Antitrust Bulletin

Sage Publications, Inc.
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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.

  • 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.

  • Taming Tech Giants
  • 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 privacy) law, and—also from an economic perspective—the need for policy-makers to take into account the interplay between both legal regimes. This article analyzes current discussions about (1) how to integrate privacy effects into traditional competition law and (2) the far-reaching reform discussions about taming the power of the large tech firms, for example, the Digital Markets Act in the European Union or the new antitrust discussion in the United States, with respect to the question whether and to what extent they take into account this interplay between competition policy and data protection (or privacy) law. It is surprising that also the second reform discussion, which directly intends to target the power of the large tech firms, does not take into account sufficiently this interplay and the ensuing need for a more collaborative approach between these policies. Therefore, the opportunities of developing a more effective joint strategy for achieving better both competition and privacy are still missed.

  • 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.

  • 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.

  • The Incursion of Antitrust into China’s Platform Economy

    This article adopts a holistic approach to China’s antitrust strategy toward the platform economy. As enforcers everywhere come to terms with the unique challenges posed by the market power amassed by digital gatekeepers, China’s sudden, fierce attack on its own tech giants has been as effective as it has been baffling to observers, and has helped antitrust policy progress by leaps and bounds. However, antitrust is only one of several battlefields of the war on platforms. This article first dissects the competition law developments that have taken place in the first year of China’s “Big Tech crackdown,” focusing on enforcement, policymaking, and law and institutional reform. Thereafter, this article joins the dots and assesses the results of the (partly) Big Tech-motivated refurbishment of the Chinese antitrust law and policy landscape. It identifies certain risks stemming from the new reinforced system, and proposes ways circumvent these and reap the benefits of the improved legal framework.

  • Divestiture: Doctrinal Development and Modern Application

    In the last several years, policymakers have increasingly pursued legislative reforms that would expand antitrust enforcement while advocating more generally for the break-up of tech companies with leading digital platforms. At least a half-dozen antitrust reforms were introduced in Congress in 2021, while federal enforcers in the Department of Justice and Federal Trade Commission have taken an aggressive approach to enforcement under the Biden administration. These recent events have invited an assessment of the scope and limitations of divestiture, as policymakers and regulators consider the remedy’s viability under existing and prospective federal antitrust laws. To that end, this paper aims to provide a comprehensive account of the development of the doctrinal principles and application of divestiture, beginning with its origins as an equitable remedy and subsequent developments in response to legislative reforms. The paper then discusses divestiture’s primary use in the current regulatory landscape to redress violations under § 7 of the Clayton Act, followed by an examination of its historically limited application as a remedy to unilateral conduct. In its final substantive section, the paper then assesses the ongoing debate as to divestiture’s applicability to acquisitions of nascent competitors. Finally, the conclusion provides a summary of divestiture’s doctrinal principles and application, and the implications for how divestiture may be applied in the future.

  • Addressing the Competitive Harms of Opaque Online Surveillance and Recommendation Algorithms

    Facebook and Alphabet operate free internet services that are widely used. They provide these services for free because users are online ad targets. Together Facebook and Alphabet have a large share of the market for online advertising in the U.S. Their dominance delivers monopolistic returns, reflected in the persistently high valuations financial markets place on each company. Online ad sales depend on the ability of these platforms to individually target ads and messages to huge numbers of people. Targeting is made possible by surveillance which is large in scale, scope, and effectiveness. User engagement, which helps determine target numbers, is stimulated and directed by “recommendation” algorithms on Facebook and Alphabet’s YouTube platform. These algorithms can affect what users read and view, and can influence their attitudes, emotions, and behavior. While surveillance has negative effects on user privacy, and algorithms have had powerful effects on user attitudes and behavior, platform users have limited knowledge about how these practices operate or their impacts. These information asymmetries between platforms and users have important competitive effects. They divert users from competing platforms that do not engage in these business practices, and inhibit entry and the innovation it would stimulate, thereby helping sustain the monopoly power of dominant incumbents. Section 5 of the Federal Trade Commission Act, which prohibits “unfair methods of competition” and includes rulemaking authority, may be the most effective way to address anticompetitive practices that are technically complex, can evolve rapidly, and are difficult for industry outsiders to observe.

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