The special advisers' report on competition policy in the digital era

Context (1) Part of broader reflection on digital issues Consultation July-Sept 2018 Conference Jan 2019 Internal reflection Reflections/reports in other countries Reports in Germany UK report ("Furman report") U.S. FTC hearings Australian report Etc

Context (2) Focuses on data, platforms, innovation/mergers The special advisers' own views Focuses on substance, not procedure or institutions A discussion paper, not fully worked-out proposals What's next? Not algos, blockchain, personalised pricing, fake news

The report: general points Fit for purpose? "The basic EU competition law framework is sound and sufficiently flexible" But: need to "adapt and refine concepts, doctrines and methodologies" "Effects analysis" "There will be underenforcement if we insist that the harm be identified with a high degree of probability" "Under-enforcement in the digital era will be of particular concern, as the harm will presumably be longer-term than in traditional markets"

The report: data 3 objectives: disseminate data while protecting investments and privacy Interpret GDPR through the lens of competition Data pooling Efficiencies & competition concerns More guidance needed Essential facility doctrine (EFD) For complementary markets, not for unrelated markets Consider data flows, raw data, consent Consider regulation

The report: platforms (1) Promote/preserve competition for the market Case-by-case analysis but rebuttable presumption of anti-competitiveness if dominant platforms hinder (potential) rivals’ ability to attract users and generate their own positive network effects, through, e.g. MFNs Restrictions of multi-homing / switching / interoperability Dominant platforms to show either lack of adverse effects or overriding efficiencies

The report: platforms (2) Promote/preserve competition on the platform (market) Platforms as regulators (analogy with sport federations cases): duty to ensure level playing field – rules cannot anti-competitively exclude or discriminate users Leveraging Self-preferencing: not abusive per se, but subject to effects test – also below the “essential facility” threshold Remedies: Structural vs behavioural / restorative remedies No need to regulate platforms with no market power

The report: merger control No need to change EUMR at this stage Too early to change jurisdictional thresholds Monitor impact of national reforms and functioning of referral system Revisit substantive assessment to minimize false negatives Inject some “horizontal” elements into the “conglomerate” theories of harm Shift of burden of proof? If acquisition is plausibly part of a strategy to strengthen/ring-fence ecosystem, notifying parties should show overriding merger-specific efficiencies