Gönenç Gürkaynak, Ali Kağan Uçar, Uzay Görkem Yıldız

European Competition and Regulatory Law Review, Jahrgang 6 (2022), Ausgabe 4, Seite 306 - 317

This article explores whether there is a need for ex ante regulations in digital markets. It explains implications of ex ante regulations in digital markets and focuses on the competition jurisprudence which has generated new terminologies such as ‘tipping’, ‘gatekeepers’ and ‘self-preferencing’ over the last decade, indicating that competition law easily adapts to emerging problems and sweeping ex ante regulation efforts in the digital markets might be uncalled for. In this regard, the article summarizes the on-going debate on whether competition law, as is, can sufficiently address and deliver solutions for competitive concerns in digital markets. Within this scope, the paper examines the alleged competitive concerns in digital markets and argues that it is crucial to first conduct counterfactual analysis with concrete facts, parameters and data, to identify the risks associated with over regulations. The article further contends that the competition law toolkit in place is a sufficient and more appropriate way to deal with anti-competitive conducts and the ongoing ex ante regulation efforts in digital markets are condemned to result in a decline in competition and innovation in the long run. Keywords: ex ante regulations; digital markets; gatekeepers; assumption of market power

Joseph Antel, Ciara Barbu-O’Connor, John Carroll, Katie Daw, Robert Klotz

European Competition and Regulatory Law Review, Jahrgang 6 (2022), Ausgabe 1, Seite 35 - 55

Efforts to tackle the increasing market power of data driven platforms are taking a new turn. So far, the European Union has been more aggressive and creative than the United States, notably with severe antitrust enforcement action. However, there is a perceived enforcement gap in platform markets, due to increased concentration, rising profit margins, declining market entry and low investment compared to profits, according to many. With the European Commission proposing the Digital Markets Act and the US ramping up on a number of fronts with an intensified interest in Big Tech and a political climate favourable to an emerging legislative consensus for targeted antitrust law reforms in this field, we are on the verge of new rules to bridge this gap more effectively. This article sheds light on the current developments in the EU and the US, as a basis for the juxtaposition of both approaches and attempt to draw conclusions for future debate. Keywords: digital platforms, antitrust enforcement, upfront regulation, Digital Markets Act, gatekeepers, global convergence and cooperation

Bogdan Marius Chirițoiu, Vlad Dan Roman

European Competition and Regulatory Law Review, Jahrgang 6 (2022), Ausgabe 1, Seite 72 - 76

Salomé Cisnal de Ugarte, Mélanie Perez, Ivan Pico

European Competition and Regulatory Law Review, Jahrgang 6 (2022), Ausgabe 1, Seite 17 - 23

The third decade of the 21st century promises to look very different for European merger control. After several very successful acquisitions by Big Tech companies, competition law enforcers are increasingly concerned that their merger control regimes might not capture transactions that may have anticompetitive effects in the long run. As a consequence, European regulators are taking various initiatives which make the merger control landscape increasingly fragmented and complex, ranging from the introduction of value-based jurisdictional thresholds and a new referral policy that can catch mergers post-closing, to ground breaking regulatory initiatives in the digital sphere, changes relating to the substantive assessment of mergers in dynamic markets and foreign direct investment and subsidies screenings. This results in decreasing legal certainty for companies engaging in cross-border M&A and increased transaction costs. Keywords: merger control, Digital Markets Act, referrals, Article 22 EUMR, foreign subsidies, dynamic competition

Giorgio Monti

European Competition and Regulatory Law Review, Jahrgang 5 (2021), Ausgabe 2, Seite 90 - 101

The Digital Markets Act (DMA) is a major policy initiative to regulate platform gatekeepers in a more systematic manner than under competition law. This paper reflects on the institutional set-up in the Commission proposal. While the DMA is well-designed, this paper recommends improvement in the following aspects: (i) matching the DMA’s objectives with obligations imposed on gatekeepers; (ii) facilitating a regulatory dialogue; (iii) streamlining the enforcement pyramid; (iv) emphasising the role of private enforcement; (iv) clarifying the role of competition law when the DMA applies. Keywords: Digital Markets Act, DMA, responsive regulation, private enforcement

Laurens Vandercruysse, Caroline Buts, Michaël Dooms

European Competition and Regulatory Law Review, Jahrgang 5 (2021), Ausgabe 2, Seite 102 - 111

Through the adoption of the European Union’s Digital Strategy, the European Commission aims to tackle pressing issues specific to markets of data-intensive services. One of these issues is the substantial and durable competitive advantage that emerges from having exclusive access to large sets of data. The Digital Markets Act proposal, a prime pillar of the Digital Strategy, allows for the identification of gatekeepers. These gatekeepers would then be subject to additional obligations, for example enabling wider data access. This article focuses on the market for smart city services and proposes the adoption of a more proactive approach through public procurement. We argue the onus should be on preventing service providers from becoming gatekeepers, rather than attempting to repair a competitive space once a gatekeeper has arisen. Keywords: smart city, public procurement, data protection, data sharing, EU Digital Strategy

Kiran Desai

European Competition and Regulatory Law Review, Jahrgang 5 (2021), Ausgabe 1, Seite 11 - 23

Policy debate in the EU and international fora and institutions are leading to proposed changes to competition law as applied to the technology and in particular digital sectors. A review of the proposals identifies two groups, first, those that are a more aggressive application of competition law and second, those addressing non-traditional goals, such as data privacy. The EU’s Digital Markets Act is an example of the latter, while a change to the EU Merger Regulation is an example of the former. The proposed changes are open to criticism, for example because they create a differential application of competition law to one sector compared to others and there are definitional challenges. Furthermore, competition economic analysis, with its emphasis on consumer welfare,may need to be broadened to enable a normative and theoretical consistency between the current laws and the proposed changes. In addition, where the changes are to address goals not susceptible to such analysis, such as human rights, lawyers will need to be open to adding arguments based on other jurisprudential theories to support their cases. Keywords: competition; digital; proposals; objective; economics

John Weche, Thomas Weck

European Competition and Regulatory Law Review, Jahrgang 5 (2021), Ausgabe 1, Seite 4 - 10

Tacit collusion gives rise to major practical challenges for the enforcement of competition law. A problem which is well known from the gas station markets, now acquires new topicality with the intervention of institutional investors (‘common ownership’) and the use of online pricing algorithms. This article connects the previous strands of discussion and establishes a link to the discussion regarding a New Competition Tool. Keywords: tacit collusion; algorithms; common ownership; Digital Markets Act; DMA; New Competition Tool; NCT

Pernille Edh Hasselgård

European Competition and Regulatory Law Review, Jahrgang 5 (2021), Ausgabe 1, Seite 44 - 48

Heinrich Kühnert, Elisabeth König

European Competition and Regulatory Law Review, Jahrgang 5 (2021), Ausgabe 3, Seite 216 - 220