EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

on 7 February 2021 the Antimonopoly Commission of the State Council of China promulgated the Anti-Monopoly Guidelines for the Platform Economy Industries (Guidelines). Given the extraterritorial reach of the platforms and the importance of China’s market, China’s approach to digital platforms may be relevant for policymakers globally. 2. Updating of regulatory tools for digital era The European Union (EU) has been particularly active in devising an appropriate regulatory response to the digital platforms. The report on competition policy for the digital era (Crémer et al. 2019) which summarizes the main issues related to digital economy, including digital platforms, generally recommends relying on the established competition rules and up-dating them for the digital age. Where necessary, it recommends bolstering such rules by regulation. The proposed Digital Markets Act (DMA) as an ex ante regulatory tool to address some aspects of the operation of the most important platforms designated as “gatekeepers” is an illustration of this approach. Tailoring of generally applicable competition rules for the digital era as a part of the traditional ex post regulation through competition law rests mainly on the case law of the Court of Justice of the EU (CJEU) or the decision-making practice of the European Commission (Commission). Some of the aspects of digital platform markets are also promised to be reflected in the revision of some regulations, guidelines or notices, such as in the Vertical Block Exemption Regulation or Notice on the Definition of Relevant Market. The Chinese Guidelines may be particularly insightful in such “updating” of competition rules for the digital era. The Guidelines were adopted to complement China’s Anti-Monopoly Law of 2007 (AML) and are not technically a formal law, but rather a public policy guide (Smithurst 2021, p. 643). Pursuant to Article 2, they are applicable to platform operators and to businesses operating on or in connection with such platforms. The Guidelines fine-tune the principles of market definition in the platform economy, include a list of practices that are likely to raise competition-related concerns and suggest an appropriate competition law response to those concerns. If those responses prove useful in containing the economic power of digital platforms, they may serve as an inspiration for the EU. The aim of this Article is to evaluate whether there is a scope for such an inspiration. To do so, the Article first describes some of the key principles of the Guidelines. Second, it identifies how the same concepts can be approached under EU law. Third, it compares those approaches and identifies the scope for potential inspiration. Finally, the Article concludes by summarizing the main findings.

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