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…

Herbert Hovenkamp ‘Antitrust and Platform Monopoly’ (2021) 130 Yale L.J

Should antitrust policy do more to promote competition in digital platform markets? Is antitrust law sufficient to address competition problems in digital platforms, or are those problems so common and widespread that they require more pervasive public control? This article, available here, argues that sustainable competition in platform markets is possible, and that the individualised approach of the antitrust laws is better for consumers and most other affected interest groups than more intrusive regulation. Antitrust intervention will be less likely to reduce product or service quality, limit innovation, or reduce output than other regulatory alternatives. To achieve these outcomes, antitrust law needs to treat digital platform markets for what they are: markets that have some unique characteristics, but markets nonetheless. As a result, for the most part competition problems in them can be controlled with the antitrust tools we have. Section I considers digital platform monopoly. Antitrust policy is concerned with exercises of market power. The power question for digital…

Christopher Yoo on ‘Unpacking Data Portability’ (2020) Competition Policy International

Data portability has become a hot topic in competition law. Legislators and enforcement officials around the world have shown increasing interest in data portability as a competition law remedy. Although some commentators have suggested that data portability represents low hanging fruit compared with more complex remedies such as interoperability, the debate about how to implement any such mandate remains underdeveloped. This paper, available here, argues that data portability is not a panacea, and that enforcement officials will have to engage in the type of nuanced, fact-specific determinations that characterise classic antitrust analysis. Section 2 points out that not all data are created equal. To date, discussions have largely treated data as a monolithic phenomenon without drawing any distinctions among particular types of data and their different uses. Although advocacy rhetoric tends to talk about “big” data, the trade press repeatedly emphasises that size is not the only thing that matters. The most famous formulation claims that data consists of three…

Vikas Kathuria and Jure Globocnik ‘Exclusionary conduct in data-driven markets: limitations of data sharing remedies’ (2020) Journal of Antitrust Enforcement 8 511

By depriving its rivals of gaining scale in data, a dominant player can successfully exploit demand-side scale economies, i.e. network effects, to its benefit in a two-sided market. In effect, dominant undertakings may be able to exclude their rivals from accessing user data and thus deprive them of scale in markets that are characterised by network effects. In the face of exclusionary conduct by a dominant undertaking in data-driven markets, a critical question relates to the nature of the remedy that can offset the harm to consumer welfare and restore competition. Intuitively, mandating a delinquent dominant undertaking to share wrongly withheld data appears to be an optimal remedy. This article, , available here, analyses the viability of mandatory data sharing as a remedy to restore competition in the affected market – and concludes that mandatory data sharing is not the optimal solution to remedy loss to consumer welfare. Section 2 considers the objectives of remedies in EU competition law. To…

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…

Frank Maier-Rigaud and Benjamin Loertscher ‘Structural v Behavioural Remedies’ (2020) CPI Chronicle April

Both antitrust and merger investigations at the EU level regularly conclude with the European Commission (“Commission”) accepting or imposing remedies. Despite the theories of harm underlying antitrust and merger investigations often being similar, if not identical, remedies in these two areas of competition law vary substantially. The predominance of behavioural remedies in antitrust cases stands in contrast to structural remedies relied upon in most merger investigations. This is surprising and begs the question of what are the factors driving the Commission’s remedies practice – which is the question that this paper, available here, seeks to address. Section II provides some background on the application of remedies under EU law. Under merger control, commitments accepted by the Commission “should be proportionate to the competition problem and entirely eliminate it.” Similarly, in antitrust enforcement the Commission can “impose any […] remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end”. The broadest classification for…

John Kwoka ‘Conduct Remedies, with 2020 Hindsight: Have We Learned Anything in the Last Decade?’ (2020) CPI Chronicle April

A decade ago, U.S. antitrust policy embarked on an experiment in expansive use of conduct remedies for mergers. Several major cases were settled with commitments that the merged firm – as a condition for approval of their mergers – would not engage in specific anticompetitive actions. However, a growing body of experience and research has found that conduct remedies are hard to write, even more difficult to enforce, and often simply ineffective. Despite this, over the past decade the agencies have not only failed to limit reliance on conduct remedies: they have continued to use them and even extended their use in more problematic directions. This essay, available here, discusses the flaws inherent in conduct remedies, before describing three recent cases that raise the question of whether anything has been learned from recent experience with such remedies Section II looks at the limitations of conduct remedies. Conduct remedies represent an effort to allow a merger to proceed while preventing anticompetitive…

John Kwoka and Tommaso Valletti ‘Scrambled Eggs and Paralyzed Policy: Breaking Up Consummated Mergers and Dominant Firms’

Competition policy has been no obstacle to the rise of dominant firms in e-commerce, social media, online search and other important aspects of the modern digital economy. The well-documented results of these trends are increasing market concentration, entrenched dominance, diminished competition and entry, and harm to consumers and businesses alike. Competition agencies, policymakers, academics, interest groups, and others have proposed various ways of addressing the weaknesses of past policy. Most of these proposed policies involve more vigorous application of conventional tools, which, however, are unable to address current levels of market concentration. However, the most obvious solution – breaking up such firms — is generally dismissed as impractical, the equivalent of trying to unscramble eggs. The authors disagree in this paper, available here. The rationale for breaking up companies is straightforward: where the essential competitive problem with a company is its structure, in the sense that its anticompetitive behaviour flows inexorably from that structure and is otherwise difficult to prevent,…

Eugenio Olmedo-Peralta ‘The Evidential Effect of Commitment Decisions in Damages Claims’ (2019) Common Market Law Review 56 979

The European Commission and national competition authorities (NCAs) make extensive use of commitment decisions. Since these decisions do not establish the existence of competition infringements, claimants still have to bear the burden of proof in stand-alone damages actions concerning conduct covered by them. However, some evidential effects should be recognised to commitment decisions, as well as to certain statements made in the context of related public enforcement proceedings. This article, available here, describes such effects as follows. Section II outlines the relationship between commitment decisions and the private enforcement of competition law. According to Regulation 1/2003, commitment decisions are adopted without concluding whether competition law has been infringed. Commitment decisions merely state that there are no longer grounds for action by a competition authority, as the behavioural or structural measures taken by the companies involved in an investigation are sufficient to put an end to the potential restriction of competition. In short, the main features of commitment decisions are that: (i) they…