EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

pricing. The imposition of MFNs clauses can constitute abuse of dominance prohibited by Article 102 TFEU. In the E-book MFNs and related matters (Amazon) case, the Commission provisionally concluded (before closing the case by accepting commitments) that the terms requiring publishers to offer Amazon similar (or better) terms and conditions as those offered to its competitors and/or to inform Amazon about more favourable or alternative terms to given to Amazon’s competitors constituted an abuse of dominance. Also, the MFNs clauses can be regarded as an anti-competitive vertical agreement between a supplier and its distributors contrary to Article 101 TFEU, as illustrated by the probe into the online hotel bookings sector by several European competition authorities and the Commission (ECN [online] 2017). “Wide” MFNs clauses are also to lose the benefit of exemption under Article 5(1)(d) of the proposed revised Vertical Block Exemption Regulation. Denying access to platforms or its data can theoretically be regarded as an abusive refusal to deal if engaged in by a dominant undertaking and if such platformor data qualify as “essential facilities” – a dominant undertaking is prohibited, in the absence of objective justification, to refuse to supply to existing customers and to grant access to “essential facilities” on a non-discriminatory basis to new customers, at least in circumstances where a refusal would eliminate effective competition on the downstream market (Thompson et al. 2018, para. 10, p. 149). Finally, the review of concentrations that do not fulfil the notification criteria may be undertaken under the Commission Guidance on the Application of the Referral Mechanism set out in Article 22 of the EU Merger Regulation which allows it to review such concentrations provided that the national competition authorities consider those concentrations important. According to its para 10, the Guidance primarily targets the pharmaceutical and digital sectors. Yet, given the complexity of the practices, the application of some of the above rules requires a thorough analysis and fulfilling rather onerous evidential burden to establish their detrimental effect on competition and consumer welfare. This is particularly true of the price discrimination based on data or refusal to deal and the essential facilities doctrine. As regards price discrimination, where the application of Article 102(c) TFEU is in itself difficult in traditional markets as it requires identification of equivalent transactions, dissimilar conditions, and occurrence of competitive disadvantage, its application to digital platforms may bring additional challenges. For example, having to prove that it is repeated conduct or that there are equivalent transactions would require a thorough analysis of the logic of the firm’s algorithms (Botta andWiedemann 2020, p. 393). In addition, it is recognized that personalized pricing can have a positive effect on consumer welfare, which can pave the way for successful justification of the practice by a platform (Sears 2021, p. 9). Also, the application of the prohibition on the business-to-consumer level is not common in the EU as exploitative abuses

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