EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

are only rarely investigated (Botta and Wiedemann 2020, p. 389; Geradin and Katsifis 2021, p. 46). All these factors can make the prohibition of discrimination based on data by dominant undertakings only a theoretical endeavour. Similarly, the application of the essential facilities doctrine is dependent on the extent to which a platform and its data may be considered an essential facility. The CJEU had the opportunity to apply this doctrine in the recent Google and Alphabet v Commission (Google Shopping) case, but it rather approached the case as an abusive discriminatory treatment. Although it considered that Google’s general results page has characteristics akin to those of an essential facility in that there is currently no actual or potential substitute available that would enable it to be replaced in an economically viable manner on the market, it concurred with the Commission’s framing of the case as the one about self-favouring. Graef hypothesizes that the Commission might have intended to eschew the strict rules of refusal to deal and essential facilities doctrine (Graef 2019, p. 59). Finally, some of the novel approaches suggested by the Guidelines have not been entirely accepted in the EU. This is the case of potential lessening of importance of market definition. Although the report on competition policy for the digital era (Crémer et al. 2019) suggested that the EU may head in a similar direction as it noted that in the case of digital platforms, market definition may not be that important as compared to theories of harm and identification of anticompetitive strategies, the Commission’s Draft Notice on Market Definition does not seem to share this view as it insists on the importance of market definition even in the platform cases (Commission Staff Working Document 2021, p. 27). The comparison of the Guidelines and the EU law shows that the EU currently lacks a comprehensive tool that would summarize what its competition law’s position to digital platforms is. Although some of the concepts are to be reflected in the upcoming updates of the guidelines and notices, the EU still largely relies on the case law of the CJEU and the decision-making practice of the Commission to clarify how the traditional competition rules apply to digital platforms. Many controversial issues are left open. The Guidelines, on the contrary, provide a comprehensive framework, partly based on experience from the case law, partly on what the Chinese policymakers consider an appropriate approach to the novel conduct (Smithurst 2021, p. 6). This comparison highlights the added value of the Guidelines. First, they “forced” the SAMR to reach a formal position on some of the issues of applying traditional competition law to digital platforms. Although the core provisions of the Guidelines are still couched in rather vague terms allowing for flexible 5. Comparison of the Guidelines and the EU approach suggests room for inspiration

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