Chillin'Competition

The judgment of the Court of Justice in Android, delivered earlier this month, is one of the most consequential of, at least, the past decade. It builds on some aspects at which the Court already hinted in Google Shopping, all while introducing several of innovations and clarifications.

There will be no shortage of discussions and commentary on and around the judgment (and this blog will not be an exception). As an appetizer for what is to come, I thought I would share the conversation I had a few days ago with the great and indefatigable Alba Ribera Martínez. It can be accessed here. My intervention was structured around three main ideas:

Article 102 TFEU as the law of the exceptional (and the exceptional within the exceptional): It is easier to make sense of the judgment of the Court in Android as soon as one takes a long-term perspective. When one looks at the totality of the case law, all the way back to the 1970s, one can easily discern a distinct approach to the interpretation of Article 102 TFEU. The Court appears to regard dominance as an exceptional occurrence in the economy and draws a number of legal consequences therefrom. Android adds a layer: if Article 102 TFEU is the law of the exceptional, dominance in digital markets is the exceptional within the exceptional (with the legal adjustments that follow).

The comeback of competition on the merits: Dominant undertakings (including Google itself) revived the concept of competition on the merits. The hope was that, by requiring proof that the contentious behaviour departs from normal competition, it would introduce an additional burden on authorities and claimants. They were successful in achieving the comeback. However, the concept has not reduced the scope of Article 102 TFEU in any meaningful way. If anything, it has added a layer of uncertainty that promises to feature in discussions in the coming years. My take? Competition on the merits was discarded as an operational concept by German legal scholars in the 1950s. It will not be any different this time.

Causality and the analysis of effects: It is now jurisprudence constante that effects must be attributable to the behaviour of the dominant undertaking for Article 102 TFEU to come into play. How the causal link is established – and how the ping-pong between the authority/claimant and the dominant undertaking plays out – promises to be a legal point of contention in the coming years (and particularly so in digital markets, and for the reasons explained by the Court).

If you were wondering, there will be a blog post addressing each one of these three points. For the time being: hope you enjoy the chat with Alba!