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GLOBAL ANTITRUST REVIEW

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4 ICC

4 ICC GLOBAL ANTITRUST REVIEW ISSUE 9, 2016 EDITORIAL BOARD’S MESSAGE 5 ARTICLES The Interface between Companies’ Fundamental Rights and Competition Law Enforcement in the EU: Past, Present and Future I-JU CHEN 7 Tie- In Agreements: How The C.C.I. Got It All Wrong? RAVI GANGAL & DEESHA DALMIA 42 The Sharing Economy: Regulation and the EU Competition Law DENI VITKOVIC 78 ESSAY Dominant Undertakings in the Digital Era: A Call for Evolution of the Competition Policy Towards Article 102 TFEU EVELIN HLINA 119

5 EDITORIAL BOARD’S MESSAGE In line with the GAR’s commitment to provide a forum for academic debate on matters of international competition law and policy, the 2016 volume consists of contributions discussing a diverse selection of prominent and controversial topics. The first article regards the tension between competition law enforcement and the concerned companies’ fundamental rights, particularly under the aspects of the right to fair trial and the right to be heard. The article analyses the case law before the EU Courts and the European Court of Human rights and offers an evaluation of the need for changes. It argues that the enforcement system should prevail over the fundamental rights protection. The second article considers the Indian Competition Commission’s approach to tie-in agreements as abuse of dominance and as vertical restraint. The article undertakes a comparison of the matter in the Indian, US and EU competition laws, drawing on US competition law regarding the history of tying arrangements and EU competition law regarding the possibility of justification under Art. 102 TFEU. Lastly, the article offers an evaluation of two decisions regarding tie-ins by the Indian Competition Commission, ultimately advocating the adoption of an effects-based approach similar to Art. 102 TFEU by the Indian Competition Commission. The third article in this volume deals with aspects of the sharing economy. Highlighting the way in which the sharing economy changes the way of doing business, the article considers whether government intervention or self-regulation is the better means to regulate the sector while recognizing and promoting the characteristics of the sharing economy. It advocates regulating in a way that ultimately puts the consumers’ interests at the heart of the regulation. The author also gives an overview of EU competition law concerns arising with regard to the sharing economy, putting special emphasis on the scrutiny of issues emerging in the context of dominant position and mergers. The volume concludes with an insightful essay dealing with questions surrounding dominance in digital markets. After giving an overview of the characteristics of digital markets and of the discussion regarding dominance in these markets the essay scrutinizes whether an improvement of the EU’s rules on abuse of dominance or whether the adaption of competition policy is

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