Pub Date : 2023-04-14DOI: 10.1080/17441056.2023.2200612
Jan Polański
ABSTRACT Antitrust and free speech may seem to have little in common. Yet, they may start interacting more often as Big Tech undertakings might have incentives to coordinate their content moderation policies and collectively suppress unwanted information. Such coordination might be desirable, but in some cases it may lead to antitrust and free speech concerns. Against this backdrop, the article attempts to provide a framework to analyse this type of cases from the point of view of European Union competition law. It identifies five types of agreements that may be entered into by undertakings and provides outlines on possible ways of approaching them. It concludes that while content moderation is often seen as a free speech issue, antitrust should not shrug off such concerns as out of its scope. Yet, it also suggests that these types of cases are not straightforward and that both more research and vigilance on the part of antitrust authorities might be advisable.
{"title":"Antitrust shrugged? Boycotts, content moderation, and free speech cartels","authors":"Jan Polański","doi":"10.1080/17441056.2023.2200612","DOIUrl":"https://doi.org/10.1080/17441056.2023.2200612","url":null,"abstract":"ABSTRACT Antitrust and free speech may seem to have little in common. Yet, they may start interacting more often as Big Tech undertakings might have incentives to coordinate their content moderation policies and collectively suppress unwanted information. Such coordination might be desirable, but in some cases it may lead to antitrust and free speech concerns. Against this backdrop, the article attempts to provide a framework to analyse this type of cases from the point of view of European Union competition law. It identifies five types of agreements that may be entered into by undertakings and provides outlines on possible ways of approaching them. It concludes that while content moderation is often seen as a free speech issue, antitrust should not shrug off such concerns as out of its scope. Yet, it also suggests that these types of cases are not straightforward and that both more research and vigilance on the part of antitrust authorities might be advisable.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43790770","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}
Pub Date : 2023-03-28DOI: 10.1080/17441056.2023.2195330
J. Mazur
ABSTRACT The aim of this article is to examine the role that expert knowledge plays in the Commission’s decisions concerning digital economy. I propose a typology of functions served by these types of sources based on an analysis of references in the Commission’s decisions against Google: first, providing evidence about the history of technological development and the changes on digital markets; second, explaining the way digital technologies and markets work; third, justifying authoritative claims about digital technologies and digital markets’ characteristics; and fourth, illustrating the story with data on the usage of digital technologies and the shape of digital markets. While these types of sources are important in building “the body of evidence” which helps the Commission to tell the story of competition harm in the area of digital economy, there are situations in which their quality raises concerns in the light of the requirements for evidence.
{"title":"Who (and why) gets cited by the Commission? The role and quality of expert knowledge in Google antitrust saga","authors":"J. Mazur","doi":"10.1080/17441056.2023.2195330","DOIUrl":"https://doi.org/10.1080/17441056.2023.2195330","url":null,"abstract":"ABSTRACT The aim of this article is to examine the role that expert knowledge plays in the Commission’s decisions concerning digital economy. I propose a typology of functions served by these types of sources based on an analysis of references in the Commission’s decisions against Google: first, providing evidence about the history of technological development and the changes on digital markets; second, explaining the way digital technologies and markets work; third, justifying authoritative claims about digital technologies and digital markets’ characteristics; and fourth, illustrating the story with data on the usage of digital technologies and the shape of digital markets. While these types of sources are important in building “the body of evidence” which helps the Commission to tell the story of competition harm in the area of digital economy, there are situations in which their quality raises concerns in the light of the requirements for evidence.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46516599","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}
Pub Date : 2023-03-26DOI: 10.1080/17441056.2023.2193454
C. Hutchinson, D. Treščáková, Anna Alexandrovna Berdnikova, Dmitry Sergeevich Samorodeskii, D. Lobanov, S. I. Semtsiva
ABSTRACT In recent years, there has been a tidal wave of merger filings involving large digital firms acquiring low turnover but high value start-ups. The vast majority of those transactions have flown under the radar of EU and National Competition Authorities and, among the few which have been reviewed, none has been blocked. Competition scholars wonder whether there has been a systematic bias towards under-enforcement against acquisitions of start-ups by already dominant tech firms. Some Member States are calling for a reform of the EU merger control’s notification system and an adaptation of the substantive test to effectively address cases of potentially predatory acquisitions.
{"title":"Big tech’s acquisition challenge to EU merger control","authors":"C. Hutchinson, D. Treščáková, Anna Alexandrovna Berdnikova, Dmitry Sergeevich Samorodeskii, D. Lobanov, S. I. Semtsiva","doi":"10.1080/17441056.2023.2193454","DOIUrl":"https://doi.org/10.1080/17441056.2023.2193454","url":null,"abstract":"ABSTRACT In recent years, there has been a tidal wave of merger filings involving large digital firms acquiring low turnover but high value start-ups. The vast majority of those transactions have flown under the radar of EU and National Competition Authorities and, among the few which have been reviewed, none has been blocked. Competition scholars wonder whether there has been a systematic bias towards under-enforcement against acquisitions of start-ups by already dominant tech firms. Some Member States are calling for a reform of the EU merger control’s notification system and an adaptation of the substantive test to effectively address cases of potentially predatory acquisitions.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48343828","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}
Pub Date : 2023-02-11DOI: 10.1080/17441056.2023.2169310
Christophe Carugati
ABSTRACT Antitrust cases related to privacy are on the agenda of many competition authorities, including Europe and the United States. Antitrust and privacy is thus “one of the big topics of the year”, as stated by the former President of the French competition authority. While some antitrust cases concern a reduction in privacy protection, others concern an increase in privacy protection. In other words, user privacy can decrease or increase due to alleged anticompetitive practices. An antitrust privacy dilemma? From a law and economics standpoint, the paper solves this dilemma and proposes a new way of resolving antitrust cases related to privacy. Section 2 analyses the dilemma. It proposes an analytical framework. Section 3 proposes a new way of resolving cases. It suggests a coordinated participative approach with competition and non-competition regulators and stakeholders to address competition and privacy concerns with tailored remedies to what is necessary without eliminating pro-privacy effects.
{"title":"The antitrust privacy dilemma","authors":"Christophe Carugati","doi":"10.1080/17441056.2023.2169310","DOIUrl":"https://doi.org/10.1080/17441056.2023.2169310","url":null,"abstract":"ABSTRACT Antitrust cases related to privacy are on the agenda of many competition authorities, including Europe and the United States. Antitrust and privacy is thus “one of the big topics of the year”, as stated by the former President of the French competition authority. While some antitrust cases concern a reduction in privacy protection, others concern an increase in privacy protection. In other words, user privacy can decrease or increase due to alleged anticompetitive practices. An antitrust privacy dilemma? From a law and economics standpoint, the paper solves this dilemma and proposes a new way of resolving antitrust cases related to privacy. Section 2 analyses the dilemma. It proposes an analytical framework. Section 3 proposes a new way of resolving cases. It suggests a coordinated participative approach with competition and non-competition regulators and stakeholders to address competition and privacy concerns with tailored remedies to what is necessary without eliminating pro-privacy effects.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48486037","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}
Pub Date : 2023-01-30DOI: 10.1080/17441056.2023.2169366
Peter J. van de Waerdt
ABSTRACT “Data ecosystem” companies on the digital market are unique in that they attain market power through their combination of personal data across many markets. Due to strong network effects of personal data, exploited on a conglomerate level, competition has moved beyond competition on the market and even beyond competition for the market: there is now competition for data. Consequently, we must reconsider not only the traditional concept of market power and market definition, but even the competitive analysis of alleged abuses. Therefore, the Commission’s singular focus on anti-competitive foreclosure does not do justice to the complex competitive effects of data ecosystems’ conduct. Only by fundamentally integrating competitive assessment with personal data protection can we understand data ecosystems and their role in the digital landscape. In order to fully capture the anti-competitive effects and harm done to consumer welfare, we must consider “data ecosystem building” as its own theory of harm.
{"title":"From monocle to spectacles: competition for data and “data ecosystem building”","authors":"Peter J. van de Waerdt","doi":"10.1080/17441056.2023.2169366","DOIUrl":"https://doi.org/10.1080/17441056.2023.2169366","url":null,"abstract":"ABSTRACT “Data ecosystem” companies on the digital market are unique in that they attain market power through their combination of personal data across many markets. Due to strong network effects of personal data, exploited on a conglomerate level, competition has moved beyond competition on the market and even beyond competition for the market: there is now competition for data. Consequently, we must reconsider not only the traditional concept of market power and market definition, but even the competitive analysis of alleged abuses. Therefore, the Commission’s singular focus on anti-competitive foreclosure does not do justice to the complex competitive effects of data ecosystems’ conduct. Only by fundamentally integrating competitive assessment with personal data protection can we understand data ecosystems and their role in the digital landscape. In order to fully capture the anti-competitive effects and harm done to consumer welfare, we must consider “data ecosystem building” as its own theory of harm.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49053065","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}
Pub Date : 2023-01-02DOI: 10.1080/17441056.2023.2168865
Nora Lampecco
ABSTRACT The CK Telecoms judgement shed the light on the difficulties to apprehend unilateral effects, aka insufficient individual rivalry, in the context of a merger. This paper examines the overall European competition law framework applicable to these effects. After underlining the difficulties related to their apprehension by the competition authorities, the adequacy of the solely ex ante-based European competition regime will be assessed as well as the use of the New Competition Tool as an option to solve the identified drawbacks.
{"title":"Dissonance in the European competition law regime of insufficient individual rivalry: the New Competition Tool as a glimmer of hope","authors":"Nora Lampecco","doi":"10.1080/17441056.2023.2168865","DOIUrl":"https://doi.org/10.1080/17441056.2023.2168865","url":null,"abstract":"ABSTRACT The CK Telecoms judgement shed the light on the difficulties to apprehend unilateral effects, aka insufficient individual rivalry, in the context of a merger. This paper examines the overall European competition law framework applicable to these effects. After underlining the difficulties related to their apprehension by the competition authorities, the adequacy of the solely ex ante-based European competition regime will be assessed as well as the use of the New Competition Tool as an option to solve the identified drawbacks.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49327545","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}
Pub Date : 2022-12-28DOI: 10.1080/17441056.2022.2156728
Jasper van den Boom
ABSTRACT This article focuses on the interactions between the Digital Markets Act (DMA) and the laws and competition frameworks of Member States. Specifically, the article sets out three different interpretations on the text of articles 1 (5) and (6) of the DMA, which govern interactions between the DMA and national law and competition policy. The article identifies a narrow, broader, and broadest interpretation of the legal interests protected under the DMA. Each interpretation creates different harmonization effects. The article argues that the narrow and broader interpretations allow for significant divergence between national rules, creating the risk of regulatory fragmentation. The broadest interpretation would allow competition authorities and courts to weigh the interests protected in the DMA against national interests and create greater convergence of laws and competition policy in the Digital Single Market. The article also proposes ways forward for the implementation and enforcement of the DMA and national competition laws.
{"title":"What does the Digital Markets Act harmonize? – exploring interactions between the DMA and national competition laws","authors":"Jasper van den Boom","doi":"10.1080/17441056.2022.2156728","DOIUrl":"https://doi.org/10.1080/17441056.2022.2156728","url":null,"abstract":"ABSTRACT This article focuses on the interactions between the Digital Markets Act (DMA) and the laws and competition frameworks of Member States. Specifically, the article sets out three different interpretations on the text of articles 1 (5) and (6) of the DMA, which govern interactions between the DMA and national law and competition policy. The article identifies a narrow, broader, and broadest interpretation of the legal interests protected under the DMA. Each interpretation creates different harmonization effects. The article argues that the narrow and broader interpretations allow for significant divergence between national rules, creating the risk of regulatory fragmentation. The broadest interpretation would allow competition authorities and courts to weigh the interests protected in the DMA against national interests and create greater convergence of laws and competition policy in the Digital Single Market. The article also proposes ways forward for the implementation and enforcement of the DMA and national competition laws.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45692193","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}
Pub Date : 2022-12-15DOI: 10.1080/17441056.2022.2156729
Alba Ribera Martínez
ABSTRACT On 18 July 2022, the Council gave its final approval of the Digital Market Act’s final text. Notwithstanding the amendments following the initial proposal published by the European Commission on 15 December 2020, the main objectives of the DMA have remained untouched and separate from the objectives pursued by competition rules. In the interim, the Court of Justice of the European Union (CJEU) issued its preliminary rulings on the bpost and Nordzucker cases, with particularly relevant consequences concerning the application of the double jeopardy principle. The potential remedies and obligations imposed on the main digital platforms both under Articles 5 to 7 of the DMA and under competition law rules will overlap and create a risk of incoherent enforcement, especially on the side of the European Commission. Against this background, the paper strives to draw out the narrow enforcement gap left for competition authorities. In addition, the paper highlights a number of alternatives open to competition authorities when enforcing competition law rules on digital markets, namely the segmentation of its enforcement efforts depending on the type of service concerned in each case.
{"title":"An inverse analysis of the digital markets act: applying the Ne bis in idem principle to enforcement","authors":"Alba Ribera Martínez","doi":"10.1080/17441056.2022.2156729","DOIUrl":"https://doi.org/10.1080/17441056.2022.2156729","url":null,"abstract":"ABSTRACT On 18 July 2022, the Council gave its final approval of the Digital Market Act’s final text. Notwithstanding the amendments following the initial proposal published by the European Commission on 15 December 2020, the main objectives of the DMA have remained untouched and separate from the objectives pursued by competition rules. In the interim, the Court of Justice of the European Union (CJEU) issued its preliminary rulings on the bpost and Nordzucker cases, with particularly relevant consequences concerning the application of the double jeopardy principle. The potential remedies and obligations imposed on the main digital platforms both under Articles 5 to 7 of the DMA and under competition law rules will overlap and create a risk of incoherent enforcement, especially on the side of the European Commission. Against this background, the paper strives to draw out the narrow enforcement gap left for competition authorities. In addition, the paper highlights a number of alternatives open to competition authorities when enforcing competition law rules on digital markets, namely the segmentation of its enforcement efforts depending on the type of service concerned in each case.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47851760","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}
Pub Date : 2022-12-15DOI: 10.1080/17441056.2022.2156730
Konstantina Bania
ABSTRACT The Digital Markets Act (DMA), an EU Regulation establishing obligations for gatekeeper platforms in order to protect fairness and contestability in digital markets, will soon start to apply. In addition to the DMA, other (EU and national) instruments regulate platform conduct. Though the DMA explicitly provides that it will apply without prejudice to those other instruments, it is doubted whether it will merely complement them. In certain cases, the DMA may qualify as lex specialis, thereby prevailing over other regulations. In other cases, based on the principle of supremacy, the DMA may override national instruments that pursue legitimate interests other than fairness and contestability. There may also be occasions where the DMA may render certain tools devoid of purpose when this was not the intention of the legislator. In all the above cases, the DMA would not complement (but could possibly endanger) the effectiveness of the existing regime. Given the avalanche of legislative proposals for platforms, addressing potential conflicts between the DMA and other rules is essential to protect legal certainty and to ensure that the regulatory regime that governs harmful platform conduct reaches its full potential.
{"title":"Fitting the Digital Markets Act in the existing legal framework: the myth of the “without prejudice” clause","authors":"Konstantina Bania","doi":"10.1080/17441056.2022.2156730","DOIUrl":"https://doi.org/10.1080/17441056.2022.2156730","url":null,"abstract":"ABSTRACT The Digital Markets Act (DMA), an EU Regulation establishing obligations for gatekeeper platforms in order to protect fairness and contestability in digital markets, will soon start to apply. In addition to the DMA, other (EU and national) instruments regulate platform conduct. Though the DMA explicitly provides that it will apply without prejudice to those other instruments, it is doubted whether it will merely complement them. In certain cases, the DMA may qualify as lex specialis, thereby prevailing over other regulations. In other cases, based on the principle of supremacy, the DMA may override national instruments that pursue legitimate interests other than fairness and contestability. There may also be occasions where the DMA may render certain tools devoid of purpose when this was not the intention of the legislator. In all the above cases, the DMA would not complement (but could possibly endanger) the effectiveness of the existing regime. Given the avalanche of legislative proposals for platforms, addressing potential conflicts between the DMA and other rules is essential to protect legal certainty and to ensure that the regulatory regime that governs harmful platform conduct reaches its full potential.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45674870","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}
Pub Date : 2022-10-10DOI: 10.1080/17441056.2022.2129766
B. Beems
ABSTRACT The recently adopted Digital Markets Act (henceforth: DMA) addresses the behaviour of so-called gatekeepers by imposing a list of prohibitions and obligations on these platforms. Despite the potential of the initiative, it remains questionable how the DMA fits in the regulatory landscape. The DMA is – at least formally – not a competition law instrument but also differs from sector-specific regulation. This begs the question of how the DMA fits in the broader regulatory context. This paper aims to address this issue by assessing to what extent the DMA is different from “traditional” competition law and sector-specific regulation respectively. The unclarities regarding the position of the DMA in the broader regulatory context result in various difficulties, amongst others relating to the institutional set-up. The second part of this paper addresses these institutional difficulties resulting from the concurrent application of the DMA and “traditional” EU competition law.
{"title":"The DMA in the broader regulatory landscape of the EU: an institutional perspective","authors":"B. Beems","doi":"10.1080/17441056.2022.2129766","DOIUrl":"https://doi.org/10.1080/17441056.2022.2129766","url":null,"abstract":"ABSTRACT The recently adopted Digital Markets Act (henceforth: DMA) addresses the behaviour of so-called gatekeepers by imposing a list of prohibitions and obligations on these platforms. Despite the potential of the initiative, it remains questionable how the DMA fits in the regulatory landscape. The DMA is – at least formally – not a competition law instrument but also differs from sector-specific regulation. This begs the question of how the DMA fits in the broader regulatory context. This paper aims to address this issue by assessing to what extent the DMA is different from “traditional” competition law and sector-specific regulation respectively. The unclarities regarding the position of the DMA in the broader regulatory context result in various difficulties, amongst others relating to the institutional set-up. The second part of this paper addresses these institutional difficulties resulting from the concurrent application of the DMA and “traditional” EU competition law.","PeriodicalId":52118,"journal":{"name":"European Competition Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44013677","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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