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1 year ago

GLOBAL ANTITRUST REVIEW

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130 Whereas

130 Whereas abovementioned figures demonstrate that the Commission did not enforce excessively Article 102 TFEU in the digital economy, this simplistic view does not reflect the whole reality, since it does, for instance, not include deterrent effects of the Commission's enforcement activities. According to a recent survey, 12 potential abuse of dominance infringements are deterred by one case pursued. 41 Therefore, the effectivity of the enforcement of the Commission must not only be measured based on the cases that are brought forward, but has rather to take into account the deterrent effect of the Commission's enforcement as well as its monitoring activities conducted without formal investigations. 42 As can be seen from recent investigations, the Commission is pursuing abuse of dominance cases in the digital economy and it is to welcome that the Commission's approach to intervention in the digital economy focusses on appropriateness rather than rash decisions, as Margrethe Vestager rightly pointed out regarding enforcement in the digital economy: "Of course it is better to be fast than slow but it's even better to be just". 43 Furthermore, even though an abusive conduct by a digital champion may raise issues in other areas of law, such as copyright, privacy or consumer protection law, competition law enforcers need to abstain from taking other than competition law considerations into account. This was also stated by the Commission in Facebook's acquisition of Whatsapp, where it held that whereas potential privacy-related issues stemming from the concentration of data within the control of Facebook were detected, those were not taken into consideration due to their non-competition related nature. 44 Generally, any accessed on 27 July 2016. 41 Fabienne Ilzkovitz and Adriaan Dierx, 'Ex-post economic evaluation of competition policy enforcement: A review of the literature' 17 (DG Competition, June 2015) accessed on 27 July 2016. 42 Kadar (n 2) 11. 43 Nicholas Hirst, 'Google's winning card against Europe: time' Politico (25 April 2016) accessed on 27 July 2016. 44 Commission, 'Mergers: Commission approves acquisition of WhatsApp by Facebook' Press release of 3 October 2014 (MEX/14/1003) accessed on 27 July 2016.

131 regulation by other areas of law in digital markets has to be kept completely separate from intervention by the Commission. 45 Even in the enforcement of competition law, an ex-ante regulation was demanded (notably by Germany and France) in order to grant access to an 'essential digital platform' where significant market power on digital markets may not be contestable. 46 In order to allow competition on the merits, it was suggested that dominant undertakings in digital markets shall be obliged to present competing offers free of charge, to grant non-discriminatory access to the content provided by the platform and to allow users to run apps and services on essential platforms as well as to introduce and vigilantly monitor the principle of 'platform neutrality'. 47 However, intervention by competition authorities in the competitive process shall generally be kept to a minimum. Thus, it is highly questionable whether the claim for an ex-ante regulation for essential digital platforms is required and appropriate. Particularly when the conduct can effectively be dealt with under the current legal framework of Article 102 TFEU. Intervention in digital markets by way of ex-ante regulation already reaches its limits at the attempt of defining a digital market. Whereas many digital markets have abovementioned characteristics, there is no single business model for digital platforms. 48 Thus, a 'one-size-fits-all' blanket approach which would be administrable does not seem workable. The peculiarities of digital markets further negatively affect the introduction of a regulatory framework. In contrast to traditional industries subject to access regulation, such as telecoms or energy, the digital economy is subject to rapid change and innovation. The time-consuming administrative burden resulting from 45 Speech by Johannes Laitenberger, 'The Digital Single Market, consumers and EU competition policy' (Competition and Consumer Day, Luxembourg Presidency event on 21 September 2015) accessed on 27 July 2016. 46 Letter from Sigmar Gabriel, Thomas Maiziére, Heiko Maas and Alexander Dobrindt to Andrus Ansip, Günther Oettinger, Vĕra Jourová and Margrethe Vestager (Berlin, November 2014) 5 accessed on 27 July 2016. 47 Ibid 6; Letter from Sigmar Gabriel and Emmanuel Macron to Andrus Ansip (28 April 2015) 2 accessed on 27 July 2016. 48 Speech by Laitenberger (n 46) 5.

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