EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

3. What approach for more effective intervention? Governments and competition authorities alike may find it difficult to address these challenges. However gigantic they are, the fines imposed on companies such as Facebook or Google are clearly insufficient to rein those large digital behemoths. Over the years, these platforms have come to view antitrust fines as simply the cost of doing business and do not seem to be deterred by the prospect of a single-digit billion euro fine. In the meantime, these companies aim to continually expand and leverage their dominance from one market to another either through anti-competitive conduct – as in the Commission’s Android and Google Shopping cases – or through mergers – as was the case with Google’s acquisition of the wearable device maker Fitbit in 2020 (European Commission, 2020b). The underlying rationale for those anti-competitive practices or for the merger spree is both evident and logical: tech giants are in an inextricable race for consumers’ data and their attention – both are a finite resource and a precious asset in the digital economy – and to dominate the next technological wave. Nonetheless, it is important but also necessary to set speed limits and define the rules in which this race should takes place. In that context, one should refrain from viewing government and competition authorities’ intervention as a binary option where society either does nothing and let the market regulate itself, or to intervene to such an extent that fair and undistorted competition is hampered and innovation is stifled. Intervention should be conceived as a spectrum between those two extremes and should be required to steer technological innovation and progress towards what objectives that benefit consumers and society as whole at a European level. As aforementioned, our proposal is not for a profound revolution of competition but rather for an evolution where there is ample room to strengthen and optimise enforcement of the current rules in digital markets. In our report (BEUC, 2019), the three main recommendations we made to competition authorities were that, first, authorities should not be afraid of experimenting and testing the boundaries of competition law. Only by doing this will they be able to clarify the scope of intervention of competition law, which is a legal discipline still in constant evolution. Second, authorities should not refrain from using the full extent of their powers to obtain the necessary behavioural or structural changes to restore competition in the market. Finally, while not discarding the fundamental of economics, it might be useful for one second to forget the “Econ 101 textbook” and think outside the box where competition law is just one of the many pieces in a legal jigsaw puzzle. Competition is merely one part of a system in which different legal, social and economic disciplines can complement each other. One of the previous ancillary disciplines that is slowing moving to the centre stage in competition law enforcement is behavioural economics. We consider

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