The Strengthening Liaison between Data Protection, Antitrust and Consumer Law in the German and Italian Big Data-Driven Economies

Nowadays, personal data represent a strategic asset for companies as they can significantly influence their market position. Indeed, the issues arising from the management of large amounts of data (so-called big data) are not only relevant for data protection authorities, since this practice has also induced the intervention of competition and consumer protection authorities. The digital economy has enhanced new forms of abuses of dominant position and unfair practices, which can be performed via the handling of big data. This paper starts by analysing the German antitrust authority vs Facebook decision in which the big-tech platform was sanctioned for having performed an exploitative abuse of dominant position through its data management strategy. Then, it focuses on the Italian antitrust authority vs WhatsApp decision, where WhatsApp was deemed responsible for unfair and aggressive practices aimed at extracting users’ consent for data-sharing purposes. These two remarkable cases will be compared and further discussed, outlining the need to rethink the strengthening interplay between data protection, competition and consumer law, as it will entail a closer contact of the respective authorities to ensure the sustainability of digital markets.

Review of judicial cases involving the competition authority

Analysis of the legal positions of arbitration courts in cases of violation of antitrust laws in terms of consideration of issues: exceptions to the patent monopoly, approaches to proving anticompetitive agreements, establishing the fact of being under the control of a foreign investor, abuse of dominant position, bringing to administrative responsibility in the absence of representatives of the person involved. Target: developing uniform approaches in law enforcement practice in cases of violation of antitrust laws.

Excessive Pharmaceutical Pricing as an Abuse of Dominant Position – The Case of CD Pharma (Denmark)

On 31 January 2018, the Danish Competition and Consumer Authority adopted a decision1 finding the Swedish company generic distributor CD Pharma in breach of Art. 102(a) Treaty on the Functioning of the European Union (TFEU) by abusing its dominant position and having imposed excessive and unfair prices for the drug Syntocinon. The company increased the price of the drug by 2000% in the period April-October 2014 in the Danish pharmaceutical market. CD Pharma appealed to the Danish Competition Appeals Board,2 which on 29 November 2018 upheld the decision by the Authority. On subsequent appeal to the Danish Maritime and Commercial Court,3 the judgment by the previous court was upheld in a 3-2 decision on 2 March 2020, thus finding CD Pharma liable for infringement of Danish competition law as well as Art. 102(a) TFEU. The decision is final and not subject to further appeal. The case raises outstanding legal-economic issues regarding excessive pricing such as relevant market definition in pharmaceutical cases, the length of abuse, competitive price benchmarks, definition of economic value and the matter of dominance in public procurement and tenders. The case is rather unusual in that the alleged abusive period amounted to a six-month period, CD Pharma was the ‘losing’ party in the bidding process for the supply of the medicine in question, and CD Pharma subsequently had reduced prices through negotiations with the Danish central medicine procurer, Amgros. Similar to the Aspen Pharma decision4 by the Italian Competition Authority, where the Italian Medicine Agency (AIFA) reported the case to the Competition Authority, it was the Danish medicine procurer Amgros who had notified the Danish Competition and Consumer Authority about allegedly abusive practices. This subsequently led to an investigation and the adoption of the Decision. Following an introduction describing the Danish pharmaceutical market and specifics of the case, section two of this contribution details the proceedings at Danish Competition Authority. Section three depicts the proceedings at Competition Appeals Tribunal, and section four deals with the proceedings at the Maritime and Commercial Court. Section five concludes.

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.

Alignment with EU Regulations in the Field of the Competition Policy and System of State Aid in Western Balkan Countries

The underying idea behand the foundation of the European Union is a single, integrated and competitive market. The future of the entire Western Balkans region (Albania, Bosnia and Herzegovina, Kosovo*, Montenegro, North Macedonia and Serbia) lies within the European Union. The main purpose of this paper is to explore the multiplicative effects of the alignment of European Union regulations with the competition policy in Western Balkan countries. In addition, the paper is designed to highlight the specific issues, challenges in this field, and provides an overview of empirical trends. A combination of qualitative and quantitative approach proposes methodological framework which recognizes different economic environments and regulatory frameworks. By comparing selected economic indicators related to competiton authorities (number of staff in the national authorities, annual budget of the national authorities, number of prohibited agreements, abuse of dominant position, notification of concentrations, opinions), the authors give a reliable basis for comparative progress analysis in this filed. Using multi-criteria optimization as a key method, as well as network and input-output display, the obtained results suggest country whose competition authority is efficient frontier. The significance of this research stems from the current debate whether the harmonized competition policy should speed up and facilitate the process of the accession of new member states to the European Union.

Digital markets, competition regimes and models of capitalism: A comparative institutional analysis of European and US responses to Google

The comparative capitalism literature examined how institutions vary on a national or societal level and how these differences affect multinational companies’ strategies. Yet, little attention has been devoted to cross-national or regional differences in the governance of competition, especially in the context of digitalization of markets. The article seeks to fill this gap by looking at the case of Google. It traces the process of the stark US–EU disagreement over Google’s abuse of dominant position in digital markets, which resulted in one of the largest fines in the EU history. It is argued that the variation in the response to the company’s market and nonmarket strategies are traced back to differences between Ordoliberal and Chicago School ideas, which are embedded in the ‘competition regimes’ of European and US capitalist models. The article concludes by discussing the implications of these findings for varieties of capitalism frameworks.

The Use of Blockchain Technology in the Implementation of Monopolistic Activities

The paper analyzes the possibility of using blockchain technology by economic entities in order to violate the norms of competition law, in particular the implementation of monopolistic activities. The author classifies blockchain systems into 4 main groups—public systems, limited access systems, private systems, and consolidated systems. The author considers the main types of monopolistic activity: the abuse of dominant position, coordinated actions of economic entities and anti-competitive agreements. The paper proposes a mechanism for assessing competition in commodity markets to identify the participant occupying a dominant position with due regard to the peculiarities of blockchain technology. The author evaluates some types of abuse of dominant position by using the blockchain technology. It is proposed to divide anti-competitive agreements and coordinated actions into two groups: actions undertaken against blockchain networks and actions undertaken using blockchain networks. The author concludes that the use of the public blockchain system to exchange information by competing business entities under the general rule will not constitute a violation of competition law.