Gönenç Gürkaynak, Ali Kağan Uҫar and Zeynep Buharali ‘Data-Related Abuses in Competition Law’ in Standing Up for Convergence and Relevance in Antitrust – Frédéric Jenny Liber Amicorum – Volume I (eds. Ahmad and Charbit, 2019) Concurrences

Data has become an indispensable business tool, and, as a result, the collection and use of data by dominant undertakings can give rise to competition law concerns. This article, available here, examines data-related abuses in competition law, and seeks to provide an overview of specific types of abuses arising from the use of data. Section II looks at the definition of data. Data is often defined as “information that can be stored and used by a computer program.” Accordingly, “big data” refers to “large amounts of different types of data produced at high speed from multiple sources, requiring new and more powerful processors and algorithms to process and to analyse’. As “data” increases in volume, diversifies in nature and content, and keeps on flowing rapidly through the veins of the global economy, its collection and processing creates increasingly valuable commercial opportunities. Undertakings more and more see data as an indispensable tool for improving business decisions and strategies, and for improving…

Björn Lundqvist ‘Regulating competition in the digital economy’ in Competition Law for the Digital Economy (ed. Björn Lundqvist and Michal S. Gal) (2019, Elgar)

There is an intense academic discussion regarding whether consumers and business users are exposed to conduct that may amount to competition law abuses when using Internet services. The discussion is connected to the Internet phenomenon of ‘platforms’ or intermediaries. The multitude of direct customer–supplier transactions making up everyday business conduct are, to an increasing degree, replaced on the Internet by an intermediary, the platform, matching the customer with the supplier. Platforms are able to perform role because they provide efficient and easy matching. Further, internet platforms may, due to certain special and somewhat unique characteristics – like network effects, tipping and path dependency – become central ‘hubs’ between purchasers and suppliers. This chapter, available here, focuses on the application of competition law vis-à-vis the platforms collecting personal and non-personal data. It considers questions such as: may competition law be used to gain access to intermediaries’ data, and the infrastructure around that data? May competition law be used to limit the…

Klaus Wiedemann ‘A Matter of Choice: The German Federal Supreme Court’s Interim Decision in the Abuse-of-Dominance Proceedings Bundeskartellamt v. Facebook (Case KVR 69/19)’ (2020) IIC – International Review of Intellectual Property and Competition Law volume 51 1168

In June 2020, the German Federal Supreme Court (Bundesgerichtshof) upheld the 2019 interim decision of the Federal Cartel Office (Bundeskartellamt) ordering Facebook to stop collecting data about its users without their consent when they use apps and visit websites outside Facebook’s social network.Importantly, the Federal Supreme Court confirmed that Facebook’s data collection was an abuse of its dominance in the (German) market for personal social networks, overruling an earlier decision of the Düsseldorf Court of Appeal (Oberlandesgericht Düsseldorf). This piece, available here, explores the relevance of the case – and the courts’ different decisions – from a number of perspectives. Section II describes the Facebook case, up to the Supreme Federal Court’s judgment. In February 2019, the Bundeskartellamt found that Facebook was dominant on the market for social networks, and had abused this position by imposing terms of service allowing it: (i) to collect its users’ personal data (and data related to their terminal devices) from outside the actual social…

Rachel Scheele ‘Facebook: From Data Privacy to a Concept of Abuse by Restriction of Choice’ (2021) Journal of European Competition Law & Practice 12(1) 34

On 23 June 2020, the German Federal Supreme Court found that Facebook violated German competition law by abusing its dominance in the market for social networks. The ruling, upholding the decision by the competition authority, is a major victory for advocates of addressing data-related competition concerns under Article 102 TFEU and its national equivalents. However, instead of focusing on the intersection between competition and data protection law in its reasoning, as the competition authority had, the Federal Supreme Court relied on the concept of restriction of consumer choice. This article, available here, casts light on the Facebook case and its practical relevance. Section 2 reviews the Facebook infringement decision. In 2019, the German Bundeskartellamt found that Facebook had abused its dominant position on the German market for personal social networks by imposing unfair terms and conditions on its users. The Bundeskartellamt’s case linked antitrust violations with data protection law, and relied on alleged infringements of the EU’s General Data Protection…

Niamh Dunne ‘Dispensing with Indispensability’ (2020) Journal of Competition Law & Economics 16(1) 74

‘Indispensability’ is the central concept underpinning the treatment of refusal to deal claims under EU competition law. Firms can normally refuse to share their infrastructure with would-be competitors, to supply an input, or to licence their intellectual property. Where the requested access is, however, deemed indispensable to effective competition in an adjacent market—an exceptional circumstance—dominant undertakings may find their default market freedom constrained, the rationale being that control of such an essential facility renders any refusal to deal disproportionately harmful. However, the conventional wisdom that instances of refusal to deal constitute an abuse only in the presence of indispensability has been challenged from multiple directions. This article, available here, surveys the departures from the orthodoxy that can be found in the jurisprudence. Section II introduces refusal to supply as an antitrust theory of harm. It has long been acknowledged that Article 102 TFEU may, in certain instances, proscribe refusals to contract with rivals by dominant undertakings. Yet refusal to deal…

Einer Elhauge ‘How Horizontal Shareholding Harms Our Economy—And Why Antitrust Law Can Fix It’ (2020) 10 Harvard Business Law Review 10(2) 207

This article, available here, argues that new economic proofs and empirical evidence show that horizontal shareholding in concentrated markets often has anticompetitive effect. The piece also develops new legal theories for tackling the problem of horizontal shareholding. When horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. Anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102. Part I describes how new proofs and empirical evidence have confirmed that high levels of horizontal shareholding in concentrated product markets can have anticompetitive effects, even when each individual horizontal shareholder has a minority stake. The last few years have seen a deluge of studies – involving economic modelling and empirical research – demonstrating how overlapping horizontal shareholding can lead to anticompetitive effect, even when each individual horizontal shareholder has a minority stake and without…

C. Scott Hemphill and Tim Wu on ‘Nascent Competitors’ (2020) University of Pennsylvania Law Review (forthcoming)

A nascent competitor is a firm whose prospective innovation represents a serious future threat to an incumbent. Nascent rivals play an important role in both the competitive process and in developing innovation. New firms with new technologies can challenge and even displace existing firms; sometimes, innovation by an unproven outsider may be the only way to provide new competition to an entrenched incumbent. For competition enforcers, nascent competitors pose a dilemma. While nascent competitors often pose a uniquely potent threat to an entrenched incumbent, the firm’s eventual significance is uncertain, given the environment of rapid technological change in which such threats tend to arise. That uncertainty, along with a lack of present, direct competition, may make enforcers and courts hesitant or unwilling to prevent an incumbent from acquiring or excluding a nascent threat. This essay, available here, identifies nascent competition as a distinct category and outlines a program of antitrust enforcement to protect it. It favours an enforcement policy that…

C. Scott Hemphill and Nancy L. Rose on ‘Mergers that Harm Sellers’ (2018) Yale Law Journal 127(1) 2078

In typical mergers, the main concern is that the parties will be able to raise the prices they charge purchasers. Some mergers, however, reduce competition among competing buyers, thereby reducing the prices that sellers receive for their products and services. These adverse “buy-side” effects may harm a wide variety of sellers, including workers.  This paper, available here, examines the antitrust treatment of mergers that harm sellers. Its central claim is that harm to sellers in an input market is sufficient to support antitrust liability. Part I considers mergers that increase classical monopsony power. Monopsony is used here as the mirror image of monopoly, i.e. market power susceptible of affecting the price of inputs. Monopsony is a frequent concern in labour and agricultural markets. As with lawfully acquired monopoly power, antitrust law does not prohibit the exercise of lawfully acquired monopsony power, despite its economic costs. Yet antitrust problems do arise when buyers increase their monopsony power by combining forces. Agreements…

Michal Gal ‘The Case for Limiting Private Litigation of Excessive Pricing’ (2020) Journal of Competition Law and Economics 15(2-3) 298

Excessive pricing raises strong concerns for private competition litigation, for three reasons: (1) the inherent difficulty of defining what constitutes an unfair price; (2) additional challenges inherent to private excessive pricing litigation, such as the need to pinpoint when exactly a price becomes unfair in order to calculate damages; and (3) the institutional features of general courts in EU member states. Given that private litigation of competition law violations is only beginning to develop in the EU, and collective redress mechanisms are still viewed with caution by many member states, this is exactly the time to ensure that, as private litigation expands, it will increase welfare. This is the purpose of this paper, which is available here. Section 2 addresses the inherent difficulty of determining when a price becomes unfair. The excessive pricing prohibition, though longstanding, suffers from serious and inherent difficulties in its implementation. In particular, it lacks clear and workable criteria. The challenges can be summarised as follows: to decide…

OECD papers on the implications of the pandemic for competition law – merger control, cooperation agreements and exploitative pricing

This post reviews three OECD papers on the implications of the pandemic for competition law. Each paper focuses on a different topic. A first paper focuses on merger control in the time of COVID-19. In times of acute crisis, such as the one provoked by COVID-19, many firms may need to leave the market, which may trigger increased merger activity. Without thorough merger review, there is a serious risk that the economic crisis would result in higher market concentration and market power in several sectors. At the same time, the unparalleled economic uncertainty we are living through means that competition authorities face a number of challenges in the exercise of their merger control powers. A first challenge relates to how to conduct forward-looking competitive assessments in turbulent market conditions. Merger reviews assess the effects of transactions by comparison to the circumstances that would have prevailed without the transaction (i.e. a counterfactual). In most cases, the counterfactual starts from the competitive…