Digital Platforms and the Transactions Cost Approach to Competition Law

2021 ◽  
Author(s):  
Darryl R. Biggar ◽  
Alberto Heimler
Keyword(s):  
Competition Law ◽  
Digital Platforms ◽  
Cost Approach ◽  
Transactions Cost

Excessive Data Collection as a Form of Anticompetitive Conduct: The German Facebook Case

2021 ◽  
pp. 0003603X2199702
Author(s):  
Anne C. Witt
Keyword(s):  
Data Collection ◽  
Competition Law ◽  
Federal Court ◽  
Digital Platforms ◽  
High Profile ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Constitutional Right ◽  
Abuse Of Dominance

In a high-profile decision of February 6, 2019, the German Federal Cartel Office prohibited Facebook’s data collection policy as an abuse of dominance for infringing its users’ constitutional right to privacy. The case triggered a remarkable interinstitutional dispute between the key players in German competition law. Conflicting rulings by the Düsseldorf Higher Regional Court and the German Federal Court of Justice further illustrate how deeply divided the antitrust community is on the role of competition law in regulating excessive data collection and other novel types of harm caused by dominant digital platforms. This contribution discusses the original prohibition decision, the ensuing court orders, and legislative reform proposals in the broader context of European Union and U.S. competition law.

Super platforms, big data, and competition law: the Japanese approach in contrast with the USA and EU

2020 ◽  
Author(s):  
Toshiaki Takigawa
Keyword(s):  
Big Data ◽  
Law Enforcement ◽  
Competition Law ◽  
Digital Platforms ◽  
Competition Law Enforcement ◽  
Essential Facility ◽  
Share Data ◽  
The Usa ◽  
Data Portability ◽  
Efficiency Effects

ABSTRACT This article examines antitrust issues concerning digital platforms equipped with big data. Recent initiatives by the Japanese competition agency are highlighted, comparing them with those by the USA and EU competition authorities. First examined is whether competition among platforms would result in a select few super platforms with market power, concluding that AI with machine learning has augmented the power of super platforms with strong AI-capability, leading to increased importance of merger control over acquisitions by platforms. Next scrutinized is the argument for utility-regulation to be imposed on super platforms, concluding that wide support is limited to data portability, leaving competition law as the key tool for addressing super platforms, its core tool being the provision against exclusionary conduct, enforcement of which, initially, concerns whether to order super platforms to render their data accessible to their rivals. Passive refusal-to-share data needs to be scrutinized under the essential facility doctrine. Beyond passive refusal, platforms’ exclusionary conduct requires competition agencies to weigh the conduct’s exclusionary effects against its efficiency effects. Finally addressed is exploitative abuse, explaining its relation to consumer protection, concluding that competition law enforcement on exploitative abuse should be minimized, since it accompanies risk of over-enforcement.

scholarly journals The scope of competition law in the digital economy

Pravovedenie ◽  
2019 ◽  
Vol 63 (4) ◽  
pp. 522-572
Author(s):  
Ioannis Lianos ◽  
◽  
Zingales Nicolo ◽  
Andrew McLean ◽  
Azza Raslan ◽  
...  
Keyword(s):  
Personal Data ◽  
Competition Law ◽  
Digital Economy ◽  
Competition Authority ◽  
Digital Platforms ◽  
Brics Countries ◽  
Explicit Consent ◽  
Data Portability ◽  
The Right ◽  
Interim Measures

The article reveals new problems arising in the digital economy and the need for antimonopoly regulation. It also analyzes the legal remedies and procedures for competition law in the context of digitalization. Redesigning competition law procedures for the digital economy can take two forms: 1) ensure the rate of competition law enforcement so as to avoid acting in situations when market tipping has already occurred and it is almost impossible to reverse the anticompetitive outcome; 2) develop remedial action that takes into account the scale of anticompetitive behavior, which might better reflect the complexity of digital markets. Competition authorities should consider utilizing interim measures and commitment decisions in the digital economy, both instruments playing a complementary role. Interim measures can be used within a revised framework with lower thresholds, but this should only be reserved for complicated and lengthy investigations where there is risk of irreversible harm to competition. These measures should be applied to the most harmful violations, such as cartels and abuse of dominance. Commitment decisions can be utilized to address less serious violations where it is also beneficial to the competition authority to reach a swift resolution. The article analyzes the division of companies as a way to eliminate violations. Division can take different forms and need not be structural. A certain ‘light-touch’ separation may be achieved by policies mandating that digital platforms not use personal data that has been harvested by the members of their ecosystems unless they have the explicit consent of their users. The article also addresses issues such as data portability and cross-platform compatibility. The authors have proved that the BRICS countries need to supplement their national legislation on the protection of personal data in terms of norms on their portability. Although it is not mainly designed as a tool to combat monopolies and market power, data portability will have a significant impact on competition in digital markets. Multisided digital platforms are characterized by a high network and lock-in effects. In a winner takes all, or most, where undertakings compete for the market rather than in the market, the right to data portability may provide some relief from the power that large digital platforms hold.

23. Particular sectors

2021 ◽  
pp. 1019-1055
Author(s):  
Richard Whish ◽  
David Bailey
Keyword(s):  
Competition Law ◽  
Transport Sector ◽  
Current Debate ◽  
Electronic Communications ◽  
Digital Platforms ◽  
Military Equipment ◽  
Eu Competition Law ◽  
Competition Rules ◽  
The Uk ◽  
The Eu

This chapter deals with four issues. First it will briefly examine three sectors of the economy that are wholly or partly excluded from EU competition law, namely nuclear energy, military equipment and agriculture; the special regime that once existed for coal and steel products under the former European Coal and Steel Community (‘the ECSC’) Treaty is also mentioned in passing. Secondly, it will explain the application of the EU competition rules apply to the transport sector. Thirdly, the chapter will consider the specific circumstances of four so-called ‘regulated industries’, electronic communications, post, energy and water, where a combination of legislation, regulation and competition law seek to promote competition. Last, but by no means least, the current debate concerning digital platforms is discussed where it is likely that ex ante regulatory rules will be introduced, both in the EU and the UK, to address concerns about anti-competitive conduct and a tendency towards the monopolisation of markets.

Legal Aspects of Defining Market’ Boundaries where Digital Platforms’ Owners Participate: Amex Case

2021 ◽  
pp. 88-97
Author(s):  
A. O. Maslov
Keyword(s):  
Supreme Court ◽  
Competition Law ◽  
Legal Aspects ◽  
Product Markets ◽  
Digital Platforms ◽  
Doing Business ◽  
The Us ◽  
Us Supreme Court ◽  
The World

Year by year, digital platforms are becoming more popular in doing business. At the same time antitrust regulators around all the world face with challenges in analyzing the market boundaries where digital platforms’ owners participate.The article examines legal aspects of determining product and geographical boundariesof markets where digital platforms’ owners operate.The article deals with Amex case in which The US Supreme Court held that boundaries of the market where two-sided transactional digital platforms’ owners operate should be determined by the transaction. No doubt, this approach is debatable and the fact that the Court issued 5—4 decision proves that.The article also deals with approaches in competition law doctrine to defining the boundaries of product markets in which the owners of digital platforms are involved.

Abuse of Dominance in Digital Platforms: An Analysis of Indian Competition Jurisprudence

2020 ◽  
pp. 1-27
Author(s):  
Tilottama Raychaudhuri
Keyword(s):  
Supreme Court ◽  
Competition Law ◽  
Ongoing Debate ◽  
Digital Platforms ◽  
Competition Commission ◽  
Competition Laws ◽  
Areas Of Concern ◽  
The Law ◽  
Abuse Of Dominance ◽  
Competition Enforcement

An ongoing debate in competition jurisprudence today is with respect to the enforcement of competition law in digital markets. Digital markets are newer markets in context of which traditional tools of competition law have to be understood and applied. Though the challenges of competition enforcement in digital markets are manifold, this paper focusses on the assessment of dominance and abuse in platform markets, particularly in light of the 2019 Supreme Court judgement in the Uber matter. The Supreme Court’s opinion that loss-making pricing can be an indicator of dominance is inconsistent with the Competition Commission of India’s (CCI) views, which had cautioned against this circular interpretation of dominance and put the issue to rest. The author submits that conflicting interpretations such as these erode the certainty of the law. Competition laws can be flexible but not uncertain or unpredictable. The author identifies areas of concern in digital platforms that are yet unresolved and need to be addressed urgently by guidelines/amendments before the law on this issue becomes incoherent.

A Transactions Cost Approach to the Theory of Financial Intermediation

1976 ◽  
Vol 31 (2) ◽  
pp. 215 ◽  
Author(s):  
George J. Benston ◽  
Clifford W. Smith
Keyword(s):  
Financial Intermediation ◽  
Cost Approach ◽  
Transactions Cost

Direct Consumer Influence—The Missing Strategy to Integrate Data Privacy Preferences into the Market

2020 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Data Privacy ◽  
Business Models ◽  
Data Gathering ◽  
Personal Data ◽  
Competition Law ◽  
Consumer Sovereignty ◽  
Digital Platforms ◽  
Privacy Preferences ◽  
Novel Approach ◽  
Quality Dimensions

Abstract In view of a growing number of competition law investigations into the gathering and use of personal data by digital platforms, this article discusses the extent to which consumer sovereignty can be given greater weight in concentrated marketplaces where firms employ multi-sided business models and compete along quality dimensions such as privacy rather than price. The article explores the concept of direct consumer influence as a novel approach vis-à-vis switching or choosing differently in the public enforcement of competition law. Direct consumer influence constitutes a distinct avenue for embedding consumers’ choices into the market when consumers have few possibilities to act and holds the potential to shape digital markets in unanticipated ways. Using the example of the German Federal Cartel Office’s investigation into Facebook’s data-gathering practices, the article illustrates how direct consumer influence may clarify the relationship between data protection, consumer rights, and competition law.

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