Friso Bostoen ‘Online platforms and vertical integration: the return of margin squeeze?’ (2018) Journal of Antitrust Enforcement 6 355

The main challenge with anticompetitive conduct by online multisided platforms is finding a fitting theory of harm. The author argues here that one candidate theory has been overlooked: margin squeeze. Margin squeeze, occurs where a dominant undertaking charges a price for the product on the upstream market which, compared to the price it charges on the downstream market, does not allow an equally efficient competitor to trade profitably in the downstream market on a lasting basis. In other words, margin squeeze takes place when an upstream operator forces his downstream competitor—who is just as efficient—off the market by squeezing his profit margins. This class of abuse has for the most part been confined to the telecom sector, but its potential reaches beyond. Indeed, the tendency towards vertical integration and subsequent conduct of online platforms could renew the relevance of margin squeeze as an analytical tool. The paper is structured as follows: Section II outlines the fundamental elements of margin squeeze. This section…

Patrick Todd ‘Intra-platform exclusion in software markets’ (2018) Journal of Antitrust Enforcement 6 409

This article, available here, analyses situations where platform operators design their platforms in a way that is liable to exclude intra-platform competitors. Exclusion in intra-platform markets require certain intricacies that existing theories of harm in antitrust law do not anticipate; thus, applying those theories unyieldingly is liable to cause confusion and result in judicial error. Authorities must formulate policies that detect anticompetitive exclusion without deterring innovation, and apply that policy consistently across comparable cases. Existing cases reveal that some authorities and courts have been taking a sensible approach to intra-platform exclusion, whereas others, especially in the EU, have shown a tendency to protect excluded intra-platform firms at the expense of consumer welfare. The paper is structured as follows: Section II defines software platforms and describes platform owners’ relationships with third-parties that distribute services through their platforms. Software platforms are code-based infrastructures that facilitate exchanges and transactions through the creation of one or multiple downstream ‘intra-platform’ markets. Through a platform, users can transact with…

Jose Luis da Cruz Vilaca on ‘The intensity of judicial review in complex economic matters – recent competition law judgments of the Court of Justice of the EU’ (2018) Journal of Antitrust Enforcement 6(2) 173–188

The author of this paper, available here, was for a long time the President of the Court of First Instance (now the ECJ’s General Court). More importantly for our purposes here, he was also the CJEU judge responsible for drafting the Intel judgment. The paper is structured as follows: A first section reviews how EU courts approach judicial review in complex matters, and how this approach has evolved over time. For a number of years, the Court of Justice (ECJ) has taken a careful approach to the scope and intensity of review of Commission decisions as regards complex economic matters. From the outset, the Court conceived its role in competition matters as being limited to reviewing legality, and not as involving unlimited jurisdiction or full merits review (except as regards the imposition of fines). Since Consten & Grunding in 1966, the ECJ has acknowledged that the Commission must engage in complex evaluations of economic matters. The judicial review of these evaluations…

Thomas Hoppner ‘A Duty to Treat Downstream Rivals Equally: (Merely) a Natural Remedy to Google’s Monopoly Leveraging Abuse’ (2017) European Competition and Regulatory Law Review (3)208

This  paper – which can be found here – reviews the European Commission’s decision in the Google case, and the remedy that the Commission imposed in that decision. It argues that this decision follows settled law regarding anti-competitive extensions of dominance from a primary market to a distinct, but related, secondary market. It also seeks to refute the argument that the decision created a novel rule that a dominant company may not favour its own services – instead, it is argued that this requirement is merely the remedy that the Commission imposed to bring Google’s infringement to an end. The paper is structured as follows: A first section provides an overview of the decision and some critical reactions to it. The Commission fined Google for having abused its market dominance as a search engine by promoting its comparison shopping service, Google Shopping, and demoting rival services. Describing the abuse, the EC explained that it: “objects to the fact that Google…