EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

evidence is difficult to obtain while allowing the operators to rebut its conclusion by providing opposite evidence. Finally, a notable invention of the Guidelines in the area of merger control is that the Guidelines explicitly target “killer acquisitions”. They reiterate the power granted to the SAMR by the Merger Notification Regulations of 2008 to proactively review mergers that do not meet statutory reportability thresholds. Article 19 of the Guidelines links this power with transactions involving start-ups and new platforms, companies providing services to consumers for free or limited fee resulting in low turnover of such companies, or transactions in highly concentrated markets. 4. The EU approach The concepts under the Guidelines are not new to the EU competition law. All of them have been to some extent discussed or considered also within the current EU framework. First, some of the rules incorporated in the Guidelines correspond to those proposed in the DMA. The definition of a digital platform in the Guidelines would substantively coincide with the definition of a gatekeeper in Article 3 of the DMA, except that the latter only applies to the largest platforms which surpass high turnover thresholds. Article 5(c) of the DMA explicitly prohibits “either-or” abuses by requiring that gatekeepers allow business users to transact outside the platform. Article 5(b) of the DMA specifically prohibits “wide” MFNs clauses when it stipulates that gatekeepers shall not implement MFNs clauses that prevent business users from offering the same products at different prices or conditions through third-party online intermediation services. It also pre-emptively assumes that gatekeepers’ platforms effectively work as “essential facilities” (Cabral et al. 2021, p. 20), and imposes a number of data-sharing obligations to prevent any “refusals to deal”. Finally, Article 12 of the DMA aims to prevent “killer acquisitions” by requiring gatekeepers to inform the Commission about any intended concentrations which involve another provider of core platform services or of any other services provided in the digital sector. Anti-competitive behaviour of digital platforms can also be caught by general competition rules. The “either-or” abuses would fall within the prohibition of exclusive dealing arrangements. In 2017, the German competition authority working in close cooperation with the Commission closed proceedings against Audible.com and Apple regarding a long-term agreement under which Apple exclusively purchased audiobooks from Audible for sale in the iTunes Store and Audible did not supply any other digital music platform other than iTunes (European Commission [online] 2017). Price discrimination based on data may amount to a discriminatory abuse under Article 102 Treaty on the Functioning of the EU (TFEU) in the form of imposing unfair trading conditions or excessive

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