EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

containing any possible content, the promotion on Google’s results pages of only one type of specialized result, namely its own, involves a certain form of abnormality. A general search engine is infrastructure that is, in principle, open, the rationale and value of which lie in its capacity to be open to results from external (third-party) sources and to display those sources, which enrich and enhance the credibility of the search engine (General Court, 2021). Concerning ex-ante regulation of the digital sector on the European level, the EC has for a long time taken a conservative view that digital markets should be treated as any other relevant market because each of them has its own specificities without necessity of a specific regulation. This was reversed in April 2020, when the EC Executive Vice-President Margrethe Vestager announced a new strategy to tackle big tech firms for the benefit of consumers (Coonnor, 2020). There are at least two factors behind this EC’s U-turn: (a) Competition investigations in digital markets (typically Google cases) are very lengthy due to the need to demonstrate the effects of anti competitive behaviour on the relevant market and/or consumers. Ex post intervention comes therefore often too late ( Google case, Intel cases, Microsoft case, and others). (b) The unique position of EC’s Executive Vice-President Margrethe Vestager, responsible for theEuropeanDigitalMarket, entrustedwithbothcompetition enforcement tools (DG Comp) and industry regulation tools (Directorate General for Communications Networks, Content and Technology). The three-pillar strategy has been based on (1) A new ex ante regulation – Digital Markets Act (2) An amendment of the existing Directive 2000/31/EC on electronic commerce (European Commission, 2010) – Digital Services Act and (3) A consistent enforcement of Articles 102 and 102 SFEU in competition investigations in the digital sector. The EC uses the term “act”. However, in terms of the type of legislation, the proposals are regulations. Initially, the EC’s “new competition tool”, intended to help identify structural problems in digital markets, while at the same time extending the EC’s current powers beyond existing sectoral investigations, with an emphasis on the behaviour of undertakings which are not (provisionally) in a dominant position in a market to which they are about to enter or are entering aggressively. The ex-ante follow-up intervention supposed to go beyond the existing ‘cease and desist’ with a possible fine but would take the form of a ‘market order’ along the lines of the powers

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