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…

Frederic Jenny ‘Changing the way we think: competition, platforms and ecosystems’ (2021) Journal of Antitrust Enforcement 9 1

Firms are supposed to operate on predefined markets for goods or services where they compete against similar firms that offer substitutable products or services. All economic agents are assumed to be profit-maximisers that will not sell below average variable costs. However, this is not how the digital economy operates. As a result, many of the traditional tools used by competition authorities to assess relevant markets, or the intensity of competition between firms, are difficult to use or inadequate to assess competition issues between ecosystems in the digital world. Further economic thinking, and an understanding of the business models of digital ecosystems, are needed to allow competition authorities to make informed decisions about competition on digital markets. This article, available here, reviews some of the challenges competition agencies face. Section 2 looks at digital markets. Digital markets differ from traditional markets in a number of ways. The digital world has low costs and no-distance, which means that the delivery of services…

Elena Argentesi, Paolo Buccirossi, Emilio Calvano, Tomaso Duso, Alessia Marrazzo and Salvatore Nava ‘Merger Policy in Digital Markets: An Ex Post Assessment’ (2021) Journal of Competition Law & Economics 17(1) 95

This paper, available here, presents a broad retrospective evaluation of mergers and merger decisions in markets dominated by multisided digital platforms. It identifies almost 300 acquisitions carried out by three major tech companies— Amazon, Facebook, and Google—between 2008 and 2018, looks at the business logic behind these transactions, and explores the theories of harm that have been used or, alternatively, could have been formulated by authorities. The paper then retrospectively examines two important merger cases, Facebook/Instagram and Google/Waze, providing a systematic assessment of the theories of harm considered by the UK competition authority, as well as evidence on the evolution of the market after the transactions were approved. Section II looks at the wealth of mergers and acquisitions (M&A) carried out by key digital platforms between 2008 and 2018. Companies active in digital markets are remarkably active in M&A, constantly seeking out interesting start-ups and purchasing them. Between 2008 and 2018, Google acquired 168 companies, Facebook acquired 71 companies, and…

Magali Eben and Viktoria Robertson ‘The Relevant Market Concept in Competition Law and Its Application to Digital Markets: A Comparative Analysis of the EU, US, and Brazil’ (2021) Graz Law Working Paper No 01-2021

Market definition is a core analytical tool that helps in the assessment of anti-competitive agreements, unilateral conduct and mergers. However, the difficulty of delineating a relevant market with the required predictability in digital markets has led some to question whether market definition can continue to fulfil its traditional functions in these dynamic market environments. The present contribution, available here, first surveys the general approach to market delineation in the EU, the US and Brazil. Against this background, it then embarks on a discussion of market definition in digital markets in each of these jurisdictions, with a particular focus on multi-sided markets, zero-price services and the concept of digital ecosystems. Section 2 surveys the general approach to market delineation in the EU, US and Brazil. The main parameters of market definition are strikingly similar in the EU, the US and Brazil. All these competition laws heavily rely on the relevant market as an analytical tool. However, while market definition is mainly…

Niamh Dunne ‘Platforms as Regulators’ (2020) Journal of Antitrust Enforcement

The contention that certain digital platforms act as ‘regulators’ within the context of their own business models, and are subject to specific obligations under competition law as a result, is a key basis upon which authors have argued for a wide-ranging duty for dominant platforms to secure competition that is ‘fair, unbiased and pro-users’. This article, available here, seeks to shed light on this contention, exploring its meaning and the implications for platform operators. Consideration is further given to whether the platforms-as-regulators notion aligns with alternative modes of regulation in the digital sphere. Section II introduces the idea of platforms-as-regulators. Increasing emphasis is being placed on the ‘gatekeeper’ role that platforms may play by controlling access to certain market segments or customers groups, thus rendering them an unavoidable fixture within digital ecosystems. By selecting (and enforcing) the platform policies and rules that delimit the parameters of competitive interaction within their own ecosystems, online platforms essentially ‘regulate’ these spheres, and thus…

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…

Gönenç Gürkaynak, Ali Kağan Uҫar and Zeynep Buharali ‘Data-Related Abuses in Competition Law’ in Standing Up for Convergence and Relevance in Antitrust – Frédéric Jenny Liber Amicorum – Volume I (eds. Ahmad and Charbit, 2019) Concurrences

Data has become an indispensable business tool, and, as a result, the collection and use of data by dominant undertakings can give rise to competition law concerns. This article, available here, examines data-related abuses in competition law, and seeks to provide an overview of specific types of abuses arising from the use of data. Section II looks at the definition of data. Data is often defined as “information that can be stored and used by a computer program.” Accordingly, “big data” refers to “large amounts of different types of data produced at high speed from multiple sources, requiring new and more powerful processors and algorithms to process and to analyse’. As “data” increases in volume, diversifies in nature and content, and keeps on flowing rapidly through the veins of the global economy, its collection and processing creates increasingly valuable commercial opportunities. Undertakings more and more see data as an indispensable tool for improving business decisions and strategies, and for improving…

Björn Lundqvist ‘Regulating competition in the digital economy’ in Competition Law for the Digital Economy (ed. Björn Lundqvist and Michal S. Gal) (2019, Elgar)

There is an intense academic discussion regarding whether consumers and business users are exposed to conduct that may amount to competition law abuses when using Internet services. The discussion is connected to the Internet phenomenon of ‘platforms’ or intermediaries. The multitude of direct customer–supplier transactions making up everyday business conduct are, to an increasing degree, replaced on the Internet by an intermediary, the platform, matching the customer with the supplier. Platforms are able to perform role because they provide efficient and easy matching. Further, internet platforms may, due to certain special and somewhat unique characteristics – like network effects, tipping and path dependency – become central ‘hubs’ between purchasers and suppliers. This chapter, available here, focuses on the application of competition law vis-à-vis the platforms collecting personal and non-personal data. It considers questions such as: may competition law be used to gain access to intermediaries’ data, and the infrastructure around that data? May competition law be used to limit the…