Chillin'Competition

 CoRe, CCIA and the VUB held a great conference about competition law in digital markets last week in Brussels. Asked to focus on multi-sided markets, my claim was that the case law already provides enough guidance for us to apply the law to multi-sided business models. I posited –once again- that the real problem we have in competition law is that we are forgetting about the law.

Contrary to what many tend to assume, in the EU we have actually made quite some progress, at least on the judicial front. In fact, my bet is that when the SCOTUS rules on Amex (a case which some expect will provide us with quasi divine guidance), it will say nothing new as regards what we already have in EU case law.

Courts do get it. I witnessed that first hand when I was the guest lawyer at this special seminar organized by the European Association of Competition Law Judges. The problems arise when we don’t listen.

Building on a previous paper (“The Double Duality of Two-Sided Markets“) and on ideas voiced out in other occassions my intervention focused on 6 lessons from the case-law. I would like to believe they result from an objective reading of the case-law (even if, to be sure, I do advise several clients operating multi-sided business models).

The lessons I extract from the case law are the following:

1. One cannot look at different sides of a multi-sided business model in isolation (partly discussed here);
2. The anticompetitive value that was typically attributed to network effects needs to be nuanced (an idea partly discussed here);
3. Cross-market anticompetitive effects require, as a minimum, a showing of anticompetitive foreclosure/elimination of effective competition in the target market (a point also made by Pablo here);
4. The assessment of pro-competitive effects must consider the benefits flowing to all sides of a multi-sided system (see here);
5. Multi-sidedness considerations are part of the legal and economic context to a given practice, not a side issue to examine in isolation as a last step in the analysis (idea anticipated here);
6. The key to competition law enforcement in multi-sided markets has to do with the analysis of the counterfactual (i.e. causality/attributability) (partly discussed here).

I think I will develop these ideas in a proper article. If anyone of you has any comments on these lessons (or on others), please send them my way!