Dynamic Markets, Dynamic Competition and Dynamic Enforcement
The impact of the digital revolution and globalisation on competition law enforcement in Europe
Damien Gerard
Eric Morgan de Rivery
Bernd Meyring
bruylant
Foreword11
Restoring confidence in a world in flux : the contribution of competition policy and enforcement19
By Johannes Laitenberger
Part 1
Dynamic markets and dynamic competition
Competition, innovation and competition law : dissecting the interplay33
By Wolfgang Kerber
I. Competition and innovation : a difficult and complex relationship35
A. The problem of static concepts in competition law and economics35
B. Competition and innovation : what do we know ?38
C. Consequences for the application of competition law44
II. Towards more innovation-specific assessment approaches in competition law45
A. Market definition and the problem of the identification of the relevant innovation competitions46
B. Looking at resources as preconditions for innovation : a suggestion49
The economics of dynamic markets : a focus on merger control63
By Pascale Dechamps and Ilaria Fanton
I. Innovation and competition in economic theory65
A. What differentiates static and dynamic efficiencies ?65
B. What is the link between innovation and competition in general ?67
C. What are the implications for competition law enforcement ?69
II. The framework for merger assessment in dynamic markets70
A. How to identify the relevant mergers for merger control ?70
B. How to define markets in innovative or dynamic sectors ?71
C. What are the tools for assessing mergers in dynamic markets ?72
D. How to address findings of anticompetitive effects in dynamic markets ?74
III. Lessons from recent merger assessment in dynamic markets75
A. How is innovation taken into account when mergers take place in traditional (but innovative) markets ?75
B. How is innovation taken into account when mergers take place in digital markets ?77
The emerging high court jurisprudence on the antitrust analysis of multisided platforms81
By David S. Evans
I. What makes matchmakers different ?82
II. High Court decisions on platforms85
A. American Express85
B. Groupement des Cartes Bancaires87
C. Mastercard89
D. Google Maps91
E. Tencent92
Big data and market power97
By Alexandre de Streel
I. The Big Data value chain97
A. Data collection98
B. Data storage and cloud compunting99
C. Data analytics and use100
D. The broader context101
II. Dataset and market power102
A. Data collection102
1. Costs of collecting data102
2. Antitrust assessment of data availability and replicability103
B. Data analysis105
1. Volume of data : the economies of scale105
2. Variety of data : the economies of scope106
3. Depreciation value of data and velocity of the analysis107
4. Artificial intelligence108
C. Relationships between data collection and analysis108
III. Recommendations for competition agencies111
Twenty years of competition law enforcement in digital markets : a prospective retrospective113
By Cecilio Madero
Part 2
Dynamic markets and dynamic enforcement
From dynamic markets to dynamic enforcement : the ubiquity and limits of competition policy in a world in flux121
By Pablo Ibanez-Colomo
I. The supply of competition law intervention : evolution and trends124
A. Innovation-intensive industries as a policy priority124
B. The evolving relationship between competition law and intellectual property127
1. Deference to intellectual property regimes as the rule127
2. The progressive move away from deference129
C. The rise of innovation considerations131
D. The revival of excessive pricing133
II. Explaining the expasion of competition law intervention135
A. Substantive factors135
1. Nature of innovation-intensive industries135
2. The disruptive effects of innovation137
3. Limits of regulatory regimes139
B. Institutional factors140
1. Frequency of litigation140
2. The nature of litigation142
3. The rise of a global market for ideas144
III. What limits to competition law intervention ?145
A. The importance of the counterfactual146
B. A cautious approach to business models148
C. The importance of foreclosure in vertical and conglomerate settings150
D. Competition law and consensus positions152
The effectiveness of dynamic enforcement
Eu cartel settlement procedure in its 10th year : experience and challenges157
By Kris Dekeyser and Jindrich Kloub
I. Brief overview of the cartel settlement procedure158
II. Full/hybrid settlements (parallel and staggered)162
III. Challenging a settlement decision before the CJEU166
Settlement 2.0 : testing the limits of dynamic enforcement ?171
By Rafique Bachour and Joanna Kay
I. The rationale of the EU settlement procedure for cartels171
II. The settlement procedure in practice : a dynamic enforcement tool ?172
A. An innovative and flexible tool172
B. Remaining challenges and potential abuses174
1. Hybrid cases174
2. Appeals177
3. Damage claims178
III. Settlement 2.0 : rewarding cooperation in other antitrust fields179
A. Experience at EU leval179
B. Settlements in antitrust cases at national level183
1. Belgium183
2. France183
3. Germany184
C. Is settlement a suitable tool for other practices ?184
To commit or not to commit : does the EU article 9 commitment procedure achieve optimal outcomes ?187
By Peter D. Camesasca and Laurie-Anne Grelier
I. The original script : commitments as a supporting enforcement role189
II. The success story : a popularity beyond expectations191
A. In terms of the range of matters addressed192
B. In terms of the expected efficiencies192
III. The sidelines : the EU commitment process hostage of its success ?194
A. Some potentiel for regulatory instrumentalization195
B. Some potential for instrumentalization to serve private interests197
IV. The epilogue : does the Article 9 route need to revise its act ?198
Dynamic enforcement and due process
On due process and judicial review : a primer205
By Carl baudenbacher
Due process in dynamic enforcement : the role of third parties in dynamic cases209
By Ief Daems
I. Role of third parties in terms of information gathering210
II. Role of third parties in settlement and commitment procedures212
III. Role of third parties in policy making213
IV. Role of third parties in courts214
Dynamic enforcement and the role of the judiciary
Judicial review : which standards to control dynamic enforcement outcomes217
By Jérémie Jourdan
I. Judicial review of decisions finding an infringement and imposing fines218
A. The central role of judicial review in the EU system of antitrust enforcement218
B. The applicable standard of judicial review in the EU220
1. Review of legality221
(i) The standard of review
221
(ii) Legality review in practice
226
2. Unlimited jurisdiction with respect to fines235
(i) The standard of review
235
(ii) Unlimited jurisdiction in practice
237
(iii) Fine reductions granted by the GC
239
II. Review of settlement decisions240
A. Standard of review240
B. Past cases241
III. Review of commitment decisions243
A. Standard of review244
B. Interests of third parties247
IV. Ongoing challenges248
A. Procedural issues249
B. Speed of judicial review250
C. Scarcity of judicial review252
Optimal competition policy for a dynamic world : the perspective of the judiciary257
By Marc Jaeger
I. Dynamic markets : a challenge for the « Review » ?257
A. The case-law and its value as « precedent » called into question ?258
1. Different facts, different law258
2. Case-law as guidelines259
B. Legal certainty ensured by the standard of review260
1. Adaptability given by the control of legality260
2. Flexibility under unlimited jurisdiction261
II. Dynamic enforcement : a challenge for the « Reviewer » ?262
A. Witnesses of the end of a world262
B. A new era has begun263