Thomas Hoppner, Felicitas Schaper, and Philipp Westerhoff ‘Google Search (Shopping) as a Precedent for Disintermediation in Other Sectors – The Example of Google for Jobs’ (2018) Journal of European Competition Law & Practice 9(10) 627

The Google Shopping decision was said by the Commission to be “a precedent which establishes the framework for the assessment of the legality of this type of conduct”, i.e. the use of a dominant platform to favour one’s own ancillary service. Despite this, in 2018 Google launched a new service, Google for Jobs, for the matching of job seekers and employers in Europe. This article, available here, examines whether the manner with which Google is presenting its new Google for Jobs service on its general search results pages complies with the precedent set out by the Google Shopping decision. The paper is structured as follows: Sections II and III provide some insights into search and search bias, and reviews the European Commission’s Google Shopping decision. Upon a user’s query in Google Search, Google’s general search results pages generally produce three different categories of search results: (i) Generic Search Results, (ii) Specialised Search Results and (iii) AdWords Results. The likelihood that a user…

Nicholas Banasevic ‘The European Commission’s Android Decision and Broader Lessons for Article 102 Enforcement’ CPI Antitrust Chronicle December 2018

The aim of this article, which can be found here, is to analyse some of the main issues that arose in the European Commission’s Google Android decision, and to place these issues in the context of hotly debated broader themes relating to antitrust enforcement in hi-tech markets. The author is head of unit at the European Commission, so his analysis may be more authoritative than other ones, at least until the full decision is published.  The piece is structured as follows: Section II provides an overview of the Commission’s decision. Android is an open-source smart mobile operating system. Google started providing the core version of Android commercially to smartphone and tablet manufacturers (“OEMs”) for free, but included a range of contractual requirements relating to the terms for obtaining Google’s associated proprietary apps (e.g. Google’s search app) and services. The free and open-source provision of Android was a key part of getting all major OEMs signed up, which led (by 2011) to Google…

Randal Picker ‘Google Android Antitrust: Dominance Pivots and a Business Model Clash in Brussels’ CPI Antitrust Chronicle December 2018,

This paper, which can be found here,  argues that the Android decision is an exercise in platform engineering by European antitrust authorities. The decision makes a statement about acceptable entry paths for firms dominant in one market into another by demanding that a successful firm pivot away from the practices that consumers found valuable, and that indeed led to the emergence of dominance in the first place. In doing so, the Commission appears to undervalue the virtues of business model competition. The paper is structured as follows: Section II describes the European Commission’s interactions with Google. Google’s core business consists of organic horizontal search results matched with ads paid for by third parties. This, of course, is the classic business model of media markets offering consumers content – sometimes for a fee, sometimes for free – and charging advertisers that want to reach those consumers. So-called vertical search competitors, on the other hand, offered specialised search results. On November 30,…

Giovanna Massarotto ‘From Standard Oil to Google: How the Role of Antitrust Law Has Changed’ (2018) World Competition 41(3) 395

This paper, which can be found here, explores the evolution of antitrust over time, and how some of the challenges with network businesses are recurring issues for competition law. It is structured as follows: Section 1 examines the evolution of antitrust law over time. Before the introduction of antitrust law, markets were generally subject to self-regulation. Antitrust was introduced to regulate a number of business practices without engaging in full-fledged regulation. Nonetheless, antitrust has teeth and can be quite intrusive. A first example of this can be seen in the Standard Oil case. Standard Oil’s success was mainly due to a set of mergers and trusts it entered into with its competitors and railroads. The result of this success was that, by the 1890s, most businesses had to deal with Standard Oil or with one of the constituents of its extensive trust l. In order to address the  ‘evil of restriction of output’, the Supreme Court ordered the dissolution of the…

John Yun on ‘Understanding Google’s Search Platform And The Implications For Antitrust Analyses’ (2018) Journal of Competition Law & Economics 14(2) 311

The paper, which can be found here, seeks to describe the precise nature of the various anticompetitive claims against Google, and to develop an economic framework and empirical test to assess these claims. In particular, the paper seeks to develop a conceptual framework to assess claims of leveraging monopoly power and foreclosure of vertical search competitors that could be empirically tested and applied in other jurisdictions or future investigations in platform-settings with related allegations. The paper is structured as follows: Section II describes the precise nature of the antitrust claims against Google. Google operates a multisided platform that offers users free access to its content. In turn, it sells access to those users to advertisers who wish to convert those users to purchasers. Advertising platforms must compete for both users and advertisers. These platforms attract users through quality content, more relevant and less intrusive ads, and lower prices (typically, at free or highly subsidised prices). Ad platforms attract advertisers by having users,…

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…

Jonathan Baker and Fiona Scott Morton on ‘Antitrust Enforcement against Platform MFNs’ (2018) Yale Law Journal 127 2176

 . This paper, available here, argues for more vigorous antitrust enforcement against Most Favoured Nation (MFN) provisions in the platform context. A MFN clause requires providers to refrain from offering their products or services at lower prices on other platforms. During the past two decades, antitrust enforcement against MFN provisions has grown, particularly in Europe. In contrast, there have been almost no enforcement actions against platform MFNs in the United States. The authors make a number of proposals to reverse this trend. The article is structured as follows: Part I shows how platform MFNs can harm competition and consumers, despite their potential competitive benefits. The authors’ draw on the economics’ literature on the effects of MFNs generally, and platform MFNs in particular. Simple MFNs commit sellers not to discount selectively, which assures covered buyers that they will be charged the lowest price offered by the seller. At first blush, one might expect this provision to lead to lower prices for covered buyers….

Chiara Caccinelli and Joëlle Toledano, focuses ‘Assessing Anticompetitive Practices in Two-sided Markets: The Booking.com cases’ (2018) Journal of Competition Law & Economics 14(2) 193

This paper, which can be found here, aims to shed light on the different approaches adopted by different European antitrust authorities to assess the allegedly anticompetitive MFN practices of a platform operating in a two-sided market. This is done by means of a law-and-economics analysis of the different approaches to Booking.com by competition authorities in France, Germany, Italy and Sweden, with an eye to discussing the specific difficulties raised by two-side market economics. The paper is structured as follows: Section II presents the key features of two-sided markets economics. Two-sided markets present some peculiar traits, which distinguish them from more “traditional” markets. Firms operating in these markets serve more than one group of consumers simultaneously and offer them the opportunity, as well as an interface, for fruitful exchanges. These value-enhancing interactions generate important direct and indirect network externalities among the groups, which platforms would typically aim to internalise. As a result, platform profitability depends not so much on the price level…

Marios C. Iacovides and Jakob Jeanrond ‘Overcoming methodological challenges in the application of competition law to digital platforms—a Swedish perspective’ (2018) Journal of Antitrust Enforcement 6(3) 437

This article, which can be found here, reviews three cases dealing with multisided markets handled by the Swedish Competition Authority (SCA). The cases concerned online hotel booking, online listings of properties and the market for online orders of take away food. The article tests some predictions on the economic behaviour of platform markets that can be found in the academic literature against the outcomes of these cases. The paper is structured as follows: Section II outlines methodological challenges raised by the digital and platform economy. Platform businesses operate differently from traditional businesses, mainly because they function as matchmakers between different groups of consumers. While economists have developed new models better to explain the particular economic features associated with multisided platforms, the incorporation of these particular economic features into competition law presents certain methodological challenges. Firstly, while a platform may offer some services that a traditional business does not, one side of the platform’s service offering may directly overlap with that…