Jay Matthew Strader ‘Google, Monopolization, Refusing to Deal and the Duty to Promote Economic Activity’ (2019) International Review of Intellectual Property and Competition Law 50(5) 559

Almost no consumers have the resources to assess the quality of information online. Search engines seek to remedy asymmetries in information, effectively providing a quality certification service to consumers. Google claims to rank organic results ‘‘scientifically’,’ based strictly on relevance and the quality of the listings. Ninety two percent of all Google search traffic occurs on the first page, encompassing the top ten organic results and paid ads, which reflects high levels of consumer trust.   This paper, available here, argues that Google’s search engine is indispensable for innumerable companies, which cannot compete effectively when Google fails to rank organic results according to relevance. However, Google’s ad-based business model creates incentives for it to promote paying advertisers or its own business, in particular by lowering the rank of more relevant results. This leads to lower quality in the search market, to lower output in downstream markets and, ultimately, to lower consumer welfare – independently of whether Google operates downstream or…

Yannis Katsoulacos ‘Substantive Criteria and Legal Standards in Recent Abuse of Dominance Cases across the Atlantic’ (2019) CPI Antitrust Chronicle March

Legal standards in competition law fall across an analytical continuum whose boundaries are set, respectively, by categorical rules of condemnation (per se illegality) or acquittal (per se legality) on the one end, and an elaborate, fact-intensive assessment of reasonableness (Rule of Reason) on the other. These poles are connected by a range of intermediate tests that seek to combine some of the clarity and economy of bright-line rules with the greater analytical accuracy that a fuller examination of evidence can produce – e.g. in the US, the modified per se and the truncated effects based tests. This paper, available here, reviews a number of recent cases in high technology markets on both sides of the Atlantic (Intel, Google, QUALCOMM), to compare how abusive practices are treated in Europe and the US. Section II compares legal tests in the EU and the US. In the EU, there are multiple goals guiding antitrust enforcement. Under the influence of a strong Ordo-Liberal tradition, the…

Sean Ennis ‘Price Abuses: An overview of EU and national case law’ (2019) Concurrences

Pricing abuses can be viewed as a hybrid between regulation and competition law enforcement, since they raise questions of principle over when pricing that takes advantage of market power should be prevented by competition law action, by regulation or simply left unchallenged. In many cases – e.g. in predation, margin squeeze, rebates and excessive pricing cases – companies may have practical difficulties in assessing ex ante whether their pricing policies are illegally low (in the case of predation and rebates), illegally high (in excessive pricing cases) or some combination of both (in margin squeeze). This has the potential to influence those companies’ incentives significantly, an effect compounded by lack of predictability as to when such cases will be brought. As such, it is important to have a clear view of what types of cases have been brought recently. This is the object of this paper, available here, which reviews recent instances of price abuses in Europe. Section 2 looks at…

Giorgio Monti ‘Abuse of a Dominant Position: A Post-Intel Calm?’ (2019) Competition Policy International – Antitrust Chronicle March

The EU’s abuse of dominance doctrines have been criticised for two reasons. The first is their focus on the form of the conduct rather than on the relevant theory of harm; the second is that the law is applied to protect rivals of the dominant firm without requiring a showing that this would improve economic welfare. Several commentators considered that the Commission’s 2009 Guidance Paper on Exclusionary Abuses brought a paradigm shift to the analysis of Article 102, moving towards a more economics and effects’ based approach. A question that remained was how the courts would react to this. Some decisions – such as Post Danmark I – seemed to move towards the approach adopted in the Guidance Paper, while others – such as Telia Sonera or Post Danmark II – seemed to revert to a more expansive and formalistic approach to Article 102 TFEU. This paper, available here, asks whether the recent move back towards a more effects’ based…

John Ratliff ‘Unilateral conduct in the energy sector: An overview of EU and national case law’ (2019) Concurrences Special Issue Energy & Dominance

This paper, available here, provides an overview of European Commission (“EC”) and European national competition authorities’ (“NCAs”) practice as regards the application of competition rules to unilateral conduct in the energy sector. It covers more than 120 cases, including national court judgments and investigations up to June 2019. While the article divides the various practices into 19 different sections, I will do so as follows: In the introduction, the author summarises European and national approaches, as well as recent developments. The 2007 EU Energy Sector Inquiry prompted much enforcement of Art. 102 TFEU in the energy sector. Most of enforcement concerned traditional foreclosure practices in relation to infrastructure capacity, access to the infrastructure, capacity hoarding and withholding of generation capacity. Other cases have dealt with new types of abuse, such as strategic underinvestment and market manipulation, and there have also been cases on excessive pricing. Energy markets remain a priority for the European Commission. Recent developments include closing investigations against…