Peter Alexiadis and Alexandre de Streel  ‘Designing an EU Intervention Standard for Digital Gatekeepers’ (working paper)

This paper is quite long and dense, so I am afraid this review will be both as well. A series of studies and reports on digital platforms have suggested that antitrust policy requires an overhaul. This view is driven by the belief that, as regards digital markets, the risk of making “Type 2” errors (i.e., under-enforcement) is greater than the risk of making “Type 1” errors (i.e., over-enforcement); and that, in addition to competition enforcement, there may be a role for regulation as well. While the authors take the view that the imperative for radical change is less pressing in the European Union than elsewhere, it is nonetheless appropriate to develop a blueprint for intervention against digital platforms both ex post and ex ante. This blueprint is developed as follows: A first section outlines the principles governing when to intervene in the digital economy. The Internet has generated significant levels of consumer welfare. Digital markets nevertheless have characteristics which lend…

Gregory Werden and Luke Froeb  ‘Antitrust and Tech: Europe and the United States Differ, and it matters’ (working paper)

While merger and cartel enforcement lead to similar outcomes on both sides of the pond, there are significant differences regarding “abuse of dominance” and “monopolisation”. The European Commission and some national competition authorities in Europe have taken on tech giants in high-profile cases. However, hard-wired differences between the European and American enforcement regimes make very difficult for the US antitrust enforcement agencies to emulate their European counterparts. This piece, available here, seeks to identify these differences. A first set of differences relates to how an administrative model prevails in Europe, while the US system is mostly accusatorial. The European system was conceived of as regulation enforced by an administrative agency, not as law enforcement by the courts as in the US.  One important distinction in this respect is that a contested court order in the United States typically contains a series of conduct mandates and prohibitions, while administrative decisions usually merely provide for cease-and-desist orders. Furthermore, the European system is driven by…

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…

Pablo Ibáñez Colomo ‘Legal tests in EU competition law: taxonomy and operation’ (2019) Journal of European Competition Law & Practice

EU competition law does not apply a single legal test. However, the existence of various legal tests is not commonly acknowledged, nor has it been studied systematically. This paper, available here, seeks to bridge this gap. (c) Pablo Ibanez Colomo One of the objectives of this paper is to draw a map of the existing legal tests, and to clarify where each of the practices stands along a spectrum ranging from those deemed prohibited irrespective of their effects and those deemed lawful. According to the author, legal tests in EU competition law can be grouped into four main categories. First, some practices are prima facie unlawful irrespective of their effects. Secondly, some conducts are deemed prima facie lawful. Thirdly, some behaviour is subject to a ‘standard effects’ test, which seeks to ascertain whether it has, or is likely to have, anticompetitive effects in the economic and legal context in which it is implemented. Finally, an ‘enhanced effects’ test applies in…

William E. Kovacic, Robert C. Marshall and Michael J. Meurer on ‘Serial collusion by multi-product firms’ (2018) Journal of Antitrust Enforcement 6 96

This paper, available here, is long and so, I am afraid, is the review. In short, the authors of this paper take issue with the assumption that each cartel in which a given firm participates is a single instance of conduct that is independent of other cartel conduct by the firm. Evidence of serial collusion by major multi-product firms is readily observable from the public record in a number of sectors, such as chemicals, electronics, car-parts, financial products or graphite. Further, collusion persists in at least three of these industries, with new investigations having recently been opened into collusion in the chemical, auto parts, and financial products markets. The paper provides empirical evidence that many multi-product firms have each participated in several cartels over the past 50 years. It argues that traditional assumptions regarding how cartelists operate, and consequent enforcement strategies, are deficient in many aspects. Reflecting this, the authors make policy recommendations to reign in serial collusion. The article is structured as…

Andres Caro ‘Leveraging market power online: the Google Shopping case’ (2018) Competition Law Journal 17(1) 49

The Google Shopping case raises many important questions, such as: how do we deal with the leveraging of market power in digital markets? How do we weigh the benefits to consumers against the potential harm to competition? And, lastly, what are the appropriate remedies for this type of behaviour? In addressing these questions, this paper is structured as follows: A first section describes the background to the Google Shopping decision by the European Commission. Google aggregates, sorts, displays and provides direct access to retailers’ webpages in exchange for a fee through Google Shopping. Other online platforms, including Nextag, Foundem and Shopzilla, offer similar services. However, until early 2018 ‘while competing comparison shopping services can appear only as generic search results and are prone to the ranking of their web pages in generic search results on Google’s general search results pages being reduced (‘demoted’) by certain algorithms, Google’s own comparison shopping service is prominently positioned, displayed in rich format and is…

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…

Joe Harrington “A Proposal for a Structural Remedy for Illegal Collusion“ Antitrust Law Journal, Forthcoming

The argument of this paper – which can be found here – is straightforward: competition authorities should use a structural remedy when penalising some cartels. The remedy would force cartel member(s) to sell productive assets to other firms for the purpose of making the market more competitive.  Given the people the author thanks, and the example he provides, I believe this was inspired by the recent Brazilian experience. The paper begins with an overview of developments in cartel sanctions over the last 30 years, including: (i) the adoption of leniency programs, (ii) a marked increase in the amount of pecuniary penalties, and (iii) the imposition of criminal sanctions. However, ‘Even if all of these developments have resulted in substantial progress in the fight against cartels, the evidence is that current enforcement falls well short of being an effective deterrent. Many cartels continue to form and operate (…). Furthermore, many of these cartels are not the product of rogue employees but…