Abstract
There are myriad options of institutional settings in the field of competition law and find the optimal institutional design is a complex matter. Many jurisdictions have found success with very different designs and what works well in one country may not always work well in another. There is a wide diversity of institutional designs for the enforcement of competition law in the EU Member States. These are based on country-specific institutional traditions and legacies. While enforcement by multiple authorities with different institutional settings in the same or related cases creates a risk of overlapping and potentially inconsistent action that reduces legal certainty and creates unnecessary costs for businesses, the NCAs are national organs and their institutional design has been a matter of the Member States and their national law due to the principal of procedural and institutional autonomy. Recently many Member States have created “multi-function” agencies by merging the competition authority with the authorities responsible for other economic policy functions, such as consumer protection, sector regulation, technical regulation control or public procurement control, which will be explored in this chapter, namely in the context of the CEE countries. The NCAs (National Competition Authorities) developed in the CEE countries faced tasks unparalleled in the West: to create a competition regime capable of facilitating and enduring the transition from a socialist economy to a market-based one. Initially, the NCAs in most of these countries were structurally part of a ministry or fell under the remit of the government’s supervision, as they had broad oversight responsibilities during the economic reforms of the markets in transition (especially in the context of liberalisation and privatisation). Yet, it was not only about the development of institutions, but also about capacity building and changes in values and thinking. The regulators, who worked under the old regime with responsibility to control prices, had to change almost overnight into the protection of competitive process and adopt to a new system while developing their new regulatory skills.
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Notes
- 1.
The OECD provided insightful study in this regard. See, OECD (2016a).
- 2.
The extent of NCAs involvement in the liberalisation and privatisation processes varies in the CEE countries.
- 3.
Pecotić-Kaufman and Butorac-Malnar (2016).
- 4.
- 5.
Defined in Article 35.
- 6.
See, Ferro (2017).
- 7.
Directive 1/2019.
- 8.
Eggertsson (2013), p. 1.
- 9.
Furuboton and Richter (2005).
- 10.
North (1990).
- 11.
North proposed to determine whether an economy is moving in an adaptively efficient direction by questioning whether its institutions provide ‘the incentives to encourage the development of decentralized decision-making processes that will allow societies to maximize the efforts required to explore alternative ways of resolving problems’. Ibid, North (1990), p. 81.
- 12.
- 13.
Leftwich (2007).
- 14.
Gerber (2009).
- 15.
Barnard (2010), pp. 189–190.
- 16.
Directive 2014/104/EU.
- 17.
Kersting (2018), ch. 6.
- 18.
For some discussion on this argument (yet, clearly unsupportive in the context of the relationship between the NCAs and the Commission), see Dunne (2016).
- 19.
Riley (2017).
- 20.
EU Council, EU Commission (2002), para. 7.
- 21.
Opinion in C-439/08, §§47-48.
- 22.
Ferro (2017).
- 23.
See, e.g., case C-288/12, where the Court used the EU Regulation on the independence of the EU regulator to draw analogies for the interpretation of independence requirements for NRAs (§56).
- 24.
Gal (2010), p. 439.
- 25.
Article 35(1) of Regulation 1/2003. In addition, the requirement of some degree of independence of NCAs could be assumed in Articles of 11 and 12 on obligations to coordination with the Commission and protection of confidential information. Council Regulation (2003).
- 26.
Article 35(2) and (4) of Regulation 1/2003. This was further confirmed in Vlaamse federatie van verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers (VEBIC) VZW (Case C-439/08; ECLI:EU:C:2010:739).
- 27.
It should be noted that there is a precedent in the EU for prohibiting joining of regulatory functions, if doing so may jeopardise the effectiveness of EU Law.
- 28.
Case C-439/08 Vlaamse federatie van verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers (VEBIC) VZW ECLI:EU:C:2010:739.
- 29.
Ibid, para 59.
- 30.
Ferro (2017).
- 31.
Case C-439/08, §56.
- 32.
Alves et al. (2015).
- 33.
Communication on Ten Years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives (2014).
- 34.
The Communication states that ‘It is necessary to ensure that National Competition Authorities can execute their tasks in an impartial and independent manner. For this purpose, minimum guarantees are needed to ensure the independence of NCAs and their management or board members and to have NCAs endowed with sufficient human and financial resources’. Ibid.
- 35.
Proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (2017a).
- 36.
Cengiz (2016).
- 37.
For instance, in European Commission v Germany (Case C-518/07; ECLI:EU:C:2010:125), it was stated that (“The guarantee of the independence of national supervisory authorities is intended to ensure the effectiveness and reliability of the supervision of compliance with the provisions on protection of individuals with regard to the processing of personal data”, para. 25.); This has been reaffirmed, for instance, in Maximillian Schrems v Data Protection Commissioner (Case C-362/14; ECLI:EU:C:2015:650), para. 41.
- 38.
Proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (2017a).
- 39.
European Commission - Press release, Antitrust: Commission proposal to make national competition authorities even more effective enforcers for the benefit of jobs and growth, Brussels, 22 March 2017b.
- 40.
Article 4(2)(a)-(c) of the Directive.
- 41.
Article 4(2)(d) of the Directive.
- 42.
Article 4(2)(e) of the Directive.
- 43.
European Competition Network (2013).
- 44.
Malinauskaite (2016), pp. 19–52.
- 45.
The deadline to transpose the ECN+ Directive is 4 February 2021.
- 46.
Brezezinski (1994), p. 1137. As stated by British Member of Parliament John Redwood, [w]ithout careful handling, the problem of monopoly can bring privatisation into disrepute.... A monopoly transferred to the private sector without controls could easily fall into the hands of those who not only wish to perpetuate bad service and high prices but also to exploit the pricing power the monopoly enjoys making even bigger profits. As quoted in Letwin (1988).
- 47.
- 48.
Given that the privatisation process is a large topic on its own and covers much broader issues, such as corruption, it is excluded from the scope of this book.
- 49.
In Poland and Hungary, however, the system of central planning had been gradually replaced in the 1980s with a system of negotiation between enterprises and financial authorities as to prices, interest rates, and taxes. Thus, although state enterprises became “self-governing” or “autonomous,” autonomy as such did not equate with either free competition or the emergence of market-based relations among enterprises. For a discussion of “plan softening” during the final years of the communist era, see Izdebski (1989).
- 50.
As stated by Lipton and Sachs, “[t]he organization of industry was designed to facilitate top-down planning, rather than market competition, with a heavy orientation toward large firms integrated both horizontally and vertically.” Lipton and Sachs (1991), p. 82. Remarking on the notion of “the plan,” Professor lzdebski states that [a]lthough economic reforms were undertaken in particular countries in relatively different epochs and in relatively different circumstances, their starting point was always the same: the over-centralized system of a state planned economy, which ... excludes substantial reform of the administrative allocation of resources and goods as if the entire national economy were a unique enterprise. Izdebski (1989), p. 704.
- 51.
Note: The competition laws in most former socialist countries were passed prior to the signing of the Europe Agreements. Therefore, they did not necessarily reflect entirely the EU competition law design. The Europe Agreements essentially comprise of the Articles 85, 86, and 92 EEC (now Articles 101, 102, and 107 TFEU). Nevertheless, it was obvious for these countries that transforming their economies from centrally planned to market based economies was the way to go.
- 52.
- 53.
For instance, initially Lithuania had a bifurcated agency model of two institutions: the State Price and Competition Office (part of the Ministry of Economy), which carried out investigations, and the Competition Council, which adopted decisions. In 1993, responsibility for enforcing the Law on Prices was assigned to the State Price and Competition Office, now the Competition Council. On November 11, 2014 The Law on Prices was repealed in November 2014 (effective 1 May 2015, No. I-413).
- 54.
It was established by Act LXXXVI of 1990 on the prohibition of unfair market practices, and started its operation on 1 January 1991.
- 55.
When the Competition Law 21/1996 came into force.
- 56.
Romanian Competition Council (2011).
- 57.
OECD (2014a) Competition Law and Policy in Romania.
- 58.
Martyniszyn and Bernatt (2019), p. 7.
- 59.
Decision No. 481 of the Council of Ministers of 12.11.1992 “On the establishment of the Committee for the supervision of the monopolistic activities in the Republic of Latvia” (Ministru Padomes 12.11.1992).
- 60.
The Council was established by Ordinance No. 18 of the Cabinet of Ministers of 14.01.1998 On the establishment of the Competition Council (Ministru Kabineta 14.01.1998. U NRMXPV_ Nr. 18 “Par Konkurences padomes izveidošanu”), published in Latvijas Vestnesis (Official Gazette) on 15.01.1998.
- 61.
Czech Reception Act (1993) Act No. 4/1993 Coll. of Laws.
- 62.
Act of 11 November, 1993, on the Protection of Economic Competition, Acts No. 495/1992 and No. 286/1993 Coll. of Laws (came into force 1 January 1994).
- 63.
Act of July 8, 1994, on the Protection of Economic Competition, Act No. 188/1994 Coll. of Laws.
- 64.
Established by the Act No 173/1991 Coll. of April 26, 1991; the Office started its activity on July 1, 1991.
- 65.
Act No 273/1996 Coll., as amended by the Act No 187/1999 Coll.
- 66.
Its competences are defined by the Act No. 143/2001 Coll., on the Protection of Competition, as amended.
- 67.
Act No. 63/1991 Coll.
- 68.
Institute of European Media Law (2003).
- 69.
Fessenko (2007).
- 70.
The Agency was established by the Decision of the Croatian Parliament of 20 September 1995 and became operative in early 1997. The first Croatian Competition Law included the provisions mirroring Articles 101 and 102 TFEU with the rest of the Act combining solutions recognised by German and French competition laws. Pecotić-Kaufman and Butorac-Malnar (2016).
- 71.
Under former Article 266 of the General Administrative Procedure Act. No. 53/92, 103/96.
- 72.
Pecotić-Kaufman and Butorac-Malnar (2016), p. 336.
- 73.
OECD (2014c).
- 74.
Alves et al. (2015).
- 75.
Clark (2005), pp. 69–70; Jenny (2012); Ottow (2015), p. 74; Maggetti (2012), p. 34; Verhoest et al. (2004), p. 101; Dutz and Khemani (1996), p. 28; Mateus (2007), p. 17; Monti (2014), pp. 4–5, who refer to the ability of competition authorities to implement their mission independently of government and industry.
- 76.
- 77.
UNCTAD (2008).
- 78.
- 79.
Communication on Ten Years of Antitrust Enforcement under Regulation 1/2003. COM (2014) 453.
- 80.
As set in article 4(2) (a-e) of the Directive.
- 81.
Maggetti (2012), p. 34.
- 82.
- 83.
Jenny (2012).
- 84.
Ibid, p. 126.
- 85.
Ibid.
- 86.
OECD (2016d).
- 87.
Jenny (2016), p. 28.
- 88.
- 89.
Clark (2005), pp. 69, 71.
- 90.
- 91.
This will be further discussed in Sect. 5.7.1 on financial and human resources of the NCAs in the CEE countries.
- 92.
- 93.
Alves et al. (2015).
- 94.
These comments were provided in the context of the US jurisdiction.
- 95.
Kovacic and Hyman (2012).
- 96.
In the UK, in addition to the CMA the main sectoral regulators have concurrent competition powers with energy (gas and electricity); water and sewerage services; rail; air traffic control; airport operations; telecoms, broadcasting, spectrum and postal services; healthcare services; financial services, and payment systems.
- 97.
Jasser (2015).
- 98.
Article 4 of the ECN+ Directive.
- 99.
Recital 16, ECN+ Directive.
- 100.
Further discussion will be provided in Sect. 5.6.3.3.
- 101.
OECD (2017).
- 102.
Commission (2015).
- 103.
Article 16 of the Competition Law establishes the RCC as independent government authority with legal personality.
- 104.
Malinauskaite (2016).
- 105.
Communication on Ten Years of Antitrust Enforcement under Regulation 1/2003. COM (2014) 453.
- 106.
The other models can also be identified, where, in addition to the main NCA, other sectoral regulators have competence to apply Articles 101 and 102 TFEU (and domestic equivalents) to the sector for which they are competent. For instance, in the UK there are 9 authorities capable of enforcing the EU competition law provisions. Study, IP/A/ECON/2016-06, An Academic View on the Role and Powers of National Competition Authorities. Background to the ECN plus project, p. 19.
- 107.
Jenny (2016), p. 21.
- 108.
Ibid, p. 20.
- 109.
Kovacic (1997), p. 12.
- 110.
The right to a fair trial and the right of defence are enshrined as general principles of EU law.
- 111.
The view is taken that, it is sufficient for the Commission decisions in competition cases to be subject to review by the Union courts even if the Commission itself is not an “independent and impartial tribunal” under Article 6 ECHR”. See, Slater et al. (2009).
- 112.
Case of Le Compte, Van Leuven and De Meyere V. Belgium No. 6878/75; 7238/75 23 June 1981, para 51.
- 113.
Kovacic and Hyman (2012), p. 6.
- 114.
Jenny (2016), p. 27.
- 115.
See, Kovacic (1997).
- 116.
- 117.
The Law on Competition of Lithuania has an exception with regard to CEOs where only the Vilnius Regional Administrative Court can impose sanctions (i.e. disqualification or a financial penalty) on these individuals. See Article 41(1) of the Law on Competition 23 March 1999 No VIII-1099, (last amended on 22 March 2012 No XI-1937).
- 118.
The right to a fair trial and the right of defence are enshrined as general principles of EU law.
- 119.
The Slovak Antimonopoly Office, Annual Report 2017.
- 120.
There are some proposals of future reforms, as to separate the investigative powers of the UOKiK from its decision-making powers and to replace the monocratic authority by a collegial body modelled on the European Commission.
- 121.
There are the detailed requirements defined by Article 17 of the Competition law for those who could be eligible to be appointed as the members of the Council, including a higher education degree, a minimum of 10 years experience in economic or legal areas, high professional competence in the area of competition, a good reputation, no criminal record etc. The Romanian Competition Authority official website: http://www.consiliulconcurentei.ro/en/about-us/description/structure.html Accessed 25 Jun 2019.
- 122.
OECD (2014d) Competition Law and Policy in Romania: A peer review.
- 123.
Observed by the stakeholders as reported in OECD (2014d).
- 124.
Hungarian Competition Authority (2017).
- 125.
The law does not prescribe specific requirements of expert knowledge and previous experience in the areas of competition law/economics, which leaves the Prime Minister with a great deal of leeway.
- 126.
Hungarian Competition Authority, Annual Report 2017.
- 127.
Hungarian Competition Authority, Annual Report 2006.
- 128.
Nagy (2016), para 289.
- 129.
The Czech Republic. Office for the Protection of Competition official web-site: https://www.uohs.cz/en/about-the-office/history-of-the-office.html (accessed 25 May 2019).
- 130.
In addition, the selection process is not transparent—the names of those who replied to the call for applications as well as the names of those who were proposed by the selecting committee are not made publicly known. For further reading, see Bernatt (2019).
- 131.
Martyniszyn and Bernatt (2019).
- 132.
Jasser (2015), p. 72.
- 133.
Krasnodębska-Tomkiel (2008).
- 134.
The term of mandate for the Council members in Romania is 5 years and their mandate can be renewed once. In 1991 the six members of the Council in Hungary were appointed for an unspecified term. The term of this appointment has changed and now the tenure is 6 years. The term of office of the Chairman in the Czech Republic is 6 years with appointment being limited a maximum of two successive periods.
- 135.
For instance, the Head of the Energy Regulatory Office enjoys a term of 5 years. Martyniszyn and Bernatt (2019).
- 136.
Article 4 of the Law on Protection of Competition.
- 137.
Except the Chairperson of the Commission, who must be a qualified lawyer having legal work experience of no less than 10 years.
- 138.
Article 4 of the Law on Protection of Competition.
- 139.
They are: Antirust and Concentrations; Competition Law and Policies; and Unfair Competition and Abuse of Superior Bargaining Power (this section was added in 2015). The CPC Internal Rules of Organisation /Promulgated in SG No.15 of February 24, 2009, effective February 24, 2009.
- 140.
The conditions for the appointment and term of office of the members of the Competition Council and the scope of competence of the Competition Council are regulated by the Competition Act. http://www.aztn.hr/en/about-us/legal-powers-and-organisation-of-the-cca/competition-council/.
- 141.
The Croatian Competition Agency, Annual Report 2015.
- 142.
See, Latvia, the Competition Council official web-site: https://www.kp.gov.lv/en/par-mums/struktura-darbinieki.
- 143.
Competition Council, Annual report 2018.
- 144.
Chapter II (sections 4 and 5) of the Law on Competition.
- 145.
Section 5 of the Law on Competition.
- 146.
Article 20 of the Law on Competition.
- 147.
Article 20 of the Law on Competition.
- 148.
Council members are appointed in such a way that the term of office will end for a maximum of three of them during the course of one calendar year. If the performance of the post of a Council member ends before the end of their term of office, a new Council member may only be appointed for the remainder of the respective term of office. This system is in place to ensure continuity.
- 149.
Article 15 of the Competition Act.
- 150.
Article 19 of the Competition Act.
- 151.
Article 5 of ZPOmK-1.
- 152.
Estonian Competition Authority, Annual Report 2018.
- 153.
The dismissal of the director general is possible by serious misuse only (criminal proceedings).
- 154.
The Estonian Competition Authority, Annual Report 2016.
- 155.
National Audit Office of Lithuania (2010).
- 156.
Law on Competition No. XIII-193.
- 157.
The KT, the Competition Council of Lithuania, ‘Evaluating Work of the Competition Council of the Republic of Lithuania: Direct and Indirect Benefits to Consumers’, 2011 and then 2013. Most recently, the KT indicated that EUR 1 invested in the work of the KT brought EUR 7.6 of expected benefits. Annual Report 2018.
- 158.
The KT (2011). Assessing the Impact of the Work of the Competition Council: Benefits to Consumers are Obvious, newsletter. 6 October 2011.
- 159.
No allegations were made. The Office for the Protection of Competition. Chairman of the Office is convinced that the investigation will confirm the legality of all administrative proceedings. Newsletter 11 March 2019.
- 160.
For instance, in 2016 the Croatian CCA issued over 100 legal opinions and statements on the compliance with competition rules in various markets: the waste management market, electricity supply, public procurement of electronic communication services in the fixed network, tax consultancy services, student transport, public procurement in the activities of travel agencies etc. In Poland the UOKiK has also played a key role in legislative amendments in the water and sanitation services sector. Further discussion will be provided in Chap. 6.
- 161.
Jasser (2015).
- 162.
Keserauskas (2017).
- 163.
OECD (2016c).
- 164.
OECD (2019).
- 165.
For instance, in Romania, the RCC can be challenged before the Court of Appeal of Bucharest.
- 166.
Sections 22(2) and 326(1) of the Competition Act.
- 167.
Sections 10(2) and 340(2) of the Competition Act.
- 168.
Sections 10(3) and Section 270(2) of the Competition Act. For further discussion, see Nagy CI (2016), para 24.
- 169.
Tóth (2018), p. 41.
- 170.
Effective from 1st January 2019.
- 171.
This Court was created in 1990 as a special court for cases involving monopolistic practices. Minister of Justice Decree of April 13, 1990, Dz.U. 1990 No. 27. Pursuant to Article 47931a of the Code of Civil Procedure, it is either entitled to dismiss the action brought against a UOKiK decision and uphold the contested decision, or to accept the action and rule on its merits by changing the UOKiK decision (fully or in part). The appeal against a SOKiK judgment is heard by the Court of Appeal in Warsaw (its general civil VI Division). On the basis of an extraordinary cassation complaint, the case can reach the Supreme Court (the Division of Labour, Social Securities and Public Affairs).
- 172.
Alves et al. (2015).
- 173.
Meicklejohn (2014).
- 174.
OECD (2014d).
- 175.
Latvian Competition Council, The working strategy for 2017–2019.
- 176.
Ābrama (2018).
- 177.
Effective from 1st May 2019.
- 178.
Act of 15 December 2016. OJ 2017, item 67.
- 179.
Martyniszyn and Bernatt (2019).
- 180.
Poldroos (2008).
- 181.
The Payments Services Unit was established, which falls under the Cartel Department within the Competition Division. The Czech Republic, Office for the Protection of Competition, Annual Report 2017.
- 182.
- 183.
Martyniszyn and Bernatt (2019).
- 184.
Liszt (2015).
- 185.
Martyniszyn and Bernatt (2019), p. 22.
- 186.
Slovakia, Antimonopoly Office, Annual Report 2017.
- 187.
Wils (2017), p. 36.
- 188.
Petit (2010).
- 189.
For instance, in the past the NCAs of Bulgaria, the Czech Republic, Latvia, Lithuania, and Romania had an obligation to act upon any complaint. The Croatian NCA did not have the authority to set its own enforcement priorities before 2009.
- 190.
Romanian Competition Council, the RCC, Annual Report 2011.
- 191.
Jennings (2015).
- 192.
Resolution No. 1S-89 ‘Concerning Priority of the Activities of the Lithuanian Competition Council’ (Resolution of Priority) on 2 July 2012.
- 193.
The KT of Lithuania further defines that that the most severe, negative effects on effective competition and consumer welfare are usually caused by actions that (1) directly affect prices of goods, their quality and variety; (2) directly limit the possibility of the undertakings to act in the relevant market by closing or partitioning market or through expulsion from the market; (3) directly affect the relevant part of the undertakings or consumers operating in Lithuania; (4) directly related with goods intended for consumers. Resolution No. 1S-89 ‘Concerning Priority of the Activities of the Lithuanian Competition.
- 194.
Latvian Competition Council, Annual Report 2014.
- 195.
Guidelines Prioritisation Policy of the AMO SR, 2015.
- 196.
Resolution No. 1S-89 ‘Concerning Priority of the Activities of the Lithuanian Competition.
- 197.
OECD (2014d).
- 198.
Martyniszyn and Bernatt (2019), p. 24.
- 199.
OECD (2014d).
- 200.
Kovacic and Hyman (2012), p. 9.
- 201.
Jenny (2016).
- 202.
- 203.
Kovacic and Hyman (2012), p. 9.
- 204.
Ibid.
- 205.
Martyniszyn and Bernatt (2019).
- 206.
This is more related to B2B contracts rather than B2C contracts.
- 207.
The Office for the Protection of Competition, Annual Report 2017.
- 208.
OECD (2014e).
- 209.
The NCA of some CEE countries do have competence in one sector (i.e. Romania—rail and maritime supervision) but to the same extent as in Estonia.
- 210.
In response to the economic slowdown in January 2008 the Estonian Competition Board merged with the former regulators into a single Estonian Competition Authority (ECA).
- 211.
Estonian Competition Authority, Annual Report 2007.
- 212.
For instance, a recent case in Estonia in the district heating sector concerning AS Tallinna Küte is an example of synergy between the work of Competition Division and Energy and Water Regulatory Division. See Estonian Competition Authority, Annual Report 2014.
- 213.
Quemada (2016).
- 214.
The Czech Republic, Office for the Protection of Competition, Annual Report 2016. Note: the scope of this book does not cover the relationship between the competition authorities and the sectoral regulators in the analysed jurisdictions.
- 215.
Most NCAs of the CEE organised several joint events with other public authorities to improve competitive culture, which will be further discussed in Chap. 6.
- 216.
OECD (2019).
- 217.
OECD (2014e).
- 218.
Estonian Competition Authority, Annual Report 2012.
- 219.
State Aid falls under the Ministry of Finance in Estonia.
- 220.
OECD (2014e).
- 221.
In July 2015 the National Assembly adopted a package of measures to combat unfair trading practices in the grocery supply chain, (a new chapter VIIa of the PCA) introducing a prohibition against abuse of superior bargaining power. Petrov (2017), p. 29.
- 222.
Effective from 1st May 2019.
- 223.
Act of 15 December 2016. OJ 2017, item 67.
- 224.
Official Gazette 117/17.
- 225.
It could increase up to £91.44 million to enable the EU Exit preparations. Competition and Markets Authority Annual Plan 2018/19, March 2018. See, Competition and Markets Authority (2018).
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Malinauskaite, J. (2020). Institutional Framework of the National Competition Authorities in the Central and Eastern European Countries. In: Harmonisation of EU Competition Law Enforcement. Springer, Cham. https://doi.org/10.1007/978-3-030-30233-7_5
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