Katerina Maniadaki Legal Adviser, Ofcom 2015 ACC Annual Conference - Munich *** All views are personal Disruptive Innovation & Regulation

Disruptive business models as part of the regulatory assessment of markets.. Commission Guidelines on Horizontal Mergers (§15)  “the Commission interprets market shares in the light of likely market conditions, for instance, if the market is highly dynamic in character and if the market structure is unstable due to innovation or growth” Guidance on Commission’s Enforcement Priorities when implementing Article 102 TFEU (fn. 58)  “in all cases account should be taken of the dynamic nature of the industry and, in particular whether or not market power can rapidly dissipate”

..in practice Ofcom Mobile Termination Review Statement Ofcom Consultation on Review of Wholesale Pay-TV Must-Offer Obligation Ofcom Digital Communication Review European Commission in Facebook/WhatsApp

Disruption and regulatory asymmetry Disruptive models often slip through the net of regulation Communication of the European Commission on Digital Single Market Strategy for Europe  “..some platforms can control access to online markets and can exercise significant influence over how various players in the market are remunerated… some online platforms have evolved to become players competing in many sectors of the economy and the way they use their market power raises a number of issues that warrant further analysis beyond the application of competition law in specific cases”

Disruptive innovation creates a new landscape for regulation Shift in potential sources of market power and consumer harm competition is “one-click [or one app] away” dynamic parameters of competition need to be taken into account but competition may not be effective..assessing the right mix between protecting consumers and letting the market develop can be difficult in practice

Control over user data parameter of competition challenges boundaries of economic regulation Informed consumers disruptive models operate in an environment of informationally empowered consumers provision of information as a driver of de-regulation regulators need to assess the effectiveness of information in the context in which it is given