Competition law and digital ecosystems: Learning to walk before we run

The paper analyzes the challenges faced by competition authorities with respect to the digital sector. Borrowing insights from the business policy literature and from the economic literature, the paper first analyzes the specificities of digital firms (multi-sided platforms and ecosystems) with respect to their development and competitive strategies. Building on this foundation the paper explores some of the challenges of applying traditional competition analysis to competition in the business sector. We then discuss a number of issues relevant to competition law enforcement in the digital sector starting with the role of data, competition within ecosystems and between ecosystems, consumer biases, and the role of gatekeepers. We conclude with a research agenda for economists and competition authorities.

Enhanced Digitalisation and Competition Law Enforcement in Slovakia

Digitalisation is a challenge from the regulatory point of view. Competition law, as a special type of regulation, is no exception to this. The article explores the risks of digitalisation, especially the ones related to the enhanced use of pricing algorithms. In theory, pricing algorithms are not easily assessed from the perspective of competition law, let alone its application in practice. The prohibition of anticompetitive agreements (pursuant to Article 101 of the Treaty on Functioning of the European Union (TFEU)) is applied with certain difficulty to agreements created by using pricing algorithms. This is an unfortunate situation, as horizontal agreements represent one of the worst infringements of EU competition law, including price cartels or bid rigging. Apart from presenting a theoretical background, the article dives into the practice of the Antimonopoly Office of the Slovak Republic (AMO) in order to assess which practical issues the AMO might face when applying the theoretical concepts. In sum, the article asks from a theoretical perspective which issues of competition law have been introduced (or deepened) by the enhanced digitalisation, looking in particular to pricing algorithms. On top of that, the article explores the issues which may be encountered in practice, taking the Slovak jurisdiction as the example. The willingness and feasibility of the AMO to enforce digital issues such as pricing algorithms is assessed based on the previous acts of the AMO as well as the new Act on Protection of Competition, adopted by the Slovak parliament on 11 May 2021.

4. What is the optimal level of enforcement?

‘What is the optimal level of enforcement?’ focuses on competition law enforcement. All competition jurisdictions acknowledge the central and crucial role of economic analysis in shaping competition prosecution. Greater economic understanding has improved the structure of competition law through legal presumptions and thresholds, enforcement guidelines, and a greater understanding of the gravity and consequences of anti-competitive activities. Indeed, there has been an ever-increasing ‘economization’ of antitrust, as more jurisdictions rely on economic analysis to determine whether intervention is needed. When markets work well, competition enforcers are better off adopting a ‘laissez-faire’ approach (leaving the market to take its own course). Distinguishing pro-competitive activities from anti-competitive activities poses a challenge.

Final reflections

‘Final reflections’ explains that as the understanding of markets and economic theory evolves, so does the application of competition law. With changing market and socio-political realities, these challenges become apparent. We need to consider the rise of digital markets and the threat of climate change, and assess the effect they have on the enforcement of competition and antitrust laws. What is the right formulation of competition policy? The key to effective competition law enforcement lies not in the pretence of purity or certainty, but in an open and informed debate on the law and economics, and the society to which we aspire.

Competition and Antitrust Law: A Very Short Introduction

Competition and Antitrust Law: A Very Short Introduction draws on case studies from across the EU and USA to examine the benefits of competition and the laws which safeguard competitive markets. Competitive markets deliver lower prices, better quality, abundance of choice, and increased innovation. But while competition benefits consumers, it can prove challenging for sellers and producers who may try to dampen the competitive process. This VSI elucidates the key challenges to competition — cartels and anti-competitive agreements, monopolies, and mergers — and looks at the policy considerations which affect competition law enforcement. There exists a delicate relationship between a free market economy and government intervention.

Chimera of domestic antitrust: Institute of collective dominance in Russia

The paper defines the features of the collective dominance institute in Russia as well as the relation between collective dominance and oligopoly in the spheres of law and economic theory. The article evaluates the grounds and consequences of the collective dominance legal norm application; it suggests an approach to examining the relation between effects and expected results of this legal norm application and outlines the potential ways to harmonize the best international practices of the collective dominance norm application with the existing economic standards of product market analysis for the purpose of competition law enforcement. Results of the oligopoly theory and the Russian version of collective dominance institution key elements comparison show: the collective dominance institution concept is inadequately applied to identify individual abuse of dominant position due to possible law enforcement errors. The Russian version of collective dominance institution reflects one fundamental tendency intrinsic to Russian antitrust: examined more closely, law enforcement, which is de jure aimed at protecting competition, appears to be economic regulation, which de facto can lead to competition restriction. One of the possible structural alternatives for the collective dominance institution reforming is based on presumption of the need to analyze the joint impact exerted by a group of undertakings on the market.

The Emerging Contribution of Director Disqualification in UK Competition Law

Peter Whelan assesses a developing and increasingly significant enforcement tool in the UK competition authority’s armoury in Chapter 11. In it, Whelan notes that the enforcement of UK competition law is deterrence-focused and comprises both criminal and non-criminal (i.e. civil/administrative) elements. The chapter concentrates on the non-criminal enforcement apparatus that has been developed over the last twenty years. More specifically, it critically evaluates a particular enforcement mechanism that has been gaining increasing importance throughout the recent development of UK competition enforcement practice: the use of director disqualification. It first establishes the normative role of director disqualification in the UK’s armoury of non-criminal antitrust sanctions (i.e. its complementing of the deterrent function of corporate antitrust fines), following which it highlights their potential for performing this role effectively. It then outlines the legal basis for the use of director disqualification within the UK and evaluates the policy and enforcement practice to date with respect to such orders, before proceeding to outline some of the insights that the UK director disqualification regime can provide to other jurisdictions. Ultimately it concludes that, on the basis of the promising, albeit nascent, UK experience to date, director disqualification should be seriously considered by jurisdictions that wish to operate a robust competition law enforcement regime.

Suitability of the Remedy of Divestiture in Non-Merger Cases: A South African Perspective

This article considers the suitability of the remedy of divestiture in non-merger cases, particularly in markets where high concentration levels may embolden incumbents to engage in abusive conduct. The article observes that the prevailing practice in competition-law enforcement is that, while divestiture is an acceptable remedy in merger cases, it is generally eschewed in non-merger cases. The article argues that economic conditions in South Africa provide justification for the use of the divestiture remedy in non-merger cases, particularly in cases of abuse of dominance in concentrated markets. The article observes that there is sufficient legal authority and history supporting the use of the remedy in non-merger cases.

PENEGAKAN HUKUM PERSAINGAN USAHA DI INDONESIA MELALUI HARMONISASI PUBLIC ENFORCEMENT DAN PRIVATE ENFORCEMENT [Competition Law Enforcement in Indonesia through the Harmonization of Public Enforcement and Private Enforcement]

<div class="WordSection1"><p><em>KPPU (Commission for the Supervision of Business Competition) as the authority for business competition law in Indonesia still has many shortcomings. This is related to the KPPU’s failure to accommodate compensation payments to victims of business competition law violations. This can happen because Indonesia has only provided room for public enforcement to be implemented. In public enforcement, compensation payments are not paid directly to consumers who have suffered losses but instead come into the state treasury. This article discusses the compensation mechanism that should be received by victims of competition law violations through private enforcement, which is a mechanism for enforcing competition law by using the regulations of the Competition Law in civil courts to demand compensation. This research was conducted with the aim of creating a healthy business competition climate through the enforcement of private enforcement in Indonesia by implementing harmonization between public and private enforcement. In this article, the Authors used normative juridical method and refers to statutory and comparative approaches. The research method used is juridical normative with a statute approach, a case approach, and a comparative legal approach. The results and conclusions of this study are that the KPPU's failure to provide compensation for compensation to victims of business competition violations encourages the need to implement private enforcement in Indonesia which is harmonized with the previous mechanism, namely public enforcement.</em></p><p><strong>Bahasa Indonesia Abstrak: </strong>KPPU (Komisi Pengawas Persaingan Usaha) sebagai lembaga otoritas dalam hukum persaingan usaha di Indonesia masih memiliki banyak kekurangan. Salah satunya terkait dengan kegagalan KPPU dalam mengakomodir pembayaran ganti rugi kepada korban pelanggaran hukum persaingan usaha. Hal ini dapat terjadi karena selama ini Indonesia hanya memberikan ruang bagi <em>public enforcement</em> untuk diterapkan. Dalam <em>public enforcement</em>, pembayaran ganti rugi tidak dibayarkan langsung kepada konsumen yang dirugikan melainkan masuk ke dalam kas negara. Oleh sebab itu, terdapat sebuah urgensi untuk mengalihfungsikan fungsi kompensasi dari KPPU kepada pelaku usaha melalui <em>private enforcement</em>, yaitu sebuah mekanisme penegakan hukum persaingan usaha dengan menggunakan regulasi UU Persaingan Usaha di peradilan perdata untuk menuntut ganti rugi. Penelitian ini dilakukan dengan tujuan untuk menciptakan iklim persaingan usaha yang sehat melalui ditegakkannya <em>private enforcement</em> di Indonesia dengan menerapkan harmonisasi antara <em>public enforcement</em> dan <em>private enforcement</em>. Metode penelitian yang digunakan, yaitu yuridis normatif dengan pendekatan undang-undang, pendekatan kasus, dan pendekatan komparatif hukum. Hasil dan kesimpulan dari penelitian ini adalah kegagalan KPPU dalam memberikan kompensasi ganti rugi kepada korban pelanggaran persaingan usaha mendorong perlu diterapkannya <em>private enforcement</em> di Indonesia yang diharmonisasikan dengan mekanisme sebelumnya, yaitu <em>public enforcement.</em></p></div>