Algorithm-driven computer programs have become key instruments for market success in a digitalized economy. They can generate positive effects on consumer welfare and welfare in general. On the other hand, algorithms may foster tacit collusion, adversely affect consumer choice, even pose a threat to pluralism. Especially since algo-driven market interactions call traditional economic models into question, it is still unclear whether and how the new challenges can be addressed within the existing framework of (competition) law or whether new legal tools, such as algorithm-focused regulation, must be developed. To approach these questions, the Center for Intellectual Property and Competition Law (CIPCO) at the University of Zurich held a workshop in February 2018. The first part of the workshop focused on technical and economic fundamentals, the second on effects on consumers, and the third part on the existing case-law, as well as on the practice and policy of competition agencies. The present paper reflects the discussions and results of the workshop.
{"title":"Competition (Law) in the Era of Algorithms","authors":"Peter Georg Picht, B. Freund","doi":"10.2139/SSRN.3180550","DOIUrl":"https://doi.org/10.2139/SSRN.3180550","url":null,"abstract":"Algorithm-driven computer programs have become key instruments for market success in a digitalized economy. They can generate positive effects on consumer welfare and welfare in general. On the other hand, algorithms may foster tacit collusion, adversely affect consumer choice, even pose a threat to pluralism. Especially since algo-driven market interactions call traditional economic models into question, it is still unclear whether and how the new challenges can be addressed within the existing framework of (competition) law or whether new legal tools, such as algorithm-focused regulation, must be developed. To approach these questions, the Center for Intellectual Property and Competition Law (CIPCO) at the University of Zurich held a workshop in February 2018. The first part of the workshop focused on technical and economic fundamentals, the second on effects on consumers, and the third part on the existing case-law, as well as on the practice and policy of competition agencies. The present paper reflects the discussions and results of the workshop.","PeriodicalId":410225,"journal":{"name":"European Competition Law Review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128255262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The ongoing developments in e-commerce, big data and big analytics have transformed our online environment and the way we shop for goods and services. By increasing transparency, access to markets, and by reducing market barriers and our search costs, technological developments promise to lower the prices we pay, increase the selection of goods and services we are offered, and yield greater innovation. Indeed, we all expect to be better off in comparison to past decades when competition was less intense and largely confined to local offering by brick-and-mortar shops.And yet, is it possible that the initial promise of online competitiveness may give way to new dynamics that reduce our welfare? Are we still the winners in this story of innovation, or have we become targets of a new form of discrimination that increasingly extracts our wealth? In the online world, our anonymity and our ability to identify a single competitive price are becoming a thing of the past. Virtual competition heralds the age of personalisation with its benefits, and possible pitfalls. As a White House report summarized: “[s]ellers are now using big data and digital technology to explore consumer demand, to steer consumers towards particular products, to create targeted advertising and marketing offers, and in a more limited and experimental fashion, to set personalized prices.” Our article explores how e-commerce and the personalisation of our online environment can give rise to behavioural discrimination, a durable, more pernicious form of price discrimination. Online behavioural discrimination, as we explore, will likely differ from the price discrimination we have seen in the brick-and-mortar retail world in several important respects: First is the shift from third-degree, imperfect price discrimination to near perfect price discrimination; second is the overall increase in consumption as the demand curve shifts to the right; and third is the durability of behavioural discrimination. In Part I we consider the online shift from imperfect price discrimination to near perfect, or first-degree, price discrimination. We explore how online sellers, in tracking us, collecting data about us, and segmenting us into smaller groups can better identify our reservation price.Part II explores how sellers can use Big Data to target us with the right emotional pitch to increase overall consumption. Part III discusses how, as more online retailers personalize pricing and product offerings, it will be harder for consumers to discover a general market price and to assess their outside options. Personalisation and data-driven network effects can make behavioural discrimination more durable. Given the differences between price discrimination of yesteryear and online behavioural discrimination, Part IV examines whether we should treat the latter with the same indifference that we have treated price discrimination, or does it merit a fresh look?
{"title":"The Rise of Behavioural Discrimination","authors":"Ariel Ezrachi, M. Stucke","doi":"10.2139/SSRN.2830206","DOIUrl":"https://doi.org/10.2139/SSRN.2830206","url":null,"abstract":"The ongoing developments in e-commerce, big data and big analytics have transformed our online environment and the way we shop for goods and services. By increasing transparency, access to markets, and by reducing market barriers and our search costs, technological developments promise to lower the prices we pay, increase the selection of goods and services we are offered, and yield greater innovation. Indeed, we all expect to be better off in comparison to past decades when competition was less intense and largely confined to local offering by brick-and-mortar shops.And yet, is it possible that the initial promise of online competitiveness may give way to new dynamics that reduce our welfare? Are we still the winners in this story of innovation, or have we become targets of a new form of discrimination that increasingly extracts our wealth? In the online world, our anonymity and our ability to identify a single competitive price are becoming a thing of the past. Virtual competition heralds the age of personalisation with its benefits, and possible pitfalls. As a White House report summarized: “[s]ellers are now using big data and digital technology to explore consumer demand, to steer consumers towards particular products, to create targeted advertising and marketing offers, and in a more limited and experimental fashion, to set personalized prices.” Our article explores how e-commerce and the personalisation of our online environment can give rise to behavioural discrimination, a durable, more pernicious form of price discrimination. Online behavioural discrimination, as we explore, will likely differ from the price discrimination we have seen in the brick-and-mortar retail world in several important respects: First is the shift from third-degree, imperfect price discrimination to near perfect price discrimination; second is the overall increase in consumption as the demand curve shifts to the right; and third is the durability of behavioural discrimination. In Part I we consider the online shift from imperfect price discrimination to near perfect, or first-degree, price discrimination. We explore how online sellers, in tracking us, collecting data about us, and segmenting us into smaller groups can better identify our reservation price.Part II explores how sellers can use Big Data to target us with the right emotional pitch to increase overall consumption. Part III discusses how, as more online retailers personalize pricing and product offerings, it will be harder for consumers to discover a general market price and to assess their outside options. Personalisation and data-driven network effects can make behavioural discrimination more durable. Given the differences between price discrimination of yesteryear and online behavioural discrimination, Part IV examines whether we should treat the latter with the same indifference that we have treated price discrimination, or does it merit a fresh look?","PeriodicalId":410225,"journal":{"name":"European Competition Law Review","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117080023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The beneficial effects of standardization can be jeopardized by unwanted conduct of its participants, for instance where a SEP holder engages in hold-up or a standard implementer in hold-out. In its Huawei decision the ECJ attempts to resolve such situations by defining rules of conduct for FRAND disputes. Although promising, the decision evokes new questions and has left many issues unsolved. Among those highlighted in the article are the roles of contract and competition law in relation to the concepts of “good faith and recognized commercial practice”, the ECJ’s excessive reliance on FRAND commitments, the procedural and substantive aspects of FRAND determination and FRAND-compliant conduct, the exact consequences of FRAND violations, and the potential future role of SSOs.
{"title":"The ECJ Rules on Standard-Essential Patents: Thoughts and Issues Post- Huawei","authors":"Peter Georg Picht","doi":"10.2139/SSRN.2691314","DOIUrl":"https://doi.org/10.2139/SSRN.2691314","url":null,"abstract":"The beneficial effects of standardization can be jeopardized by unwanted conduct of its participants, for instance where a SEP holder engages in hold-up or a standard implementer in hold-out. In its Huawei decision the ECJ attempts to resolve such situations by defining rules of conduct for FRAND disputes. Although promising, the decision evokes new questions and has left many issues unsolved. Among those highlighted in the article are the roles of contract and competition law in relation to the concepts of “good faith and recognized commercial practice”, the ECJ’s excessive reliance on FRAND commitments, the procedural and substantive aspects of FRAND determination and FRAND-compliant conduct, the exact consequences of FRAND violations, and the potential future role of SSOs.","PeriodicalId":410225,"journal":{"name":"European Competition Law Review","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132326665","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On December 3, 2008, the Commission issued its Guidance on the Commission's Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings (the “Guidance Paper”). This marks the end of the Commission's review on art. 82, which the Commission initiated in the summer of 2003. Prior to the Guidance Paper, DG Competition (“DG Comp”) released its Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses in December 2005 (the “Discussion Paper”). This was an unusual step compared to the Commission's normal practice of producing a Green Paper, and may hint at a disagreement within the Commission as to publishing guidelines at all. The Discussion Paper was a staff paper, which was meant only for consultation to allow interested parties to express their view on a text that might become substantive guidelines later. It was not an authoritative source or even published in the Official Journal. Despite being no more than a staff discussion paper, it was drafted as substantive guidelines, which raised expectations of the Commission issuing substantive guidance at a later stage. Against these expectations, the Commission issued enforcement priorities on art. 82. This naturally raises two questions: (i) why did the Commission decide to issue enforcement priorities instead of substantive guidelines; and (ii) is the Guidance Paper in its current form a good solution? This paper explains the Commission's uneasy relationship with case law in this area of law, its desire to develop its policy beyond the framework of the Community Courts -- the Court of First Instance (CFI) and European Court of Justice (ECJ) -- and why “enforcement priorities” is not an ideal solution.
2008年12月3日，欧盟委员会发布了《关于欧盟条约第82条适用于主导企业滥用排他性行为的优先执行指南》(“指南文件”)。这标志着委员会对艺术的审查已经结束。82，委员会于2003年夏天启动。在发表指引文件前，竞争总局("竞争总局")已于2005年12月发表了《公约第82条适用于排他性滥用的讨论文件》("讨论文件")。与委员会编制绿皮书的正常做法相比，这是一个不同寻常的步骤，可能暗示委员会内部对出版准则存在分歧。讨论文件是一份工作人员文件，其目的仅是供协商，以便有关各方就日后可能成为实质性准则的案文发表意见。它不是一个权威的来源，甚至没有发表在官方杂志上。尽管它只是一份工作人员讨论文件，但它是作为实质性准则起草的，这提高了委员会在稍后阶段发布实质性准则的期望。与这些期望相反，委员会发布了艺术方面的执法优先事项。82. 这自然提出了两个问题:(i)委员会为什么决定发布执法优先次序，而不是实质性指导方针;及(ii)目前形式的指引文件是否一个良好的解决方案?本文解释了欧盟委员会在这一法律领域与判例法之间的不安关系，它希望在共同体法院(一审法院(Court of First Instance, CFI)和欧洲法院(European Court, ECJ)的框架之外发展其政策，以及为什么“执法优先”不是一个理想的解决方案。
{"title":"Why the European Commission's Enforcement Priorities on Article 82 EC Should Be Withdrawn","authors":"Liza Lovdahl Gormsen","doi":"10.2139/SSRN.2400402","DOIUrl":"https://doi.org/10.2139/SSRN.2400402","url":null,"abstract":"On December 3, 2008, the Commission issued its Guidance on the Commission's Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings (the “Guidance Paper”). This marks the end of the Commission's review on art. 82, which the Commission initiated in the summer of 2003. Prior to the Guidance Paper, DG Competition (“DG Comp”) released its Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses in December 2005 (the “Discussion Paper”). This was an unusual step compared to the Commission's normal practice of producing a Green Paper, and may hint at a disagreement within the Commission as to publishing guidelines at all. The Discussion Paper was a staff paper, which was meant only for consultation to allow interested parties to express their view on a text that might become substantive guidelines later. It was not an authoritative source or even published in the Official Journal. Despite being no more than a staff discussion paper, it was drafted as substantive guidelines, which raised expectations of the Commission issuing substantive guidance at a later stage. Against these expectations, the Commission issued enforcement priorities on art. 82. This naturally raises two questions: (i) why did the Commission decide to issue enforcement priorities instead of substantive guidelines; and (ii) is the Guidance Paper in its current form a good solution? This paper explains the Commission's uneasy relationship with case law in this area of law, its desire to develop its policy beyond the framework of the Community Courts -- the Court of First Instance (CFI) and European Court of Justice (ECJ) -- and why “enforcement priorities” is not an ideal solution.","PeriodicalId":410225,"journal":{"name":"European Competition Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133780755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines the impact of carbon capture and storage (CCS) on competition and EC competition law. Firstly, the state aid framework is analysed as CCS-projects will need subsidisation. Secondly,the impact of CCS on industry structure in the energy sector is analysed. It is concluded that CCS will probably lead to vertical integration and possible foreclosure. These problems can be overcome by an effective third party acces regime, but this is lacking in the legal framework for CCS. The rules on state aid are also considered to provide insufficient guidance.
{"title":"An Assessment of Carbon Capture and Storage Under EC Competition Law","authors":"H. Vedder","doi":"10.2139/SSRN.1128054","DOIUrl":"https://doi.org/10.2139/SSRN.1128054","url":null,"abstract":"This paper examines the impact of carbon capture and storage (CCS) on competition and EC competition law. Firstly, the state aid framework is analysed as CCS-projects will need subsidisation. Secondly,the impact of CCS on industry structure in the energy sector is analysed. It is concluded that CCS will probably lead to vertical integration and possible foreclosure. These problems can be overcome by an effective third party acces regime, but this is lacking in the legal framework for CCS. The rules on state aid are also considered to provide insufficient guidance.","PeriodicalId":410225,"journal":{"name":"European Competition Law Review","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121915100","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper sets out to answer two questions: to what extend is competition policy in Estonia - one of the applicant countries for accession to the European Union - a duplication of EU policy, and has Estonia established a true competition discipline with high public awareness of the rules and effective public and private enforcement? It is shown that although Estonian antitrust policy includes some additional features to the core EU rules - both with possible positive and negative welfare consequences - one can basically really speak of a copy of EU policy both with respect to legislation and enforcement provisions. Since the EU has a long and successful tradition of fighting competition-distorting conduct, this should weigh positively in the country''s application for accession. However, a real competition discipline is still lacking in Estonia. Higher public awareness, as well as a more stringent enforcement and especially sanctioning policy are necessary.
{"title":"Estonia's competition policy: a critical evaluation towards EU accession","authors":"M. Schinkel, Julie Thielert","doi":"10.26481/umamet.2002020","DOIUrl":"https://doi.org/10.26481/umamet.2002020","url":null,"abstract":"This paper sets out to answer two questions: to what extend is competition policy in Estonia - one of the applicant countries for accession to the European Union - a duplication of EU policy, and has Estonia established a true competition discipline with high public awareness of the rules and effective public and private enforcement? It is shown that although Estonian antitrust policy includes some additional features to the core EU rules - both with possible positive and negative welfare consequences - one can basically really speak of a copy of EU policy both with respect to legislation and enforcement provisions. Since the EU has a long and successful tradition of fighting competition-distorting conduct, this should weigh positively in the country''s application for accession. However, a real competition discipline is still lacking in Estonia. Higher public awareness, as well as a more stringent enforcement and especially sanctioning policy are necessary.","PeriodicalId":410225,"journal":{"name":"European Competition Law Review","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116238698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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