EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

two situations that could be relevant for decentralising social media platforms: refusals to access to data and refusals to provide interoperability. These scenarios, however, are only relevant to the “middleware” type of proposals, as they fit the upstream and downstream structure of relevant markets needed to apply competition law concepts (European Commission, 2019, p. 91). Furthermore, the Commission has also recognised as relevant a scenario where a dominant undertaking has individual-level data of either personal or non personal nature that is needed by another undertaking to provide complementary services (European Commission, 2019, p. 75). A refusal to supply access to data would follow the test for refusals to supply under Article 102 TFEU established in the Oscar Bronner (1998) case: a refusal would have to be likely to eliminate all competition in the market on the part of the undertaking requesting the access, this refusal would have to be incapable of being objectively justified, and the input access to which was sought would in itself have to be indispensable to carrying on that undertaking’s business without any actual or potential substitute in existence for that input (para 41). Alternatively, a refusal could concern interoperability information, that is information ensuring that two systems can fully work together and that complementary services can be provided (European Commission, 2019, pp. 83). Concerning the decentralisation of social media platforms, both concepts could be seen as relevant, depending on the scope of functionalities the “middleware” layer of services would take on. However, these competition interventions could only be used once platforms have opened themselves to decentralisation, not to “break up” these platforms. As stated in subsection 4.2, competition law currently does not allow creating new markets inside existing undertakings where no “trade” has taken place before (Graef, 2016, p. 81). The only foreseeable path towards such a decentralisation can be either through voluntary action of platforms (e.g. through projects like Bluesky) or with the help of ex-ante regulation that would require that platforms provide the access described above. On the other hand, even though there are only a few cases of refusals that have been dealt with by the Commission and the Court of Justice, it could be argued that once decentralisation happens, the frameworks will be useable and available to maintain the already achieved level of decentralisation. In this way, whatever progress towards decentralisation of social media platforms happens, there will be brakes against a reversal back to an environment controlled by one undertaking (even if there formally are more relevant markets). 5. Conclusion In conclusion, there is a link between EU competition law, the process of platform decentralisation, and proposals for solving current issues with a so-called

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