.K. regime. It then explores the notion of pro-competition regulation in greater detail. While the concept increasingly transcends its domestic origins, this article argues that the balancing act between conventional competition law and traditional regulation that it reflects can be fully understood only when located within the distinctive circumstances of the wider U.K. regulatory landscape.

This article explores the process and impact of liberalisation on the legal profession in England and Wales. Liberalisation brings a tendency to consider the profession in market-focused terms, with the professional-client relationship reconfigured in overtly economic fashion as constituting the interaction of supply and demand. The article examines the past and present structure of the profession, arguments for liberalisation, and manifestations of liberalisation efforts. Having identified the distinctive dynamics of supply and demand within legal services markets, the article considers the potential implications, both immediate and in broader societal terms, of reconceptualising the legal profession in this manner.

The proposition that certain digital platforms act as ‘regulators’ within their own business models is a key pillar of the European Commission report on Competition Policy for the Digital Era, and the basis upon which its authors build a wide-ranging duty for dominant platforms to secure competition that is ‘fair, unbiased and pro-users’. This article seeks to shed light on this novel contention, exploring its meaning and the implications for platform operators. It considers the rationale provided within the report and compares the approach with established Article 102 TFEU case law, specifically the ‘special responsibility’ doctrine. Consideration is further given to whether the platforms-as-regulators notion aligns with alternative modes of regulation within the digital sphere. The aim is to explore whether this approach is coherent, and actually useful, as a means by which to frame and direct future enforcement against digital platforms.

This article explores the revival of fairness as the lodestar of EU competition enforcement. It considers the theory and evolving discourse of fairness, then identifies and evaluates examples of fairness-oriented enforcement activity. Concluding that fairness represents a distinct development from the ‘hipster antitrust’ movement, the article suggests reasons to explain the shift, including a need to rehabilitate the social market economy in an age of market-scepticism, and to facilitate the progressive expansion of competition law to address modern market failures.

The prohibition of cartels embodies arguably the sole universal norm of global competition law. Yet a precise understanding of what constitutes a cartel remains elusive, a problem that is exacerbated in the context of Article 101 Treaty on the Functioning of the European Union by the Commission’s administrative enforcement procedures and the expansive approach to the “by object” category of restraints. This article aims to provide a more precise characterization of the hard core cartel concept as reflected in EU competition case law and practice and to explore why such conduct continues to constitute the “supreme evil” of contemporary antitrust enforcement.

‘Indispensability’ is the central concept underpinning the treatment of refusal to deal claims under Article 102 TFEU. Since its adoption in Magill and Bronner, however, the conventional wisdom that instances of refusal to deal constitute an abuse only in the presence of indispensability has been challenged from multiple directions. This article surveys the departures from the orthodoxy that can be found in the jurisprudence. In doing so, it measures the purported explanations for such derogations against the justifications for restraint encapsulated in the indispensability concept. Finally, it asks whether the weight of exceptions may reach the point of overwhelming, or ‘dispensing with,’ the original rule.

While European Union (EU) competition law has long been understood as a variety of public interest law, the extent to which the rules can be applied directly to advance noneconomic public interest-oriented goals is more contentious. This contribution considers whether and how such concerns can be accommodated within the framework of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). It considers both the conventional approach to addressing public interest concerns within the analytical structure of the antitrust rules and also how broader public interest objectives have shaped recent EU-level enforcement efforts in three key sectors: the liberalizing public utilities markets, the pharmaceutical sector, and the digital economy.

This note contrasts the approaches taken by the Court of Justice of the European Union and the UK Supreme Court in the high‐profile litigation which preceded the introduction of minimum alcohol pricing in Scotland. The case of Scotch Whisky Association and others v The Lord Advocate and another hinged, ultimately, on the necessity of minimum pricing to achieve important public health goals. The notably differing viewpoints adopted by the domestic and Union courts, however, both illustrate the elusiveness of the proportionality criterion, and expose tensions between domestic and supranational control in the context of internal market regulation.