Chillin'Competition

While drafting my latest paper, I asked myself how I could convey what is special and different about cases in digital markets. I do not believe these are ordinary investigations involving a straightforward application of well-known principles. Illustrating the point, however, is not easy.

Once again, I was drawn to the example that I often use with my students. It is even more pertinent following the Android decision and the investigations involving Apple’s practices (see here and here).

This example revolves around a simple question: is it abusive for Apple to embed a camera in its smartphones?

Some of you may have thought ‘certainly not’ and/or that ‘it would make no sense’ to say so. However, if one follows the logic of cases like Microsoft I or Android the inevitable conclusion is that, indeed, embedding a camera in a smartphone is abusive under Article 102 TFEU.

Smartphones, cameras and tying under Article 102 TFEU

I will make my point following the Commission’s interpretation of the conditions that are deemed canonical to show that tying amounts to an abuse.

Dominance

The Android decision and the ongoing investigations involving Apple seem to be based on the idea that the two ecosystems do not compete with one another (I discussed these points here and here). Accordingly, one could conclude, in light of this prevailing interpretation, that Apple is dominant.

Two products

For tying to exist, it is necessary to show that there are at least two separate products – a tying product and a tied product. Can one say that a smartphone and a camera are separate products? Yes, at least following Microsoft I. The interpretation of the ‘two product condition’ given by the Commission survived scrutiny by the General Court.

According to Microsoft I, the question is whether the tied product (in this case, the cameras) is produced independently of the tying product.

Typing ‘digital camera’ on, say, Google will show that the two product condition is indeed fulfilled under this interpretation (take a look at the pic below). There are certainly manufacturers specialised in the production of stand-alone digital cameras sold independently of smartphones.

Coercion

For tying to amount to an abuse, there must be an element of coercion. And there is probably no more effective coercion than physically embedding one product in another one.

Anticompetitive effects

Whether or not anticompetitive effects are an element of the legal test is a matter for debate. If one assumes that they are, the pic below suggests that smartphones have had a substantial impact on the sales of stand-alone cameras.

One could also try and make an argument about the potential dynamic effects of the exclusion of competing camera producers. Such arguments were already made in Microsoft I (harm on follow-on innovation) and have also been advanced in more recent investigations.

Objective justification

It is not difficult to think of the pro-competitive benefits resulting from integrating cameras with smartphones. These arguments, however, have so far not fared very well in proceedings before the Commission.

It is sufficient to take a look at cases like Microsoft I (Windows Media Player), Google Shopping and Android.

It is true that combining complements (for instance, an operating system and an application, or organic and vertical search results) typically makes end-users’ life easier and/or better. However, the Commission has also noted that they come with restrictions: namely, they prevent mixing and matching.

The same arguments could be make in relation to smartphones and cameras. End-users would not have the ability to use the camera of their choice, as Apple’s own choice (perhaps not even the best camera around, or not the one best suited to their needs) is forced upon them.

Implications

As you can see, the mechanical application of traditional tying doctrines, as interpreted by the Commission, inevitably leads to the conclusion that the embedding a camera in a smartphone is abusive.

If you still think that it makes no sense, I agree.

Some of you may think that the above is a purely theoretical discussion, as no competition authority would ever bring such a case.

Is it enough to say that competition authorities would exercise their prosecutorial discretion wisely? I do not believe so. As I have mentioned many times, competition policy is implemented through law, not discretion.

In a decentralised system like the EU one, moreover, one cannot exclude that a national court will be asked to rule in a similar dispute. And national courts cannot hide behind their policy priorities: they have to decide on cases brought before them.

If a national court were confronted with a case like this one, it would inevitably realise the main implication of the above: the legal test conceived for traditional instances of tying is not ideally suited for product design cases.

What is special and different about digital cases

If we agree that the legal test applying to traditional instances of tying is not appropriate, the next question is why. What is the difference between contractually tying the sales of one soft drink to the acquisition of another soft drink, on the one hand; and embedding cameras in smartphones, on the other?

The key is that intervention in the latter case is far more ambitious. A traditional instance of tying involving soft drinks relates to how products are sold. Questioning the integration of complements questions how products are made. In other words, the latter interferes with the heart of a firm’s business model and/or the design of products.

In order to understand the difference between the two cases (and what they involve), it is typically useful to think of the remedy. How can the infringement in a case concerning the contractual tying of soft drinks be brought to an end? A one-off negative obligation would be enough.

What would the remedy be if integrating cameras into smartphones were deemed abusive?

Perhaps, a Microsoft I-style remedy: asking Apple to produce a version of its smartphone without a camera. One could also imagine a Google Shopping-style remedy: several versions of the smartphone, each with a different camera. An auction could be organised to decide which cameras go into the various devices.

Irrespective of the particularities: the remedy would be infinitely more convoluted, and could perhaps fail (as in Microsoft I). This crucial difference is not (and cannot be treated as) an afterthought that is irrelevant to the determination of the appropriate legal test.

In all digital cases, including pending ones, the Commission is venturing more often than in the past with how products are made. It is questioning monetisation strategies (the ongoing investigations into Amazon are a good example) and the appropriate degree of modularity within an ecosystem (investigations appear to question whether integrated firms should keep some activities for themselves, which is what the Apple Pay case seems to be about).

It makes sense to look closely into these matters. But I fail to see how one can pretend that cases in which intervention would interfere with the heart of a business model and/or the design of a product are just like old-fashioned contractual tying cases and do not raise far more complex issues.

For the same reasons, one should not avoid the hard questions about the appropriate legal test to deal with these cases and about the institutional implications of making it easier to interfere more often with how products are made. This is the key message I tried to convey in my paper.

I look forward to your comments. I have repeatedly clarified, and this time is not an exception, that I have nothing to disclose.