EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

any punitive measures such as rendering a merchant undiscoverable to search, lowering it on search results, and throttling its visitor volumes. It shall also examine any positive incentivizing measures, such as subsidies, kickbacks, and discounts afforded by the platform to the merchant. Yet, the Guidelines provide a rather extensive list of justifications that the operators can resort to, including a necessity to “ maintain a sound business model ”. Interestingly, the Guidelines omit the reference to exclusive dealing being caught as an anti-competitive agreement as stipulated in the initial version. Abuse of dominance can also be constituted by using by a platform of the data collected on users or merchants to engage in price discrimination or differential treatment with respect to other financial terms. Article 17 of the Guidelines differentiates between permissible and impermissible data-driven discrimination. It is permissible to distinguish based on transaction costs, credit status, or transaction duration. Yet, it is impermissible to distinguish based on ability to pay, purchasing habits, or consumption habits. There is also a number of justification grounds, such as where the discrimination comports with “legitimate trade or industry practice”. Refusal to enter into a transaction on reasonable terms by a party that controls an essential facility in the platform sphere can also qualify as an unlawful abuse of dominant position based on Article 14 of the Guidelines. Whether such an essential facility exists will be evaluated with reference to the amount of data held by the platform, replaceability by other platforms, the ability for a new competitor platform to enter the market, and the degree of dependence on the platform. In comparison with the initial version, the Guidelines omit the reference to data as essential facility. Instead of considering the data as essential facility, the Guidelines mandate to consider the uniqueness of a platform’s dataset when assessing whether the platform itself is essential. The Guidelines also clarify that some practices may be considered under both the abuse of market dominance provisions, if employed by a dominant operator, and the anti-monopoly agreements provisions. This is the case of, e.g., the so called most-favoured-nation clauses (MFN). Article 7 of the Guidelines states that clauses that obligate a merchant to offer terms on a platform that are at least as favourable to merchant’s sales on competitive platforms may constitute a monopoly agreement or abuse of market dominance. In the sphere of anti-monopoly agreements, Article 5 of the Guidelines reflects that in digital platform markets, concerted conduct can be organized or coordinated through an information exchange facilitated by data, algorithms, or platform rules even if no written or verbal agreement or decision is made. Article 9 of the Guidelines authorizes the SAMR to rely on logically consistent circumstantial indirect evidence suggesting concerted practice when direct

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