Publications

In her new chapter (see SSRN here) forthcoming in the ‘Research Handbook on Competition and Technology’ edited by Pier Luigi Parcu, Maria Alessandra Rossi and Marco Botta (Edward Elgar Publishing 2024), Klaudia Majcher discusses the interactions between EU competition law and data protection in digital markets. The chapter focuses on two areas of competition law, namely abuse of a dominant position and merger control, and explores how to make them more coherent with data protection. Parts of the chapter are based on Klaudia’s new book on the same topic.

To shape tomorrow’s markets in line with the Treaties’ objectives, EU competition law needs new methodological tools. Could strategic foresight be one of them? In a new working paper, Klaudia Majcher and Vicky Robertson explore how competition law could rely on strategic foresight as a tool for anticipating and navigating change, particularly where predictive assessments are involved or when it comes to prioritisation. But what are the opportunities and challenges of using strategic foresight in competition law? Find out here.

In a recent contribution in Austrian newspaper Der Standard, Vicky Robertson and Christian Berger point to gender-specific aspects of competition policy (accessible here, in German). They shed a light on how competition replicates inequalities in society, discuss the influence of female heads of competition authorities, and highlight the importance of considering gender-specific aspects in the competition analysis – as was recently suggested in the OECD’s Gender Inclusive Competition Toolkit.

Data-driven methods, such as cartel screenings, offer competition authorities new and versatile tools for detecting competition law infringements. To achieve actual practical relevance, however, it is necessary that the outputs of such screenings satisfy certain evidentiary standards. In an analysis carried out within the realm of the DataComp project, Franziska Guggi and Vicky Robertson shed light on this question from perspective of Austrian competition law proceedings. They argue that cartel screenings can be applied throughout different stages of the proceedings: initiating investigations by the Federal Competition Authority, producing reasonable suspicion for conducting a dawn raid, and, last but not least, serving as a basis for the Cartel Court’s decision. To ensure that data is reliable, companies may also be requested to share their internal data. For now, cartel screenings cannot come up with bullet-proof evidence for competition law infringements. It is therefore necessary to keep in mind that an alternative explanation for the screening result is always possible. Last but not least, they stress the importance of explainable AI for competition law proceedings. The paper was published in the latest volume of the Austrian commercial law journal ecolex and can be accessed here. 

Source: https://legacy-rdb.manz.at/document/rdb.tso.LIecolex20231136

In the age of big data, sellers can amass a considerable amount of up-to-date information about their customers that algorithms can then use in order to engage in personalised pricing practices at a large scale. Vicky Robertson’s contribution, just published in the international collaborative book entitled Women in Antitrust: Antitrust Across the Borders, assesses algorithmic pricing from a competition law perspective, addressing several questions: The prospect of an increased personalisation of prices may lead to a gradual disappearance of uniform market prices, which have been at the centre of economics-based competition law for many years. This could call into question many of the general tools of competition analysis. Furthermore, the question poses itself to what extent algorithmic personalised pricing could constitute an anti-competitive practice that can and should be challenged under current competition laws. While some theories of harm, like discrimination and excessive prices, are possible candidates when analysing the applicability of well-known abuses to algorithmic personalised pricing, consumer trust in digitalisation and markets may warrant the elaboration of a theory of harm specifically tailored to algorithmic personalised pricing. In addition, the question poses itself whether the particular harm that algorithmic personalised pricing can inflict should be considered in more tailored regulation. While this contribution’s focus is on EU competition law, similar principles can guide the discussion in other jurisdictions. The contribution can be read in open access here.