Alexandre de Streel and Pierre Larrouche on ‘The integration of wide and narrow market investigations in EU economic law’ in Motta, Peitz, Schweitzer (eds) Market Investigations: A New Competition Tool for Europe? (Cambridge University Press, 2021) Chapter 4

In 2020, the European Commission embarked on a major reflection and consultation exercise aimed at adapting EU economic law to contemporary challenges, in particular to the competition issues raised by the deployment of digital technologies. One option that was considered was the adoption of a New Competition Tool to deal with structural competition problems which could not be addressed adequately by existing instruments. Two main models were considered: a wide version, applicable to all sectors of the economy, similar to market studies; and a narrow version applicable to the digital sector (or platforms) only. In December 2020, the Commission opted for the narrow version in its proposal for a Digital Markets Act (DMA), a sector-specific instrument applicable to “gatekeepers” of “core platform services”, which includes three types of what is termed “market investigation”. This chapter analyses how to integrate both types of market studies/investigations within EU economic law. Section II deals with the characteristics of competition law and sectoral regulation…

Heike Schweitzer on ‘The Art to Make Gatekeeper Positions Contestable and the Challenge to Know What is Fair: A Discussion of the Digital Markets Act Proposal’ (Forthcoming, ZEuP, 2021, Issue 3)

Legislators around the world are currently struggling to adequately respond to the new risks that accompany innovative platform-based and data-driven business models. These risks include many problems of economic power – the traditional subject of competition law. However, according to a widely shared perception, a case-by-case enforcement of competition rules will not suffice. This triggered a number of studies, leading ultimately to the adoption of a number of legislative proposals. These include the EU’s Digital Markets Act (DMA) proposal to regulate digital gatekeepers; Germany’s reform of its competition law to endow the Bundeskartellamt with the competence to impose special rules of conduct on undertakings which have been found to be of paramount cross-market significance; and the regulatory regime for digital platforms with strategic market status recently proposed by the UK Digital Markets Taskforce. On the surface, much of the debate appears to be about legislative technique. Just beneath the surface, fundamental conceptual questions lurk. The most prominent among these questions…

Simonetta Vezzoso ‘Competition Policy in Transition: Exploring Data Portability’s Roles’ (2021) Journal of European Competition Law & Practice 12(5)

Several reform proposals circulated in the last two years recognise that data portability should play an increasingly important role in the digital economy. This paper, available here, explores data portability from an EU competition policy perspective. It points out that data portability can play three distinct roles, namely: (i) enabling switching, (ii) enabling data fluidity (iii) enhancing consumer empowerment and data sovereignty. These different roles are analysed against the background of (a) traditional competition law, (b) a market investigation regime, and (c) an ex-ante regulatory framework targeting large online platforms with gatekeeping power. Section II looks at the regulation of data portability, particularly non-personal data. Data can be either personal or non-personal. Personal data portability is a right under the GDPR. The data portability of non-personal data is foreseen by the EU Regulation on the Free Flow of Non-Personal Data in the European Union (Free Flow Regulation, or FFNPDR, in the following), which entered into force in May 2019. Besides…

Francisco Beneke and Mark-Oliver Mackenrodt on ‘Remedies for algorithmic tacit collusion’ (2021) Journal of Antitrust Enforcement 9 152

There is growing evidence that tacit collusion can be autonomously achieved by machine learning technology. However, outlawing such conduct is pointless unless there are suitable remedies to address them. This article, available here, explores how fines, and structural and behavioural remedies, can serve to discourage collusive outcomes while preserving incentives to use efficiency-enhancing algorithms. Section II provides a brief overview of the properties of deep learning methods and their applications to pricing decisions. Different machine learning methods can be usefully deployed to make pricing decisions. Reflecting statistical analysis, machine learning has the ability to automate pricing decisions by using hundreds or thousands of variables in ways that would be otherwise unavailable to market participants. Reinforcement learning may allow firms to automate pricing strategies according to variables such as reactions by competitors and the impact this has on profits or market share. As an algorithm’s problem-solving capabilities improve, market prices will tend to become more stable and converge to a price…