Publications

ECLR 2023

The Future of Digital Mergers Post-DMA

October 11, 2023

The Digital Markets Act (DMA) wants to ensure contestable and fair digital markets. In addition to its principal obligations, the DMA requires digital gatekeepers to inform the European Commission of any prospective merger (Article 14 DMA). Together with the Dutch clause contained in the EU Merger Regulation (Article 22 EUMR), this obligation will impact the future of digital merger control as the Commission will forward gatekeepers’ merger information to national competition authorities, which can then make use of the referral mechanism under the Dutch clause to enable the Commission to investigate the digital merger.

Vicky Robertson’s article on the issue was just published in the European Competition Law Review, and is freely available here with kind permission of the publisher:

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Abuse of Dominance in the Funeral Industry

September 18, 2023

Franziska Guggi’s work on abuse of dominance in the funeral industry, which she previously presented at the ASCOLA conference in Porto in 2022, was just published. It analyses abuse of dominance in the funeral industry against the background of the essential facilities doctrine. In 2022, Franziska was awarded the Linda-Rauter-Prize by the Faculty of Law of the University of Graz for this work, which is based on her Master thesis. The prize goes to the most outstanding theses in the areas of comparative law, European law, and international law. The contribution is available here: https://shop.manz.at/shop/products/9783214253004.

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How to Analyse the Microsoft/Activision Merger

June 7, 2023

Fabian Ziermann’s article on Microsoft’s pending acquisition of Activision Blizzard was just published in the Journal of European Competition Law & Practice as part of the third Rubén Perea Award. In his article, Fabian addresses questions regarding the delineation of video game genre markets and potential harms to innovation in game genres, game ecosystems, and metaverse development. These issues may have been overlooked by the Competition & Markets Authority and the European Commission in their respective decisions to prohibit and approve the acquisition. Fabian argues that this neglect could result in a false positive, three times the acquisition value of Facebook/WhatsApp. The article can be accessed here.

Abuse of Dominance

Anti-Competitive Rebates

May 2, 2023

In the Research Handbook on Abuse of Dominance and Monopolization, published by Edward Elgar in April 2023, Vicky Robertson contributed a chapter on rebates, detailing the antitrust rules applicable to loyalty or fidelity rebate schemes under EU competition and US antitrust law. The chapter finds that antitrust liability for a dominant company will more readily be established in the EU, where the applicability of economics-based tests is still being navigated. In the US, rebates by a monopoly player will usually be found to be anti-competitive where they constitute predatory pricing, although they might also run into antitrust liability where they constitute exclusive dealing arrangements. This divergence can be explained by the different ideological underpinnings in the two jurisdictions. Overall, however, the (case) law on loyalty rebates is still in a state of flux in both jurisdictions. In recent years, both jurisdictions have gradually moved to a little more convergence in their treatment of exclusivity rebates. At this point, however, both the US Supreme Court and the European Court of Justice will need to weigh in on the future of the antitrust assessment of loyalty-inducing rebates.

The Handbook is edited by Pınar Akman, Or Brook (both University of Leeds) and Konstantinos Stylianou (University of Glasgow). It can be found here.

Computer Law & Security Review

Computational Antitrust: The Status Quo

April 12, 2023

Cartels and other anti-competitive behaviour by companies have a tremendously negative impact on the economy and, ultimately, on consumers. To detect such anti-competitive behaviour, competition authorities need reliable tools. Recently, new data-driven approaches have started to emerge in the area of computational antitrust that can complement already established tools, such as leniency programs. In this systematic review of case studies, Jan Amthauer, Jürgen Fleiß, Franziska Guggi and Vicky Robertson show how data-driven approaches can be used to detect real-world antitrust violations. Relying on statistical analysis or machine learning, ever more sophisticated methods have been developed and applied to real-world scenarios to identify whether an antitrust infringement has taken place. The review suggests that the approaches already applied in case studies have become more complex and more sophisticated over time, and may also be transferrable to further types of cases. While computational tools may not yet be ready to take over antitrust enforcement, they are ready to be employed more fully.

This is the first paper of the DataComp project, published in volume 49 of the Computer Law & Security Review. It is available in open access here: https://www.sciencedirect.com/science/article/pii/S0267364923000171

New Textbook

New Textbook on EU Competition Law

March 27, 2023

Edited by Aleš Ferčič of the University of Maribor, a new textbook on European Union Competition Law was just published by Europa Law Publishing. This comprehensive textbook covering all major aspects of this intriguing part of Union law. It was prepared by a group of distinguished specialists from European universities, including Nataša Samec Berghaus, Stefan Krenn, Pieter Van Cleynenbreugel, José Caramelo Gomes, Martina Repas and Matjaž Tratnik. Vicky Robertson contributed a chapter on market definition. The book covers the various pillars of EU competition law that prevent unlawful restrictions of competition within the internal  market. The focus is on anti-competitive agreements, abuses of a dominant position,  mergers and state aid measures. Both substantive and procedural issues are covered, including not only public but also private enforcement. In addition, introductory chapters allow readers to immerse themselves in general concepts of EU competition law.

Obtain your copy here: https://www.europalawpublishing.com/101-69_European-Union-Competition-Law

World Competition

Book Review

March 13, 2023

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

Antitrust in Data-Driven Markets: Austria

February 7, 2023

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.

Öster Zeitschrift für Kartellrecht

Looking Back at the Vienna Competition Law Days 2022

January 11, 2023

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

December 19, 2022

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

November 21, 2022

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

November 7, 2022

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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