Antitrust Bulletin

Publisher:
Sage Publications, Inc.
Publication date:
2021-08-12
ISBN:
0003-603X

Latest documents

  • Self-Preferencing and Competitive Damages: A Focus on Exploitative Abuses

    Conceived as a theory of competitive harm, self-preferencing has been at the core of recent European landmark cases (e.g., Google Android, Google Shopping). In the context of EU competition law, beyond the anticompetitive leveraging effect, self-preferencing may lead to vertical and horizontal exclusionary abuses, encourage exploitation abuses, and generate economic dependence abuses. In this paper, we aim at characterizing the various forms of self-preferencing, investigating platforms’ capacity and incentives to do so through their dual role, by shedding light on the economic assessment of these practices in an effects-based approach. We analyze the different options for remedies in this context, by insisting on their necessity, adequacy, and proportionality.

  • Self-Preferencing and Competitive Damages: A Focus on Exploitative Abuses

    Conceived as a theory of competitive harm, self-preferencing has been at the core of recent European landmark cases (e.g., Google Android, Google Shopping). In the context of EU competition law, beyond the anticompetitive leveraging effect, self-preferencing may lead to vertical and horizontal exclusionary abuses, encourage exploitation abuses, and generate economic dependence abuses. In this paper, we aim at characterizing the various forms of self-preferencing, investigating platforms’ capacity and incentives to do so through their dual role, by shedding light on the economic assessment of these practices in an effects-based approach. We analyze the different options for remedies in this context, by insisting on their necessity, adequacy, and proportionality.

  • Antitrust, Big Tech, and Democracy: A Research Agenda

    In the twenty-first century, voter choice and the broader political debate are within the reach of those that can access and channel the vast streams of user data that are generated online. How digital platforms utilize personal user data to influence the outcome of democratic processes has become a central issue that liberal democracies must confront. The paper explores whether competition law has a role to play when it comes to addressing this intersection of Big Tech, data, and democracy. It first sets out the democratic roots of competition or antitrust law in the United States and the European Union. From these, the paper deduces that competition law cannot remain inactive when it comes to maintaining a democratic society in the face of the abilities of Big Tech to influence democratic processes and outcomes. The paper then goes a step further and asks what role competition law could play in this regard. Should democratic values simply be reflected in the procedural set-up of antitrust law, or is there a role for democratic values in the substantive provisions as well? And if so, does antitrust law’s focus on keeping market power in check suffice to fulfill its role in a democratic society, or does this role require the law to specifically target antidemocratic market behavior as anticompetitive harm? In navigating these questions, the paper contributes to the ongoing debate on political antitrust and sets out an ambitious research agenda on how to carry this discussion forward.

  • Antitrust, Big Tech, and Democracy: A Research Agenda

    In the twenty-first century, voter choice and the broader political debate are within the reach of those that can access and channel the vast streams of user data that are generated online. How digital platforms utilize personal user data to influence the outcome of democratic processes has become a central issue that liberal democracies must confront. The paper explores whether competition law has a role to play when it comes to addressing this intersection of Big Tech, data, and democracy. It first sets out the democratic roots of competition or antitrust law in the United States and the European Union. From these, the paper deduces that competition law cannot remain inactive when it comes to maintaining a democratic society in the face of the abilities of Big Tech to influence democratic processes and outcomes. The paper then goes a step further and asks what role competition law could play in this regard. Should democratic values simply be reflected in the procedural set-up of antitrust law, or is there a role for democratic values in the substantive provisions as well? And if so, does antitrust law’s focus on keeping market power in check suffice to fulfill its role in a democratic society, or does this role require the law to specifically target antidemocratic market behavior as anticompetitive harm? In navigating these questions, the paper contributes to the ongoing debate on political antitrust and sets out an ambitious research agenda on how to carry this discussion forward.

  • Reshaping Digital Competition: The New Platform Regulations and the Future of Modern Antitrust

    This article reflects on the way in which the new initiatives to regulate powerful online platforms in the European Union, the United States, the United Kingdom, and Germany challenge well-established fundamentals of modern antitrust and thereby reshape the future of competition law. It shows that the new platform regulations set in motion a profound transformation of modern antitrust law that operates along four parameters. First, the new platform regulations unsettle the long-standing baseline assumption that the maximization of consumer welfare constitutes competition law’s core mission. Second, the new instruments repudiate the orthodox understanding of error costs that advocates under-enforcement as the optimal standard of intervention in innovation-driven markets. Third, by relying primarily on rule-like presumptions as legal commands to regulate digital competition, the new platform regulations reverse the trend toward an increasingly inductive mode of analysis that characterized modern antitrust under the “more economic” or “effects-based” approach. Fourth, the new platform regulations also fundamentally diverge from a purely probabilistic standard of proof which requires the showing that impugned conduct is more likely than not to cause anticompetitive harm. The reconfiguration of modern antitrust along these four vectors, the article concludes, foreshadows a new, more inclusive model of innovation and growth in digital markets.

  • Who’s Afraid of Conglomerate Mergers?

    Conglomerate merger control went out of fashion in the United States and the European Union several decades ago. Both jurisdictions embraced the premise that nonhorizontal mergers should normally be considered benign because exclusionary theories of harm are economically implausible, and nonhorizontal mergers are almost always certain to result in significant efficiency effects that the merged entity can be expected to pass on to consumers. Conglomerate effects analysis subsequently all but disappeared from the enforcement practice. However, the emergence of a handful of powerful digital platforms with vast global ecosystems of interconnected services is currently causing competition agencies a great deal of concern. Their growth has not been entirely internal. Collectively, Alphabet, Meta, Apple, Amazon, and Apple have acquired over eight hundred companies. Many of their targets were innovative start-ups operating in complementary markets. This contribution compares and critically assesses how this development has affected the U.S., EU, and U.K. competition agencies’ approach to conglomerate merger control. It finds that, as a reaction to the advent of Big Tech, conglomerate effects analysis has made a significant comeback in EU merger control. While the U.S. and U.K. authorities have not yet intervened against any conglomerate acquisitions in practice, evidence suggests that they are also more open to nonhorizontal theories of harm again.

  • Reshaping Digital Competition: The New Platform Regulations and the Future of Modern Antitrust

    This article reflects on the way in which the new initiatives to regulate powerful online platforms in the European Union, the United States, the United Kingdom, and Germany challenge well-established fundamentals of modern antitrust and thereby reshape the future of competition law. It shows that the new platform regulations set in motion a profound transformation of modern antitrust law that operates along four parameters. First, the new platform regulations unsettle the long-standing baseline assumption that the maximization of consumer welfare constitutes competition law’s core mission. Second, the new instruments repudiate the orthodox understanding of error costs that advocates under-enforcement as the optimal standard of intervention in innovation-driven markets. Third, by relying primarily on rule-like presumptions as legal commands to regulate digital competition, the new platform regulations reverse the trend toward an increasingly inductive mode of analysis that characterized modern antitrust under the “more economic” or “effects-based” approach. Fourth, the new platform regulations also fundamentally diverge from a purely probabilistic standard of proof which requires the showing that impugned conduct is more likely than not to cause anticompetitive harm. The reconfiguration of modern antitrust along these four vectors, the article concludes, foreshadows a new, more inclusive model of innovation and growth in digital markets.

  • Taming Tech Giants
  • Who’s Afraid of Conglomerate Mergers?

    Conglomerate merger control went out of fashion in the United States and the European Union several decades ago. Both jurisdictions embraced the premise that nonhorizontal mergers should normally be considered benign because exclusionary theories of harm are economically implausible, and nonhorizontal mergers are almost always certain to result in significant efficiency effects that the merged entity can be expected to pass on to consumers. Conglomerate effects analysis subsequently all but disappeared from the enforcement practice. However, the emergence of a handful of powerful digital platforms with vast global ecosystems of interconnected services is currently causing competition agencies a great deal of concern. Their growth has not been entirely internal. Collectively, Alphabet, Meta, Apple, Amazon, and Apple have acquired over eight hundred companies. Many of their targets were innovative start-ups operating in complementary markets. This contribution compares and critically assesses how this development has affected the U.S., EU, and U.K. competition agencies’ approach to conglomerate merger control. It finds that, as a reaction to the advent of Big Tech, conglomerate effects analysis has made a significant comeback in EU merger control. While the U.S. and U.K. authorities have not yet intervened against any conglomerate acquisitions in practice, evidence suggests that they are also more open to nonhorizontal theories of harm again.

  • Pro-competition Regulation in the Digital Economy: The United Kingdom’s Digital Markets Unit

    The United Kingdom, like many jurisdictions, is introducing more demanding ex ante regulation for the digital economy. Centered on the work of a Digital Markets Unit located within the existing copetition authority, the U.K. proposals are defined by an explicit commitment to “pro-competition” regulation. This article traces the evolution and emerging design of the forthcoming U.K. regime. It then explores the notion of pro-competition regulation in greater detail. While the concept increasingly transcends its domestic origins, this article argues that the balancing act between conventional competition law and traditional regulation that it reflects can be fully understood only when located within the distinctive circumstances of the wider U.K. regulatory landscape.

Featured documents

  • Taming Tech Giants: The Neglected Interplay Between Competition Law and Data Protection (Privacy) Law

    The debate about the economic power of large tech firms has led to the insight that due to the key role of personal data on large digital platforms competition and privacy issues are deeply intertwined. This leads also to a complex relationship between competition law and data protection (or...

  • The Economics of Antitrust Law

    This Comment on the other contributions to this symposium addresses their authors’ and my positions on (1) the definability of markets and various approaches to defining markets, (2) the definition and legal relevance of market (economic) power, (3) the economic functions and legality of vertical...

  • The European Court of Justice and the More Economic Approach to EU Competition Law—Is the Tide Turning?

    In the late 1990s, the European Commission embarked on a mission to bring EU competition policy more into line with contemporary economic theory. Over a period of ten years, it systematically revised key legal concepts of all three pillars of EU competition law. Most importantly, it adopted the...

  • The Bigness Complex Redux: Horizontal Ownership Concentration and Efficiency Conundrums

    This cliometric study evaluates efficiency outcomes from America’s telecommunications sector acquisitions, based on data for 1988–2001, as the sector’s horizontal acquisition processes have repeated themselves. Sector ownership has been comprehensively reconcentrated. Concepts from the size and...

  • Characterizing Hard Core Cartels Under Article 101 TFEU

    The prohibition of cartels embodies arguably the sole universal norm of global competition law. Yet a precise understanding of what constitutes a cartel remains elusive, a problem that is exacerbated in the context of Article 101 Treaty on the Functioning of the European Union by the Commission’s...

  • SEP Litigation and Huawei

    In the 2015 case Huawei/ZTE, the Court of Justice of the European Union took one of its rare opportunities to rule on the interface of antitrust and patent law. The question before the Court was whether the holder of a standard-essential patent abuses a dominant position by seeking an injunction...

  • Antitrust, Big Tech, and Democracy: A Research Agenda

    In the twenty-first century, voter choice and the broader political debate are within the reach of those that can access and channel the vast streams of user data that are generated online. How digital platforms utilize personal user data to influence the outcome of democratic processes has become...

  • Reshaping Digital Competition: The New Platform Regulations and the Future of Modern Antitrust

    This article reflects on the way in which the new initiatives to regulate powerful online platforms in the European Union, the United States, the United Kingdom, and Germany challenge well-established fundamentals of modern antitrust and thereby reshape the future of competition law. It shows that...

  • Who’s Afraid of Conglomerate Mergers?

    Conglomerate merger control went out of fashion in the United States and the European Union several decades ago. Both jurisdictions embraced the premise that nonhorizontal mergers should normally be considered benign because exclusionary theories of harm are economically implausible, and...

  • Who’s Afraid of Conglomerate Mergers?

    Conglomerate merger control went out of fashion in the United States and the European Union several decades ago. Both jurisdictions embraced the premise that nonhorizontal mergers should normally be considered benign because exclusionary theories of harm are economically implausible, and...

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