Dominant digital companies be warned: calls for additional tools to deal with powerful platforms in online markets are increasing. Even though the need for speed is a given in these fast-moving markets, the question of which tool is best-suited for the job remains. Different countries are focusing on different areas; the Dutch ACM wants to pre-emptively strike down potential anti-competitive conduct with ex ante measures, while the UK CMA aims for greater regulation of digital markets and a quick fix through interim orders.
The joint proposal by the French, German and Polish governments suggests swifter interim measures, specific scrutiny for major digital platforms and behavioural remedies. The G7 Competition Authorities are calling for closer international cooperation and convergence in the application of competition rules. Digital companies may therefore soon have to reckon with special regimes and interim or ex ante behavioural measures, supplementing the current scrutiny.
The vast number of possible enforcement tools suggested by governments, experts and competition authorities is aimed at keeping pace with the dynamics of online markets. Around the same time as the publication of the European Commission's expert panel report on competition policy for the digital era (see our May 2019 Newsletter) and the UK government's digital expert panel report, a Franco-German manifesto, alongside a call from the Dutch government for additional tools to regulate tech giants, was published (see our June 2019 Newsletter). These initiatives have now been supplemented with the ACM's support of the Dutch government's call for additional tools, the launch of the CMA's digital markets strategy, a joint proposal by France, Germany and Poland, and a common understanding of G7 competition authorities on competition and the digital economy.
All of these suggestions and initiatives recognise the need for competition authorities to have the ability to swiftly correct anti-competitive conduct by powerful online platforms with, for instance, interim measures. The ACM even suggests an ex ante tool, giving competition authorities the possibility to intervene with proportionate behavioural remedies before any competition law infringement has been established. Others suggest a specific regulatory framework to which major digital platforms should adhere. Most agree that data sharing, platform access and data portability should form part of the solution and that any solution should have support at least EU-wide, but ideally also internationally, considering that major online platforms usually operate on a global scale.
It remains to be seen how the incoming European Commission will take things forward. For now, dominant digital companies are forewarned of imminent changes and advised to monitor on-going developments including the CMA's market study into online platforms and the digital advertising market, the ACM's investigation into Apple's App Store (see our May 2019 newsletter), Spotify's complaint against Apple with the European Commission and the European Commission's investigation into Amazon's use of data from independent retailers who sell on its marketplace.
This article was published in the Competition Newsletter of September 2019. Other articles in this newsletter: