EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

interpretation on a case-by-case basis, they still narrowed down the rules of the game. In the assessment of the conduct, the SAMR is expected to focus on the factors enumerated as relevant, and the business operators are expected to invoke the justifications mentioned. Express designation of some types of conduct in the platform realm as abusive or otherwise anti-competitive also provides a stronger legal ground for the SAMR in its enforcement actions. Second, the compilation of all the rules in a single document promises to increase transparency and legal certainty. The EU can find inspiration in the Guidelines in two ways. First, it can consider moving faster with taking a formal stance towards some of the open issues. The adaptation of the rules for the platform economy through case law is notoriously slow (European Parliament resolution 2021, paras 33, 38, and 42; Botta 2021). In addition, the rules enunciated in case law are limited to a very specific situation, which cannot be easily applicable in different settings (Geradin and Katsifis 2021, p. 4). This considerably limits their relevance in other cases. Although it may be tempting to resort to the DMA to devise clues on what the EU’s approach to the regulated issues under competition law is, this can at times be misleading as the DMA follows a different regulatory logic. Driven by its primary aim to ensure fairness and contestability, especially by early controlling unfair practices, the DMA as an ex ante regulatory instrument often imposes special affirmative obligations which may go beyond what is necessary to protect competitive process in cases involving a “regular” dominant undertaking (Larouche and de Streel 2021). Formulating the EU position would also benefit the overall regulatory landscape in the EU. In the absence of guidance on the EU level, some national authorities have started issuing their own position papers or guidelines (such as the competition authorities of Denmark, Finland, Iceland, Norway, and Sweden through their joint declaration of 2020), or started adopting ad hoc competition law instruments (such as § 19a of the German Competition Act). Diverging approaches of national competition authorities to practices by digital platforms within the EU may be detrimental to the functioning of the internal, single market and hamper the scaling up of innovative homegrown digital businesses (Franck and Peitz 2021, p. 526). Closely observing how the SAMR applies the Guidelines can help the EU formulate its own approach to some of the open questions as to how to adapt competition law to digital platforms. The EU can watch and learn from the wanted and unwanted effects of the Guidelines, thereby effectively approaching the Chinese experience as a regulatory “laboratory” or “sandbox”. Nonetheless, in any borrowing of the rules, the EU should be mindful of the specific context in which the Guidelines were issued. They are a part of what is by some regarded as a “crack-down” on the Big Tech in China (McConnel [online] 2021). Although the Guidelines abandoned some controversial proposals that would

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