Taming Tech Giants

• DOI: 10.1177/0003603X221084153
• Published date: 01 June 2022
• Date: 01 June 2022

https://doi.org/10.1177/0003603X221084153

The Antitrust Bulletin

2022, Vol. 67(2) 187 –189

© The Author(s) 2022

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DOI: 10.1177/0003603X221084153

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Introduction

Taming Tech Giants

Anne C. Witt*

In 2019, several expert reports1 warned that key digital platform markets are insufficiently competitive

and dominated globally by one or two of the same five large digital companies: Google, Amazon,

Facebook,2 Apple, and Microsoft (GAFAM). Jurisdictions around the world have since been grappling

with how best to protect and stimulate competition in these markets, reigniting longstanding debates

about core concepts of antitrust law such as the consumer welfare standard, the relevance of market

concentration, error costs, and standards of proof. Several options are on the table: relying on tradi-

tional antitrust law, updating the existing antitrust rules to make them fit for the digital economy, regu-

lating dominant platforms, or a combination of the above.

Unlike their U.S. counterparts, the European Commission and the national competition agencies of

the EU Member States have actively enforced their abuse of dominance and merger rules against

GAFAM for the past few years. Between 2017 and 2019, the Commission issued no fewer than three

infringement decisions against Google alone, fining it in excess of €5bn.3 Google brought actions for

annulment against all three decisions. In Dec. 2021, the General Court of the European Union delivered

its long-awaited judgment in the first of these cases, Google (shopping).4 The court confirmed that self-

preferencing in search results can constitute a form of abusive exclusionary conduct and upheld the

decision, handing the Commission a major political victory.

Nonetheless, there is broad agreement even in Europe that antitrust law alone is insufficient to rein

in the market power of dominant digital platforms, because its enforcement, which requires competi-

tion agencies to prove the investigated conduct’s likely effects on competition and consumer welfare,

is too time-consuming, too expensive, and too limited in scope to protect competition effectively in

fast-moving platform markets prone to tipping. The Google (shopping) saga illustrates this point per-

fectly. It took the European Commission six and a half years to investigate Google’s practice of favor-

ing its own comparison shopping service over competing services by positioning and displaying search

results from its own service in a more eye-catching manner. This conduct occurred as early as 2008.

The Commission formally opened proceedings in 2010. It established the infringement in 2017. Google

*Augmented Law Institute, EDHEC Business School, Roubaix Cedex 1, France

Corresponding Author:

Anne C. Witt, Augmented Law Institute, EDHEC Business School, 59057 Roubaix Cedex 1, France.

Email: anne-christine.witt@edhec.edu

1084153ABXXXX10.1177/0003603X221084153The Antitrust BulletinWitt

research-article2022

1. Digital Competition Expert Panel, Unlocking Digital Competition (Mar. 2019); Stigler Committee on Digital Platforms,

Final Report (Sep. 2019); J. Crémer et al., Competition Policy for the Digital Era (Mar. 2019).

2. Facebook has since changed its name to Meta.

3. Commission decision of Jun. 27, 2017 in Case AT.39740—Google Search (Shopping); Commission decision of Jul. 18,

2018 in Case AT.40099—Google Android; Commission decision of Mar. 20, 2019 in Case AT.40411—Google Search

(AdSense).

4. Case T-612/17, Google and Alphabet v. Commission (Google Shopping), ECLI: EU:T:2021:763.