Vestager’s razor to cut the ordo-liberal knot

To turn the page on more than forty years of quarrel over whether antitrust is about protecting the competitive process without prejudging its result or about ensuring that markets have a competitive structure (thereby tipping the balance towards a particular market outcome), Commissioner Vestager has finally applied Ockham’s law of parsimony. In front of the European antitrust establishment attending the Chillin’ Competition conference last 21 November, the Commissioner heralded a return to the exploitation origins of EU competition law. Continue reading “Vestager’s razor to cut the ordo-liberal knot”

Has the Commission let slip the watchdogs of war?

E-commerce is no longer the last frontier of antitrust law, but rather the battlefield of a war which is already being fought on many fronts. On the trustbuster’s side, the Bundeskartellamt’s purposeful and self-proclaimed leadership as regards vertical restraints on the use of online marketplaces has recently met with the Commission’s slowly but steadily coming back into play from its initial indolence (as proven by the Preliminary Report on the e-commerce sector inquiry published on 15 September 2016), and its recent alliance with the French authority (whose help the EU watchdog has sought to carry out probes in the e‑commerce sector).

At any rate, the rules of this regulatory game will be set by the judges in Luxembourg, already questioned by the German judiciary whether selective distributors at the retail level can be lawfully barred from enlisting online sale-handling services of third-party platforms discernible to the public, regardless of the supplier’s quality standards (request for a preliminary ruling in case C-230/16). On the undertaking’s side of the house, Amazon has asked to be heard in the case as a golden opportunity to tip the scales in favour of retailer’s freedom to sell products on marketplaces.

Although the focus is clearly placed on retailers’ ability to use marketplaces, until the ECJ delivers its verdict the Italian Autorità Garante della Concorrenza e del Mercato (which seems to like riding high on the Booking.comExpedia wave), has availed of the tense interlude to streamline the online booking sector again by launching a monitoring project. This project aims at gauging the implementation of the commitments made by Booking.com and Expedia in partnership with other nine National Competition Authorities (Belgium, Czech Republic, France, Germany, Hungary, Ireland, Netherlands, Sweden and UK).

This landscape having paved the way for a bit of self-promotion, I will take the opportunity to present my recent publication in the European Journal of Legal Studies with the headline: ‘Price parity clauses: Has the Commission let slip the watchdogs of war? Continue reading “Has the Commission let slip the watchdogs of war?”

The bonfire of the vanities 3.0

Google doesn’t seem to have expiated its sins as Berlaymont’s crusade is about to become a Seven Years’ War. This week, we have witnessed with weary amazement Mountain View’s questing beast being struck by two new charge sheets: a supplementary statement of objections that persists restlessly in the unpalatable self-preferencing theory of harm and a brand new accusation of limiting third-party websites’ ability to display advertisements from rival online advertising intermediaries. Thus, a third limb has now been added to Vestager’s admonition barely three months after the tech colossus was made aware of her concerns over Android (see ‘Do androids dream of exclusivity?’). Continue reading “The bonfire of the vanities 3.0”

Do androids dream of exclusivity?

Almost fifty years ago, Philip K. Dick wondered whether androids dreamt of electric sheep as a way of reflecting on robots’ ability to develop feelings and on humankind’s entitlement to doing away with machines showing this dangerous anomaly. Almost thirty years ago, Ridley Scott brought this moral debate to the big screen in a film featuring Harrison Ford ‘retiring’ human-like ‘replicants’. Now, the Commission, as a modern antitrust blade runner, is seeking to ‘retire’ an Android which seems to have developed overambitious feelings.

As a matter of fact, this ambition of Google’s mobile app business gave Vestager a reason not to break with the tradition of giving the technological giant an April shower. One year after the charge sheet on Google Shopping (see ‘Alternativlos!’), Mountain View was hit with a brand new statement of objections focussing on Android. On this occasion, Google was preliminarily suspected of using its operating system to carry out conducts falling within the shabby boxes of tying and exclusive dealing. Continue reading “Do androids dream of exclusivity?”

Alternativlos!

‘Alternativlos!’ The deterministic slogan of the pensée unique in its English version, and proclaimed worst word of 2010 in Goethe’s language for not so different reasons, has been turned by Mathias Döpfner into the war cry of Google’s foes. Indeed, in a letter addressed to Mountain View that has gone down in history of antitrust yellow press, Axel Springer’s Chief Executive Officer came up with an apocryphal theory of harm that the eager EU trustbuster seems to have fallen for. In April 2015, Berlaymont took another shot at the tech leviathan aiming at a business that one would not consider precisely flagship: its comparison shopping service. Continue reading “Alternativlos!”

Actual competition. Going digital and beyond

Over the last two years, during which I really got introduced to the competition law world, I copped onto at least three remarkable things. The first one is that there is a tendency for EU and national trustbusters and judges across the board to grasp at straws by sticking to a stale legal framework that has never been so clearly obsolete as it is now in the digital era. In stark contrast stands the second one, that is, the unprejudiced view that I’ve spotted in many not-always-so-young with the strange habit to think out the box. As a glimmer of hope in this paradoxical picture, the third is the realisation not only that innovative ideas may have more value than we think but also that they can be put forward by the same ‘disruptive’ means that are pushing the outer boundaries of the antitrust tectonic plate. Continue reading “Actual competition. Going digital and beyond”