In her new chapter (see SSRN here) forthcoming in the ‘Research Handbook on Competition and Technology’ edited by Pier Luigi Parcu, Maria Alessandra Rossi and Marco Botta (Edward Elgar Publishing 2024), Klaudia Majcher discusses the interactions between EU competition law and data protection in digital markets. The chapter focuses on two areas of competition law, namely abuse of a dominant position and merger control, and explores how to make them more coherent with data protection. Parts of the chapter are based on Klaudia’s new book on the same topic.
Theories of Harm in Digital Mergers
In her recent contribution, published in the European Competition Journal, Vicky Robertson discusses adapting theories of harm in digital merger control. Based on her 2022 Report to the European Commission and her 2023 background paper for the OECD, Vicky shows trends and discusses challenges in the application of traditional theories of harm to digital merger cases based on an empirical survey of 97 national merger cases in the EU Member States and the United Kingdom.
Strategic Foresight and EU Competition Law
To shape tomorrow’s markets in line with the Treaties’ objectives, EU competition law needs new methodological tools. Could strategic foresight be one of them? In a new working paper, Klaudia Majcher and Vicky Robertson explore how competition law could rely on strategic foresight as a tool for anticipating and navigating change, particularly where predictive assessments are involved or when it comes to prioritisation. But what are the opportunities and challenges of using strategic foresight in competition law? Find out here.
State Aid and Covid-19
The second part of Petar Petrov’s article on state aid and COVID-19 in the air transport sector (in German) was published in issue 4 of Zeitschrift für Beihilferecht (BRZ). This article focuses on the impact of COVID-19 on air carriers and on the latest developments in the field of state aid in this sector.
Five Questions for Natalie Harsdorf-Borsch
For the newest edition of the Journal of German and European Competition Law (Wirtschaft und Wettbewerb – WuW), Vicky Robertson posed five questions to Natalie Harsdorf-Borsch, the new Director General of the Austrian Federal Competition Authority. Among others, they discussed her vision for the authority, international cooperation in antitrust and the continued need for female networks in competition law. To read the interview (in German), click here.
Cartel Detection Reloaded
Data-driven methods, such as cartel screenings, offer competition authorities new and versatile tools for detecting competition law infringements. To achieve actual practical relevance, however, it is necessary that the outputs of such screenings satisfy certain evidentiary standards. In an analysis carried out within the realm of the DataComp project, Franziska Guggi and Vicky Robertson shed light on this question from perspective of Austrian competition law proceedings. They argue that cartel screenings can be applied throughout different stages of the proceedings: initiating investigations by the Federal Competition Authority, producing reasonable suspicion for conducting a dawn raid, and, last but not least, serving as a basis for the Cartel Court’s decision. To ensure that data is reliable, companies may also be requested to share their internal data. For now, cartel screenings cannot come up with bullet-proof evidence for competition law infringements. It is therefore necessary to keep in mind that an alternative explanation for the screening result is always possible. Last but not least, they stress the importance of explainable AI for competition law proceedings. The paper was published in the latest volume of the Austrian commercial law journal ecolex and can be accessed here.
Source: https://legacy-rdb.manz.at/document/rdb.tso.LIecolex20231136
Insights into the Vienna Competition Law Days 2023
In the current issue of the Austrian Competition Journal (Österreichische Zeitschrift für Kartellrecht), Fabian Ziermann takes a look back at the Vienna Competition Law Days 2023, which The Hub hosted at the Vienna University of Economics and Business on 11 and 12 September 2023. He gives an overview of the workshop’s four panels and the ensuing discussions, as well as of Klaudia Majcher’s book launch. The article, in German, is available here.
Algorithmic Pricing and Competition Law
In the age of big data, sellers can amass a considerable amount of up-to-date information about their customers that algorithms can then use in order to engage in personalised pricing practices at a large scale. Vicky Robertson’s contribution, just published in the international collaborative book entitled Women in Antitrust: Antitrust Across the Borders, assesses algorithmic pricing from a competition law perspective, addressing several questions: The prospect of an increased personalisation of prices may lead to a gradual disappearance of uniform market prices, which have been at the centre of economics-based competition law for many years. This could call into question many of the general tools of competition analysis. Furthermore, the question poses itself to what extent algorithmic personalised pricing could constitute an anti-competitive practice that can and should be challenged under current competition laws. While some theories of harm, like discrimination and excessive prices, are possible candidates when analysing the applicability of well-known abuses to algorithmic personalised pricing, consumer trust in digitalisation and markets may warrant the elaboration of a theory of harm specifically tailored to algorithmic personalised pricing. In addition, the question poses itself whether the particular harm that algorithmic personalised pricing can inflict should be considered in more tailored regulation. While this contribution’s focus is on EU competition law, similar principles can guide the discussion in other jurisdictions. The contribution can be read in open access here.
Computational Antitrust Tools to Detect RPM
Computational antitrust tools can help competition authorities in the detection of antitrust infringements. However, these tools require the availability of suitable data sets in order to produce reliable results. In their proof-of-concept study carried out within the realm of the DataComp project, Jan Amthauer, Jürgen Fleiß, Franziska Guggi and Vicky Robertson focus on the area of resale price maintenance. By applying web scraping to price data for washing machines in Austria from a publicly accessible price comparison website, they compiled a comprehensive data set for a period of nearly three months. Visualised with the help of interactive dashboards, this data could then be analysed using various benchmarks in order to determine whether individual washing machine manufacturers and their retailers may be engaging in resale price maintenance. They conclude that the availability of data is a strong driver for research into and the application of computational antitrust tools. If market data were publicly accessible and provided in a more structured format, researchers and competition enforcers could develop ever-more refined computational antitrust applications that would, ultimately, safeguard competition in markets. The paper was just published in the Computer Law & Security Review and is available in open access here.
State Aid and Covid 19
Petar Petrov's article on state aid and COVID-19 in the air transport sector (in German) was published in the Zeitschrift für Beihilferecht (BRZ). The article focuses on the impact of COVID-19 on air carriers and on the latest developments in the field of state aid in this sector. It can be accessed here.
Coherence between Data Protection and Competition Law
In digital markets, data protection and competition law affect each other in diverse and intricate ways. Their entanglement has triggered a global debate on how these two areas of law should interact to effectively address new harms and ensure that the digital economy flourishes. In her new book ‘Coherence between Data Protection and Competition Law in Digital Markets’ (OUP 2023), Klaudia Majcher offers a blueprint for bridging the disconnect between data protection and competition law in digital markets. The ideas that Klaudia puts forward for a more synergetic integration of data protection and competition law are anchored in the concept of 'sectional coherence'. This new coherence-centred paradigm reimagines the interpretation and enforcement of data protection and competition law as mutually cognizant and reciprocal, allowing readers to explore, in an innovative way, the interface between these legal fields and identify positive interactions, instead of merely addressing inconsistencies and tensions. The book can be obtained here.
The Future of Digital Mergers Post-DMA
The Digital Markets Act (DMA) wants to ensure contestable and fair digital markets. In addition to its principal obligations, the DMA requires digital gatekeepers to inform the European Commission of any prospective merger (Article 14 DMA). Together with the Dutch clause contained in the EU Merger Regulation (Article 22 EUMR), this obligation will impact the future of digital merger control as the Commission will forward gatekeepers’ merger information to national competition authorities, which can then make use of the referral mechanism under the Dutch clause to enable the Commission to investigate the digital merger.
Vicky Robertson’s article on the issue was just published in the European Competition Law Review, and is freely available here with kind permission of the publisher: