“Companies should play by the rules” Commissioner Vestager repeated throughout her first term. And, true to her word, she sought to ensure that dominant companies did just that.
There are a number of things which are remarkable about Commissioner Vestager’s handling of abuse of dominance cases to date. Some may think she focused mainly on big tech due to the record-breaking fines imposed on Google and Qualcomm. But the past five years should be remembered for tougher enforcement across a broad range of sectors. At the same time, the EC used the opportunity to dig out dormant theories of harm and procedural tools.
The headline investigations
DG COMP focused its enforcement on digital platforms that benefit from network and scale effects in multi-sided markets. A particular concern is the extension of dominant positions in one market to related markets through practices such as tying/bundling or self-preferencing. The Google trilogy illustrates this most clearly. Between 2017 and 2019, the EC found, in three separate cases, that Google had abused its dominant position, leading to fines totalling €8.25 billion. Commissioner Vestager hit hard, abandoning the more conciliatory commitment path attempted by her predecessor.
The theories of harm employed included self-preferencing (Shopping), tying, exclusive rebates and other exclusionary practices (Android), and exclusivity restrictions (AdSense). These theories of harm are well established, with the exception of self-preferencing. This is novel in the sense that it imposes a duty on dominant platforms to treat their own competing downstream operations on a non-discriminatory basis vis-a-vis other downstream competitors. It puts the obligation not to discriminate (back) at the forefront. The decision is under appeal and we await the findings of the Court.
Commissioner Vestager also went after Qualcomm for using exclusivity rebates to Apple in order to foreclose rivals and imposed a fine of €997 million. More recently, the EC dusted off its predatory pricing theory of harm and fined Qualcomm €242 million for selling its products at very low prices with the intention of eliminating a rival. Predatory pricing cases are rare and this was the EC’s first in 16 years, since the Wanadoo (France Telecom) decision in 2003.
One of the final acts of Vestager’s first term was to impose interim measures on Broadcom (see our blog post), flexing the EC’s powers after almost two decades of dormancy. Interim measures are designed to prevent irreversible harm caused by alleged anticompetitive conduct whilst an investigation is ongoing. Commissioner Vestager chose to reignite this power in order to address the significant risk that, in fast-moving digital markets, protracted investigations may render meaningless any cease-and-desist order because the exclusion may have happened. We expect to see more interim measures decisions imposed in the future.
Finally, there are several high-profile investigations against digital platforms in the pipeline. These include Amazon Marketplace and Spotify’s complaint against Apple. The EC is reportedly also looking into Facebook’s marketplace classified ad business. For Google the story is not over as the EC continues to receive complaints concerning job search and local search, for example. This means that the EC is looking into the four GAFA companies.
The future of digital sector enforcement
In light of the many challenges which antitrust enforcers face when tackling digital markets, the EC commissioned and published a report on Competition Policy for the Digital Era. The report does not give concrete guidance, and it remains to be seen whether the EC will adopt any of the proposals.
It is expected that during its next term, DG COMP will launch a sector inquiry into digital markets. If this materialises, abuse of dominance will be a central theme and additional investigations are likely to follow, as happened after previous sector inquiries.
Recent investigations by national competition authorities in the pharma sector precipitated the revival of another old theory of harm: excessive pricing. These national investigations drew the attention of the EC, which is now investigating Aspen Pharma, as well as intervening in national proceedings such as the Pfizer/Flynn case in the UK. Pharma companies should consider themselves on notice for stricter enforcement in the years ahead.
Energy and Infrastructure
Both Gazprom and Bulgarian Energy Holding were found to have abused their dominant positions in the gas market resulting in a €77 million fine for BEH and a commitment decision for Gazprom. The EC also initiated investigations against Romania’s gas transmission system operator Transgaz and Europe’s largest liquified natural gas exporter, Qatar Petroleum, in relation to possible gas export restrictions.
Finally, in the rail transport market, Lithuanian Railways dismantled a long section of track to prevent a customer from using the services of a competing operator. This practice was found to be an abuse of dominance and led to a €27.8 million fine.
Predatory pricing has also come alive in the railway sector, with an investigation underway against the Czech railway incumbent.
Distribution and the Single Market
Dominant companies’ distribution arrangements can curb competition within the Single Market. In 2019, AB InBev, the world’s largest beer brewer, was fined €200 million for restricting parallel trade. And in 2017, the EC accepted binding commitments by Amazon to stop using price parity clauses in distribution agreements with e-book publishers in Europe.
First settlement decisions for abuse of dominance
In 2016, the EC found ARA, the leading waste management company in Austria, guilty of abusing its dominant position. The EC settled the case, granting a reduction in the fine imposed, in return for ARA’s co-operation. This was the first EC settlement decision in an abuse of dominance case since the adoption of Regulation No 1/2003. The EC published an accompanying fact sheet on co-operation in antitrust cases.
Another reduction in fine for co-operation in an abuse of dominance case was granted earlier this year in AB InBev.