‘Convergence of competing powers: EU competition law and privacy in the digital era – scenarios and impacts’

Integrating Public and Private Enforcement of Competition Law in Europe -- Legal and Jurisdictional Issues

This contribution argues that a coherent and consistent interpretation of data protection and competition law is both possible and adequate. To illustrate this need, the ongoing abuse-of-dominance investigation by the French Autorité de la Concurrence against Apple is analysed. Representatives of the online advertising industry lodged a complaint against the introduction of Apple’s “App Tracking Transparency framework”. The latter includes a de facto obstacle to third-party tracking which shuts down advertisers’ access to those precious personal data that can be used for online advertising. With the Apple case in mind and by way of example, this paper argues that the regulation of consent to the processing of personal data under the GDPR serves as a dogmatic link between data protection and competition law, as this legal basis is at the heart of many digital business models. The GDPR provides a normative framework to determine when consent has been “freely given”. This can be a fruitful starting point for a competitive assessment, too, as both legal regimes pursue the objective of protecting consumer autonomy and consumer choice. The paper finishes by finding that its dogmatic approach corresponds to recent developments within competition law legislation and enforcement.

The Interface between Ec Competition Law and the Competition Laws of the New Member States: Implementation or Innovation?

In digital markets, data protection and competition affect each other in diverse and intricate ways. Their entanglement has triggered a global debate on how data protection and competition law should interact to effectively address new harms and ensure that the digital economy flourishes. This book offers a blueprint for a more coherent approach towards these two areas of law for the benefit of society and the economy. By way of introduction, this book provides a comparative overview of EU data protection and competition law, focusing on their evolution, their underlying rationale, and their key features and concepts. Their touch points are explored by looking at their common objectives. In addition, a series of examples demonstrate how the same empirical phenomena in digital markets pose a common challenge for protecting personal data and promoting market competitiveness. A panoply of theoretical and empirical commonalities between these two fields of law, as this book shows, are barely mirrored in the legal, enforcement, policy, and institutional approaches in the EU and beyond, where the silo approach continues to prevail. Conceptually, the ideas that this book offers for a more synergetic path forward are anchored in the concept of ‘sectional coherence’. This new coherence-centred paradigm aspires to render the interpretation and enforcement of data protection and competition law mutually cognizant and reinforcing. The book also includes a reflection on the conceptual, practical, institutional, and constitutional implications of the transition towards coherence, and the relevance of its findings for other jurisdictions.

Conceptualizing Big Tech As ‘Modern Bigness’ and Its Implications for European Competition Law Submission in Reaction to the Call for Contributions – Shaping Competition Policy in the Era of Digitalization

Rapid technological innovations have challenged the conventional application of antitrust and competition law across the globe. Acknowledging these challenges, this original work analyses the roles of innovation in competition law analysis and reflects on how competition and antitrust law can be refined and tailored to innovation. With chapters from well-established and up-and-coming competition law and economics scholars – from the Academic Society for Competition Law (ASCOLA) – this book reflects on the role innovation has played, and can continue to play, within competition and antitrust law. In addition to uncovering innovation concerns within their analysis, the authors also make important contributions to academic and policy debates on the relationship between these areas of law and other instruments of innovation regulation, such as data protection regulation, intellectual property law, the regulation of big data, platforms and artificial intelligence. Academics in competition and intellectual property law, economics and political science working on data protection or innovation more generally will find this book a useful insight into future challenges for constructing meaningful and effective laws within the area of innovation. Policymakers and practising lawyers will also find the example cases useful, especially for refining and restructuring perception about innovation in competition law.

This chapter will review competition policy and law (CPL) in ASEAN and provide some lessons for improving legal technical assistance (LTA) on CPL to ASEAN and intensifying intra-ASEAN cooperation in competition law enforcement. In 2021 Cambodia finally enacted its competition law and all ASEAN Member States have established respective competition law regimes. While they share various common features in the texts of the laws, the degree of implementation varies. The independence of competition authorities is one of the underlying causes of this difference and the lack of enforcement resources and expertise is crucial, particularly for CLMV Countries. The chapter will propose Japan Fair Trade Commission to extend LTA based on its experiences of the Antimonopoly Act enforcement for 75 years. Intra-ASEAN cooperation on CPL could support the efforts by young competition authorities in CLMV Countries to implement respective competition laws and coordinate enforcement activities to address anticompetitive mergers and other practices with regional dimension. In this context, the chapter will also examine the future developments of ASEAN-wide CPL, comparing with EU competition law and its institution.

Competition Law for the Digital Era: A Complex Systems’ Perspective

Chapter 11 compares European Union (EU) and Chinese competition law enforcement in the digital economy. Covering every area (market definition, anticompetitive agreements, abuse of dominance, merger control, administrative monopolies) and adopting a comparative approach covering both jurisdictions, it succinctly presents areas where competition law enforcement has proven to be adequate and sufficiently resilient to account for technological challenges (‘resilience points’). Next, the chapter discusses changes already introduced in the respective competition law systems (‘points of change’), then it identifies areas where challenges remain that may need additional reforms in the future (‘future challenges’). The discussion covers EU competition law in the digital era (section II) before moving to its Chinese counterpart (section III). The analysis highlights two normative claims: the need for a more holistic integrative approach to competition law enforcement (section IV) and the need for a closer regulatory dialogue between the EU and China (section V).

Tables of cases and statutes 1. The Foundations of EC Competition Law. - Introduction. The EC Treaty provisions in Competition. The scope of application of Articles 81 and 82 EC. The two levels of enforcement of EC Competition Law. - The aims of EC competition policy. - Community competition and national law. - The common elements in Articles 81 and 82EC 2. Anti-competitive agreements, decisions and concerted practices. - Article 81EC. - Introduction. - Article 81(1) EC .A Article 81(2) EC. - Article 81(3) EC. - The 'rule of reason' in EC competition law 3. Abuses of dominant position by one or more undertakings. - Article 82EC. - Introduction. - The prohibition on abuses of dominant position by one or more undertakings 4. The enforcement of EC Competition Law. - Introduction. - The present system. Enforcement at Community level: Regulation 17/62. - Enforcement at national level - national courts and national authorities: the present system. The new system of enforcement of competition law: the White paper and the Draft Regulation. - Concluding remarks

In his seminal article ‘The Limits of Antitrust’, Easterbrook argued that ‘when everything is relevant, nothing is dispositive’; therefore, when applying competition law, judges should resort to clear presumptions rather than balancing the proand anti-competitive effects of particular conduct. In the intervening 20 years, much ink has been spilled on the issue of whether competition law should take into consideration wider policy objectives. This discussion has been given renewed impetus in recent months following the publication of a ‘preliminary opinion on the intersection of data protection, consumer protection and competition law’ in March of this year by the European Data Protection Supervisor (EDPS). The publication of this report was followed by a workshop held under Chatham House rules in Brussels in June, a summary of which was published by the EDPS in July. The report reflects lively discussions on several issues familiar to data protection experts, such as the role of personal data in the digital economy and how to foster privacy as a competitive advantage. However, it also serves to launch a debate regarding matters which have been overlooked or unsubstantiated thus far. Most significantly, the report queries whether the traditional tools of competition law, which focus on parameters such as price, quality, and choice can explain the impact of certain business practices on data protection and privacy. It also questions ‘wider issues’ in competition law enforcement, for instance whether the Commission’s current case-by-case approach is correct in the digital environment or whether specific guidelines or a study should be introduced to inform authorities dealing with antitrust and merger cases involving personal data. These are queries which need to be addressed and the EDPS is to be applauded for kick-starting this discussion, whatever its outcome. Many of web 2.0’s datacentric services are two-sided platforms which are characterised by network effects: the more users they have, the more users they acquire. This leads to winnertakes-all markets which makes the application of key data protection concepts, such as consent, more difficult. Quite simply, individual control over personal data (or ‘informational self-determination’) becomes illusory when individuals are dealing with monopolies. For this reason, competition law is frequently depicted as the silver bullet which will render data protection rules more effective by injecting competition into monopolised markets and facilitating individual choice. However, that competition law can or even should play this role is contested by experts in that field. A discussion on the potential—and limits—of competition law was therefore conspicuously lacking until the EDPS initiative in March. Nevertheless, it is not yet apparent whether, and if so how, the two fields actually intersect. In recent years, the enforcement activity of DG Competition has been guided by a consumer welfare standard, according to which competition law should seek to deliver benefits to consumers in the form of ‘lower prices, better quality and a wider choice of new or improved goods and services’. This approach assumes that consumer welfare is negatively affected only when a particular practice has the effect of foreclosing an equally efficient competitor

The advent of digital technologies has transformed markets and resulted in unprecedented levels of market concentration, with a handful of digital giants controlling the provision of many goods and services. Against these changing market dynamics, Competition Law and Policy in Digital Markets: A Comparative Analysis of the EU and China provides a critical comparative analysis of the application of competition law in digital markets in the European Union (EU) and China. The book deciphers how these two key competition law jurisdictions apply their respective competition laws against different digital giants and the potential impact of those applications in the evolution of digital markets. This book first maps the characteristics of digital markets and the challenges they raise for competition law enforcement and, second, critically discusses decisional practice and policy developments in the EU and China. The discussion identifies potential competition law problems in the digital economy and covers various types of anticompetitive conduct at the intersection of consumer, data protection, and competition law. It also identifies contentious cases, querying whether competition law can act as a gap filler or whether other regulatory tools are better suited to address such problems. Pioneering and timely, Competition Law and Policy in Digital Markets examines the challenges posed to competition law enforcement by these new dynamics. The similarities and divergent approaches between competition law enforcers in the EU and China are examined in a bid to contribute to a more transparent debate between the two.

What is the role of European competition policy in the digital economy? Even if it cannot deal with all perceived issues in digital markets, competition law enforcement is the appropriate tool to remedy distortions to competition caused by market power, without the introduction of pervasive ex-ante sector-specific regulation being required. Whilst some of the proposals for reform of the European competition law legal framework recently brought may have some merit in principle, the current regime appears to be suitable and sufficiently flexible to allow the Commission to intervene effectively and remedy competitive distortions in digital markets.

Data Protection and Competition Law: The Dawn of ‘Uberprotection’

European competition law has influenced many national competition law systems. One of them is Greek competition law, which is already 23 years old. The development of the Greek competition law system is quite distinctive. This article gives an overview of Greek competition law by stressing the influence of European competition law upon it.