The bid-rigging cases concerning the Austrian construction sector are about to kick off a string of damages actions. In Austrian daily newspaper Der Standard, Vicky Robertson was asked to explain the legal framework that will now facilitate these damages claims, particularly in cases in which the Cartel Court has already found an infringement. Accessible here.
Market Power in the Digital Age
Digital platforms are shaping the digital age. Recently, the so-called GAFAM (Google, Apple, Facebook, Amazon and Microsoft) as well as other digital platforms have increasingly become the focus of competition authorities. The market power of the respective digital platform is usually the linchpin of the antitrust assessment. However, it is not easy to grasp the market power of digital platforms with the traditional analytical tools of antitrust law. In this contribution, Vicky Robertson shows which difficulties arise when trying to delineate the relevant market(s) in which digital platforms are active. It also discusses how the constituent element of a dominant position can be applied to digital platforms. As an alternative manifestation of market power, relative market power is then examined, as it can be found in both Austria and Germany – but not at the level of the European. Then, a foray through different European legal systems shows that the concept of market power seems to be subject to change in the digital age: legislators in Europe are currently breaking new ground in order to allow competition law to grasp the manifestations of digital market power by digital platforms. The contribution is in German and can be accessed here (pre-edited), and here (behind a paywall).
Microsoft’s Activision Blizzard Acquisition
In a recent working paper, Fabian Ziermann discusses the market definition and potential competitive concerns of Microsoft/Activision. He analyzes the Commission’s gaming merger decisional practice, concluding that the market ought to be delineated based on game genres. In this context, Fabian illustrates that the acquisition may result in input foreclosure and a significant impediment to industry innovation. You can access the paper here.
Austria’s Sustainability Exemption
In a recent contribution on Austria’s sustainability exemption, Vicky Robertson discusses what led the Austrian legislator to adopt this exemption, and what aspects of it may come into conflict with EU competition law (or not). The edited volume can be accessed here. The pre-edited version can be found on SSRN.
Antitrust and the Metaverse
The metaverse, a fully virtual space, will provide new challenges for antitrust law. Billions of dollars are currently funneled into developing metaverse platforms, for example by companies such as Epic Games, Roblox Corporation, Meta, or Microsoft. However, it is unclear what the metaverse will be and much less how it is to be categorized in antitrust terms.
In a recent blogpost, Fabian Ziermann together with his co-author Dwayne Bach discuss what the metaverse is and provide an analysis of what the relevant antitrust market(s) could be. By assessing conglomerate foreclosure in the metaverse, they illustrate the complexity of detecting potentially anti-competitive conduct in the metaverse.
You can access the blogpost here.
Digital Market Definition
Magali Eben and Vicky Robertson just published their latest contribution on digital market definition in the Journal of Competition Law & Economics (2022). Market definition is a core concept of competition law around the globe, including in the European Union, the United States, and Brazil. In all three jurisdictions, antitrust authorities are grappling with the challenges of digital markets, often dealing with the very same digital players. The provision of zero-price services, the multisided nature of many digital platforms, and the implementation of entire digital ecosystems all challenge traditional approaches to market definition. But where there are common problems, there is a potential for common solutions. Through a comparative analysis of decisional practice relating to these past, present, and future challenges of digital market definition, this contribution maps the common ground already achieved while highlighting remaining gaps and possible solutions: for zero-price services—the past—it shows how a consensus has emerged on the theory and possible tools to define markets for ‘free’ services. On multisided platforms—the present—it finds that no such consensus has been reached yet, but strides are currently being made in developing an overall framework. And on digital ecosystems, it analyses how this challenge of the future requires the development of a coherent approach that can be based on cross-jurisdictional insights from the past and present.
You can access the full article here: https://doi.org/10.1093/joclec/nhab018
eSports and Unfair Competition Law
The eSports sector stands and falls with the streaming of content on various digital platforms. Despite this overwhelming market importance and the growing economic relevance of the streaming sector, the behavior of publishers has not yet been subjected to unfair competition law scrutiny.
In Part I of his articles in SpoPrax, a German journal dedicated to (e)Sports law, Fabian Ziermann illustrates how the eSports streaming market functions, identifies relevant market stakeholders and begins to examine potentially problematic market conduct by League of Legends publisher Riot Games under German unfair competition law.
Journal of Antitrust Enforcement
Vicky Robertson has recently joined the Editorial Board of the Journal of Antitrust Enforcement, a peer-reviewed journal published by Oxford University Press. To access the latest issues: https://academic.oup.com/antitrust
Data-Related Assessment of Mergers
The volume “Contributions to Comparative Law and Europe”, a book co-edited by Vicky Robertson, was just published. It contains Klara Kastner’s analysis of the data-related assessment of non-horizontal mergers in the digital sphere. The volume is the first yearbook of the Linda Rauter Prize. Together with Walter Doralt, Thomas Garber and Matthias Wendland, Vicky Robertson sits on the committee of the Prize. The volume can be accessed here.
Antitrust, Big Tech and Democracy
What role can competition law play when it is faced with democratic deficits in digital markets? In the twenty-first century, voter choice and the broader political debate are within the reach of those that can access and channel the vast streams of user data that are generated online. How digital platforms utilize personal user data to influence the outcome of democratic processes has become a central issue that liberal democracies must confront. In her recent paper, Vicky Robertson explores whether competition law has a role to play when it comes to addressing this intersection of Big Tech, data, and democracy. Should democratic values simply be reflected in the procedural set-up of antitrust law, or is there a role for democratic values in the substantive provisions as well? And if so, does antitrust law’s focus on keeping market power in check suffice to fulfill its role in a democratic society, or does this role require the law to specifically target antidemocratic market behavior as anticompetitive harm? In navigating these questions, her paper contributes to the ongoing debate on political antitrust and sets out an ambitious research agenda on how to carry this discussion forward. You can access the open access paper in The Antitrust Bulletin.