Short Reads

Digitisation and competition law: past, present and future

Digitisation and competition law: past, present and future

Digitisation and competition law: past, present and future

07.02.2019 EU law

It is nearly time for the European Commission to reveal its course of action in digitisation and competition law. Feedback from a public consultation and the recent conference on 'Shaping competition policy in the era of digitisation' together with the upcoming expert panel's report on the future challenges of digitisation for competition policy are likely to shape the Commission's course of action.

When looking at past practice [see our overview of 2018 key developments], companies should brace themselves for potentially more regulation and 'modernised' enforcement by authorities looking beyond the traditional competition rules to fix the potential anti-competitive risks of digitisation.

Even though no definite stance has been taken yet and more will be revealed in the upcoming publication of the expert panel's report, the Commission is likely to also look at past practice to decide on the future of competition law in the era of digitisation.

In the past [see our overview of 2018 key developments with summaries and take-aways], the Commission resolved potential 'gaps' in competition law enforcement by introducing complementary regulatory measures, such as the Geo-blocking Regulation and the upcoming P2B Regulation. These type of complementary measures may also be used in the future. As a result, the lines between competition law and other interests, such as consumer protection, data protection, innovation safeguards and the protection of fairness, may become increasingly blurred. This is, however, not an entirely new phenomenon when looking at, for instance, the growing awareness among various competition authorities that competition rules and consumer protection issues are sometimes so intertwined that they need to be assessed jointly within the context of fairness. Consumer inertia or vulnerability may lead to unfair results, even in competitive markets, which may potentially require complementary measures, outside competition law, to reach a fairer outcome.

Another likely adjustment that follows from the past relates to the EU merger regulation. Additional rules to take account of 'killer acquisitions', acquisitions by dominant companies of innovative start-ups which negatively affect innovation, could be introduced. Suggestions to address these kind of acquisitions include the introduction of a value-based notification threshold, an increased focus on innovation during the substantive merger assessment or a shift in the burden of proof for super-dominant firms to convince the Commission that the acquisition will be pro-competitive. A further item that is likely to appear on the Commission's action list is how to deal with the increasing power of platforms. Possibilities currently being considered comprise the adjustment of the essential facilities-doctrine in relation to data access, the introduction of mandatory data-sharing rules or the breaking-up of dominant companies into separate business units. The Commission is also looking into ways to speed up its enforcement actions in the dynamic digital world, for instance by using 'interim measures' in anticipation of the outcome of, what can often be, lengthy investigations. In addition, the Commission is bound to use the evaluation of the Vertical Block Exemption Regulation to provide further clarification on recurring digital issues, such as online sale or online search advertising restrictions and market place bans. A public consultation was launched on 4 February 2019 and interested parties have until 27 May 2019 to provide their input.

What the future will bring is anyone's guess but by looking at what has happened in the past, the Commission's future approach towards digitisation in competition policy is likely to involve speedier enforcement outcomes through complementary regulatory measures and adjusted rules in merger control, online vertical restrictions and in relation to platform power. The rest of the Commission's plans are to be revealed later this year.

 

This article was published in the Competition Law Newsletter of February 2019. Other articles in this newsletter:

Team

Related news

02.04.2020 NL law
ACM played high stakes and lost: no more fixed network access regulation

Short Reads - The ACM’s failure to meet the requisite standard of proof has led to the fixed networks of Dutch telecom providers KPN and VodafoneZiggo being free from access regulation. The Dutch Trade and Industry Appeals Tribunal ruled that the ACM had failed to demonstrate the existence of collective dominance, and that KPN and VodafoneZiggo would tacitly coordinate their behaviour absent regulation.

Read more

31.03.2020 NL law
Als het moet, kan het snel (en digitaal): vanwege de coronacrisis op weg naar een Tijdelijke wet digitale beraadslaging en besluitvorming

Short Reads - In crisistijd kan veel en snel. Beraadslagingen en besluitvorming blijven ook nu noodzakelijk, maar de wettelijke grondslag om dit digitaal te doen ontbreekt. Daarom is er aan de Tweede Kamer een wetsvoorstel terzake voorgelegd, dat slechts in enkele dagen is voorbereid. De wet treedt, zo is de bedoeling, op korte termijn in werking.

Read more

02.04.2020 NL law
Claims assigned to a litigation vehicle: who needs to prove what?

Short Reads - Two recent decisions from the Amsterdam Court of Appeal have confirmed that litigation vehicles cannot come empty-handed to the court, and should provide documentation regarding the assignments of claims they submit. The Dutch legal system allows companies and individuals to assign their claims to a “litigation vehicle” or “claims vehicle” that bundles those claims into a single action. In its decisions of 10 March 2020, the Court of Appeal ruled that it is up to litigation vehicles to prove that the assignments can be invoked against the debtor. 

Read more

26.03.2020 BE law
​I am suffering significant financial losses as a result of the spread of the corona virus. Is there a possibility of State aid?

Short Reads - COVID-19 brings certain questions to centre stage regarding State aid. In this short read, Peter Wytinck, Sophie Van Besien and Michèle de Clerck discuss the possibility of State aid in case of significant financial losses as a result of the spread of the corona virus.

Read more

02.04.2020 NL law
EU competition policy agenda: full to the brim

Short Reads - The European Commission’s competition policy agenda stretches to 2024 and contains plans for many new or revised rules and guidelines. Recent publications, such as the New Industrial Strategy for Europe, shed more light on the Commission’s initiatives and their possible impact on parties from both inside and outside the European Union (EU). These new initiatives include temporary state aid rules to address the effects of the Corona crisis, consultations on the Block Exemption Regulations, and new measures in respect of (primarily) third-country companies.

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring