Category: Article 102

The judgment of the Court of Justice of the European Union (CJEU) in Case C‑233/23 Alphabet and Google v AGCM (Android Auto) (the ‘Judgment’) may seem like the only possible outcome in light of recent case law on Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), as had already been anticipated by Advocate General Medina in her elegant opinion (the ‘Opinion’—discussed in a previous post). However, the way in which the Italian Council of State referred the questions, which had to be reformulated (Judgment, paras 33-36; Opinion, para 26), and, for instance, the draft guidelines on exclusionary abuses (particularly paras 96 or 163, discussed here and here), and the ensuing discussion at the 13 February workshop for that matter, show that surprising hesitation still remains in embracing the analytical framework developed in case law. This opportunity might have been taken by the Court of Justice to raise the bar for finding a refusal to deal to be prima facie legitimate.

Continue reading “Android Auto (C-233/23): Beyond stating the obvious?”

On 31 October, a couple of months before Christmas, I had already sent my Santa letter to the European Commission in response to the public consultation on the Draft Communication from the Commission—Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union to abusive exclusionary conduct by dominant undertakings (Draft Guidelines)—see full version below. The background is the ongoing debate on whether competition law should incorporate non-market values, such as fairness, sustainability or even plurality and democracy, which has prompted an existential crisis that appears to have become chronic. In particular, there seems to be a disconnect between recent case law of the Court of Justice of the European Union (CJEU) and the Commission’s enforcement approach. Regarding Article 102 TFEU, while the former clearly leans towards making the relative efficiency of competitors of the dominant undertaking the criterion for abusive conduct (e.g., C-377/20 Servizio Elettrico Nazionale, para 101; C-48/22 P Google Shopping, para 164; C-240/22 P Intel RENV, para 181), the Commission insists on building cases grounded in fairness concerns (e.g., AT.40437 Apple—App Store Practices (music streaming)).

Continue reading “Dear Santa, I’d like to ask a consistent framework for Article 102 TFEU”

Extra! Extra! There is a single (unified) framework for exclusionary abuses under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) consisting of a single standard of proof and a single legal test: the enforcer/claimant needs to establish that the plausible objective rationale (considering all the relevant circumstances) behind a dominant company’s conduct [standard of proof] is for the dominant company to derive an advantage (i) through means that equally efficient competitors cannot replicate to derive a comparable advantage, including means that are specifically designed to foreclose equally efficient competitors [“competition on the merits”/artificiality limb of the test]; and (ii) that equally efficient competitors cannot offset by other means, so they would be potentially foreclosed as a result [potential foreclosure effects/“capability to foreclose” limb of the test]; unless the dominant company proves that the advantage is either replicable or offsetable (as a matter of procedure or substance depending on the interpretation of C-413/14 P Intel), or provides an alternative explanation or an objective justification. This is the subject of my paper Quantum Antitrust – A Unified Exclusionary Abuse Theory that has just been published in open-access form in the IIC – International Review of Intellectual Property and Competition Law.

Continue reading “NEW PAPER! Quantum antitrust – A unified exclusionary abuse theory”

The Bundeskartellamt (case B6-55/20) has looked into Meta combining data from different services without the free consent required by Regulation 2016/679 (the General Data Protection Regulation, GDPR) and Meta has buried the axe in the wake of Regulation 2022/1925 (the Digital Markets Act, DMA) and its national replicants (like pioneering and bespoke Section 19a of the German competition act). This represents a further step in the long-drawn Facebook saga, which has even led to a preliminary request in case C-252/21 Meta v Bundeskartellamt and a specific provision in DMA, Article 5(2).

Continue reading “Obligations for digital platforms below dominance are no longer virtual reality”

Last 10 June, the Spanish competition authority (Comisión Nacional de los Mercados y la Competencia or “CNMC”) served an interesting decision on a solar power plant developer, together with an EUR 4.9 million fine, for abusing its alleged dominant position as single point of contact with the transmission system operator for access and connection to the electricity grid. Although charging beneficiaries of regulatory privileges with abuse of dominance for guaranteeing a level playing field in the exercise of those privileges seems like a walk in the park for watchdogs after C 165/19 P Slovak Telekom (if it was not already after case C-52/09 TeliaSonera desacralised the essential facilities doctrine), the CNMC’s reasoning on market definition, market power and abusive conduct in case S/0022/20 Enel Green Power España provides an insightful corollary of how national trustbusters are getting their heads around the recent silent revolution in exclusionary abuses.

Continue reading “What else can we dispense with after indispensability became dispensable? The Spanish competition authority gives a shot at the Slovak Telekom tongue twister”

Initial thoughts

What is all the fuss about judgment of the General Court of 26 January 2022 in case T-286/09 RENV Intel Corporation Inc. v European Commission (Intel III). No doubt it is a milestone in the revision process facing antitrust rules which, albeit started by the European Commission more than ten years ago, has only gained momentum in EU case-law over recent years – especially in the domain of abuse of dominance under Article 102 of the Treaty on the Functioning of the European Union (TFEU). Yet, how much credit is it to be given for revolutionising the traditionally fragmentary legal test of exclusionary abuses into a common and more economic analytical framework? If this jurisprudential trend is to be viewed as the “unification” (for romantic that it might sound) of the patchwork of hitherto inconsistent legal tests (and standards), it is necessary to iron out per se rules making some categories of abuse (e.g. tying or loyalty/exclusivity rebates) illegal regardless of the anticompetitive effect – some sort of “by object” abuses, using Article 101 TFEU (agreements) terminology which is however not supposed to apply to Article 102 TFEU breaches.

Continue reading “Chips ahoy! Did the more economic unification finally board the per se flagship in Intel III?”

Is so much of a stir justified?

The General Court’s ruling in Google Search (Shopping)[1] is perhaps the most eagerly-awaited judgement in the last years in the field of abuse of a dominance under Article 102 of the Treaty on the Functioning of the European Union (the “TFEU”) and even in the domain of competition law. The reason is not only the size of the interests at stake but also that it was expected to re-define the limits of competition rules by establishing whether a dominant company’s refusal to share its own competitive advantage can only be regarded as abusive if the qualified standard of “essential facilities” is met. Traditionally, this doctrine, instituted by United State case law to regulate the use of irreplicable physical facilities (e.g. railways or ports) by operators competing with the facility owner in a related market (e.g. freight transport), determined that the latter’s refusal to allow access by the former was only abusive if such access could be seen as indispensable for rivals to compete in the related market and, consequently, refusal would lead to elimination of competition in this market. However, its applicability has declined especially in digital economy where it is difficult to predicate the indispensability of a platform given the multiplicity of alternative channels (competition is “one click away” as Google put it).

Continue reading “General Court in Google Search (Shopping). Chronicle of a renunciation foretold”

The features of so-called “digital platforms” have grabbed the headlines of competition law specialised publications for the last years: (i) easy internalisation of positive externalities generated by a user group on one side of the platform though their selling to a group on the other side; (ii) reduced transaction costs – which further increase the ability to channel positive externalities between platform sides; (iii) the exacerbated intensity of increasing returns to scale because of minimal marginal costs; or (iv) the greater value of data thanks to developments in storing and analysis technology.

These characteristics make certain economic laws applicable to digital platforms, the corollary of which seems to be a natural tendency toward monopolistic positions that maximise positive externalities arising in the form of network effects – often spilling over into neighbouring markets and producing economies of scope. This is the setting where platform operators having a quasi‑regulatory control over important, or even essential, bottlenecks to arrays of related markets (gatekeepers) emerge – which does not have to pose any concerns from the competition point of view where bottlenecks are free from permanent and significant barriers to entry.

However, the economic principles behind blockchain (so-called crypto-economics) are quite different due to its specific characteristics: (i) decentralisation (ii) transparency as regards executed transactions and opacity as regards content and parties; (iii) automaticity; (iv) immutability; and (v) multi-layer structure. Therefore, well-targeted abuse of enforcement needs the wheat to be separated from the chaff in the digital world beforehand. With many thanks to Alastria for allowing me to participate in the second issue of Alastria Legal, the purpose of my contribution (pages 41-43 – pages 38-40 in Spanish) is to shed some light on this distinction.

Abuse of dominance in digital platforms and blockchain: Is the same bottle good for so different wines?

Now that Google and the Commission are at daggers drawn in Luxembourg over the 27 June decision in Google Search,[1] it seems like high time to make our educated guesses about how the recently disclosed arguments in the tech giant’s September appeal[2] will come into play. Therefore, this post is a sort of an update (or a plug-in) to my recent paper EU Competition Law Needs to Install a Plug-in,[3] which for better or for worse was submitted one day after the Commission’s decision was adopted and it was published five days before we had the first news of Google’s bringing the case before the General Court.

As anticipated, Google’s appeal will revolve around the claim that the theory of damage behind its conduct was that of an essential facilities case, while the Commission found it abusive below the refusal to deal threshold. As a matter of fact, Nicholas Banasevic (head of the unit responsible for the Google case) has made clear that the June decision is ‘a very detailed effects-based decision‘ in a ‘plain and simple leveraging case,’ without there being any need to ‘apply another “label” to it, including abuses such as “refusal to supply” rivals.’[4]

Banasevic’s assertion implies that the Silicon Valley company’s leveraging on its dominance in general search to artificially favour its own products in an adjacent market would suffice to be found abusive, as far as the (actual or potential) anticompetitive effect is supported by a fair deal of evidence. No wonder, Google’s reaction would be trying to bring the discussion to the field of legal standard by pleading that the Commission’s move away from the refusal to supply test constitutes an attempt to lowering the abuse threshold below the essential facilities requirements of indispensability and removal of effective competition.

Against this backdrop, it must be recalled that the long-drawn Google Shopping battle, the first chapter of which was brought to a close by the June decision, touches upon a number of de lege lata and de lege ferenda questions. Indeed, it tables both the debate over the adjustments required by competition law of the European Union to be able to deal with the challenges of the digital environment and the traditional controversy about the limits of competition authorities’ say in dominant companies’ business models.

Continue reading “Google Search. Shopping for an appropriate abuse standard”