COMPETITION LAW IN THE DIGITAL MARKETS

Consten and Grundig (week 1)

Matching Facts/Overall Topic:

- Absolute territorial protection;

- partitioning the internal market

Relevant Law: Article 101 TFEU

Takeaway:

1. Exclusive distribution preventing parallel imports is a restriction by object.

2. Competition law prevents private reconstruction of trade barriers.

Football Association Premier League (FAPL) v QC Leisure / Karen Murphy (week 1)

Overall Topic:

Parallel imports in broadcasting

Relevant Law:

- Article 101 TFEU

- Internal Market law

Core Takeaway:

Territorial exclusivity restricting cross-border access undermines market integration.

Metro I (week 1)

Overall Topic:

Selective distribution systems

Relevant Law:

Article 101 TFEU

Core Takeaway:

Selective distribution may be lawful if based on objective qualitative criteria and proportionate.

Actors/Facts:

a) Metro (a German self-service wholesaler) vs.

b) SABA (a consumer electronics manufacturer) and

c) the European Commission.

-SABA operated a selective distribution network where only approved wholesalers/retailers meeting specific qualitative criteria (e.g., technical expertise, specialized shops) could sell their products.

-SABA refused to appoint Metro as a authorized wholesaler because Metro did not meet these criteria, specifically regarding specialized service and display.

-Metro argued this system restricted competition by excluding "cash and carry" wholesalers, which infringed what was then Article 85 (now Art 101) TFEU.

-The European Court of Justice (ECJ) upheld the Commission's decision that the system was legal.

"Metro Criteria" for Lawful Selective Distribution:

1)Nature of Products: The product demands a selective distribution system to preserve quality or ensure proper use (e.g., high-tech, luxury goods).

2) Objective Criteria: Resellers are chosen on objective, qualitative criteria.

3) Non-Discriminatory: The criteria are applied uniformly and in a non-discriminatory manner.

4) Proportionality: The restrictions do not go beyond what is necessary

GlaxoSmithKline v Commission (week 1)

Overall Topic:

Restriction of parallel trade

Relevant Law:

Article 101 TFEU

Core Takeaway:

Effects analysis matters; competition law balances integration and economic efficiency.

Cartes Bancaires

Overall Topic:

Restriction “by object” interpretation

Relevant Law:

Article 101 TFEU

Core Takeaway:

“By object” must be interpreted restrictively; it requires a sufficient degree of harm to competition.

Servizio (C-68/12) week 2

Overall Topic:

Abuse and consumer harm

Relevant Law:

Article 102 TFEU

Core Takeaway:

Article 102 protects both direct and indirect consumer harm; structure and performance both matter.

Intel week 2

Overall Topic:

Loyalty rebates and foreclosure

Relevant Law:

Article 102 TFEU

Core Takeaway:

- Exclusivity rebates can be abusive if capable of foreclosing equally efficient competitors;

- Afterwards the Intel ruling, an effects-based analysis was required.

Microsoft (week 2)

Overall Topic:

Refusal to supply interoperability + tying

Relevant Law:

Article 102 TFEU

Core Takeaway:

- Refusal to supply indispensable interoperability info can be abusive if Bronner conditions met;

- tying can foreclose competition in adjacent markets.

Google Shopping (google shopping)

Overall Topic:

Self-preferencing

Relevant Law:

Article 102 TFEU

Core Takeaway:

- Self-preferencing by a dominant platform may constitute abuse without applying a strict Bronner indispensability test.

-Favoring + Demonting: This is a new form of abuse, not a classic refusal or exclusive dealing case. It reflects a modern, platform-based form of abuse.

a. Based on levaraging market power → The dominant firm uses its power in one market (general search) to strengthen its position in another (comparison shopping). T

b. Discrimination (see Art. 102(c) TFEU

-The Court clarified that the relevant “essential facility” was not a specific feature (such as a shopping box), but the entire search results page. Because general search is a crucial gateway to users, equal access to visibility within those results is essential for effective competition

-The combination of favoring oneself and demoting rivals created a foreclosure effect capable of distorting competition and reinforcing dominance.

Self-prefering is now also prohibited by the DMA

Self-prefering is now also prohibited by the DMA and remember Google is a gatekeeper! (it is no longer needed to prove that Google is dominant bc he is a gatekeeper)

Article 6(5) DMA: 

“The gatekeeper shall not treat more favourably, in ranking and related indexing and crawling, services and products offered by the gatekeeper itself than similar services or products of a third party. The gatekeeper shall apply transparent, fair and non-discriminatory conditions to such ranking”.

Google Android (week 2)

Overall Topic:

Tying and ecosystem leveraging

Relevant Law:

Article 102 TFEU

Core Takeaway:

- Bundling Google Search/Chrome with Play Store can constitute abusive tying reinforcing dominance.

Epic v. Apple (US) (week 2;4)

Overall topic:

App Store restrictions; anti-steering

Relevant law:

Sherman Act §2 (US)

Facts

Epic Games sued Apple in the U.S. to challenge App Store restrictions on distribution and payments, seeking to open its own iOS game store

Core takeaway:

- US court found no monopoly under defined market;

- anti-steering unlawful under state law, not federal antitrust.

ACM v. Apple (NL/EU) (week 2;4)

Overall topic:

Anti-steering; app store dominance

Facts:

- The ACM (Netherlands Authority for Consumers and Markets) represented dating-app providers seeking to use alternative payment systems.

-ACM: Established Apple has a dominant position in the market for dating-app store services on iOS in the Netherlands. It ruled Apple's payment and anti-steering rules were unreasonable conditions and an abuse of that position

Relevant law:

Article 102 TFEU

Dutch competition law

Core takeaway:

Apple abused dominance in iOS app-store services for dating apps by restricting alternative payments.

The ACM focused on a narrow niche (dating apps on iOS) where substitutes are non-existent for developers. T

Bronner (week 2)

Overall topic:

Refusal to supply; essential facilities doctrine

Relevant law:

Article 102 TFEU

Core takeaway:

Duty to deal arises only in exceptional cases: (1) indispensability, (2) elimination of competition, (3) no objective justification

Android Auto (week 2)

Overall topic:

Interoperability refusal by digital platform

Relevant law:

Article 102 TFEU

Facts:

Alphabet (Google) was challenged by the Italian Competition Authority after a complaint by Enel X Italia. Enel X wanted its "JuicePass" app to be interoperable with the Android Auto platform to reach electric vehicle users.

Core takeaway:

In open digital platforms, refusal to ensure interoperability --> may be abusive even without strict Bronner indispensability.

Pierre Fabre (week 2)

Overall topic:

Total ban on online sales

Relevant law:

Article 101 TFEU

Core takeaway:

Blanket online sales ban = restriction by object; luxury image alone cannot justify it.

Coty

Overall topic:

Marketplace ban in selective distribution

Relevant law:

Article 101 TFEU

Core takeaway:

Platform bans may be lawful if proportionate, non-discriminatory, and aimed at preserving luxury image.

Microsoft (Week 3)

Overall topic:

2 different abuses:

1) Refusal to supply interoperability information

2) Tying of Windows Media Player to the Windows of a Client of PC

Relevant law:

Article 102 TFEU

Core takeaway:

A dominant undertaking infringes Art. 102TFEU when:

In exceptional circumstances, it refuses to supply or license

1) indispensable interoperability information (including IP-protected information) and

2) that refusal is likely to eliminate effective competition on a neighbouring market,

3)hinders technical development to the detriment of consumers and

4) is not objectively justified.

The court confirmed:

1. A refusal to license IP may be abusive where the input is indispensable for competitors to operate on a related market.

2. The commission need not wait for total foreclosure if the conduct is likely to eliminate effective competition.

-----

Facts:

- the EU Commission found Microsoft dominant in the worldwide market for client PC operating systems + work group server operating systems.

-It had very high high market shares and strong indirect entwork effects.

-2 different abuses: Predatory pricing + tying

Microsoft case (week 3; part 2)

Legal reasoning:

1) Refusal to supply: In exceptional circumstances, a dominant undertaking may be required to license or disclose inofrmation protected by intellectual property rights IF 4 criteria are met (developed in Magill and IMS Health:

1) The resource is indispensable-->the interoperability information was indispensable for comeptitiors to remain viable in the work group server market.

2) The refusal risks to eliminate effective competition --> particularly given strong network effects

3) The refusal prevents a new product from being developed (it does not necessarilymean a wholly new product from scratch,it covers technological development) --> the refusal prvents technological development to the detriment of consumers

4) No Objective justification --> While justifications are normally accepted, here there should be no justification permitted in order to fulfill all criteria. Microsoft failed to demonstrate objective justification despite its claims on incentives to innovation.

The ECJ allowed the EU Com to intervene before competition was completed (art. 102 aims at preserving existing competition).

2) Tying: The court upheld abusive tying because

- The Client's PC's operating systems and Media Player were two different separate products--> because there was independent consumer demand for media players

-Microsoft was dominant in the tyhping market

-Consumers were forced to obtain the Media Player system with their PC Media Player

-The tying practice foreclose competition in the media player market --> because Windowns was ubiquous and reinforced indirect network effects

Efficiencies justifications were rejected as insufficient

Microsoft case (part 2): REFUSAL TO DEAL

REFUSAL TO DEAL

Microsoft refused to supply interoperability information

(protocol specifications) needed for competitors’ work

group server operating systems to interoperate with

Windows PCs and servers.

KEY:

1) The Commission treated this as an exceptional refusal to supply under Article 102.

2) The Court applied a Bronner-style indispensability analysis, but in a softened form.

Why it counts as refusal to deal → The input (interoperability information) was:

1. Controlled by Microsoft

2. Indispensable to compete

3. Not protected as an absolute IP right in this context.

4. Risked eliminating effective competition in the downstream server market.

ISU (International Skating Union)

Overall Topic:

-Platform exclusion; -eligibility rules

Relevant Law:

- Article 101 TFEU

Core Takeaway:

Eligibility rules excluding rival events restrict competition; dominant platforms must provide objective, transparent procedures (FRAND logic).

Ohio v. American Express (US)

Overall Topic:

Two-sided platforms; anti-steering

Relevant Law:

US antitrust law

Core Takeaway

Plaintiffs must prove net harm across both sides of the platform; holistic rule-of-reason analys

Booking.com (Parity Clauses cases)

Overall Topic:

-Most Favoured Nation (MFN) / price parity

Relevant Law:

Article 101 TFEU

Core Takeaway

Wide parity clauses raise entry barriers and can foreclose rival platforms by preventing price differentiation.

Types of Abuse

Abuses

1) Predatory pricing (Tetra Pak II)

2) Monopoly prices (United Brands)

3) Price discrimination

4) Margin squeezing 

5) Refusal to supply (Bronner, Microsot)

6) Tying/bundling (Microsoft)

7) Exclusivity contracts (Google Android) 

8) Rebates (Intel)

+In the Digital Market also:

9) Self-preferencing (Google Shopping)

10) Excessive data collection (Meta v. Bundeskartellamt)

(Tetra Park II)

KEY

-Predatory pricing

-A dominant companies can foreclose the market! Recoupment is likely, but does not need to be proven

What is abuse?

Hoffman-La Roche (still broad and vague)

Para. 6: “The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where as a result of the very presence of the undertaking in question, the degree of competition is weakened and which , through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.”

-Intent is not a requirement

- Restricts normal “competition on the merit” (competition due to better consumer service, lower prices, better quality…)

Assessing refusal to supply

1) Indispensable: determine the nature of the asset

a) Bronner: literal strict interpretation wording "indispensable" /=/ "convenient.

--> apply when access to an existing input or infrastructure.

i. Physical infrastructure (networks, facilities)

ii. Intangible but rival-independent assets (data, distribution systems)

iii. Something the dominant firm already uses internally

iv. Forcing access risks turning Article 102 TFEU into v duty to contract.

b) Android Auto: no literal interpretation, "indispensable" can also mean "convenient".

--> Apply when the refusal concerns interoperability or access within a platform ecosystem.

i.APIs

ii. App compatibility

iii. Platform-controlled technical integration

2) Risk of diminishing effective competition

3) Risk of limiting development of new products/technology

4) No objective justification.

Enshittification (notion)

Enshittification is

--> the notion that describes the deliberate degradation of online platforms because of today's focus on advertisers rather than users (because these are the ones who provide profit to big digital platforms e.g. Google)

In short:

Precondition: product quality on the user side is reduced in order to collect more data and show more ads.

GDPR Article 6

Art. 6 GDPR: Lawfulness of processing

a) consent

b) necessary for performance of the contract

b) compliance with a legal obligation

d) protect vital interests of the data subject/other natural person

e) public interest

f) legitimate interest in accordancew tih the interest and fundamental freedoms of the data subject

Can a commercial interest be legitimate?

Yes, Art. 6(1)(f) accepts a commercial interest as legiitmate interest as confirmed under C-621/22 Koninklijke but it has to be:

1) necessary

2) does nto override the rights and freedoms of the data subjects

Art. 44-50 GDPR

Art. 44-50 GDPR: Transferring data to a third country

Art. 20 GDPR

Art. 20 GDPR: Data portability

-much of an economic and competitive data right

Does any other article talk about data portability?

Yes, art. 6(9) DMA: the gatekeeper shall provide the opportunity for effective Data porrtability at the request of the user.

In regards to Data collection, if it is an essential facility (=dominance), what is the solution in competition law?

The solution could be to share that data collection (interoperability; Microsoft Case).

What is the problem with this comeptition law solution in privacy rights law?

Sharing data collection would infringe several rights under GDPR

Is data pooling (data analysis) by an ecosystem legal under the GDPR=

Yes if there is a legal basis under Art. 6 GDPR or Art. 9 GDPR (explicit consent). Legality depends on:

1. the type of data processed

2. the legal justification relied upon (whether it is consent, legitimate interest...)

What are personal interest profiles?

Personal interest profiles

--> are structured sets of personal data created through the collection and analysis of an individual's behavior preferences,a ctivities and interactions in order to evaluate or predict aspects of that person's interests, habits, or characteristics.

Under which legal basis are those "personal interest profiles" processed?

They are normally processed under Art. 6 GDPR as ordinary personl data (thus, under one of the provisions of Art. 6(1)(a),(b),....

However!!! If the profile reveals, directly or INDIRECTLY, information about protected characteristics (origin, political opinions, relgiious, health data, secual orientation, pthilosophical beliefs) then it falls under ART. 9 GDPR and ONLY explicit consent counts as a legal justification.

Is data pooling for targeted advertising allowed if you have consent?

Yes, however Art. 4(1) GDPR establishes very strict consent requirements:

1) Freey given --> dominant platforms like google, market power can make this freely given notion questionable.

2) Specific --> agreeing to general teams does not automatically allow data pooling.

3) Informed --> users must understand what they are consenting to. (what data, how processed, by whom, what purpose)

4) Unambigious indiciation of the data subject's wishes: clear and affirmative. Default settings do not count.

Recital 42 GDPR

Personal data's role in digital market business models?

1) data monetization --> through targeted adveritising.

2) Network effects of personal --> more data = more value

Both Fines imposed simultaneously?

Yes, but!

1) different type of fines: one is competitive fina and the other privacy rights fine.

2) different legal interest: no ne bis in idem

3) comeptition authorities may not deviate from prior GDPR

Is a violation of GDPR a violation of Comeptition law?

No per se, it is a "vital clue" to finding abuse

Art. 68 GDPR?

Art. 68 GDPR: European Data Protection board (EDPB).

Role: ensure consistent application GDPR.

In cross.border cases: it can issue binding decisions if national authorities disagree

Commission's role? participates and cooperates, has a seat, but does not have voting rights. This means = independencce of the EDPB.

*Commission can issue Adequacy Decisions for non-EU countries.

Art. 5 DMA?

Art. 5 DMA: Obligations to Gatekeepers. It codifies the Meta vs. BKA case.

Art. 5(2) DMA: Prohibits certain data pooling practices without CLEAR user consent (no distinction between art. 6 and 9; same legal basis: explicit consent).

goal: fair, dominant markets and no leverage of user data.

What is a merger?

Merger

--> two (or more) companies joining into one either by

a) mutual contract: both companies combine on equal foot

b) acquisition or buy-out: one company buys another

Is there merger law?

Yes, Council Regulation (EU) No 139/2004. (MR)

- ex ante prevention mechanism.

-The EU has the competence to whether or not allow big mergers to happen.

Test to analyse whether a merger would be impacting effective competition?

Test: 3 steps

Step 1) Concentration --> is there a merger in the legal sense? Check Art. 3(1) and Art. 3(2) MR.

Step 2) Community Dimension (size) --> does the EU have jurisdiction

KEY: Establish whether the EU has JURISDICTION >>

Only big mergers with Community Dimensions (Art. 1 MR). How to know? Check Turnover Thresholds + Exception (national competence when 2/3 same country)

- Extraterritorial effect: Non-EU mergers can be also reviewed by the EU is they sell a lot in EU.

Other ways to establish EU JURISDICTION tests:

a) Art. 4(5) MR: The company requests a review to the Commission.

b) Art. 22(1) MR: The MS requests the Commission.

Step 3) Compatible with the Common Market -->

-Does it significantly impede effective competition? If it does, it is illegal (Art. 2(3) MR)

-Follow structure 102 TFEU (almost):

1) market definition: product and geographic market

2) dominance/market position --> would it strengthen dominance? assess with market share in revenue (*if it is digital market then in volume, in time, network effects)

3) abuse: here this part is about barriers to entry, network effects, alternatives, innovation, switchings costs.

-Distinction: between horizontal vs. non-horizontal mergers

a) horizontal: comepting firms

b) non-horizontal: different markets

-vertical: same chain market

-conglomerate: different markets chains.

-Mergers can create benefits, they are not always "bad". Here the companies will need to prove:

a) efficiencies

b) consumer welfare

c) innovation incentives

d) business stability of the company.

-The commission assess competition with the SIEC test ("Significant Impediment to Effective Competition").

Why does the distinction between non-horizontal and horizontal mergers matter?

The distinction between non-horizontal and horizontal mergers matters because the risk DIFFER:

1) Horizontal mergers: risk of loss of competitors (they were competitiors before)

2a) Non-horizontal Vertical mergers: risk of foreclosure (margin squeezing between supplier, wholesaler....)

2b) Non-horizontal conglomerate: They are chains from from differnt makrets and the risk is bundling or ecosystem.

Each require different analytical frameworks

How can companies avoid prohibition?

1) Efficiency defence

2) Commitments (remedies) (Art. 6(2) MR)

What case is related to mergers and with the digital market landscape?

The 2014 Merger decision Facebook - WhatsApp

Importance of this case

It exemplifies that turnovers may not capture the anti-competitive risks of small start-ups being merged with, because while they have low turnover, they are strategically enormous.

-->

This allows "Killer acquisition" --> large companies may buy startups before they become serious future competitors. THUS, IT IS A VERY ANTI-COMPETITIVE STRATEGY

Is there an obligation to "inform" about mergers to the EU C?

Yes, under Art. 14(1): Obligation to inform about concentration

NB! Informing is not the same as notifying. It is simply altering; it does not trigger merger review.

Can the Commission revoke a merger approval? Is there a provision/legal basis for that?

Yes! Under Art. 8(6) MR: Revoke a merger approval if

a) the decision was made on the basis of incorrect information (WhatsApp-facebook case)

b) the undertaking violates its commitments

Meta v. Bundeskartellamt

Key takeway:

1. A competition authority may treat GDPR violations as a vital clue! to abuse of dominance if they cooperate with data protection authorities (TFEU Principle of Cooperation)

Legal basis:

-Competition EU Law (Art. 102 TFEU)

-GDPR

-German Competition Law

For the exam: mistake by the Commission opinions see end of document

Facebook-WhatsApp Merger Decision

Key takeaway:

-Back in 2014, data combination was not seen as a "significant impediment to effective competition" within the SIEC Test.

-This treated privacy concerns as an outside core competition analysis

Legal basis

Merger Regulation 2004

GDPR

WEEK 6:

What does Stucke & Grunes argue in his "Big Data and Competition Policy" Article:

Stucke & Grunes argues in his "Big Data and Competition Policy" Article that:

-The "Data Arms Race": there is a competitive arms race for data as it has increasingly become a strategic asset for sustaining/maintaing a firm's dominance.

-Overlapping Privacy and Competition Concerns: these are not two separate goals and dominant firms are degradicing privacy quality (enshittification).

-10 Myths about Bid Data and Competition (e.g. 1. they are not related...)

-4 types of network effects

-10 implications of data driven network effects

-Controlling the operating systems (e.g. android or iOS) gives you structural advantages.

-Risk of inadequate merger enforcement.

-The multi-sided market error: agencies often examine ONLY the paid side (e.g. advertising) and ignore the free side.

What are his arguments?

His arguments are that:

Author's argument:

1) Data-driven network effecs can create high entry barriers

2) Dominant firms can leverage (ie. aprovecharse de) scale and scope of data

3) Free services often involve hidden costs via data extraction.

4) Merger control in data-driven markets risks under-enforcement because agencies rely too heavily on price-centric tools and insufficiently consider multi sided and network effects.

Key: Big data changes the structure of competition, especially in multi-sided markets where quality, privacy, and data access (not price) are central competitive parameters.

What are scale and scope of data?

These are defined:

a) Scale of data: How MUCH data

--> the volume, size or magnitude of a dataset.

b) Scope of data: Type

--> the variety or range of data, types included....

What are "spillover effects"

Spillover Effects

--> the impact that a change in the size or activity of one user group (one of the sides of multi-sided markets) has on the value or results of the OTHER side on the same multi-sided market.

What are the risks of ecosystem building?