Competition Law for the Digital Economy, Björn LUNDQVIST et Michal S. GAL (dir.)

Björn Lundqvist, Michal S. Gal

Cette rubrique recense et commente les ouvrages et autres publications en droit de la concurrence, droit & économie de la concurrence et en droit de la régulation. Une telle recension ne peut par nature être exhaustive et se limite donc à présenter quelques publications récentes dans ces matières. Auteurs et éditeurs peuvent envoyer les ouvrages à l’intention du responsable de cette rubrique :

The book Competition Law for the Digital Economy, Björn Lundqvist and Michal S. Gal (eds.) (Edward Elgar Publishing, December 2019, 400 pp.) addresses one of the most topical and one of the hottest issues in contemporary competition law, economics and policy, providing a number of thought-provoking, but meritorious and academically well-substantiated arguments, contributing substantially to the present-day discourse on the (re-) adjustment of current conceptual, doctrinal, normative and methodological tools of the discipline. The book is divided into three parts, each addressing one very important set of problems. Part I asks how the specificity of the digital markets can be dealt with by the traditional antitrust tools. Part II looks at interaction between general competition tools and sector-specific rules (primarily, privacy). Part III addresses the issues of remedies.

Part I begins with an agenda-setting paper by Björn Lundqvist, outlining the key problems of competition law and the digital economy and addressing analytically some proposed solutions. The author addresses the economic nature of online platforms and the key characteristics associated usually with them—such as network effect ; ecosystem closeness ; tipping ; path dependency ; intermediation ; matching ; market two-sidedness ; anticipatory shipping and many other relevant issues. Lundqvist also looks at competition between platforms (inter-platform competition) and competition within platforms (intra-platform competition) and the derivative set of problems related to data economy and data competition (such as market definition and dominance more generally ; conduct that is anticompetitive—and in particular leveraging). The paper analyses the most relevant EU legislative acts, and raises some really original ideas, which could in principle bring some regulatory coherence and predictability to the current digital stereo-cacophony. In the second paper Hedvig K. Schmidt asks if there is a need for a new market power definition. She begins by outlining the European Commission regulatory intention of increasing European companies’ competitiveness globally. The central question of the paper is if there is a need in revising the market power rules in the context of the digital economy. The main focus of the paper is placed on articulating the key elements of the digital markets and analysing how the Commission deals with these challenges. In the next short piece Robin C. Feldman and Nick Thieme look at a rather different problem : the function of patent rights in the context of artificial intelligence. The last contribution of Part I by Simonetta Vezzoso addresses the problems related to algorithmic competition, providing a vivid illustration of potentials and threats of algorithmic decision-making (mainly) in the context of competition policy. She asks some really intriguing questions, such as for example elaboration of design techniques for promoting competition compliance.

Part II consists of five contributions. The first by Samson Y. Esayas offers a detailed analysis of the phenomenon of privacy-as-quality, looking at it as a non-price parameter of competition. He begins by describing two conceptual approaches to incorporation of privacy into competition analysis—one could call them an external and an internal. The former looks at privacy and competition as two very different phenomena but seeks to design the formula by which competition law could be used essentially as an instrument for protecting privacy qua fundamental right. The latter incorporates privacy into the competition discourse in a sense, for example, that by reducing privacy we also reduce consumer choice. The paper offers a detailed elaboration of the respective theories of harm, providing an excellent review of the literature on this issue and comparing the most appealing arguments of the proponents and critics of these approaches. In the second piece of Part II Elias Deutscher provides some really thoughtful insights on how to measure privacy-related consumer harm in merger analysis, focusing primarily on the European Commission’s merger control in data-driven markets. He looks inter alia at privacy as an element of product quality, consumer choice, a non-monetary price and as methodological tool for market definition. Deutscher ends by providing some really interesting, innovative and well-systematised models of different qualitative and quantitative types of assessment of privacy qua competition parameters. For example, he internalises such parameters as network popularity, number of communication parties, functionalities, availability, and platform compatibility. The paper by Juha Vesala looks at the impact of the digital single market rules on online distribution practises, focusing on analysing of Geo-blocking, Portability and Broadcast Transmissions Regulations (DSM regulations/rules) as complementary to ex post competition rules of online distribution practises and the relevant sector inquiry into e-commerce. The paper assesses pros and cons of these regulatory measures in terms of their availability to promote cross-border competition. In their joint paper Steven Van Uytsel and Yoshiteru Uemura address a Japanese DeNA case looking at it as an example of early market intervention by the Japan Fair Trade Commission (JFTC), but also provide a broader overview of the regulatory activities of Japan regulators in the digital sector, which is of particular importance for readers with the basic knowledge of the Japanese system. The authors explain the current regulatory mode in the area, articulating the voice of those promoting the idea of a more proactive approach to the markets with high likelihood of exposure to anticompetitive behaviour or even structure. In the last paper of Part II Konstantina Bania offers a detailed and thoughtful analysis of the Google Search decision by the European Commission aiming to explore old and new frontiers of competition enforcement in the digital context. She argues inter alia that the European Commission had applied a rather narrow-minded approach to the case, substantiating her reasoning not only with conceptual argumentation but also with the analysis of the case law.

Part III of the book consists of two pieces. The first by Katharina Voss addresses a very specific and important issue of consent-based case resolution (settlements and commitments) asking if (and if yes, then in what respect) the digital economy is different and requires readjustment of existing toolkits. The author articulates key criteria, which the choice of the instrument should be based on, applying them to some of the most common anticompetitive practices in the digital economy. Last but certainly not least, in the final contribution to the volume Stavros Makris provides his insightful views on antitrust governance in today’s rapidly changing digital environment, focusing mainly on commitment-centred intervention and the questions of the rule of law. He looks at the very nature of the commitment decisions asking if they blur or contribute to legal clarity, distinguishing between clarity and certainty and developing an intriguing theory based on both conceptual analysis and existing case law. Makris, inter alia, submits that in some cases procedural divergence can lead to positive epistemological outcomes, “regulatory conversations” and “modest experimentalism.” He substantiates his hypotheses by looking at such areas of intersection between competition and IP laws as licensing of standard-essential patents as well as case law on parity clauses.

The book offers a number of insightful ideas on the role of competition law, economics and policy in the digital universe. It will be a helpful material for academics and enforcers ; and of course, it will be found very useful by most advanced undergraduate and all postgraduate researchers dealing with the issues of competition law and the digital economy.

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  • University of Strathclyde (Glasgow)


Oles Andriychuk, Competition Law for the Digital Economy, Björn LUNDQVIST et Michal S. GAL (dir.), février 2020, Concurrences N° 1-2020, Art. N° 92897, pp. 244-245

Éditeur Edward Elgar Publishing

Date 27 décembre 2019

Nombre de pages 400

Visites 700

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