The list of obligations imposed on designated gatekeepers under the EU’s Digital Markets Act has clearly been influenced by the European Commission’s “embryonic” abuse of dominance cases despite those theories of harm currently going unconfirmed, a leading antitrust expert has said.
King’s College London emeritus professor Richard Whish said today at GCR Live: Law Leaders in Brussels that the obligations and prohibitions contained in Articles 5 and 6 of the DMA mirror old cases, but also reflect theories of harm in cases that are yet to be resolved.
The ban on gatekeepers tying their products together derives from the EU’s Microsoft case in 2004, while self-preferencing restrictions come from the bloc’s Google Shopping case in 2017, he said.
“But some other things clearly map commission investigations under Article 102 [Treat of the Functioning of the European Union],” Whish said.
He referred to the EU’s ongoing abuse of dominance probe into Apple over its practice of limiting access to mobile device technology used for contactless payments and its investigation into Amazon’s data collection practices on its Marketplace platform.
Those cases respectively centre on gatekeepers allowing third-party businesses to use their software and their data collection practices, Whish noted – both of which are included in the DMA.
The commission also has ongoing investigations into Google and Meta over their online advertising businesses, with that topic also addressed by the DMA’s obligations.
Articles 5 and 6 will “bite on gatekeepers as of next year” but the commission is still exploring some of those theories of harm and has not reached decisions on whether they are actually anticompetitive, Whish said.
Furthermore, he added that the EU General Court is still to opine on whether such conduct is abusive.
These “embryonic cases” have already “shaped the future of the DMA”, he said. “I’m not saying there’s anything wrong but it’s an interesting process to be observed.”
Whish referenced a recent Financial Times article that reported the EU is close to agreeing commitments with Amazon to resolve its two abuse of dominance cases into the tech company, with the commission ready to market test those remedies.
He said he can “only assume” that the commission would not accept commitments that would be inconsistent with the incoming new rules. “Current cases are already influenced by the future DMA,” he added.
Whish noted that national competition authorities have launched antitrust investigations into the so-called GAFA companies in recent years.
When Regulation 1/2003 – which the EU is currently considering updating – was introduced nearly 20 years ago to empower national enforcers to apply EU competition rules, it was expected that the commission would set “high-level policy” while low-level enforcement would be left to the national agencies, Whish said.
“But in 2022, you have highly competent NCAs [national competition authorities] with often good resources and, if you like, the self-confidence to themselves do major cases,” he said.
France’s Competition Authority fined Google €150 million in 2019 for imposing anticompetitive policies on advertisers in a non-objective, non-transparent and discriminatory way, while Italy’s Antitrust Authority fined Amazon €1.13 billion last year for abusing its “undisputed” dominance in the market for online intermediation services.
Meanwhile, Germany’s Federal Cartel Office has used its new competition powers to open probes into Amazon, Google, Meta and Apple.
Whish also commented on the General Court’s Google Shopping ruling, which fully upheld the commission’s decision to fine the tech company €2.4 billion in 2017 for unlawfully self-preferencing its own comparison shopping service in its search results.
He said the court was clearly influenced by the “extreme market power” that Google had. Indeed, the company admitted it was dominant and therefore did not dispute the commission’s market definition, Whish noted.
“The judgment refers to Google as not just dominant, but super dominant,” he said.
Wish said the case boiled down to whether Google was competing on the merits by producing a better shopping tool and alternatively if the commission was wrong not to characterise page one on Google’s search results as an essential facility.
Despite the General Court rejecting both arguments, he said he can see how Google’s appeal points are arguable before the European Court of Justice. It is “all to play for”, he added.
GCR Live: Law Leaders concludes today.
