Publications

At first sight, an approach to EU competition law that is more conscious about data protection as well as greener does not seem to share many traits. However, the insistence of both data and environmental protection on non-economic goals defies some of the more established logic of EU competition law. Against the background of the constitutional standing of data protection and environmental sustainability, Klaudia Majcher and Vicky Robertson analyse the challenges that the digitalisation and greening of the EU economy and society pose for competition law doctrine. It develops a taxonomy based on value alignment, value conflict, and value inclusion to better understand and frame the interaction between public policy goals, such as data protection and environmental sustainability, and competition law. This contribution, now published in the European Law Review, is part of the “Charting a Greener Future for European Competition Law” project funded by the Vienna University of Economics and Business.

Digital platforms are shaping the digital age. Recently, the so-called GAFAM (Google, Apple, Facebook, Amazon and Microsoft) as well as other digital platforms have increasingly become the focus of competition authorities. The market power of the respective digital platform is usually the linchpin of the antitrust assessment. However, it is not easy to grasp the market power of digital platforms with the traditional analytical tools of antitrust law. In this contribution, Vicky Robertson shows which difficulties arise when trying to delineate the relevant market(s) in which digital platforms are active. It also discusses how the constituent element of a dominant position can be applied to digital platforms. As an alternative manifestation of market power, relative market power is then examined, as it can be found in both Austria and Germany – but not at the level of the European. Then, a foray through different European legal systems shows that the concept of market power seems to be subject to change in the digital age: legislators in Europe are currently breaking new ground in order to allow competition law to grasp the manifestations of digital market power by digital platforms. The contribution is in German and can be accessed here (pre-edited), and here (behind a paywall).

In a recent contribution on Austria’s sustainability exemption, Vicky Robertson discusses what led the Austrian legislator to adopt this exemption, and what aspects of it may come into conflict with EU competition law (or not). The edited volume can be accessed here. The pre-edited version can be found on SSRN.

Magali Eben and Vicky Robertson just published their latest contribution on digital market definition in the Journal of Competition Law & Economics (2022). Market definition is a core concept of competition law around the globe, including in the European Union, the United States, and Brazil. In all three jurisdictions, antitrust authorities are grappling with the challenges of digital markets, often dealing with the very same digital players. The provision of zero-price services, the multisided nature of many digital platforms, and the implementation of entire digital ecosystems all challenge traditional approaches to market definition. But where there are common problems, there is a potential for common solutions. Through a comparative analysis of decisional practice relating to these past, present, and future challenges of digital market definition, this contribution maps the common ground already achieved while highlighting remaining gaps and possible solutions: for zero-price services—the past—it shows how a consensus has emerged on the theory and possible tools to define markets for ‘free’ services. On multisided platforms—the present—it finds that no such consensus has been reached yet, but strides are currently being made in developing an overall framework. And on digital ecosystems, it analyses how this challenge of the future requires the development of a coherent approach that can be based on cross-jurisdictional insights from the past and present.

You can access the full article here: https://doi.org/10.1093/joclec/nhab018

The volume “Contributions to Comparative Law and Europe”, a book co-edited by Vicky Robertson, was just published. It contains Klara Kastner’s analysis of the data-related assessment of non-horizontal mergers in the digital sphere. The volume is the first yearbook of the Linda Rauter Prize. Together with Walter Doralt, Thomas Garber and Matthias Wendland, Vicky Robertson sits on the committee of the Prize. The volume can be accessed here.