It was great to present preliminary thoughts from my work-in-progress on #antitrust #remedies for #bigtech at VU Amsterdam upon invitation @profschrepel.bsky.social. The paper aims to devise principles for effective remedy design in big tech cases. 🙏 to Thibault & colleagues for their hospitality.
grounded in #economics (ie remove presumption for #tying); (vii) formulate a #theoryofharm for abuse in every case; (viii) provide #guidance on what type of evidence may be accepted for #objectivejustification and #efficiencies; (ix) subject all #verticalforeclosure abuses to the same analysis.
rebuttable and explain what type of evidence may be brought forward to rebut them and the #standardofproof for rebuttal; (v) explain how the #presumptions are to operate alongside the 'requirements' of abuse for practices subject to a #specificlegaltest; (vi) ensure that presumptions are
consumers; (ii) acknowledge fully the relevance of the #AsEfficientCompetitor principle in the case law; (iii) introduce #safeharbours for price above cost and dominance (with economically sound market share thresholds, ie not 10% as currently); (iv) clarify that all the #presumptions are genuinely
to remedy these issues, the revised Guidelines should: (i) define #competitiononthemerits in line with the #consumerwelfare objective (ie conduct is competition off the merits if it ultimately harms intermediary/final consumers) and/or define #exclusionaryeffects as those to the detriment of
do not provide much guidance; do not adopt an #effectsbased approach; demonstrate a selective reading of the case law of Court of Justice of the European Union; can de facto reverse #burdenofproof; and can threaten the uniform application of #EU #competitionlaw across MSs. We recommend that in order
The final (updated) version of our article on #Article102 draft #Guidelines of the @ec.europa.eu has been published in the Journal of European Competition Law & Practice. In the paper, @massimomotta.bsky.social & Chiara Fumagalli & I argue that the draft Guidelines academic.oup.com/jeclap/advan...
#Bronner apply. Like other parts of #EU #competition law (eg VRs), the ruling is not #technologically #neutral.
papers.ssrn.com/sol3/papers....
purpose or scope of the prohibition in #Article102.
4- The implication of the ruling is to somewhat perversely encourage #walledgarden #closed #ecosystems without any possibility of competition over open ecosystems; where the infrastructure is closed by design, then the stricter requirements of
Guidelines and the Commission would be advised to take note of [37] and [51]. Likewise, [54] confirms the relevance of #effects on #asefficientcompetitors (again as we argued 👇) for establishing abuse, and notably there is no reference to #object when expressing the
around harm to #consumers and proving that requires an #effects analysis. Further, the Court also connects the concept of #competitiononthemerits to #harmtoconsumers, as we argued in our submission to #Article102Guidelines consultation (see 👇). This is highly important for the revised
and the firm seeking access are at least #potentialcompetitors on an at least potential downstream market (see [85]) where the authority can demonstrate capability of hashtag#anticompetitive #effects.
3- The Grand Chamber confirms that the ultimate aim of the #Article102 #prohibition revolves
are presumably actual/potential competitors of the dominant firm on the #downstream market. On that note, the Court appears to limit the application of #AndroidAuto (ie the restrictive reading of #Bronner) indeed to cases where the competition authority can demonstrate that the dominant firm
think of as a #discrimination case rather than a #refusaltosupply case although no one seems to have argued this. Essentially, the potentially abusive conduct appears to be giving access to some app developers whilst not giving access to other app developers, where the ones being refused access
#refusaltosupply case (see No 2), then we can say that there is a hashtag#slidingscale of abuse in these cases depending on the characteristics of the #infrastructure and the potential impact of hashtag#compulsorysupply on #incentives, etc.
2- Conceptually, the case may be more appropriate to
was not created for the sole use of the dominant firm, the traditional reasons for which one would not want to easily provide access to it (investment incentives, free riding, freedom of contract, etc) do not apply. This is basically what the Court says in [41]-[46]. Thus, if this case is a
the sole use of the dominant firm by the dominant firm; in #AndroidAuto the infrastructure of the dominant firm was not created for the sole use of the dominant firm. Indeed, the latter infrastructure is intended as a business model where others are given access to it). Where the infrastructure
My 2 cents on hashtag#AndroidAuto:
1- I don't think the Court has killed or overruled #Bronner. In common law language, the Court simply appears to "distinguish" #AnroidAuto from #Bronner due to the significant factual differences between the two (ie in #Bronner, the infrastructure was created for
regulation outperforms competition enforcement (spoiler alert: not looking great in terms of #speed and #avoidinglitigation). It was great to connect with leading practitioners & enforcers from around the world & hear about global developments. Many thx to the organisers for the invitation.
My remarks covered the UK's new #digitalcompetition regime; the #FacebookGiphy saga and the theory of harm to #dynamiccompetition; pros and cons of #exante #regulation vs #competition #enforcement and the early indications from the enforcement of #DigitalMarketsAct in terms of whether ex ante
It was wonderful to speak at #GCRLive #GCRLawLeadersGlobal in beautiful Miami Beach last week. I spoke at both plenary panels: 1st, on the economists' plenary (a career first 😉) and 2nd, the plenary on the "antitrust agenda" to discuss whether #antitrust needs new laws or new enforcement posture.
in #digitalmarkets, international developments, #regulation, #enforcement, and more. Recordings will be available in due course. Many thanks to the organisers for this well-balanced event and excellent organisation.
Greatly enjoyed the two panels I spoke at last Friday at the international conference organised in Paris by Int’l Center for Law & Economics European University Institute Amsterdam Law & Technology Institute | ALTI IE Law School. The panels discussed various aspects of #competition #antitrust
Happy to be nominated for #AntitrustWritingAwards w my article on the evolution of the case law on #abuse of #dominance & the legal requirements of #abuse under #EU #competitionlaw. It's my 6th nomination for this award, so hope to get 6th time lucky 😉 To vote for the article, see bit.ly/40yUx92
My focus will again be on #regulation and #antitrust #enforcement in digital markets. Both agendas look great and can be found above inc details on how to register. If you will be around at either and would like to catch up, do DM me.
for #competition on #digitalmarkets are delivering on their promises (and how they could). Second, #GCRLive #LawLeadersGlobal2025 where I will speak at a plenary panel on whether antitrust needs new laws or new enforcement posture. events.globalcompetitionreview.com/event/LawLea...
Two stops before I disappear for my sabbatical: #Paris (17 Jan) and #Miami (31 Jan) to speak at two conferences. First, "Substance Over Slogans: Strengthening The Foundations of Antitrust" where I'll speak about #regulation in #digitalmarkets & whether #digital regs laweconcenter.org/suboversloag...
My focus will again be on #regulation and #antitrust #enforcement in digital markets. Both agendas look great and can be found above inc details on how to register. If you will be around at either and would like to catch up, do DM me.
for #competition on #digitalmarkets are delivering on their promises (and how they could). Second, #GCRLive #LawLeadersGlobal2025 where I will speak at a plenary panel on whether antitrust needs new laws or new enforcement posture. events.globalcompetitionreview.com/event/LawLea...
I am so looking forward to next Friday, January 17, 2025! Our conference, “Substance Over Slogans: Strengthening The Foundations of Antitrust,” will bring together some of the world’s leading minds in antitrust, economics, and technology in Paris. Registration: www.eventbrite.com/e/substance-...