Template-Type: ReDIF-Paper 1.0
Title: What Is 'Competition Law'? - Measuring EU Member States' Leeway to Regulate Platform-to-Business Agreements
Author-Name: Jens-Uwe Franck
Author-Email: franck@uni-mannheim.de
Author-Name: Nils Stock
Author-Email: nstock@mail.uni-mannheim.de

Classification-JEL: K21
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

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.

Note: 
Length: 58
Creation-Date: 2020-08
Revision-Date: 
File-URL: https://www.crctr224.de/research/discussion-papers/archive/dp202
File-Format: application/pdf
Handle: RePEc:bon:boncrc:CRCTR224_2020_202