EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

(or better, thanks to which) “information reaches internet users” in such a way that these companies control not only how the information flows, but, more importantly, can switch this flow on and off (Daly, 2017, p. 190). Ultimately, the gatekeepers form not only the unique gate but also a possible barrier between various entrepreneurs and the target costumer (Geradin [online], 2021. The necessity to regulate the gatekeepers with ex ante regulation without further depending only on ex post competition regulation in the Articles 101 and 102 of the Treaty on the Functioning of the European Union is also well known to the Commission. Hence, on 15 December 2020, the proposal for a regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (the Digital Markets Act) (DMA) was submitted by the Commission (European Commission [online], 2020a). As is reasoned in the explanatory memorandum to the proposal, The Commission is highly concerned with the power and overall dominance of the gatekeepers in a way that they have “[M]ajor impact on, have substantial control over the access to, and are entrenched in digital markets, leading to significant dependencies of many business users on these gatekeepers, which leads, in certain cases, to unfair behavior vis- à-vis these business users.” (European Commission [online], 2020a). 2. Problem Formulation and Methodology In terms of gatekeepers, the main role belongs to, not surprisingly, Amazon, Apple, Facebook, Microsoft, and Google, and other big tech companies that are necessary for other entrepreneurs in order to promote and distribute their goods and services (Caiazzo, 2019, pp. 181-186). Google is currently holding 80–90% market share on the general search market (Reyna, 2017, p. 206) and its activity establishes “the existence of barriers to expansion and entry, the infrequency of user multi-homing[,] and the existence of brand effects and the lack of countervailing buyer power”, thus constituting a dominant position on such a market (European Commission [online], 2017b). This position allows Google to leverage into other markets related to the general search market, such as for example the comparison-shopping market (Reyna, 2017, p. 206). This ultimately leads to Google breaching EU competition laws on various occasions as is apparent from the proceedings that the European Commission is currently leading or has led against Google (Ellia, 2017, p. 470). On 2010, the Commission conducted an investigation due to Google misusing its shopping results search engine, Google Shopping, and had consequently decided that Google breached EU competition law, fining it € 2.42 billion as the largest fine in the decision history of the Commission (Ellia, 2017, p. 493). This Commission’s decision was recently upheld by the General Court in its judgement T-612/17 from 10 November 2021 (and is with its 706 points notably long) (General Court

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