Digital Ecosystems, Decision-Making, Competition and Consumers – On the Value of Autonomy for Competition

Abstract

Competition authorities in Europe have taken enforcement action against the GAFA-companies Google, Amazon, Facebook and Apple. The “theory of harm” in such cases re-mains vague, however, and it is disputed whether the cases really contain competition law issues. The submission in this paper is that the agencies react to a shift in strategy by the so-called “super-platforms”: They are no longer acting as neutral intermediaries that primarily reduce transaction costs but meddle with the decision-making process of consumers and other companies. They have strong incentives, e.g. in connection with voice commerce, to limit decision-making by consumers and other companies or to bias information. This use of the gatekeeper position harms the institutional infrastructure of markets. Competition is pushed to the periphery and no longer takes a central role. Gatekeepers are in the position of agents that may abuse their position to the detriment of their principal. Information and innovation, crucial features of dynamic markets, are lost. The economic harm that is to be expected in the long run prompts intervention. Yet, there is also a normative argument coming from an analysis of the case law of the European Court of Justice. The ECJ sees the independence of decision-making as a key element of undistorted competition in markets. This doctrine, explicitly applied to Article 101 TFEU-cases in the past, is now ex-tended to consumers and abuse-situations. To preserve the structural requirements for digital autonomy becomes a priority for competition law enforcement.