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“Digital Era” Report Bolsters Commissioner Vestager’s Digital Legacy

On April 4, 2019, the European Commission published a report by Jacques Crémer, Yves-Alexandre de Montjoye, and Heike Schweitzer on competition policy for the digital era (the Digital Era Report, or the Report), the culmination of a year-long project initiated by Commissioner Vestager to look systematically at challenges for EU competition policy created by the ongoing digitization of the economy.  As part of this project, the Commission commissioned the report in March 2018, launched a consultation in July 2018 that generated well over 100 responses, and organized a major conference in Brussels in January 2019 (discussed in more detail here).

While not binding on the Commission, the Digital Era Report will likely have a significant impact on EU competition policy.  The Digital Era Report puts the Commission at the head of European authorities considering similar issues, including Germany, the Netherlands and the UK.  In the short time since it was published, Commissioner Vestager has made frequent references to the Report, including in speeches in Bucharest on April 4, Paris on April 8 and Copenhagen on May 10.

Specifically, the Digital Era Report offers new analytical frameworks and concrete proposals targeting some of the hottest issues in antitrust today: the application of EU antitrust rules to online platforms; circumstances under which companies are allowed – or can be forced -- to share data; and how best to review large companies’ acquisitions of much smaller companies where the target’s activities do not directly overlap with the buyer’s (and where notification thresholds may not be reached at all).

This article summarizes the proposals in the Digital Era Report and offers observations on those most likely to lead to changes in EU competition law enforcement in the near to medium term.

Introduction

The Digital Era Report covers a wide range of topics, including such fundamental issues as the continued applicability of the consumer welfare standard as the basis for antitrust law enforcement; the need for major reviews of basic concepts such as market definition and market power; and the need for changes in the “error cost framework,” i.e., whether more aggressive action is justified even if at the risk of over-enforcement.  Most of the discussion, however, concentrates on three more focused topics:  online platforms; big data; and merger review.  Notably, the Digital Era Report omits some important issues, including algorithmic collusion and pricing and procedural issues, such as whether and how the Commission should use interim measures.

The Digital Era Report concludes that, “There is no need to rethink the fundamental goals of competition law in the light of the digital ‘revolution’,” but argues for adapting “its methodologies and analytical tools, economic theories of harm and legal doctrines to . . . take account not only of the development of new entrepreneurial strategies of firms in reaction to the new ways markets function but also in the light of a change in ‘error costs’.  Where particularly strong positions of market power are protected by high and non-transitory barriers to entry, competition policy has reason to err rather on the side of those who propose to challenge such market power and/or to innovate independently.”

Similarly, the Digital Era Report concludes that the consumer welfare standard remains appropriate as the basic standard for drawing lines between legal and illegal conduct, but argues for significant changes in its application.  The Report argues for reversing the burden of proof in applying the standard in certain cases; “even where consumer harm cannot be precisely measured, strategies employed by dominant platforms aimed at reducing the competitive pressure they face should be forbidden in the absence of clearly documented consumer welfare gains.”

The Digital Era Report also argues for a fundamental re-thinking of the concepts of market definition and market power.  “In the digital world,” it argues, “it is less clear that we can identify well-defined markets.  Furthermore, in the case of platforms, [market] interdependence . . . becomes a crucial part of the analysis whereas the role of market definition traditionally has been to isolate problems. Therefore, in digital markets, less emphasis should be put on the market definition part of the analysis, and more importance attributed to the theories of harm and identification of anti-competitive strategies.”  As discussed in more detail below, the Digital Era Report proposes introducing the concept of a digital “ecosystem” as a framework for analysing anti-competitive effects, particularly in relation to after-markets.

The Digital Era Report also argues for a broadening of the concept of market power, noting that there can be market power even in an apparently fragmented marketplace.  The Report notes that market shares are often not a useful concept, particularly in the context of online platforms.  In addition to the traditional statistics-based approach to analysing market power, the Report advocates using the concept of intermediation power in relation to online platforms and the power conferred by the collection of data not available to competitors.

More generally, the Digital Era Report argues for a more aggressive approach to antitrust enforcement in digital markets, noting that, in “a digital world, where the future is more uncertain and less understood, there will be underenforcement if we insist that the harm be identified with a high degree of probability.” The Report further argues that, “The specific characteristics of many digital markets have arguably changed the balance of error cost and implementation costs, such that some modifications of the established tests, including allocation of the burden of proof and definition of the standard of proof, may be called for. In particular, in the context of highly concentrated markets characterised by strong network effects and high barriers to entry (i.e. not easily corrected by markets themselves), one may want to err on the side of disallowing potentially anticompetitive conducts, and impose on the incumbent the burden of proof for showing the pro-competitiveness of its conduct.”

On the other hand, the Digital Era Report did not take up the call for a new general regulatory framework for online markets.  The Report advocates adapting competition policy tools rather than “regulations organising the whole sector—akin to the type of regulation used for traditional utilities.”  The Report nonetheless suggests that new regulation may be appropriate in certain areas, “for example a transparency regime as set out in the draft P2B Regulation. . .[or] subject[ing] platforms to an interoperability regime.” Meanwhile, antitrust authorities are invited to provide more guidance, for instance on the definition of dominance in the digital environment and the duties of conduct for dominant platforms. According to the Report, EU Commission guidelines should be also be updated to include new conglomerate theories of harm, guidelines on data sharing and data pooling, and data access and interoperability requirements.

Online Platforms

The antitrust issues raised by online platforms are a major focus of the Digital Era Report, as well as a key concern for Commissioner Vestager.  On April 8, for example, Vestager noted that “we need to stay vigilant for new ways for those platforms to achieve old goals – like extending their dominance to new markets.”   She has in particular singled out the risk that powerful platforms might try to make it harder for users to multi-home, thereby raising barriers to entry.

The Report takes a relatively broad view of the definition of online platform, rejecting arguments for limiting the discussion to two- or multi-sided platforms.  The Report’s definition of platforms includes networks and goes beyond online intermediation to include desktop, mobile operating systems and browsers, “offline” software, and app stores.

The Report notes that, especially in view of network effects,  there might be room for only a limited number of platforms, especially in the absence of multi-homing, protocol and data interoperability, or differentiation. The Report discusses ways to protect competition both “for the market” and “in the market,” arguing that platforms play a form of regulatory role as they determine the rules according to which their users interact, and, when they are dominant, have a responsibility to ensure that competition on their platforms is fair, unbiased, and pro-user.  More specifically, the Report argues that dominant platforms have a responsibility to ensure that their rules ensure a level playing field. While non-dominant platforms also play a regulatory role, the Report argues, no far-reaching general rules would be needed for such platforms to the extent that they are disciplined by competition.

The Digital Era Report discusses several specific issues in the online platform context, including so-called “most favoured nation” (MFN) clauses, multi-homing, interoperability, transparency, leveraging and “self-preferencing”:

  • MFNs.  The Report acknowledges the possible pro-competitive benefits of MFNs but argues for strict scrutiny of such clauses because of their potential to protect platforms’ incumbency advantages.  In markets where there is sufficiently vigorous competition between platforms, “wide MFNs” that prevent sellers on a platform from price differentiating between platforms should be prohibited, while “narrow MFNs” preventing sellers from offering lower prices on their own websites should be allowed. Where competition between platforms is weak, however, the Report argues that both forms of MFN should be prohibited.
  • Multi-homing.  The Digital Era Report also takes a nuanced approach to multi-homing.  In general, the Report argues that any measure by which a dominant firm restricts multi-homing, including technical means and commercial practices such as fidelity rebates and bundling, should be suspect and such firms should bear the burden of providing a solid efficiency defence. On the other hand, the effects of multi-homing can be different when competition is “in the market” rather than “for the market,” and multi-homing between large platforms could actually limit competition.
  • Interoperability.  The Digital Era Report distinguishes between three types of interoperability: protocol interoperability, data interoperability, and full protocol interoperability.  Protocol interoperability, which allows for the development of complementary services and competition on the merits, may require the development of standards, but such standards could hinder innovation if defined too strictly or too early.  Data interoperability allows for complementary services to be developed in a larger range of cases than protocol interoperability.  On the other hand, data interoperability can also limit incentives for new forms of data collection. Full protocol interoperability would involve imposition of interoperability requirements to give direct competitors access to positive network effects stemming from the large user base of one platform extend to other platforms, but the need for strong standardisation with full protocol interoperability could significantly dampen platforms’ ability to innovate. The Report argues for imposing duties to grant protocol interoperability and (with the concerned users’ consent) data interoperability upon dominant platforms, but urges great caution in imposing a duty to grant full protocol interoperability.
  • Transparency.  The Report argues that transparency can be a competition policy issue, because a lack of transparency presumably distorts competition. Platforms’ actions to prevent research, from technical measures purposely designed to prevent transparency to legal measures such as making studies contractually inadmissible, should be viewed with great suspicion.   The Report concludes that the impact of platforms on society requires more transparency vis-à-vis civil society and that public authorities should find ways to ensure a sufficient understanding of how platforms work, potentially including full access to data and algorithms in the context of competition law cases.
  • Leveraging.  The Report argues that large platforms possess strong competitive advantages over new entrants, because of, inter alia, network externalities and privileged access to data, that translate into advantages in related services.  If bundling is efficient thanks to the shared use of data, data interoperability can help to level the playing field. Enforcement should be especially strict where dominant platforms try to use consumers’ data to bundle services and products.
  • Self-preferencing.  According to case law, Article 102 TFEU may prohibit self-preferencing by the owner of an “essential facility,” and even below this threshold where it is not justified by a pro-competitive rationale and is likely to result in a leveraging of market power.  In other words: self-preferencing is not abusive per se, but should be subject to an effects test.  In markets with particularly high barriers to entry and where the platform serves as an intermediation infrastructure of particular relevance, the Report proposes that platforms should bear the burden of proving that self-preferencing has no long-run exclusionary effects on product markets.  Full platform unbundling should not  be the general remedy to a finding of abusive self-preferencing, however, since less restrictive ways to preclude self-preferencing may exist.

Big Data

Unsurprisingly, the Report devotes significant attention to big data.  In her speeches, Commissioner Vestager has stressed concerns around big data, noting on April 4 that, “the huge quantities of information that some big businesses have can give them an edge that smaller rivals can’t match. And the importance of network effects can mean that it’s hard for smaller firms to compete, even with a better product, if they don’t have a critical mass of users.”  She has mused that, “one thing we may need to do, to open up competition, is to require companies to give rivals access to their data”, while acknowledging that “there are some hurdles to overcome” when implementing such a requirement.

The Digital Era Report similarly takes a rather nuanced approach to big data in view of the heterogeneity of data and its uses. The Report notes that, “The significance of data and data access for competition will thus always depend on an analysis of the specificities of a given market, the type of data, and data usage in a given case.”  In relation to proposals to require dominant companies to grant competitors access to data under Article 102 TFEU, the Report stressed the need for care; “it is necessary to distinguish between different forms of data, levels of data access, and data uses.”

Much of the Report’s big-data discussion focuses on conditions in which antitrust law can be used as a tool to require companies to give competitors access to their data, but the Report also discusses new issues raised by companies voluntarily sharing and pooling data.  Without discussing the issue in detail, the Report also notes the need for a new legal regime governing rights in data.  The Report’s approach to big data in these contexts is summarized below.

Mandating data access.  In a long and detailed analysis, the Report examines arguments for and against mandating data access in different contexts, depending on how the data are obtained (whether they are volunteered, observed, or inferred) and how data are used (use of non-anonymous individual-level data, anonymous individual level data, aggregated data, or contextual data).

The Report notes that the “debate is mostly framed as a debate on whether the criteria of the so-called “essential facilities” doctrine (EFD) are met”.  In the data access context, however, the Report argues against application of the EFD and for the application of a broader interest-balancing test.  In particular, the Report argues against application of the requirement that a claimant under the EFD show that it requires access to the essential facility to develop a “new product.”  The goal of the “new product rule” is to preserve a dominant firm’s investment incentives by ensuring a sufficient degree of appropriability of profits for the firm. But the Report argues that in some “access to data” cases, the danger that the firm will lose the incentive to invest in data collection and innovation is lower. Thus, rather than a formal “new product rule,” authorities applying Article 102 TFEU to “access to data” cases should verify that an access mandate will not eliminate the appropriability of benefits resulting from successful investments. According to the Report, this consideration may be especially important outside the platform context.

As under the “standard” EFD, a precondition for data access remedies under Article 102 TFEU should be indispensability.  To determine whether data access is indispensable for Article 102 TFEU purposes, it is important to  distinguish  access to a data set from access to the data in close to real-time where no substitutes exist. The non-substitutability of data may result from the richness (“number of columns”) and size (“number of rows”) of the dataset, in particular where machine-learning algorithms play a role.  The frequency of data generation also needs to be taken into account when discussing data access, both for providing a service to the person who generated the data and for aggregated applications.

The balancing of interests needs to take account both of the need to protect the dominant firm’s investment incentives and the need to ensure that strongly entrenched positions of market power, protected by high barriers of entry, remain contestable. In some settings, such interest-balancing can result in a duty to grant access to data in a form that allows competitors to compete effectively in neighbouring markets, which may include a duty to ensure data interoperability.

The Report outlines several data access “scenarios” to identify situations in which data access mandates would be more or less likely to be appropriate.  Access mandates would more likely be appropriate  where the data controller holds a gatekeeper position (i.e., access to its data is essential for competing on one or more neighbouring markets) or data access requests are somewhat standardised.  Access mandates would be less appropriate where a firm requests data for the purpose of training algorithms for uses unrelated to the fields of activity of the data controller, although even in such case an access mandate could be imposed “where the dominant firm is a large player in data markets and has an infrastructure for data access requests in place.”

In the balancing of interest context, the Report discusses whether the threshold for granting access to data should be lowered as compared to access to infrastructure or access to IPR cases, at least where data is produced as a by-product of another activity and incentives to generate such data will persist irrespective of a possible access mandate, for instance in relation to machine-generated sensor data in the Internet of Things context. While the value of data to a dominant data controller may be taken into account in the original price (and therefore need to be protected under competition law), competition law should not protect an after-market monopoly.

Indeed, the Report supports a more interventionist approach to data access – and possibly data interoperability – for use in complementary markets or after-markets, which are part of the broader “ecosystem” served by the data controller.  The Commission and EU courts have frequently had occasion to address the relevance of secondary markets and after-markets in the Article 102 TFEU context.  But the Report argues that  “some of the specificities of data could imply that the competition policy treatment of access to data should be different from that of standard aftermarkets. . . but there is very little economic analysis of these issues, so [their] conclusions should be considered as very preliminary.”

In the specific case of individual-level data, the Report discusses the implications of the data portability right under the EU’s General Data Protection Regulation (GDPR), but notes that data portability in the GDPR  does not provide a right to continuous data access or interoperability, but simply a right to receive a copy of some accumulated past data. Thus, it may facilitate a data subject’s switching between services but not facilitate multi-homing or the offering of complementary services, which frequently requires continuous and potentially real-time data access.  Accordingly, “more demanding” data access regimes than the GDPR could be mandated under Article 102 TFEU for dominant firms, or through sector-specific regulation in particular to open up secondary markets.  Tension with the GDPR may also arise where an access mandate involves personal data.  The Report notes that the UK and French competition authorities have resolved this tension in past cases by ordering data access on an opt-out basis or permitted access to data only for specified purposes and specified acts of processing.

In summary, the Report concludes that Article 102 TFEU may be used in appropriate cases to give competitors access to data, but only from dominant firms and after a thorough analysis of whether such access is truly indispensable and after weighing the legitimate interests of both parties.  Access to individual-level data to serve a user should only be granted if that user consents, irrespective of whether personal or non-personal data is at issue. Where the user can switch his/her service provider with sufficient ease without access to data, no mandated access is required.  Where access to bundled individual level data or aggregate data is requested, the indispensability criterion may be met if the data holder is a dominant platform whose dominance is strongly entrenched and exclusive data control may reinforce and extend such power.

Policing data sharing and pooling.  Although much of its discussion focuses on the potential imposition of data-sharing requirements, the Report also discusses the antitrust treatment of voluntary data sharing and pooling.  Data sharing and data pooling arrangements will frequently be procompetitive, enabling firms to develop new or better products or services or to train algorithms on a broader, more meaningful basis.  Such arrangements can be anti-competitive, however, for example where some competitors are denied access or granted access only on less favourable terms; data sharing amounts to an anti-competitive information exchange including competitively sensitive information; data sharing or pooling discourages competitors from differentiating and improving their own data collection and analytics pipelines; or where the granting of access to data on non-FRAND terms results in an exploitative abuse. Where a dominant, vertically integrated platform provides privileged data access to its own subsidiaries, this can constitute a form of self-preferencing (see above). Where a data pool has market power and gives its members a significant advantage, the pool may be under a duty to give access to others, perhaps on FRAND or similar terms.

The Report references the treatment of data access issues under Article 102 TFEU and merger control, as well as established rules on R&D agreements and patent pools, but notes that it may be more difficult to establish market power of a data pool based on market shares due to the multi-purpose use of data. Thus, an access regime may need to differ depending on the type of use, and the duty to give access should be proportional to the pool's market power.  For example, a group of smaller players pooling their data to gain a competitive advantage should not be forced to give their pooled data to a much larger player. Where there is a FRAND or similar duty to provide data access, and the pool's data format standard is proprietary, the standard owner should not be able to raise its fees over time as the pool becomes more important in the market (by analogy to "patent ambushes"), and such duties should apply to both access to the data pool and the use of the data format standard.

The Report notes that the competition law treatment of data sharing and pooling arrangements is relatively new and under-researched, and recommends that the Commission use guidance letters and "no infringement" decisions, as well as the next version of the Commission’s Guidelines on horizontal cooperation.  Indeed, a separate a block exemption regulation on data sharing and pooling may be called for.

New legal regime.  In an open-ended but interesting aside, the Report notes that legislation is required to give firms guidance on what is allowed and not allowed to encourage fuller development of data markets, data sharing and data pooling arrangements. Such a general legal framework would, for example, define contractual rules for access to non-personal data and empower institutions to facilitate the management of consent into the processing of personal data. Such a legal framework would also reduce the pressure on competition law to revolve concerns about access to data.

Merger Review

The implications of digitization for merger review has been a key focus for Commissioner Vestager, and a major concern for many speakers at the Conference.  She approvingly cited the Report’s proposal  to “revisit our theories of harm, so we can intervene in mergers when the owners of ecosystems buy startups before they have a chance to grow – strengthening  that ecosystem, and helping to protect it from competition.”  That said, the Report avoids more draconian proposals made by some commentators to put the burden of proof on large acquirors to show that proposed transactions are not anti-competitive, rather than the other way around.

The Report’s discussion of merger review focuses on cases in which a dominant platform and/or ecosystem benefitting from strong positive network effects acquires a target with low turnover but a large and/or fast-growing user base and a high future market potential.  The competitive concerns arise in markets characterised by high concentration and barriers to entry, resulting from strong positive network effects and possibly reinforced by data-driven feedback loops.  The Report notes that this scenario concerns a relatively small group of cases and rejects the common label, “killer acquisitions,” noting that the targets in this scenario are typically integrated into the acquiror’s ecosystem, not shut down.

Two concerns have commonly been raised in connection with such transactions.  First, they may escape review entirely in merger review systems with turnover-based review thresholds, such as the EU’s.  Although some jurisdictions have introduced transaction-value thresholds to capture such transactions, the Report argues that it is too early to change the EUMR’s jurisdictional thresholds, preferring to monitor the impact of such changes in other jurisdictions and the operation of the EUMR’s referral system.

Second, when they are reviewed, potential anti-competitive effects may not be identified or be underestimated under the current merger review standards.  The Report recommends against changes to the EUMR’s substantive standard of review, arguing that the “significant impediment to effective competition” (SIEC) is adequate.  However, the Report argues for a “heightened degree of control” of acquisitions of small start-ups by dominant platforms and/or ecosystems.  Where an acquisition is plausibly part of a strategy of preventing partial user defection from the acquiror’s ecosystem, the notifying parties should bear the burden of showing that the adverse effects on competition are offset by merger-specific efficiencies.  To identify such cases, the Report recommends asking the following questions:

  • Does the acquirer benefit from barriers to entry linked to network effects or use of data?
  • Is the target a potential or actual competitive constraint within the technological/users space or ecosystem?
  • Does its elimination increase market powwer within this space notably through increased barriers to entry?
  • If so, is the merger justified by efficiencies?

This change would address a perceived gap in current theories of harm, which have difficulty distinguishing pro-competitive or neutral deals from anti-competitive deals where there is not a substantial horizontal overlap between the “core” market dominated by the acquirer and the separate (but typically related) market served by a startup and it may be difficult to prove the existence of potential competition with a sufficient degree of certainty.  In a vertical or conglomerate merger, the Report notes that established theories of harm are limited to foreclosure effects (where actual or potential rivals’ access to supplies or markets is hampered or eliminated as a result of the merger) or to coordinated effects (where the merger significantly raises the likelihood of coordination). In markets characterised by a few large firms with highly entrenched positions of dominance in core markets that serve as focal points for an expanding digital ecosystem, the acquisition of a start-up may strengthen a dominant position in the ecosystem, even if the overlap is not within the more narrowly defined product market where the acquirer is dominant or where the combination would otherwise raise concerns.

The new theory of harm would involve taking a broader view of the incumbent’s position in a “market for the digital ecosystem.” A finding of an SIEC could be justified, according to the Report, where an acquisition both expands the scope of network effects that protect the incumbent’s core service to the complementary services, and “appropriates” the network effects that the target has managed to establish to the benefit of its own customers in such a way that, after the merger, they further strengthen the ecosystem as a whole. Acquirors may use defensive acquisition strategies to expand existing network effects, making their services more valuable to both their users and a target’s, but also eliminating the risk that the target attracts away those users. This, and the concomitant raising of barriers to entry by combining the acquirer’s and the target’s positive network effects, may significantly impede effective competition if, without the merger, the target could have succeeded as a stand-alone business or would realistically have been bought up by another competitor.

The Report argues that this new theory of harm would not raise concerns about legal uncertainty that could arise under other approaches, such as broadening theories of harm based on elimination of potential competition, and reduce the number of false positives.  The controversial acquisitions concern start-ups with a fast-growing user base, so the competitive threat is already present. Since it would be necessary to compare the competitive conditions resulting from a notified merger with those that would have prevailed without the merger, however, predictions would still be required, e.g., about whether the target could survive and grow in the market or be acquired by other companies raising fewer concerns.

Conclusion

The Digital Era Report seems likely to become a signature part of Commissioner Vestager’s legacy for the new Commission taking office later this year.  While the Report was produced by independent experts and is not binding on the Commission, the Commissioner has shaped the Report process and embraced many of its main conclusions.  The Report addresses key issues that the Commission has highlighted in many public fora, including in relation to online platforms, big data and merger review.  DG COMP officials similarly embrace the Report in informal contexts.

“We are convinced,” the authors observe, “that the basic framework of competition law, as embedded in Articles 101 and 102 of the TFEU, continues to provide a sound and sufficiently flexible basis for protecting competition in the digital era.”  The Report thus avoids dramatic proposals that would require major new legislation, such as creating a new digital regulator for platforms or changing the substantive standard of review in the EUMR.  Such changes would in any case have taken years to implement and have uncertain prospects for passage.

Instead, the Report takes an apparently more moderate approach that is likely to have greater impact in the near to medium-term, because its most significant proposals can be implemented by DG COMP directly, without the need for new legislation.

One broad recommendation is that the Commission step up antitrust enforcement in the digital sector and explore new theories of harm, even at the risk of more “false positives.”  The Report advocates significant practical changes, including more emphasis on digital “ecosystems” and less reliance on narrow concepts of antitrust “market.”  Similarly, the Report recommends broadening the concept of market power – and thus the scope for applying Article 102 TFEU – even in fragmented markets.

In relation to online platforms, the Report advocates special focus on certain business practices, including MFNs, leveraging and self-preferencing.  The Report recommends a particularly harsh approach to any efforts to discourage multi-homing and supports imposing duties to grant protocol interoperability and (with the concerned users’ consent) data interoperability upon dominant platforms.

In relation to big data, the Report does not support a generally applicable right of access to data under EU antitrust law, but proposes a new analytical framework to make it easier for the Commission to impose data access mandates under Article 102 TFEU, especially in relation to after-markets.   The Report recommends moving away from the established EFD analysis, applying a more general interest-balancing test. Interestingly, the Report discusses not only the issue of mandating access to big data, but also issues raised by voluntary data sharing and pooling.  The Report calls for greater clarity in this respect, for instance through informal guidance and more formal guidelines.

In the merger review context, the Report rejects the controversial “killer acquisition” label and avoids calls for a broad-based reversal of the burden of proof.  However, the Report does recommend reversing the burden of proof in a narrower category of cases in which a dominant company’s acquisition of a much smaller company may be part of a defensive strategy to protect its “ecosystem.”  Even if the Commission does not formally endorse a reversal of the burden of proof, it can be expected to increase its scrutiny of internal documents where large companies acquire startups for evidence of the buyer’s business strategy.

The Digital Era Report’s publication coincides with a debate over the need for major reform of EU competition law prompted by the Commission’s prohibition of the proposed Siemens/Alstom merger.  As discussed in more detail here, these initiatives appear to enjoy broad political support and may be more likely to lead to concrete action as they come in a European election year that will lead to the formation of a new European Parliament and the appointment of a new Commission in November 2019.

The Digital Era Report, the Franco-German proposal for EU merger reform, and other challenges to are representative of a dynamic period in antitrust law and policy in the EU and elsewhere.  Academics and politicians are joining forces to argue for antitrust-driven industrial policy measures – such as breaking up major companies – that have not been seen for decades.  Many are questioning the fundamental objectives of antitrust.  In this context, the generally moderate recommendations of the Report may be especially likely to find a receptive audience and lead to concrete changes.

Jay Modrall
Jay Modrall,
Partner
Norton Rose Fulbright LLP

James R. Modrall is an antitrust and competition lawyer based in Brussels. He joined Norton Rose Fulbright LLP in September 2013 as partner, having been a resident partner in a major US law firm since 1986. A US-qualified lawyer by background, he is a member of the bar in New York, Washington, D.C. and Belgium.

With 27 years of experience, he is a leading advisor for EU and international competition work, in particular the review and clearance of international mergers and acquisitions. Mr Modrall also has extensive experience with EU financial regulatory reform, advising the world’s leading private equity groups in connection with the new EU directive on alternative investment fund managers and leading banks and investment firms on EU initiatives including EU regulation of derivatives, EU reforms in financial market regulation and the creation of a new EU framework for crisis management, among others.

Mr. Modrall’s native language is English, and he is fluent in Italian and proficient in Dutch and French.

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