Chillin'Competition

As most of you will have seen already, the Commission has sent Amazon a Statement of Objections concerning the use of third party sellers’ data. According to the press release, the authority has come to the preliminary conclusion that this practice amounts to a breach of Article 102 TFEU.

In addition, the Commission has decided to open an investigation concerning the conditions under which third-party retailers gain access to some advantages (namely the so-called ‘buy box’ and Amazon Prime customers).

The two cases are variations on the theme of self-preferencing. In the case of the former, Amazon’s own retail arm would have a competitive advantage. In the case of the latter, third parties using Amazon’s ancillary services would gain an edge over rivals.

These investigations signal the rise of common carrier antitrust. It is an approach to the enforcement of Article 102 TFEU (and EU competition law more generally) that represents, in several key respects, a break from past practice.

The distinctive features of common carrier antitrust are twofold.

• First, the idea that there is something improper, or inherently anticompetitive, in self-preferencing.
• Second, the setting of a low threshold of anticompetitive effects, which would be straightforward to establish in virtually every instance.

Is access to non-public data an expression of competition on the merits?

In its statement of objections, the Commission expresses its preliminary view that Amazon’s use of third-party sellers’ data amounts to an abuse of a dominant position.

The data, which is not publicly available, relates to issues such as ‘the number of ordered and shipped units of products, the sellers’ revenues on the marketplace, the number of visits to sellers’ offers, data relating to shipping, to sellers’ past performance, and other consumer claims on products, including the activated guarantees‘.

The essence of the Commission’s argument is that, by using this data, Amazon would be exploiting its dual role as (i) a marketplace providing services to third-party sellers and (ii) an online retailer.

In particular, the data would give its retail arm a competitive advantage that it would be able to use against rivals.

The press release is remarkable in that it suggests that there is something inherenly anticompetitive in this practice. From this perspective, the use of non-public data from rivals would be an ‘improper’ way of competing. More precisely, the Commission claims that the practice allows Amazon to ‘avoid the normal risks of retail competition‘.

This wording, which is (most intriguingly) vaguely inspired from the definition of concerted practice, signals a new approach to the enforcement of Article 102 TFEU for a number of reasons.

First (and most obviously) it is at least plausible that Amazon’s use of this data improves the conditions of competition (in the marketplace and/or on adjacent markets).

This is so, in particular, if Amazon uses this strategy to challenge the position of well-established players. Why would a practice that is capable of placing competitive pressure on incumbents be an ‘improper’ way of competing?

Second, it is unclear what would turn Amazon’s conduct into an ‘improper’ method. Finding business opportunities by replicating what others are doing well is as old as doing business. Absent a breach of intellectual property, it looks like a most natural expression of competition on the merits.

What is more, it is a commonplace practice in the retail sector (these are long-standing complaints against supermarkets, including the use of non-public data).

What is distinctive, or unique, about Amazon’s behaviour, against this background? Is it the scale? Is it the fact that Amazon is more effective in the gathering and use of third-party data? These questions seem key to making sense of the case.

Finally, one should not forget that all firms (not only Amazon) exploit their advantages. There is nothing inherently anticompetitive in doing so. On the contrary.

In fact, the whole purpose of competition law has never been to create a level playing field in which firms compete with the exact same forces and assets. The point of competition law is instead to ensure that firms retain the ability and incentive to make the most of what they have.

Against this background, the question that comes to mind is whether it is possible to distinguish, in a meaningful way, between competitive advantages that can and cannot be exploited or between competitive advantages that are proper and improper.

What about anticompetitive effects?

The press release suggests that the use of non-public data would allow Amazon to ‘leverage its dominance in the market for the provision of marketplace services‘.

Remarkably, however, the press release is not explicit about the markets that would be affected by the practice. Insofar as Amazon’s conduct is capable of improving the conditions of competition and of injecting rivalry, one would expect the issue of anticompetitive effects to feature prominently as the crucial inquiry in the case.

The wording of the press release raises the question of how the analysis of anticompetitive effects will be conducted by the Commission. A second, related one, is whether the analysis will be relaxed relative to the case law.

More precisely: will the Commission equate a competitive advantage with anticompetitive effects? The case law suggests that this tendency is not unusual in competition authorities. This same case law makes clear that an advantage does not amount, in and of itself, to an anticompetitive effect.

In addition: will the threshold be set at the level of plausibility (as opposed to likelihood)? If so, the analysis of effects would become a mere formality (potentially abusive conduct is most of the time a plausible source of anticompetitive effects).

My impression is that common carrier antitrust tends to lead to a relaxation of this assessment. Under this sui generis approach to Article 102 TFEU, any distortions of competition that come from self-preferencing are deemed problematic, even when they intensify rivalry.

It will be fascinating to see whether this is indeed the path followed.

I very much look forward to your comments. If there was any doubt: I have nothing to disclose.

Because we tend to be absorbed by the latest news, we may forget that there are several pending cases of interest before the Court of Justice. One of these is Servizio Elettrico Nazionale, which is a preliminary reference lodged back in July of this year.

The interest of this reference, from the Italian Consiglio di Stato, is that it raises a number of fundamental issues about the interpretation of Article 102 TFEU.

While the case law seems to provide an answer to all the questions, a judgment addressing some core principles is likely to become a reference. The questions also provide an occasion to look back and reflect on the contributions made by the Court over the past decade.

I thought it would make sense to go over four of the five points raised in the submission and start a discussion from there. I very much look forward to your thoughts.

May conduct that constitutes an abuse of a dominant position be completely lawful in and of itself and be classified as ‘an abuse’ solely because of the (potentially) restrictive effect created in the reference market, or must that conduct also be characterised by a specific ‘unlawful’ component, represented by the use of ‘competitive methods (or means) that are different’ from those that are ‘normal’? In the latter case, what criteria should be used to establish the boundary between ‘normal’ and ‘distorted’ competition?

Thoughts: This is an important question of principle. It is arguably the most interesting in theory and perhaps the least crucial in practice. I have the impression that the divide between ‘proper’ and ‘improper’ forms of competition is relevant, but not in the sense suggested in the reference.

I understand the question to ask, in essence, whether there is something inherently bad, ‘improper’ or abnormal in conduct that qualifies as abusive under Article 102 TFEU.

As I understand the case law, it seems clear that conduct that is not inherently anticompetitive (and as such a valid expression of competition on the merits) can be found to be abusive if certain conditions are fulfilled.

There is nothing inherently anticompetitive, for instance, in a refusal to license an intellectual property right. The point of such rights is to reward inventive and creative efforts. And exploiting the fruits of one’s efforts as one sees fits is arguably the purest and least controversial expression of competition on the merits.

However, even a refusal to license can amount to an abuse in the exceptional circumstances defined in Magill and IMS Health.

As you can see, this example suggests an an affirmative answer to the question. It is certainly not the only one. A reading of the case law shows that other valid expressions of competition on the merits can be abusive where certain conditions are fulfilled.

For instance, the Court clearly held in Deutsche Telekom and TeliaSonera that a ‘margin squeeze’ is not, in and of itself, contrary to competition on the merits. Accordingly, it is only abusive where it is likely to have anticompetitive effects.

At its heart, the question raised by the Consiglio di Stato points to the divide that exists in the case law between practices that are inherently against competition on the merits (‘by object’ conduct) and those that are not inherently anticompetitive but that may be caught by Article 102 TFEU where some conditions are met (‘by effect’ conduct).

I wrote about ‘by object’ and ‘by effect’ abuses here. It is a divide at which the Court hinted in Generics (para 155). It would seem that the line between ‘proper’ and ‘improper’ conduct is relevant, but not in the sense suggested in the preliminary reference.

The divide between ‘proper’ and ‘improper’ conduct is useful not so much to define the boundaries of Article 102 TFEU but to identify the instances in which an analysis of effects is necessary.

Thus, only conduct that is inherently at odds with competition on the merits can be found to be abusive without conducting an evaluation of its likely impact.

For instance, pricing below average total costs but above average variable costs is abusive irrespective of its effects where it is part of an exclusionary strategy (AKZO, para 72).

Absent the element of impropriety, it would be necessary to examine the likely effects of the practice on competition (Post Danmark I, paras 38 and 39).

Is the purpose of the concept of abuse to maximise the well-being of consumers, with the court being responsible for determining whether that well-being has been (or could be) reduced, or does the concept of an infringement of competition law have the function of preserving in itself the competitive structure of the market, in order to avoid the creation of economic power groupings that are, in any case, considered harmful for the community?

Thoughts: Again, it seems to me that the answer to this question should not be controversial. The Court has repeatedly held that a finding of abuse is not contingent on harm to consumer welfare. Article 102 TFEU is concerned with the protection of the competitive process (or ‘competition as such’).

More precisely (and as consistently held by the Court over the past decade), the law of abuses is concerned, at least as a matter of principle, with equally efficient rivals.

The only exception of which I can think is the Magill/IMS Health doctrine, where the Court required evidence of consumer harm (i.e. the new product condition). For the rest, one cannot credibly argue that such evidence is a precondition to establish an abuse.

In the case of an abuse of a dominant position represented by an attempt to prevent the continuation or development of the existing level of competition, is the dominant undertaking in any case permitted to prove that the conduct did not cause any actual harm, despite its abstract ability to generate a restrictive effect? If the answer to that question is in the affirmative, for the purposes of assessing whether an atypical exclusionary abuse has occurred, must Article 102 TFEU be interpreted as meaning that the Authority has an obligation to examine specifically the economic analyses produced by the party concerning the actual ability of the conduct examined to exclude its competitors from the market?

Thoughts: Again, we seem to be on well-trodden ground here. On the one hand, the Court has clarified (in Post Danmark II, para 65) that the effects on competition must not be ‘purely hypothetical’. The analysis of actual or potential effects must always consider the relevant economic and legal context of which the practice is a part.

On the other hand, the Court has also clarified that the effects need not be actual. Potential effects on competition are sufficient to establish an abuse.

It may be difficult to distinguish between these concepts (actual vs potential effects; and potential effects vs the threshold of effects – capability likelihood and so on). This is something I acknowledged and discussed in this paper on anticompetitive effects.

Must an abuse of a dominant position be assessed solely in terms of its effects on the market (including merely potential effects), without regard to the subjective motive of the agent, or does a demonstration of restrictive intent constitute a parameter that may be used (even exclusively) to assess the abusive nature of the dominant undertaking’s conduct? Does such a demonstration of the subjective component serve only to shift the burden of proof to the dominant undertaking (which would have the burden, at this stage, of providing evidence that the exclusionary effect is absent)?

Thoughts: I do not believe one can argue any longer that the subjective intent of a firm is either necessary or sufficient to establish an abuse. Subjective intent is not necessary in the sense that, ever since Hoffmann-La Roche, the Court has ruled that the notion of abuse is an objective one. However, a firm’s motives may complete the picture (AKZO on predatory pricing, mentioned above, is an excellent example).

On the other hand, subjective intent, alone, is not sufficient to establish an abuse. In this regard, Generics was particularly explicit and helpful. The Court held that the application of Article 102 TFEU ‘presupposes that that conduct was capable of restricting competition and, in particular, producing the alleged exclusionary effects’ (para 154).

It is therefore clear after Generics it is clear that a practice is not abusive if it is incapable of having anticompetitive effects. Such effects are sometimes presumed, and thus need not be established by an authority or claimant (this is so in relation to ‘by object’ conduct).

The above said, a dominant firm can always provide evidence showing that the practice, in its economic and legal context, is incapable of having effects (which is the fundamental contribution made by the Court in Intel).

I have just uploaded on ssrn a paper (see here) on some of the reforms of the competition law system that were proposed in the reports that dominated the discussion a while ago (including the Special Advisers’ Report for DG Comp and the so-called Stigler and Furman Reports).

While the momentum has slightly moved away from these reports as we wait for concrete proposals for a platform-specific regulatory regime, it makes sense to take a look at the vision and solutions contained in them. The exercise is particularly important when it is not unusual to hear that competition law could do much more in digital markets if we so wished.

As I explain in the paper, the essence of the proposals advanced in the abovementioned reports is relatively simple: make it easier and faster to establish infringements (chiefly by reversing the burden of proof) and, in some cases, reduce the constraints on the authority (in paticular by relaxing the scope and intensity of judicial review).

These ideas, if implemented in one way or the other, would entail a shift in the competition law system: from a system driven by law and centred around the courts, we would move to one that maximises agencies’ discretion, insofar as they would have much greater leeway to achieve the outcomes desired from a policy-making perspective.

My paper (nothing to disclose, as usual) makes the following points:

Finding an infringement is not the end, it is the end of the beginning

Many discussions on digital markets seem to be premised on the idea that, if finding an infringement were made easier, enforcement in digital markets would be more effective. This premise explains the proposals to shift the burden of proof or to introduce the black and grey lists that promise to take us back to the days of the pre-modern block exemption regulations.

The truth is that finding an infringement is nowhere near the end of the inquiry in digital markets. As I graphically put it in a recent conference, it is just the end of the beginning (and certainly not a guarantee of successful enforcement).

The typical case in digital markets is far more ambitious that the usual, run-of-the-mill competition law case. This is so because it often demands the administration of proactive remedies that amount to redesigning a product or altering the core of a firm’s business models.

Proactive remedies of this kind are known from experience to be difficult to design, implement and monitor. The problems that come with them are not a one-off issue, but one that is likely to be emerge almost inevitably every time a competition authority chooses to venture down the proactive road.

I do not believe the challenge that comes with proactive remedies (including in terms of resources for authorities) can and should be wished away. Reversing the burden of proof will not have an impact on this challenge. If anything, it will exacerbate it by exposing competition authorities more frequently to it.

There is a tension between some proposals (on the burden of proof, on interim measures) and the case law

There tends to be friction between legal innovations and the law as it stands at the time of their introduction. It is therefore not surprising that some of the proposals advanced in the reports are not immediately obvious to square with the case law.

In particular, there appears to be some friction between the idea of reversing the burden of proof in digital markets, for instance, and the principles of the case law as enshrined in Budapest Bank and other recent cases.

In Budapest Bank, the Court held that it would not be appropriate to prohibit a practice irrespective of its effects (that is, ‘by object’) when there is insufficient experience about it and/or where a practice is capable of having both pro- and anticompetitive effects.

Alas, and as explained by the Special Advisers in their Report, there is much that is not yet well understood about the efficiencies of some practices in digital markets.

As far as interim measures are concerned, the President of the General Court, in IMS Health appeared to introduce two limits to intervention. First, they are not the appropriate forum for interpretations of Articles 101 and 102 TFEU that depart from, or expand the scope of, the relevant case law.

Second, the point of interim measures is to preserve the status quo (they are known as mesures conservatoires for a reason) not to alter market structures.

The case law is relevant at two levels. It is relevant if any of the proposals to reform the system is based, at least in part, on the Treaty provisions on competition. Even if it is not, one should not forget that there is a great deal of wisdom in the case law in the sense that it encapsulates decades of learning.

Judicial review is first and foremost about the general interest

Arguably, some of the most controversial proposals relate to judicial review. Where others (for instance, the German Competition 2.0 Report) rejected the idea outright, the Furman Report toyed with the possibility of relaxing the scope and/or intensity of courts’ scrutiny of administrative action.

The Furman Report claimed that the threat of judicial review can deter aggressive agency intervention and argued that a balance needs to be struck between the protection of a firm’s rights and those who would suffer the consequences of under-enforcement.

I do not believe such a characterisation of judicial review is one with which many will agree. Judicial review is first and foremost about protecting the general interest, not the interests of particular firms.

In the continental tradition, moreover, agencies do not enjoy any leeway (à la Chevron) when defining the substantive scope of legal provisions. In this regard, some might add that the current context provides the best illustration of why full review on all issues of law and fact is so necessary.

Bonus: read Hovenkamp’s ‘Antitrust and Platform Monopoly’

Among the mass of papers that have been produced on the topic, I strongly recommend this inspiring paper by the venerable Herb Hovenkamp. It is coming out in the Yale Law Journal and it is entitled ‘Antitrust and Platform Monopoly’. It addresses meaningful remedial approaches to some issues, in particular the rise of winner-takes-all markets and killer acquisitions.

Herb Hovenkamp, inter alia, emphasises a key point I also make in my paper. Competition law cannot change the features of markets. If a market is a natural monopoly, intervention will not alter this tendency, irrespective of how hard we believe in it.

As promised, here comes the second round of contributions to the symposium devoted to Nicolas Petit’s Big Tech & The Digital Economy, with yet another stellar line-up of scholars.

We very much hope you enjoy it as much as the first one. Today’s pieces are:

Competition Policy at the Crossroads: Similar Questions, Different Answers, by Andriani Kalintiri

Recalibrating Competition Law, by Giorgio Monti

Petit’s Cat: Uncertainty, Dynamic Competition, and Conglomerates, by Julian Nowag

Nicolas Petit, founder of Chillin’ Competition, has recently published (with Oxford University Press) his long awaited volume, in which he discusses the ‘moligopoly scenario’ (see here).

Having read some earlier drafts, I can say that Nicolas, as a genuine academic entrepreneur, was not afraid to take risks: a lawyer by training, he ventures beyond his comfort zone and comes up with something of a hybrid for which there are no clear precedents.

Nicolas had the idea of organising a mini-symposium on his book. He has brought together an impressive group of European scholars, who have drafted their blog post-style reflections on the monograph.

Chillin’ Competition will be presenting these contributions in two instalments. This first features the following:

How do you solve a problem like Maria Big Tech?, by Pınar Akman

LaTeX Antitrust, by Thibault Schrepel

Big Tech and the Digital Economy: the muddled middle in a polarized debate?, by Anna Gerbrandy

Regulating digital platforms: the last dance of antitrust?, by Giuseppe Colangelo

Enjoy! More contributions next week.

For around 10 years (between 2004 and roughly 2014) the competition community spent countless hours discussing how commitment decisions could pursue stretched theories of harm and obtain remedies that went well beyond what would have been possible in standard infringement decisions. By the way, I gave an overview of all this in this 2014 presentation (Lamadrid- Overview of competition decisions).

Commitment decisions (after Alrosa) probably made us all think that intervention under competition law could reach where it had not reached before. The Commission was able to intervene very effectively in many markets with forward-looking, far-reaching remedies agreed by the parties. This improved the functioning of many markets and arguably reduced clarity in the law. We became accustomed to remedies that were not necessarily proportionate to the concerns triggering investigations.

In the past few years, however, recourse to commitment decisions has become relatively rare. A positive aspect of the new enforcement trend was that infringement decisions and subsequent Court judgments would provide greater clarity on the law. Perhaps we did not anticipate that greater clarity as to where real boundaries lie might also lead to frustration which, in turn, would propel calls to replace the law and bypass Courts, but that is another story (or is it?)

Coincidentally, as the use of commitment decisions started to decline, the debate completely shifted. We suddenly discussed less about the far-reaching scope of competition law, and more about the alleged insufficiency of competition law. There may not be causality, but there is certainly some correlation. [Btw, it’s amazing how the world, incluiding competition law, has changed in these past 6 years].

One of the main reasons that made Art. 9 commitments less popular is that they could not lead to the imposition of fines, let alone huge fines. But, contrary to what used to be the case, proponents of more aggressive antitrust enforcement now argue that large fines are meaningless and don’t do the job, and that it’s only remedies that matter. From this perspective, at least, perhaps commitment decisions did the trick after all?

Others, including myself, were not necessarily in favor of commitment decisions becoming the standard enforcement tool because that would lead to all actors operating in the shadow of the law, not really knowing what the real law was. Commitment decisions, however, were case-specific, evidence-based, preliminary assessments, followed existing procedures and entailed a somewhat “participative” process, including negotiations with the affected companies and market tests). The Commission was also very smart in using commitment decisions while ensuring legal certainty in parallel infringement decisions (see e.g. the Samsung and Motorola decisions on SEPs, or the Visa and Mastercard decisions on MIFs). One could argue that commitment decisions already addressed some of the concerns voiced out against the new tool under consideration (a single instrument combining the NCT and the ex ante regulatory instrument).

Some might also argue that commitment decisions were also too slow. But were they? It would be interesting to explore the reasons why some cases dragged on for longer, and whether that may have been related to external factors and third-party strategies.

It might also make sense to spend some time negotiating remedies in advance, rather than impose impractical remedies that might then need to be continuously reviewed and updated. As the Commission itself explained, “due to the more consensual mode of concluding the case, the commitment path may result in more efficient proceedings and more effective remedies; it allows for a more fine-tuned tailoring of the commitments and swifter implementation”. In a way, this was participatory antitrust avant la lettre.

Be that as it may, the welcome revival of interim measures should dispel or alleviate timing concerns. The recent Broadcom case is the perfect example.

The history of EU enforcement under Article 9 is, from the authority’s standpoint, an unquestionable story of success. It allowed for rapid, strong and far-reaching intervention subject to fewer constraints than in standard cases. By the Commission’s own admission, having companies give their views in the process also ensured that remedies were workable and reduced the risk of disproportionate / undesired outcomes. Perhaps commitments were not entirely satisfactory for anyone (authorities and rivals could want more, affected companies would want less) but that is probably why the tool resulted in an equilibrium that worked well. Commitment decisions did require the Commission to show that it could build a prima facie credible case (credible enough, at least, to force a company to make concessions to avoid the risks and harms that come with prolonged investigations), but that was not a problem, rather a safeguard to mitigate discretion.

Take a look again at the theories of harm pursued in Art. 9 cases and at the remedies that the Commission was able to obtain (summarized in slides 6-7 of the 2014 presentation). Does it feel like there was an enforcement gap? There also does not seem to be any dissatisfaction as to the outcomes that were secured by virtue of commitment decisions.

The Commission’s successful intervention in the Broadcom case shows that commitment decisions (combined with interim measures in the face of genuine risks of irreparable harm) could actually be the old new competition tool that many were looking for.  I guess sometimes we want new things, perhaps forgetting that what we already have might be even better.

[Disclosure: I have no professional interests in, and no detailed knowledge of, the Broadcom case. I do have clients that could be affected by the new digital enforcement tool under consideration (full disclosures are available in my posts on those, see notably here). Like practically all competition practitioners, I also have a very large number of clients that could be potential addresses of commitment and/or interim measures decisions].

It is remarkable that the remedies in Google Shopping, a case that was decided more than three years ago, are still being discussed. As you certainly remember, the Commission chose a ‘principles-based’ approach that did not specify a particular way to comply with the decision.

Complainants argue, to this day, that Google’s implementation of the neutrality obligation mandated by the Commission does not respect the principles outlined in the decision.

It is against this background that the Journal of Competition Law & Economics is proud to feature a mini-symposium on the matter.

One of the papers – ‘Google Shopping for the Empress’s New Clothes –When a Remedy Isn’t a Remedy (and How to Fix it)’ – was prepared by Philip Marsden. As disclosed by Philip, the piece is a spin-off of some research he undertook for one of the complainants in Google Shopping.

The second paper – ‘Do We Need to Regulate Equal Treatment? The Google Shopping Case and the Implications of its Equal Treatment Principle for New Legislative Initiatives’ – was prepared by Thomas Graf and Henry Mostyn, who represent Google in the case (as is well known and disclosed).

The two papers are currently behind a paywall but we are looking, at JECLAP, to making them available free of charge soon.

If you ask me, the key takeaway about this debate is the very fact that it is taking place and that the remedy is still in a limbo over three years since the adoption of the decision.

Contrary to what has sometimes been suggested, this state of limbo is not a bug. It is an integral feature of proactive intervention in digital markets. Redesigning products and altering business models is complex, prone to errors, and does not have an obvious end in sight (once down this road: where to stop?).

I certainly do not see this case as a one-off or an aberration, but a sign of the challenges to come under the new competition law. As I mentioned at a conference a few weeks ago: in digital markets finding an infringement is not the end, it is just the end of the beginning.

Enjoy the papers!

The 24th (!) edition of the competition law course that I co-direct at the IEB in Madrid will take place online. The course (taught partly in Spanish and partly in English) will run from January to March 2021. All lectures take place in the afternoon (16h to 20h) in order to help make it compatible with other professional or academic activities.

 As always, it will feature a great line-up of international lecturers that include Judges, officials from the European Commission and other national competition authorities as well as top-notch academics, in-house lawyers and practitioners. This includes Pablo, who will coordinate two modules and take care of the introductory session. Students are tipically officials from competition authorities, in-house counsel wishing to get a deeper understanding of competition law as well as young lawyers/economists. The course is designed to cater to all levels.

While the pandemic will not allow us to travel to Madrid, the online format will enable us to access a wider pool of interested professionals. The full course has a cost of 2,000 euros, and it is also possible to register for individual modules or seminars.

This is the general* program

(*There will be detailed individual programs for every module and seminar, each of which will feature a variety of experts)

Introductory session (15 January- afternoon). Cani Fernández (President, CNMC) and Pablo Ibañez Colomo (LSE, CoE)

Module I – Cartels and procedure (18-20 January-afternoon). Coordinator: Isabel López Gálvez (CNMC)

Module II – Other agreements and restrictive practices: vertical and horizontal agreements (25-27 January- afternoon). Coordinator: Carmen Cerdá Martínez-Pujalte (CNMC)

Seminar 1- Recent Developments in EU Competition Law (5 February 2021). Coordinators: Fernando Castillo de la Torre and Eric Gippini-Fournier (Legal Service, European Commission)

Module III- Abuse of dominant positions (8-10 February- afternoon). Coordinator: Pablo Ibáñez Colomo (LSE, CoE)

Module IV – Merger Control (15-17 February- afternoon). Coordinator: Jerónimo Maillo (USP-CEU)

Seminar 2 – Competition Law in Hi-Tech Markets (26 February). Coordinator: Nicholas Banasevic (DG Comp, European Commission)

Module V- Sector Regulation and Competition (1-3 March-afternoon). Coordinator: Pablo Ibáñez Colomo (LSE, CoE)

Module VI – Public competition law: State aid and Public undertakings (8-10 March 2021- afternoon). Coordinators José Luis Buendía (Garrigues) and Jorger Piernas (University of Murcia)

Seminar 3 – Private enforcement of the competition rules (19 March 2021). Coordinator: Mercedes Pedraz (Magistrada, Audiencia Nacional)

We will also be holding three practical workshops dealing with inspections, distribution agreements and mergers.

If you want to know more, please drop us a line at competencia@ieb.es

Until today, I had avoided commenting publicly on the ex ante regulatory instrument that the Commission is considering for “platforms acting as gatekeepers”. There were three reasons for this. First, unlike the New Competition Tool, I did not see this initiative as a threat to competition law as we know it. Second, I do understand that there is a certain public anxiety about digital markets (to some degree justified, to some degree exaggerated by interested stakeholders), and a margin for regulation to legitimately address that anxiety and improve things. Third, my opinions could be legitimately criticized as biased because an important part of my work is to advise and represent companies targeted by this initiative. My thinking was that there were already enough people with professional interests making noise in all directions for me to contribute to the cacophony.

Alas, my reasoning on those three fronts has changed after reading the bold leaked drafts that circulate widely since last week. First, I now see a risk that the ex ante rules might have a much greater impact on competition law than I had anticipated. Second, it seems that the current plans might not always be addressed at the issues causing public anxiety, but to a large extent target issues at the core of pending competition cases. Third, I will not falsely pretend my opinions are neutral, but I hope they might add some value to the debate. Experts working against my clients have also  authored some of the influential reports that the leaked documents cite as evidence supporting the need for intervention and, to be sure, I don’t think their views should be disqualified. In addition, given that the rules appear to be crafted to affect only a remarkably limited number of services, it is likely that a majority of stakeholders will feel relieved and/or might not have incentives to voice out concerns, so you might not be exposed to many contrarian views. And even if you are, a lot of the commentary out there seems somewhat radical.

As in other matters, there is excessive polarization here, and even a tendency to look at things through myopic and binary (progressive vs conservative) lenses. Some partisans of regulation invoke “progressive” attitudes as a reason to favor these initiatives. Others claim that they oppose them in line with “conservative” principles. In reality, though, this debate has very little to do with politics. There are media companies who support Trump, Brexit and deny climate change that also support these initiatives (provided they only target their rivals, of course). There are also conservatives who want more regulation and antitrust intervention (even if arguably not always for the right reasons; e.g. at a recent antitrust hearing a Republican Congressman claim Google should be regulated because it favours WHO health advice over Trump’s…). And then there is a vast majority of other perfectly reasonable companies or stakeholders who have legitimate commercial/professional interests in these initiatives passing, or not passing, regardless of politics.

Instead of simply shouting “this is great” or “this is rubbish”, I’ll try to reason my concerns through. Confronting (hopefully) reasonable views should (hopefully) contribute to progress. The public debate should not belong only to those shouting the most (and you should see my Twitter feed…). I said before that we can do better, and I will try to play my part by being assertive, but as constructive as possible. It is not easy to decide where to start, but here are some questions:

1-.Why The Focus on 4 Key Services?  The current drafts indicate that the broader options have already been discarded, and that the plan is to focus only on 4 companies “key services”, namely “online intermediation services (market places, app stores and social networks), (ii) online search engines, (iii) operating systems and (iv) cloud services”. Queries: What were the criteria to concentrate on these? Can other “information society services” be excluded from the potential scope of application of the rules, even in the presence of “gatekeeping” features?  Are these the services of the economy where consumers are getting the worst deal in terms of price/innovation/quality/R&D investment? Are these the services with the greatest risk of consumer lock-in or with the highest switching costs? Are these services that have escaped competition law scrutiny? Or are these the intermediary services that have succeeded in creating greater opportunities for third party business users? 

2-. Unavoidable = Indispensable = Market Power? Perhaps the questions above are irrelevant, because the drafts show that the concern is that some services may be “de facto unavoidable for business users”. That does not necessarily mean the initiative is less legitimate, but it raises questions worth asking. Queries:

·   The assessment of market power depends on the competitive constraints faced by the company under examination. Under this alternative standard, however, “gatekeepers” subject to these rules would be identified judging solely from the perspective of whether (all? some? how many?) business partners have (other? equally convenient?) alternatives, regardless of the possible exercise of market power. Should that be the right approach? Should we adapt our thinking about identifying market power, or should we only make a carve-out for these 4 services? And if the concern is not market power but the “economic dependency” of certain users, can the proposed remedies go beyond that and constrain, for instance, product design decisions?

·   Does “de facto unavoidable” mean the same as indispensable within the meaning of EU Law, also beyond competition? Consider, for example, paragraph 55 of the recent CJEU Airbnb ruling. Would accomodation intermediaries, for example, be covered by these ex ante rules in spite of the Court’s observations? 

.   Rather than simply identifying “key services” and designating them as “gatekeepers” (which could arguably risk looking like reverse-engineering), would it make sense to craft some sort of normative or objective criteria to decide whether a given service might have “gatekeeper status” (e.g. on the basis of market shares, shares of traffic or other objective parameters)? What would be the process to identify the services with gatekeeper status? Would companies have opportunities to make their views known? Should there be consultations like in telecom?  How often would this status be reviewed?

3-.A Gap in Competition Law or An Overlap With Competition Law? I had the impression that the ex ante rules would cover matters falling outside the scope of competition law, and that this is what could lend legitimacy to the initiative (competition law is not everything after all). I was wrong. The list of “black” and “grey” practices in the leaked documents cover three categories: (i) data practices; (ii) self-preferencing; and (iii) tying and bundling. The practices in the list pretty much coincide with the same very practices that the Commission and NCAs have recently investigated, or are currently investigating, in cases concerning mainly Amazon, Apple, Booking, Facebook, Google and Microsoft. 

This means that (unless the EU Courts rule otherwise), this is all conduct that currently falls within the scope of the competition rules. Some of the practices in the draft lists in fact contain the actual wording of some of the examples included in Art. 102; others reproduce the wording and terminology used in recent decisions. Queries: To the extent that the rules would apply to practices falling within the scope of the competition rules, and only to companies that the Commission believes are dominant, then would this initiative fill a gap? Or would it rather replace case-by-case evidence-based assessments by outright bans when it comes to a handful of companies? Given the clear overlaps, wouldn’t it make sense for the enforcement of these rules to sit with DG Comp in order to ensure consistency with existing enforcement tools and with a possible NCT?

4-. Why Now? The Commission has spent years building cases, presumably challenging what it considers to be the most egregious instances of “black-listed” conduct. It is perfectly reasonable for the Commission to build its legislative proposal on “evidence derived from competition enforcement practice” as the drafts seek to do. But shouldn’t we then wait until those cases are over? The Commission has often said that what lends legitimacy to the fact-finding and enforcement process is judicial review. And EU Courts have now been called to render Judgments assessing the effects of some of these practices on the basis of actual evidence. Queries: Would upcoming Judgments concerning practices in the black list be rendered irrelevant before they are decided? Would that be that an unintended consequence? Would that be good thing? Would we accept this process in all areas of the law, or should we have an exception for matters that affect only a few companies? Would regulation be better or worse if it were also informed by the findings of the Courts in relation to the cases brought by the Commission? 

5-. Harmonization as the Goal? According to the leaked documents, “the objective of the intervention is to harmonise rules in Member States relating to unfair behaviour in gatekeeper platforms”. Query: To the extent that competition laws, unfair competition laws, the P2B Regulation, and other initiatives at the national or EU level would remain in place, would the ex ante rules harmonize national legislation or would they rather be adding one more tool to the toolkit?

6-.What About the NCT? If these rules were to enter into force, an NCT would arguably not add much value with respect to these 4 “key services”. Most people thought, however, that these were precisely the services that an NCT would target. Query: Does this mean that the NCT will be deployed mostly in relation to other services?

7- The “black list”. The list is “based on CNET/GROW” evidence gathering. The legitimacy of the initiative would arguably be enhanced if that evidence were identified and made public. As explained above, it would appear that most of the practices in the black list target conduct at the core of recent or pending cases. It is commonly accepted that many of those practices (e.g. MFNs) are competitively ambiguous; they might have pro- or anti-competitive implications depending on the circumstances. Not even complainants in “self-preferencing” cases argued that self-preferencing should be prohibited in all circumstances. The drafts recognize that this practice is widespread and states that “in offline situations, such behaviour is not generally considered anticompetitive”. Queries: Should practices like self-preferencing be treated differently in offline vs online situations? Are practices included in the black list because (a) there is evidence that procompetitive aspects disappear, or are always outweighed, (only) in relation to these 4 key services/companies?; or (b) we can’t be bothered to assess this question in relation to the 4 key services/ companies? 

8-. The added value of the “grey list”? The grey list contains a list of practices “where intervention by the competent regulator is required”. Query: Would intervention in these cases take place through standard procedures (e.g. a competition investigation?) subject to established standards? The merit of a grey list may arguably streamline and accelerate the process and could provide some sort of ex ante guidance, but then again, which would be the competent regulator? Given the clear overlaps with possible competition cases (and the need for coordination with national authorities), wouldn’t it be preferable for DG Comp to be in charge of enforcing the rules? That would also enable the Commission to coordinate with national authorities through tested channels like the ECN.

9-. Are you trying to say that there is nothing to do and that we should never regulate? Not at all. There is probably merit in the idea of having some sort of ex ante rules. The digital economy, like any sector of the economy, needs rules. Like in any sector of the economy, rules should be objective, not subjective, and a result of careful evidence-based reflection. Rules do not need to be only (or mostly) about efficiency, there are certainly other higher values. Rules can and should change, they can be creative; they can go against precedents and even be harsh when needed. But they should ideally be sensible, they should benefit the most (not the few), and they should be crafted to pursue their goals while minimizing the risk of undesirable outcomes. Leaving room for nuance and flexibility is often wise, particularly in the case of forward-looking rules. It would be a mistake to craft these rule to target only specific practices seen so far, because these will also be the applicable rules for future platforms. As Pablo explained in a previous post, building on the experience acquired in telecoms, a business-neutral, principles-based regime and the possibility of case-by-case assessments would seem much more flexible, adaptable and sensible than the alternative “black list” approach.