Taming Digital Monopolies: A Comparative Account of the Evolution of Antitrust and Regulation in the European Union and the United States

• Author: Giorgio Monti
• DOI: 10.1177/0003603X211066978
• Published date: 01 March 2022
• Date: 01 March 2022

https://doi.org/10.1177/0003603X211066978

The Antitrust Bulletin

2022, Vol. 67(1) 40 –68

© The Author(s) 2022

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DOI: 10.1177/0003603X211066978

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Article

Taming Digital Monopolies: A

Comparative Account of the Evolution

of Antitrust and Regulation in the

European Union and the United States

Giorgio Monti*

Abstract

This paper offers a comparative account of how the European Union and the United States surveil

dominant internet players in light of recent enforcement efforts by U.S. antitrust agencies and ongoing

discussions about regulating digital giants in both jurisdictions. After setting out themes for comparative

analysis, the paper turns to the two actions initiated in the United States against Google: the one

filed by the Department of Justice (DOJ) is similar in focus to the European Commission’s Android

decision and the one led by the State of Texas focuses on advertising markets in a manner similar

to the European Commission’s AdSense decision. We observe that while there are similar intuitions

about anticompetitive conduct in the manner both jurisdictions address the issues, the framing of

the competition problem by the U.S. agencies is more sophisticated in relation to the understanding

of the markets, the theories of harm, and the design of forward-looking remedies. The paper then

compares the Commission’s proposal for a Digital Markets Act with several Bills proposing platform

regulation presently discussed in the United States, examining what the two systems have in common,

what they may learn from each other, and what regulatory gaps remain.

Keywords

comparative law, regulation, remedies, digital Markets Act, effects analysis

I. Introduction

While the European Commission (the Commission) and some national competition authorities in the

EU have been pursuing firms that are said to dominate technology markets in the internet era for over

a decade, enforcement in the United States has been less forthcoming until late 2020 when the

Department of Justice (the DOJ) and several states filed a complaint against Google.1 Since then,

*Tilburg Law and Economics Center and Tilburg Institute for Law, Technology, and Society, Tilburg, The Netherlands

Corresponding Author:

Giorgio Monti, Tilburg Law and Economics Center and Tilburg Institute for Law, Technology, and Society, Warandelaan 2,

Tilburg, 5000 LE, The Netherlands.

Email: g.monti@tilburguniversity.edu

1066978ABXXXX10.1177/0003603X211066978The Antitrust BulletinMonti

research-article2022

1. Statement of the Attorney General on the Announcement of Civil Antitrust Lawsuit Filed Against Google, October 20,

2020. In the analysis of this case we focus on the Complaint: U.S. and Plaintiff States v. Google LLC, filed (October 20,

2020), https://www.justice.gov/atr/case/us-and-plaintiff-states-v-google-llc.

Monti 41

further actions have been commended by the Federal Trade Commission (the FTC) and some state

attorneys general. Furthermore, the Biden administration appears eager to step up antitrust and regula-

tory efforts generally and one of the priorities is addressing the power of big tech firms.2 This increased

attention by U.S. agencies motivates this article. We carry out a comparative account of the EU and

U.S. efforts to address the market failures that arise in big tech markets. We consider the application of

antitrust first and the emerging regulatory framework second.

The paper is structured in the following manner. In Section II(A), we identify the comparative law

discourses that have informed the voluminous scholarship comparing EU and U.S. antitrust. The pre-

dominant narrative that emerges from this is that the EU competition law standards should align to those

of the United States because the former are too formalistic and risk too many Type I errors. This narrative

had a significant impact in the turn to what the Commission referred to as a more economics-based

approach to competition law enforcement.3 In particular, for the purposes of this paper, this narrative led

the Commission to rethink its approach to the regulation of dominant firms under Article 102 TFEU,4

which is the rough equivalent of the monopolization provision found in Section 2 of the Sherman Act.

However, we also observe two other comparative law themes that point in a different direction: the first

is that globally other jurisdictions appear to apply competition law in a manner more closely aligned to

the European Union than the United States and that, on some issues (e.g. refusals to deal), the approach

found in U.S. antitrust is an outlier when compared to other systems. Accordingly, while there may have

been a degree of methodological convergence between the two jurisdictions under consideration, there

remain reasonable disagreements on the application of competition law. The second is that those U.S.

scholars who advocate a departure from what they see as the current conservative stance of U.S. antitrust

are suggesting reforms that would move U.S. antitrust closer to the EU model. Moving from discourses

to cases, in Section II(b), we compare the approach of the EU and U.S. agencies when applying competi-

tion law to three cases which have been closed in the United States: Microsoft’s exclusionary practices in

the browser war, Intel’s exclusionary strategy in the market for microprocessor chips, and Google’s prac-

tices in the search market. In each of these three instances, we compare how the agencies have pursued

the cases. This comparative account of antitrust enforcement raises two themes: the first is the substantive

standard of assessment that is applied, the second is the manner in which the facts are understood and how

the case is focused. This trio of cases reveals that while there is some alignment on substantive standards,

there are fairly major differences in how the cases are framed by the two agencies.5 The resulting appeals

in some of these judgments are also relevant in establishing how to apply antitrust law to digital markets

and confirm the divergence of the two approaches.

In Section III, we make two comparisons. One consists in looking at the DOJ’s case against Google

and the Commission’s decision in Google Android, which confronts similar issues. The second entails

the States’ case against Google’s practices in the advertising market and the Google AdSense decision

by the Commission.6 Based on the framework in Section II, we show how, even at this preliminary

stage, the U.S. agencies are addressing the competition issues in a more holistic manner and we try and

account for why this difference of perspectives exists.

2. Executive Order 14036 of July 9, 2021, Promoting Competition in the American Economy 86 FR 36987, where it is

observed that ‘a small number of dominant internet platforms use their power to exclude market entrants, to extract monop-

oly profits, and to gather intimate personal information that they can exploit for their own advantage.’ (p. 36988) and to

address this ‘the Attorney General, the Chair of the FTC, and the heads of other agencies with authority to enforce the

Clayton Act are encouraged to enforce the antitrust laws fairly and vigorously.’ (p. 36992).

3. Mario Monti, The New EU Policy on Technology Transfer Agreements, Speech at École des Mines Paris, 16th January 2004

(SPEECH/04/19).

4. Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2012 O.J. (C 326/47).

5. In discussing specific cases in this paper we do not argue the facts or try and second-guess what the right answer should

be. Our interest is in explaining the analytical and evidentiary framework selected by the agencies. We are agnostic as to

whether any of the cases discussed in this paper are correctly decided as a matter of fact.

6. Case 40.099, Google Android (July 18, 2018); and Case 40.411, Google Search (AdSense) (Mar. 20, 2019).