In the latest issue of World Competition, Klaudia Majcher published a review of the book ‘How Big Barons Smash Innovation: And How to Strike Back’ co-authored by Ariel Ezrachi and Maurice E. Stucke. This timely book brings into the spotlight how toxic innovations flourish in the digital economy and what should be done to enable the emergence of valuable innovations, particularly from an antitrust perspective. Klaudia’s review is based on her comments provided at the launch of Ezrachi’s and Stucke’s book that took place during the Vienna Competition Law Days in September 2022.
Antitrust in Data-Driven Markets: Austria
Together with Gerhard Fussenegger (bpv Hügel), Vicky Robertson authored a report on how Austria deals with data-driven markets under competition law. The report was written for the Ligue internationale du droit de la concurrence (LIDC) and published by Springer. It details the Austrian transaction value threshold for mergers, which was introduced in 2017 and aimed at catching digital mergers of competition law interest, as well as outlining some major trends in competition law enforcement in digital markets.
The Market Power of Big Tech
In an interview with Austrian newspaper Salzburger Nachrichten, Vicky Robertson discusses the market power of Big Tech, their anti-competitive behaviour, the importance of data for these markets, and the merger strategies that allow online conglomerates to sweep rising start-ups off the market. The interview (in German) can be accessed here.
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.
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
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.
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.
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).
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.
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).