Boundedly Rational Users and the Fable of Break-Ups: Why Breaking-Up Big Tech Companies Probably Will Not Promote Competition from Behavioural Economics Perspective

Abstract

The disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany’s implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany’s implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future. antitrust, competition law, big tech companies, behavioural economics, bounded rationality, digital economy, brand name, platform and merger breakups, market power, remedies.