Telecoms industry is a highly specialised industry and there is a general consensus that it requires a specially designed regulatory system. Besides the many technology-oriented regulations, this regulatory system not only integrates many economic theories and concepts taken from competition law, but also features several measures designed ad hoc to deal with the character of the industry, such as a natural monopoly, bottlenecks and a public service. A major category of these regulatory measures is forced access mechanisms. "Forced access" in this thesis refers to the forcing open of certain property – mostly telecoms networks and relevant facilities – to be accessed by others, especially other competitors in the market. While these mechanisms do indeed promote competition in the telecoms market and benefit the public, they also limit the fundamental rights of telecoms companies – mostly incumbents – as legal persons, especially concerning their property rights and freedom to conduct a business, and it does not need emphasising further that the protection of fundamental rights is a general principle in the European Union and a constitutional value in modern democratic states. This thesis aims to take three distinct telecoms forced access mechanisms (interconnection, local loop unbundling and separation), with different regulatory intensities, as examples to discuss the possible fundamental rights derogation issues of two targeted jurisdictions – the European Union and Taiwan. There are some substantial reasons for this comparative study. On the one hand, many of the regulatory concepts of the telecoms regulatory framework in the European Union, together with those in the United States, have been adopted by Taiwan; on the other hand, the protection of fundamental rights in the European Union is inspired by the constitutional traditions common to Member States, and the German Basic Law (Grundgesetz) plays an important role, while the Taiwanese Constitution and the constitutionality reviews system derive from Germany (continental law) and the United States (common law). The reasoning of Taiwanese constitutional review does not therefore just reflect the fundamental rights protection system but also introduces the constitutionality review system of the United States as a reference. This thesis starts with an introduction to telecoms forced access mechanisms in the European Union and Taiwan, with a special focus on three selected forced access mechanisms. Then, fundamental rights protection system under the two jurisdictions will be discussed, followed by an in-depth discussion of the concepts of property rights and freedom to conduct a business. This thesis goes on to analyse how to appraise the three telecoms forced access mechanisms in relation to the fundamental rights protection system and to discuss the reasonableness of such an analysis. The final part of the thesis will, by reviewing the legal frameworks of the two jurisdictions, offer answers to the questions raised in the analysis.

Non seulement, les prix de transfert peuvent être directement à l’origine d’une atteinte au droit de la concurrence mais ils peuvent également révéler, de manière indirecte, des manquements au droit de la concurrence. Autrement dit, selon les cas de figure, un prix de transfert pourra soit être le support direct d’une pratique sanctionnée par le droit de la concurrence, soit participer indirectement à la démonstration de l’existence d’une infraction au droit de la concurrence. Les analyses réalisées dans le cadre de cette thèse permettent d’examiner ces différentes hypothèses afin que les entreprises et les autorités administratives appréhendent au mieux l’impact des prix de transfert dans la caractérisation des infractions au droit de la concurrence. / Setting transfer prices is a strategic issue for companies, especially since tax regulation is very strict on this matter. Therefore, companies are more focused on tax consequences than other issues that may arise from transfer pricing. However, beyond the tax aspects, transfer pricing may have consequences in competition law.Transfer prices can be, not only, directly responsible for competition law infringements, but they may also indirectly reveal breaches of competition law. In other words, depending on the case, a transfer price can either be the directly be sanctioned by competition law or can indirectly participate in the demonstration of the existence of a competition law infringement. The analyses carried out in this thesis make it possible to examine these various hypotheses so that companies and administrative authorities can better understand the impact of transfer prices in the characterization of competition law infringements.

Cette étude propose une analyse substantielle des relations entre le droit de la concurrence et l’innovation. L’innovation est un processus dont les effets sur les marchés sont difficilement prévisibles et qui constitue un objet singulier pour le droit de la concurrence. Les pouvoirs de marché, les aides d’État, la coopération inter-entreprises et les concentrations peuvent être des facteurs de promotion de l’innovation, alors que le droit de la concurrence y est rétif. Pourtant, on peut envisager de réorienter le droit de la concurrence, au-delà de son rôle de « gardien des marchés », comme un outil de promotion de l’innovation. Le droit européen de la concurrence devrait alors assumer ce nouvel objectif, et rechercher un équilibre subtil entre l’incitation à l’innovation et la stimulation de l’innovation / This thesis provides proposes a substantial analysis of the relationship between competition law and innovation. Innovation is a process whose effects on markets are difficult to predict and which is a singular object for competition law. Market powers, state aid, inter-firm cooperation and mergers could be promotive factors factors in promoting for innovation, while competition law is restive inflexible. However, it is possible to consider envisage reorienting reframing competition law, beyond its role as « guardian of the markets », to a tool to promote innovation. European competition law should undertake take on this new objective and seek a subtle balance between incentivising and stimulating innovation

Pricing in the market is the most sensitive part of trade. It is through pricing where the buyers are able to acquire goods and it is through it also that the sellers get their profit. Pricing of commodities can be said to be the lifeline of trade and also the lifeline of competition. Competition law, in addition to other factors such as quality of goods and their availability, also deal with the issue of pricing of goods. It is touted that competition law has a strong inclination to supervise pricing of commodities and how the conduct of market players influence pricing of goods. Competition law does this by making the market as competitive as possible in order to prevent any firm from dictating prices. It short, it strives to make the firms in the market to be price takers and not price setters as a way of reigning in on high prices in the market. However, in certain circumstances the competition laws become unable to supervise the market. In times such as those, the governments have been forced to intervene through other laws and policies in order to protect the market from possible abuse. This study looked at government intervention in the market through price control legislation. Price control legislation is a legislation that gives the government powers to artificially set prices of commodities. This is done in those dire circumstances where the market out of unforeseeable circumstances, is unable to be competitive. Examples of such instances include national crises, innovations and legal huddles. Price control legislations unlike the traditional competition laws are not created to promote competition per se. They are created on the back of competitive conduct to provide a safety net to consumers from exploitative activities of producers in instances where the influence of competition laws is ineffective. Price control legislations are there to make sure that when all competition laws and interventions are unable to protect consumers from the condition of the market and the exploitative actions of the producers, then there are certain laws created as a safety net to the consumers. Price control is used to mitigate the circumstances that make it impossible for the market through competition to control pricing of commodities. Currently, price control is becoming a prevalent way oftarning prices in many jurisdictions. A policy used in the medieval times in simple markets, with little or no inclination towards the market, has now become more imposing even in the most sophisticated markets. Price controls in areas like Canada and the European Union are being used together with competition laws to cater for areas where the governments feel that the market is not competitive enough and competition laws are not effective. In other areas such as Zimbabwe, it is being abused for political purposes to influence prices against a competitive market and the competition laws. What is clear and true is that price control having both an immediate impact and being effective, is one mechanism that has far reaching and substantial effects on the competitiveness in the market. With its target being the most sensitive area of trade, this makes it a very important policy issue that competition lawyers should not ignore. Price control ability of superseding the market mechanism of supply and demand, to impose prices and the way it is implemented gives it the power to reduce and even kill competition in a particular market. That is why it is imperative to understand this safety net as competition lawyers in order to know whether it is needed and if so how we can limit its negative effects in the market.

Impact of the Leniency Program and the Institution of Settlement upon the Civil Enforcement of Competition Law Keywords: competition law, leniency program, private enforcement of competition law The purpose of this thesis is to assess the mutual interference between the private and public enforcement of competition law. In the public enforcement there is growing trend of using modern tools such as leniency programme or settlement decisions. These are based on the cooperation between competition authorities and undertakings. On the other hand such cooperation and very often disclosure of confidential information by undertakings may threaten their position in terms of potential civil law suits by consumers or business partners. It is often claimed that private and public enforcement are complementary but when it comes to these modern tools a clear conflict arises. The thesis consists of two following two chapters. First chapter describes the evolution of private enforcement of competition law within EU. From its underdeveloped beginnings ten years ago it started to attract attention. European Commission has recently published a proposal of a directive which should foster the private enforcement within EU. Second half of the first chapter describes the development of new modern tools within the public...

<p>Competition law is an area which is going through changes over time, especially EC competition law in regard to the ongoing process of market integration. The definition of the relevant geographic market within EC competition law is of importance to define, both in case law and for undertakings and their businesses, as the law should be predictable. Before Article 82 of the EC Treaty, which prohibits abusive behaviour by undertakings, is applicable the relevant geographic market has to be defined. As is the case with the Merger Regulation, the relevant geographic market has to be defined to make an assessment of the undertakings’ activities. The definition of the geographic market is then used as a tool in the analysis of the assessment of competition and the effects of measures carried out by undertakings which restrain competition. Thus, the definition of the relevant geographic market is crucial for the purposes of Community competition law.</p><p>The definition of the relevant geographic market can be said to be an area where “the objective conditions of competition applying to the product in question must be the same for all traders” as established in United Brands. In Deutsche Bahn it was clarified that “... the definition of the geographical market does not require the objective conditions of competition between traders to be perfectly homogenous”. It is enough if they are similar, therefore areas in which the objective conditions of competition are different, are not considered to be a uniform market.</p><p>In the Commission Notice on the definition of relevant market for the purposes of Community competition law the Commission’s work to define the relevant geographic market is described as well as the evidence the Commission contemplates in its assessment. The substitutability test is relied on by the Commission. In case law from the European Court of Justice, the Court of First Instance, and the Commission, different factors are scrutinized to establish the relevant geographic market. Such factors are e.g., the undertakings’ activities, barriers to trade, and barriers to entry.</p><p>The significance of the evidence and the factors used in the definition of the relevant geographic market are debatable. The factors considered vary on a case to case basis and they need to differ to make a correct assessment of the relevant geographic market in every case within EC competition law.</p>

Competition law is an area which is going through changes over time, especially EC competition law in regard to the ongoing process of market integration. The definition of the relevant geographic market within EC competition law is of importance to define, both in case law and for undertakings and their businesses, as the law should be predictable. Before Article 82 of the EC Treaty, which prohibits abusive behaviour by undertakings, is applicable the relevant geographic market has to be defined. As is the case with the Merger Regulation, the relevant geographic market has to be defined to make an assessment of the undertakings’ activities. The definition of the geographic market is then used as a tool in the analysis of the assessment of competition and the effects of measures carried out by undertakings which restrain competition. Thus, the definition of the relevant geographic market is crucial for the purposes of Community competition law. The definition of the relevant geographic market can be said to be an area where “the objective conditions of competition applying to the product in question must be the same for all traders” as established in United Brands. In Deutsche Bahn it was clarified that “... the definition of the geographical market does not require the objective conditions of competition between traders to be perfectly homogenous”. It is enough if they are similar, therefore areas in which the objective conditions of competition are different, are not considered to be a uniform market. In the Commission Notice on the definition of relevant market for the purposes of Community competition law the Commission’s work to define the relevant geographic market is described as well as the evidence the Commission contemplates in its assessment. The substitutability test is relied on by the Commission. In case law from the European Court of Justice, the Court of First Instance, and the Commission, different factors are scrutinized to establish the relevant geographic market. Such factors are e.g., the undertakings’ activities, barriers to trade, and barriers to entry. The significance of the evidence and the factors used in the definition of the relevant geographic market are debatable. The factors considered vary on a case to case basis and they need to differ to make a correct assessment of the relevant geographic market in every case within EC competition law.

Chinas first comprehensive competition law, the Anti-monopoly law of the People’s Republic of China (AML), was enacted on August 1, 2008. Despite a long history of planned economy, the Chinese economy has developed into one of the fastest growing economies in the world during the last decades. The adoption of the law was a crucial step towards a more market-based economy. Article 1 of the AML states that one of the aims to achieve with this law is to develop a socialist market economy. The notion was founded in the 1990s and can be found in several other Chinese legislations. The concept has no prominent definition and can be interpreted in many different ways, which opens up for the ruling Party to interpret the notion in accordance with their political believes. The central government will probably put most emphasize on the word “socialist” instead of “market economy” when interpreting the concept. The concept is of central meaning and will affect the interpretation of the other aims stated in article 1. The other aims are not ranked in any hierarchical order and are in conflict with each other. The central government will give priority to the aims which are beneficial for a socialist society. The aim to promote public interest, which includes state owned enterprises, will be strongly favored. Also the aim economic efficiency will be prioritized since China strives to become a rich country. Consumer welfare will not be highlighted but might be more important in the future. One reason that the aims are vague and not put in any hierarchical order could be that the objectives for adopting AML were not solely of competition reasons. The objectives show that AML is part of a wider economic policy. Neither does the central government strive towards a free market. Instead the goal is to establish a fair market. A fair market will most probably be a market beneficial for state owned enterprises and can therefore be contradictory to the keystones of competition. Competition principals arise from sophisticated market economies and China aims to apply those principals in the light of socialist ideology. AML covers the general competition provisions but with a specific chapter to regulate administrative monopolies. It can still be seen as contradictory to prohibit administrative monopolies but without any sanctions stipulated for violation of the provisions. Also the fundamental elements for establish effective competition are missing. The statute cannot be seen as objective or provide legal certainty and the competition authorities do not have divided responsibilities. Neither is any specific competition court established. Other factors that can contribute to an inefficient competition law are China’s history and culture, affected by socialist ideology. Time is required in China in order to develop an efficient competition culture. Altogether, it is no coincident that the notion of socialist market economy is undefined. The notion includes a quest to enhance the socialist society with strong economic development. More specific guidance is determined by the central government when the right time has come. From a Chinese perspective, the aims in article 1 will be achieved since the undefined concepts open up for different interpretations. From a sophisticated point of view, the aims will not be seen as achieved since no effective competition is established.

<p>On 1 June 2010, a new Block Exemption Regulation (BER) and new Guidelines that affect the practical use of selective distribution systems enter into force. The BER exempts vertical agreements, such as selective distribution agreements, from the prohibition of Article 101 (1) TFEU. It is significant for individual market players to obtain knowledge of what impact the new BER and the new Guidelines have for the practical use of selective distribution systems.</p><p>The Commission has amended the new BER and the new Guidelines in the light of the development the last decade. Two main changes are noticed that affect the content of the new legislative documents. Firstly, it is established that many distributors have obtained larger market shares. Secondly, it is stated that Internet sales have increased largely. The basic principles of the new versions of the BER and the Guidelines are identical with the former versions but the present changes are although noticeable for companies and their selective distribution systems.</p><p>The new BER contains a new market share rule that is more restrictive than the corresponding rule in the former BER. However, the new market share rule is not an expression of a less tolerant approach towards selective distribution systems; rather an amendment necessary due to the development of distributors’ market shares.</p><p>The growth of distribution in the Internet the last ten years is reflected in the new Guidelines. The Commission’s approach towards the Internet as a distribution method seems in general to be positive. It is noticeable that the Commission wants that parties of selective distribution agreements shall be able to benefit from all the positive effects of online sales at the same time as the Commission tries to preserve the positive effects of selective distribution.</p><p>This thesis describes and examines the practical use of selective distribution systems. Different reasons for companies to use selective distribution systems and effects of the new BER and Guidelines are in particular examined.</p>

<p>Chinas first comprehensive competition law, the Anti-monopoly law of the People’s Republic of China (AML), was enacted on August 1, 2008. Despite a long history of planned economy, the Chinese economy has developed into one of the fastest growing economies in the world during the last decades. The adoption of the law was a crucial step towards a more market-based economy. Article 1 of the AML states that one of the aims to achieve with this law is to develop a socialist market economy. The notion was founded in the 1990s and can be found in several other Chinese legislations.</p><p>The concept has no prominent definition and can be interpreted in many different ways, which opens up for the ruling Party to interpret the notion in accordance with their political believes. The central government will probably put most emphasize on the word “socialist” instead of “market economy” when interpreting the concept. The concept is of central meaning and will affect the interpretation of the other aims stated in article 1. The other aims are not ranked in any hierarchical order and are in conflict with each other. The central government will give priority to the aims which are beneficial for a socialist society. The aim to promote public interest, which includes state owned enterprises, will be strongly favored. Also the aim economic efficiency will be prioritized since China strives to become a rich country. Consumer welfare will not be highlighted but might be more important in the future.</p><p>One reason that the aims are vague and not put in any hierarchical order could be that the objectives for adopting AML were not solely of competition reasons. The objectives show that AML is part of a wider economic policy. Neither does the central government strive towards a free market. Instead the goal is to establish a fair market. A fair market will most probably be a market beneficial for state owned enterprises and can therefore be contradictory to the keystones of competition. Competition principals arise from sophisticated market economies and China aims to apply those principals in the light of socialist ideology. AML covers the general competition provisions but with a specific chapter to regulate administrative monopolies. It can still be seen as contradictory to prohibit administrative monopolies but without any sanctions stipulated for violation of the provisions.</p><p>Also the fundamental elements for establish effective competition are missing. The statute cannot be seen as objective or provide legal certainty and the competition authorities do not have divided responsibilities. Neither is any specific competition court established. Other factors that can contribute to an inefficient competition law are China’s history and culture, affected by socialist ideology. Time is required in China in order to develop an efficient competition culture.</p><p>Altogether, it is no coincident that the notion of socialist market economy is undefined. The notion includes a quest to enhance the socialist society with strong economic development. More specific guidance is determined by the central government when the right time has come. From a Chinese perspective, the aims in article 1 will be achieved since the undefined concepts open up for different interpretations. From a sophisticated point of view, the aims will not be seen as achieved since no effective competition is established.</p>