The necessary combination of enforcement and regulation in EU Competition Policy

and US Antitrust Law to tackle the digital economy’s challenges

According to J. Cremer et al, in digital markets “ ”the invisible hand of the market” must
be supplemented by the “visible hand” of competition authorities or of the legislator”1. It appears
then that digital markets are generating specific challenges that are not present in other
traditional markets, requiring a particular attention from the competition authorities of both the
European Union (EU) and the United States (US).

The digital market emerged in the 1990’s, along with new challenges that are mostly emanating
from its specific features. Among those are the extreme returns to scale and network effects that
provide a significant competitive advantage to the incumbent firm, linked to the benefits resulting
from a constant increase in size. Data also has a major role to play in the digital market, mostly
because of its dematerialized form and the role it plays in improving products due to better
knowledge of the consumers’ preference. The bigger a firm is, the harder it is for others to enter
the market, because there are high barriers to entry created by the market structure. It appears
then that there will likely be short periods of fierce competition, characterized by the offering of a
new or improved product by a new entrant 2, to replace the dominant firm: this process can be
called “competition for the market”.

The current established EU Competition Policy and US Antitrust Law systems are on the other
hand more focused on competition “on the market” and the effects of behaviours on the
“consumer welfare”, as it is possible to see from the importance of price effects, market shares
and the study of “monopolizing” effects on mergers. Both systems also grant a significant role to
the definition of the relevant market before addressing any “anti-competitive conduct” that could
be infringing either article 101 or article 102 TFEU, or the Sherman Act in US Antitrust.

It appears then that the type of competition challenges rising on digital markets could hardly be
tackled by both EU and US systems without any change. It is even more true for the US system,
where there currently is a tendency to under-enforcement due to the laisser-faire promoted by
the School of Chicago in the 1970’s. Both systems need to be adjusted to face the challenges
generated by the digital economy, even though the EU Competition Policy is already more
flexible.

However, only adjusting both systems to promote a better competition enforcement will not be
sufficient, as regulation might be useful to promote competition in the digital economy. It is
therefore relevant to ask the following question: To what extent both EU Competition Policy and
US Antitrust law need to adjust their systems, by combining enforcement and regulation, to
tackle anti-competitive behaviour and market power in the digital economy?

1
Jacques Cremer, Yves-Alexandre. de Montjoye and Heike Schweitzert, ‘Competition Policy for the
Digital Era’, European Commission Report, April 2019, 14.
2
Michael Kades, ‘Antitrust remedies to the domination of digital platform technologies and the
acquisition of nascent competitors’ (Equitable Growth, 19 November 2019).
<https://equitablegrowth.org/antitrust-remedies-to-the-domination-of-digital-platform-technologies-
and-the-acquisition-of-nascent-ciompetitors/>

1
The current antitrust standards and methods used by authorities appear to be inadequate to the
market structure of the digital economy (I). Instead of focusing on those standards, they should
concentrate on the theories of harm and their adjustment to tackle abusive behaviours related to
the leveraging of market power (II) and the ones aimed at maintaining their dominance and
market power (III).

I. The inadequacy of the current antitrust standards and methods facing digital
markets
Competition authorities nowadays focus their decisions on the application of the consumer
welfare standard, which can appear problematic in assessing the anti-competitiveness of a
conduct (A). The current weight of market definition and the method for assessing market power
can also be inadequate to the digital economy (B).

A. The need for consumer welfare to be understood broadly

Both the EU and the US systems are currently focused on a standard that is designated as
the “consumer welfare standard”. There is however a difference in the domain envisaged by the
notion in both jurisdictions.

With the influence of Chicago’s School, the rationale for the existence of the Sherman Act and
US Antitrust law moved from the need to avoid private power for undertakings to a so-called
“consumer welfare standard”3. This standard is meant to be understood narrowly as focusing
only on effects of scrutinized behaviours to consumers, which causes the authorities to
concentrate mainly on prices as is illustrated by the importance of the SSNIP test to define the
relevant market.

On the other hand, the conception of consumer welfare in the application of article 102 TFEU is
broader. In its Intel case, the court stated that the firm’s behaviour could be found damaging
through its “impact on an effective competition structure”4. This idea seems to suggest that
consumer welfare is not to be understood as in the US where scholars are now advising a
change of the standard because it is apparently focused only on price effect and static
efficiency, which is not for M. Walker the right understanding of the notion5.

About digital markets, the price-focused consumer welfare standard seems to be inadequate
considering that those markets are more focused on growth, not profit, because they benefit
from low costs and significant economies of scale and scope. There is in this sense a
“competition for the market” rather than a competition in the market.

The natural strategy would be to define low prices when entering the market, because firms
know that costs are going to be amortized in the future. This risks being confused with predatory
pricing, even more when the matter is about free services, which is often the case in the digital
economy. This risk was brilliantly avoided by Paris Court of Appeal, that surprisingly considered
3
Lina Khan, ‘The ideological Roots of America’s Market Power Problem’ 127 Yale Law Journal Forum
960 (2018).
4
Case T-286/09 Intel v Commission [2014] 5 CMLR 9.
5
Mike Walker, ‘Competition policy and digital platforms: six uncontroversial propositions’ 16 European
Competition Journal 1 (2020) 4.

2
cross-subsidization to evidence the amortization of the costs by the undertaking and the
absence of anti-competitive conduct by Google6.

Furthermore, it is recurrent in digital markets to offer “free” services, provided in exchange of

data. In that context, consumers can be harmed by an over-exploitation of their data or even by
the degradation of their ability to choose in an optimal way due to the strategy of cross-platform
advertising after a conglomerate merger, the so-called “no escape” strategy 7. Consumers can
also be locked-in due to the network effects inherent to digital markets. They cannot switch for
competitors without other users doing the same, otherwise they would diminish their individual
welfare.

In addition, the absence of price on the market causes firm to focus on innovation and
investment rather than prices and costs which makes it difficult for authorities to apply the
current consumer welfare standard, especially in the US. The reticence to accept proofs of
qualitative harm rather than quantitative harm by US courts explains the issue of under-
enforcement of antitrust in the digital economy8.

As mentioned earlier, the EU standard is more flexible than the US one, which means that
solutions will differ. Regarding the EU, the ideal solution is to keep the standard while shifting
the focus on theories of harm to better address the issues in digital markets, and even to use it
as a kind of defence to justify the lawfulness of a firm’s behaviour 9. On the other hand, the right
solution in the US seems to be the return to the origins of the Sherman Act to end under-
enforcement10 and even instate a presumption of anti-competitiveness if the act results in a
“single firm with outsized market shares or an increase in concentration”11.

This last view focuses on “market shares” as a criterion which seems to be a potential issue
considering that concentrating on market shares is not the most adapted way to deal with
dynamic digital markets.

B. The need for a different approach to market definition and market power
There is currently a great focus on market definition by competition authorities, mostly
because it is logically needed before assessing market power.

As mentioned earlier, digital markets are not focused on prices which makes the SSNIP test
inapplicable, and the market definition difficult. This is not helped by the dynamic aspect of the
market; products change frequently, and markets are relatively unstable. Fast-evolving markets
call for a fact-based analysis, avoiding bright-line rules that could distort the reality of the
economy as was the case with the Filistrucchi “transaction” test 12. Its application would have led

6
Discussed in Jones & Sufrin’s EU Competition Law, (7th edn, Oxford 2019) 413.
7
John Newman, ‘Antitrust in Digital Markets” 72 Vand. L. Rev. 1497 (2019).
8
Ibid.
9
Op. cit. 1.
10
Op. cit. 3.
11
Investigation of Competition in Digital Markets, Subcommittee on Antitrust, Commercial and
Administrative Law of the Committee on the Judiciary, US, October 2020. 393.
12
Vikas Kathuria, ‘Platform competition and market definition in the US Amex Case’ 15 European
Competition Law Journal 254.

3
to neglecting the fact that big platforms can also compete in smaller markets. Flexibility is
needed in defining the relevant market, as can be seen from German case law13.

Interdependence between markets is highly important in the digital world and should be given
more weight than the need to define the narrowest market possible. The impact of the
interdependence was notably stressed by the court in the Microsoft case14.

After having defined the relevant market, one has to assess the eventual existence of market
power (i.e. the ability to raise prices, or generally restrict competition, for a certain period of
time). The common focus on market shares advocated in Hoffman-Laroche15 poses problem in
digital markets because of the presence of high barriers to entry, excluding them from the
“exceptional circumstances” of the case. As mentioned in the Guidance Paper, market shares
should only be an indicator. The Commission applied this principle by recognizing the need to
consider the dynamic perspective of the market to determine the relevance of market shares,
still concluding that they are relevant if a firm had succeeded in maintaining “high and stable
market shares”16.

This therefore shows that market shares are not irrelevant but should not be considered without
context. Some economists promoted the use of a single criterion of contestability 17 that would
have the benefit of legal certainty. However, several other aspects might affect market power in
the digital economy such as the importance of data access, the ability to erode consumer
privacy18 and the possibility of multi-homing, that leads to a decrease in market shares but not
actually in market power. All this calls for a case-by-case analysis, a view that was confirmed by
the recent EU Report19 and several scholars20. The instability of such a young economy needs
to be approached in a flexible way, without any formal standard written in the stone.

Several issues are raised by the digital economy regarding the consumer welfare
standard and market definition, issues that indicate the necessity to focus more on theories of
harm, and the harm to the competition as such.

II. A necessary adjustment to tackle the expansion of dominance by leveraging

market power
Undertakings in the digital economy can leverage their market power by either tying their
dominant product with another of their product (A) or using their role as a platform to self-
preference and discriminate (B).

13
Case No. 25-28 Meru Travel Solutions Pvt. Ltd. v M/s ANI Technologies Pvt. Ltd. and others [2017].
14
Case T-201/04 Microsoft v Commission [2007] 5 CMLR 11.
15
Case 85/76 Hoffman-Laroche [1979] ECR 461.
16
Case AT.39740 Google Search (shopping) [2017].
17
Christian Ahlborn, David Evans and A. Padilla, ‘Competition Policy in the New Economy: Is
Competition Law Up to the Challenge?” [2001] ECLR 156, 162.
18
Op. cit. 11.
19
Op. cit. 1.
20
Diane Coyle, ‘Practical competition policy implications of digital platforms’ 82 Antitrust Law Journal
(2019) 835.

4
 A. The issue of tying products
The practice of bundling designates an undertaking’s strategy to tie a product from a market
where it’s dominant to a product from a market where it’s not, in order to expand its market
power.

There is one main case tackling the issue of tying in digital markets from EU Competition Law,
and it is the Microsoft case 21. Microsoft was found infringing article 102 TFEU by bundling its
media player (WMP) to windows software, thereby abusing its dominant position on the OS
market, and was ordered to provide an untied version of its OS. The decision from the
Commission was certainly linked with the winner-takes-all structure of a digital market,
generating a tendency to favour only one product amongst many. This argument seems
however light in Microsoft’s case because of the apparent unimportance of network effects.
Consumers will not suffer a noticeable impact due to the increase of the consumer base of
WMP because there are no real interrelations between users.

It appears from Petit & Neyrinck 22 that competition policy might not be the most adequate tool to
deal with issues of consumer choice raised by the presence of intrinsic biases, recommending
the use of consumer law as in retail banking markets because undertakings are not to blame.
This view seems surprising for undertakings are aware of what they are doing, adopting
strategies to exploit consumer’s weaknesses and drive competitors out of the market. On the
other hand, there is no specific recommendation from recent EU reports except for a strict
enforcement of the rules while still applying a case-by-case analysis, due to the position of the
undertaking on the main market. Microsoft’s reasoning is thereby confirmed, but the specialists
still insist on the potential existence of efficiencies that need not be excluded from the analysis,
keeping in mind the idea of benefit to consumers.

The US tendency favours a rule of reason approach regarding the particularity of digital
markets, sometimes concluding that there are “consumer benefits stemming from the
technological integration of new features in an OS, albeit a dominant one”23. This “too flexible”
approach however leads to under-enforcement that spoils competition, by overestimating the
strategy’s efficiency and the way it would benefit to consumers without considering the harm to
market structure. The best solution to the issue would be to depart from this “consumer welfare”
philosophy, but in the meantime the return to bright-line rules might be the remedy24.

The introduction of a notion of “abuse of dominance” in the US system might be helpful to avoid
the burden of proving “monopolization” of the second market by bundling 25. The current
requirement would have made it impossible to reach the Commission’s decision in Microsoft
where finding that WMP would become the standard product in the future was sufficient.

21
Op. cit. 14.
22
Nicolas Petit, Norman Neyrinck, “Back to Microsoft I and II : Tying and the Art of Secret Magic”
(2011) 2 Journal of Competition Law & Practice 117.
23
Andreangeli, “Case-note on T-201/04, Microsoft v Commission” (2008) 45 CMLR 863. 864.
24
Op. cit. 11.
25
Ibid.

5
The US system needs to strike a balance between rigidity and over-flexibility of its rules to face
bundling issues properly, as the EU does.

Bundling is however not the only strategy available to leverage market power in other markets.

B. The inherent risks of self-preferencing by platforms

The existence of platforms is certainly a specificity of the digital economy. Those entities have a
dual role, acting as both regulators, for they own the system and decide its rules, and users.

The development of the platform, becoming dominant, does not mean that the undertaking is
dominant on the market “on the platform”. Here lies the risk of self-preferencing by the platform,
promoting its own services instead of other users’ ones. This appears to be an unfair advantage
that needs to be condemned for it is not linked to the merits of the product but to the dominance
of the undertaking on the platform.

It is however hard to condemn this type of behaviour by sticking to a formal approach of article
102 TFEU for it does not fit into one of the situations listed. Conscious of the necessity to control
platforms’ behaviour, the Commission decided to move to a “more economics based” approach
in Google shopping26. Google’s behaviour was found anti-competitive for it was reducing choice
for consumers, indirectly guiding their decision by avoiding normal rival comparison. It used its
position on the platform market to eliminate competition on another market where it was not
dominant. Treating differently same situations relates to discrimination, that cannot be justified
by a normal benefit that Google should enjoy because of its control of the platform. This
infringement was not considered as a refusal to supply case, but a sui generis one where the
EC did not need to apply Bronner27 criteria and especially indispensability.

This shows the need to pay a particular attention to platforms, there needs to be a more
restrictive appreciation because the stakes are higher due to the market structure. Platforms
have a special responsibility due to their amount of power, that can also be seen in the EU
Directive 2019/790 on online platforms liability regarding copyright. Some proposals of formal
regulation on transparency and fairness on platforms regarding competition have been
envisaged but seem to be hard to implement because a lot of discretionary choices are involved
in business decisions.

Platforms must treat their competitors as they do with their own service, this is the remedy that
was ordered in Google, but an issue lies in the absence of control of the effectiveness of the
measures taken28, a problem that could not be solved by a “fairness” regulation. The solution
could be the creation of a special authority or section that would exercise an ex-post control of
the measures.

Regarding the US, two types of rules can be considered to tackle the issue. The introduction of
structural separation would prevent dominant firms from entering a market where they already

26
Carsten Koenig, “Form, Effects or both? The More Economic Approach and the EC’s Decision in
Google Search” (2019) 44 ELR 680.
27
Oscar Bronner [1999] CMLR 112.
28
Op. cit. 1.

6
serve as a platform29. However, this approach means completely blocking the efficiencies
related to economies of scale and scape, affecting the right balance between protecting the
competition process and the ability to benefit from efficiencies based on “competition on the
merits”. The alternative solution would be the introduction of ex ante public utility regulations 30,
in the form of non-discrimination rules, allowing undertakings to enter markets where they serve
as a platform while blocking the behaviour of unfairly favouring their own products.

Considering the seriousness of the notion of discrimination, the abusive behaviour might be
easier to prove in the envisaged US system than in the EU one perhaps at the expense of the
rightful benefits that should be enjoyed by an undertaking due to its success.

Problematic anti-competitive behaviours are not confined to the leveraging of market power,
they also include strategies to limit “competition for the market”.

III. The need for adaptation to curb behaviours aimed at maintaining dominance
To maintain their dominance on the market, digital platforms need to keep control of the
innovation process. They do so by either refusing to supply essential data to their competitors
(A) or even acquiring start-ups that they consider as “nascent competitors” (B).

A. The specific issues related to data collection and transmission

Data is a fundamental element of digital markets, as it can often play the role of price in free
markets. Its possession can be of great use for platforms on several points. The following
analysis concerns only non-personal data, unaffected by the GDPR.

Data is a considerable asset in increasing products’ quality for it helps better understand
consumers’ preferences, as was observed by the Commission in Google31. It also helps
reinforcing dominance, considering that if there is no data portability it is hard for consumers to
switch platform, creating a lock-in effect regardless of the product’s quality. Finally, data can be
necessary to develop a product that complements or integrates another product. For all these
reasons, the possession of data appears to create a barrier to entry in digital markets.

A sceptical argument would be that data needs to be combined with “skilled and creative
labour”32 yet data still seems to be an indispensable component of the innovating process.
Arguing that position appears to be erroneous.

As far as refusal to supply data is concerned, the problem is linked with the interdependence
between digital markets, as data from one market can needed in another market. In terms of
competition, the aim is to avoid dominance of one firm on both market because of its control on
data.

29
Op. cit. 11.
30
Lina Khan, “Amazon Antitrust Paradox” 126 Yale Law Journal (2017).
31
Op. cit. 16.
32
Jacqueline Yin, “Cremer Report on Competition for the Digital Era misses the mark”, CPI (2019).

7
One major recent case on the matter was the CFI’s decision in Microsoft33, condemning the
undertaking to provide data. Some qualified the authorities as using “illusionist tricks”34 that
would eventually lead to collusion amongst a few undertakings, creating unfair advantage. This
however could be fixed by the intervention of non-discriminatory rules, forcing the equal access
to the data to every competitor.

The Commission’s concluded that Microsoft had a duty to provide data, using Bronner35 criteria,
because of its indispensability and the absence of objective justification to do so but used the
criterion of “new product” at its own advantage. The requirement was lessened, considering that
it should only be applied to intellectual property rights, and reformulated to preventing the
development of a secondary market. The Commission acted as early as possible 36, most
certainly because of the tipping tendency of digital markets and the fact that effects will be hard
to reverse if they miss the mark.

Despite some scepticism, the Commission’s decision in Microsoft appears to be the right
approach facing digital markets. Dominant firms should have a duty to provide data if it regards
complementary or aftermarkets37. However, this duty needs to be clearly delineated not to
impede competition on the merits. The EU Report clarifies Microsoft by providing a detailed
method on how to assess the indispensability of data, also confirming that there should be no
“new product” rule to avoid its unclear usage. This ex-post enforcement should be
supplemented by regulation to avoid collusion problems, as they were mentioned by Petit, and
unify conditions of access to data when they are not uniform. This adjustment appears ideal
because it presents a clearer approach to refusal to supply data, in favour of legal certainty,
while being stricter with platforms because of their influence on the market. Applying the
essential facilities concept is also rather easy in the EU considering that data is not covered by
property rights, which helps with the balance between protecting private property and
competition.

In line with the EU, the US report recommends a return to the essential facilities doctrine 38. This
will favour interoperability to allow start-ups to have tools to compete effectively and enhance
innovation. The implementation of that measure could happen with the introduction of a “default
interoperability order” by authorities and the creation of a technical committee 39 but the costs
generated could be important in opposition to simply imposing interoperability as a remedy
considering that it has no incremental costs because of the ubiquity of internet.

There is however a concern as to the poor balance between incentive to innovate (i.e. benefiting
from the data collected) and preserving competition. Some says that a duty to supply data

33
Op. cit. 14.
34
Op. cit. 22.
35
Op. cit. 27.
36
Op. cit. 14.
37
Op. cit. 1.
38
Op. cit. 11.
39
Michael Kades, “Competitive Edge: Remedying monopoly violation by social networks-the role of
interoperability and rulemaking” (Equitable growth, September 2020).
<https://equitablegrowth.org/competitive-edge-remedying-monopoly-violation-by-social-networks-
the-role-of-interoperability-and-rulemaking/>

8
harms the “race for the market” and in the end consumer welfare 40. This appears to be an issue
that was present in Microsoft but fixed by the EU Report’s approach and its transparency. They
even mention businesses based on data-use in their expose which means that the issue has
been considered and a fair balance is targeted.

Regarding data portability, it should be promoted to diminish market power and allow switching
and multi-homing. The matter is barely mentioned by recent reports, but it appears that a
regulation imposing data portability could discourage start-ups from entering a market because
of the costs, therefore having an anti-competitive effect. This would lead to a decrease in
switching costs but also a decrease in quality or ability to multi-home because of the lack of
platforms. The UK recently introduced a Digital Market Unit aimed at promoting systems with
data mobility and encourage multi-homing41. This shows that multi-homing is far from happening
today, taking down arguments against the adjustment of antitrust law to digital markets, that
relied on the fact that switching is easy because of the online aspect of the market42.

B. The acquisition of nascent competitors

All recent reports on competition in the digital economy agree on the flexibility needed by
competition law to address the “risks to market competition posed by the acquisition of nascent
competitors by the incumbent digital platform firms.”43

The major issue related to the acquisition of start-ups by dominant firms is that they adopt this
behaviour to eliminate undertakings that could threaten their position on the market, that way
they can develop the start-up’s product for their own benefit. The importance of blocking those
acquisitions was confirmed by Carl Shapiro, explaining that “the greater and more durable is the
market power of an incumbent firm, the larger is the payoff from preventing that firm from
acquiring the smaller firms that, if left to grow on their own, would become its strongest
challengers.”44

In the current system, acquisition of nascent competitors could be categorized as conglomerate

mergers (i.e. the merger of two firms operating in separate markets), a situation that is only
scrutinized in EU law. The principal criterion for infringement is the foreclosure of markets to
efficient competitors caused by an increased market power (i.e. the SIEC test). This is however
inadequate to catch the issues raised regarding digital market. As can be seen in the
Google/DoubleClick case, the Commission only focused on competitors already on the market
rather than considering DoubleClick as a potential competitor45.

The reliance on turnover thresholds on the EU Merger Regulation is inadequate to this type of
acquisition considering that nascent competitors will often have low turnovers while having high
40
Op. cit. 23.
41
Jason Furman, “Jason Furman testifies on the role of data and privacy in online platforms’ market
power” (Equitable Growth, October 2019).
< https://equitablegrowth.org/competitive-edge-jason-furman-testifies-on-the-role-of-data-and-
privacy-in-online-platforms-market-power/>
42
Op. cit. 32.
43
Op. cit. 2.
44
Carl Shapiro, Antitrust in a Time of Populism, 61 INT’L J. INDUS. ORG. (2018).
45
Case M4731 Google/DoubleClick [2008].

9
potential. This issue of reliance on monetary assessment in digital markets is illustrated in the
failure to block the merger in the Facebook/WhatsApp case 46. A solution could be the
modification of thresholds to “transaction value-based” ones as in Germany to avoid variation in
enforcement47 but this would bring an additional administrative burden and legal uncertainty for
it would be difficult for undertakings to know whether their agreement is concerned by the ex-
ante control or not.

The flexibility of ex-post enforcement is needed, along with the introduction of horizontal
elements in the existing theories of harm related to conglomerate mergers to catch the
strengthening of dominance by increase in user’s loyalty to an ecosystem48. The EU report
delineates a clear 4-step method to assess the anti-competitiveness of this conduct. The
second step concerns the role of the acquired firm as potential or actual competitive constraint
in the ecosystem. There is a risk with the idea of “potential competitors” for it should not be
included in the market definition otherwise the market power would be underestimated. Instead,
it would be preferable to consider if firms have the same “user’s space”, target the same
consumers. The use of this broad concept relates with the dynamic aspect of the digital
economy, as it is fast evolving, it needs flexible standards to cover a maximum of cases. This
flexibility causes uncertainty for dominant firm, one that can be diminished by a profound
understanding of the business reasons behind the merger49.

This adjustment in EU law is not a per se presumption of anti-competitiveness but would simply
reverse the burden of proving efficiency on the dominant firm if the acquisition is caught by the
test, a reasoning that resembles a return to formal approach. However, the presence of broad
standard within the test allows it to be flexible enough to fit the digital economy.

On the contrary, the US aims at adopting a presumption against the acquisition of start-ups, and
generally on mergers that increase market power, reinforced by the absence of need to prove
successful entrance in the market by the competitor50. The current negligence of potential
competitive benefit resulting from the acquisition and focus on the likeliness that the firm would
have been successful calls for a drastic change to stray away from the current under-
enforcement in US antitrust. This uniformization of the enforcement method on acquisitions is
also necessary considering the importance of private enforcement in the US.

Competition authorities need to strike a balance between intra-brand competition and inter-
brand competition51. Allowing those mergers would permit lower switching costs within the
ecosystem, and a lower cognitive burden, while making it hard to multi-home and switch
ecosystem. The need to avoid supersized dominant ecosystems pushes the authorities to prefer
inter-brand competition.

46
Oliver Budzinski, Annika Stöhr “Competition policy reform in Europe and Germany – institutional
change in the light of digitization” 15 European Competition Journal (2019) 15.
47
Ibid.
48
Op. cit. 1.
49
Op. cit. 5.
50
Op. cit. 11.
51
Op. cit. 7.

10
Finally, digital markets brought the possibility to challenge consummated mergers 52. This ex-
post control appears possible considering that no investment in infrastructures is made, making
it easy to annul the merger, avoiding the difficulty of assessing potential competitive effect ex-
ante. This would however bring uncertainty for merging firms that could block their activities until
the merger is confirmed, therefore affecting the process of innovation, and consumer welfare.

The digital economy brings without any doubt new challenges to EU Competition policy
and US Antitrust law, mostly because of the specificities if its market structure, as can be seen
by the number of recent reports on the issue. To tackle those challenges, both systems must
stray away from their focus on the “consumer welfare” standard and a narrow market definition
to focus more on the actual effects of the conduct on the competitive structure, to avoid the
further development of mega firms that would be dominant in the entire digital economy. It is
however important to keep in mind that some areas of digital markets, such as data privacy,
data portability and interoperability, must be the object of clear-cut regulations to avoid the direct
harm to consumers. As authorities are building the means to face digital markets “it is good to
remember that the greatest successes in competition policy typically come when antitrust
enforcement and regulation complement each other.”53

Bibliography

52
Ibid. 51.
53
Michael Kades, “Testimony before the Subcommittee on Antitrust law on digital markets” (Equitable
growth, October 2020).
< https://equitablegrowth.org/testimony-by-michael-kades-before-the-subcommittee-on-antitrust-
commercial-and-administrative-law-on-digital-markets/>

11
Cases:

o Case M4731 Google/DoubleClick [2008]

o Case AT.39740 Google Search (shopping) [2017]
o Case 85/76 Hoffman-Laroche [1979] ECR 461
o Case T-286/09 Intel v Commission [2014] 5 CMLR 9
o Case No. 25-28 Meru Travel Solutions Pvt. Ltd. v M/s ANI Technologies Pvt. Ltd. and
others [2017]
o Case T-201/04 Microsoft v Commission [2007] 5 CMLR 11
o Oscar Bronner [1999] CMLR 112.

Secondary Sources:

o Ahlborn C., Evans D. and Padilla A., ‘Competition Policy in the New Economy: Is
Competition Law Up to the Challenge?” [2001] ECLR 156.

o Andreangeli, “Case-note on T-201/04, Microsoft v Commission” (2008) 45 CMLR 863.

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