Chillin'Competition

Abuse of dominance in digital markets will feature prominently in this year’s OECD Global Forum on Competition Law, to take place between 7-10 December 2020 (see here for the programme).

I will be privileged to discuss the subject alongside Cristina Caffarra (CRA), Amelia Fletcher (UEA) and Lina Khan (Columbia Law School).

If you are intrigued by the topic, the OECD has had the great idea of releasing a wealth of materials ahead of the event, including an extensive Report.

They have also asked the speakers to prepare a short blog post and a video clip. You can find mine here and here. My presentation is also available, as a pdf, here.

The point I make will be familiar to those reading the blog. I argue that there is something distinctive about abuse cases in digital markets. Insofar as it is, I do not believe one can argue that they are business as usual.

To illustrate this idea, I show (as I have done in the past) that traditional competition law cases deal with how products are sold. In digital markets, competition authorities find themselves venturing into the ‘black box’ and interfering with how products are made.

Intervention of that kind is more controversial, demands more resources and is more prone to errors. It is not a surprise that competition law was deferential vis-a-vis product design and/or business model choices. Thus, it only rarely went opened the proverbial ‘black box’.

Two questions arise, against this background. From a legal perspective, the question is whether it is wise to depart from the legal tests that have so far limited the system’s exposure to proactive intervention. From a policy standpoint, the question is how often, and in what circumstances, competition authorities want to interfere with how products are made.