EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

make them a rather aggressive enforcement tool, the flexibility inherently tied with the application of competition law rules leaves space for pursuing a strict enforcement trend by the SAMR if necessary. After all, this trend seems to continue after the adoption of the Guidelines (Competition Policy International [online] 2021; Competition Policy International [online] 2022). Second, the EU can be inspired by the Guidelines to summarize the rules applicable to digital platforms in a single document. The current regulatory landscape in the EU is difficult to navigate, for both the enforcement agencies and the businesses. It is scattered in the case law and the decision-making practice, soon-to-be-modernized guidances or notices that primarily deal with other topics, or non-binding strategic documents. A comprehensive approach would ensure more transparency. Alternatively, if such a comprehensive approach would not be feasible given the complexities involved, policymakers can consider at least up dating the current regualtions to digital age also other regulatory instruments on top of the envisaged ones as enumerated in the Commission’s Work Programme for 2022. The Communication on the Commission’s Enforcement Priorities in Applying Article 102 TFEU is a prime candidate for modernization to reflect the platform economy. 6. Conclusion The promulgation of the Guidelines marks an important milestone in China’s attempts to set boundaries to the operation of digital platforms. Being a complement to the AML, they are a projection of the traditional ex post antitrust response to the challenges that the digital platforms bring to competitiveness and contestability of digital markets. The review of their contents suggests that the Guidelines “put on paper” what has been a matter of policy debate in the EU competition law or occasionally reflected in the case law and other instruments. In many cases, the Guidelines take a resolute approach to controversial issues that are still open in the EU. For example, the Guidelines expressly state that a platform can, in certain circumstances, constitute an essential facility, engage in exclusive dealing by way of requiring a counterparty to the transaction to choose between two competitive platforms, or engage in discrimination through implementing differentiated prices and other transaction conditions based on big data. The Article suggests that the Guidelines may be inspiring for the EU in two ways. First, the EU can refer to the substantive rules in the Guidelines in formulating its own position towards the same issues. The possibility of witnessing some of the alternatives applied in practice allows it to tap into the Chinese “regulatory sandbox” so that it can decide on its own which principles are worth following also in the EU. Yet, any “borrowing” of rules shall be informed by the fact that China announced a rather strict approach towards

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