Publications

Öster Zeitschrift für Kartellrecht

Looking Back at the Vienna Competition Law Days 2022

In the latest issue of the Austrian Competition Journal (Österreichische Zeitschrift für Kartellrecht), Franziska Guggi recaps the Vienna Competition Law Days 2022 and provides an overview of the discussion results. The contribution is in German and can be accessed here.

European Commission

Digital Merger Report for the European Commission

Vicky Robertson’s Report on digital technology mergers in EU Member States and the UK, commissioned by the European Commission’s Directorate General for Competition, was just published. In the Report, she analyses 97 national merger cases in digital and technology markets from EU Member States and the UK. Against the background of the growing concern about the market power of Big Tech, she identifies theories of harm repeatedly relied upon in the national decisional practice and remedies adopted. This allows her to draw initial conclusions for merger assessment in Europe. While digital ecosystems are increasingly acknowledged in national merger decisions, proper theories of harm on ecosystem envelopment are only being developed.

Read the full Report here: https://competition-policy.ec.europa.eu/system/files/2022-12/kd0422317enn_merger_review_in_digital_and_tech_markets_1.pdf

Ecosystem Market Definition in Google Android

Ecosystem Market Definition in Google Android

The market definition in the General Court’s Google Android judgment paves the way for much-needed changes in analysing relevant markets in digital ecosystems - but also highlights some of the pitfalls that may come with this type of analysis. Vicky Robertson analyses how the General Court tackles this challenge, and also points to how ecosystem market definition may be incorporated in the ongoing review of the European Commission’s Market Definition Notice. The blog post is available here.

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Doctrinal Challenges for EU Competition Law

At first sight, an approach to EU competition law that is more conscious about data protection as well as greener does not seem to share many traits. However, the insistence of both data and environmental protection on non-economic goals defies some of the more established logic of EU competition law. Against the background of the constitutional standing of data protection and environmental sustainability, Klaudia Majcher and Vicky Robertson analyse the challenges that the digitalisation and greening of the EU economy and society pose for competition law doctrine. It develops a taxonomy based on value alignment, value conflict, and value inclusion to better understand and frame the interaction between public policy goals, such as data protection and environmental sustainability, and competition law. This contribution, now published in the European Law Review, is part of the “Charting a Greener Future for European Competition Law” project funded by the Vienna University of Economics and Business.

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Big Tech and the Federal Trade Commission

Ahead of the midterms in the US, Austrian newspaper Der Standard took stock of the first 15 months of Lina Khan’s leadership at the Federal Trade Commission. In an interview with Vicky Robertson, the focus was on the achievements the Federal Trade Commission has been able to secure in reigning in Big Tech, and the challenges ahead. Available here (in German).

AustrianConstructionCartelDamagesActions

Austrian Construction Cartel and Damages Actions

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.

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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).

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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.

SustainabilityExemption

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.

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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.