When Demotion is Competition: Algorithmic Antitrust Illustrated

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On the 27th of June 2017, the European Commission fined Google €2.42 billion for ‘abusing dominance as search engine by giving illegal advantage to own comparison shopping service’. Allegedly, Google has algorithmically manipulated the search results of products in order to promote its own platform, Google Shopping, at the expense of competitors. According to the European Commission, it has infringed Article 102 TFEU because it i) ‘has systematically given prominent placement to its own comparison shopping service’ and ii) ‘has demoted rival comparison shopping services in its search results’.

In a nutshell, the European Commission blames Google on two different grounds for the same thing: promotion of its own services, and demotion of its competitors’ services. But, demotion – meaning, the reduction in the ranking of some things or some individuals – is merely the exact opposite of promotion – meaning, the enhancement in the ranking of other things or other individuals. From an economic perspective, both conducts are equivalent since increasing the prices to rivals’ products is similar to lowering the prices to one’s own products. Therefore, the case is essentially a case against self-promotion.

In objection, Google has filed an appeal on the 11th of September 2017 on the grounds of six pleas. According to Google, the European Commission erred: i) ‘in finding that Google favoured a Google comparison shopping service by showing grouped products results’; ii) ‘in finding that Google favoured a Google comparison shopping service by showing grouped products ad; iii) ‘in finding that the alleged abusive conduct diverted Google search traffic; iv) ‘in finding that the alleged abusive conduct is likely to have anticompetitive effects; v) ‘by treating quality improvements that constitute competition on the merits as abusive; vi) ‘in imposing a fine’.

No current antitrust infringement has clearly helped the Commission in its ambition of fining Google: only recourse to dubious regulatory principles in disguise (II) and the misconception of self-promotion in algorithm-driven strategies (III) have enabled the Commission to impose an innovation-deterring fine.

Towards a dubious principle of ‘search neutrality’?

There is no exclusionary abuse by Google, otherwise the Commission could have simply named it and the classic application of this type of market abuse would not have triggered the current controversy surrounding the Commission’s fine. Market foreclosure is inapplicable here since, not only there is no refusal to deal by Google with Google Shopping’s competitors, but most importantly there is no upstream/downstream markets between Google search engine and shopping comparison services because of the multi-sided nature of the numerous platforms available (e.g. search engines’ results, websites, digital apps, …).

Given the absence of market foreclosure and of any exclusionary conduct to be evidenced against Google, the Commission needed to have recourse to a quasi-essential facility doctrine applied to Google search engine, ultimately reinforcing its dominant position on search engine market while weakening its outsider position on the shopping services market. A facility is ‘essential’ whenever a facility is, cumulatively, ‘unique’and ‘absolutely necessary’ to anyone wishing to enter the relevant market. Antitrust analysis challenges the Commission position when the different relevant markets are considered. Google search engine is neither unique nor absolutely necessary (alternative search engines exist) to online shopping services (alternative selling services exist such as mobile applications and websites). Furthermore, having not refused to reference rival shopping services (and therefore no refusal to deal can be evidence), Google has only increased the costs of rival shopping services via algorithm-driven strategies.

Considering Google search engine as essential facility is both economically wrong and competitively flawed. Indeed, the policy chosen by Google to promote Google Shopping services at the top of its search results may very well end up being a bad strategy for consumers as they could prefer a different ordering of search results – namely without shopping results being promoted. Therefore, alternative search engines may, from a competitive viewpoint, emerge as credible substitutes for a shopping-free search engine.

Also, it would reinforce the status quo regarding the dominance of Google’s search engine. Indeed, the Commission is de facto giving Google’s search engine the status of the essential platform (or ‘internet gateway’) by which most online sales must be fairly referenced. A more dynamic and evolutionary perspective would have considered that customers, by finding search results being algorithmically biased towards Google products at the expense of other interesting competitors’ products, would have either swapped to alternative search engine free of algorithmic manipulations or swapped directly to digital applications offering shopping services (e.g. Amazon app; Ebay app, etc…). Therefore, it is doubtful that the European Commission can have recourse to a quasi-essential facilities doctrine since such doctrine hinders the competitive process on the upstream market without tangible benefit on the downstream market.

Absent any exclusionary conduct by Google and insidiously treating Google as a quasi-essential facility, the Commission needed (from her prosecuting perspective) to elaborate a tailor-made antitrust infringement by Google: rivals’ demotion. What are the policy objectives of this newly created antitrust infringement on ‘rivals’ demotion’ in search results? In the absence of any market foreclosure and in the inappropriateness of an overtly expressed essential facility doctrine, the Commission needed to construe ‘rivals’ demotion’ as a regulatory mean to achieve a policy goal: search neutrality.

Similarly to the long-lived and indefinable principle of net neutrality, the emerging and also undefined principle of ‘search neutrality’ is evidenced by the requirement of ‘equal treatment’ laid down by the Commission in its press release as a justification for fining Google. There should be, according to the Competition Commissioner, an equal treatment given by Google to Google Shopping’s competitors in the search results. This quest is both disturbingly naïve and regrettably unrealistic. Forcing Google search engine to give non-discriminated access to Google Shopping’s competitors would be a red herring from an antitrust perspective’ since the placement in search results placement is a price.

The complex and innovative algorithms on which Google search results are based is the key of Google’s success because it corresponds to the qualitative listings wanted by consumers. There lies the reason for Google’s early competitors loss of market shares: Yahoo! and AOL failed to match consumer needs of qualitative search results. Consequently, the very manipulation of search results via innovative algorithms is both desired by Google’s consumers as illustrated by internet history and is essential to Google’s current success. Non-manipulated algorithms, according to what could be ‘search neutrality’, have never existed nor have ever been innovative. Indeed, complete search neutrality with Google giving ‘equal treatment’ with absent algorithm-manipulated search results as requested by the Commission decision would resemble…Yellow Pages listings! There was the time when objective, unbiased, non-algorithmically manipulated results were listed with some well-classified ads.

Innovation is unstoppable. Algorithmic innovation is inevitable: should Google provide an illusory ‘equal treatment’ and therefore reinforce its dominant position as essential facility at the expense of any algorithmic innovation and at the detriment of consumer experience? Or should Google invest in algorithm design so that consumer needs are constantly considered and competition in ancillary markets is increased by Google acting as new entrant? A positive answer would be tantamount to endorse a slippery slope towards regulatory micro-management of platforms. Indeed, should Amazon treat equally its end-products and its delivery services with those of competitors in its search results? To extrapolate further, why not therefore forcing Uber, the dominant ride-hailing platform, to treat equally Uber Eats drivers (the food delivery services) with its competitors (such as Deliveroo) on the Uber general platform because Uber app would have become the dominant (and inevitable) platform for delivery services? Such prospects, desperately legitimized by the dubious concept of ‘search neutrality’, would provide no competition benefits but only innovation costs.

Algorithmic governability shall come to the fore in antitrust investigations and economic considerations since data is the currency in algorithmic antitrust. Nevertheless, algorithmic innovation should not be stifled since it would be the overall dynamic efficiency of markets, reaped out by innovation, which shall be lessened together with the level of competition. Search neutrality must therefore be precluded from materialising in the fascinating and emerging world of algorithm-driven companies, of unmapped artificial intelligence, and of captivating blockchain technologies.

Why demoting is competing over the merits

In the world of algorithmic antitrust, much behaviour can easily be seen as a novelty for restricting competition whereas such behaviour once compared with traditional corporate strategies, are non-detrimental from an antitrust perspective. To what extent does the ‘prominent placement’ given by Google Inc. to Google Shopping services differ from the one given by, say, Tesco Inc. to Tesco food products on end aisle displays? To no extent. It is traditional corporate strategy of a parent company to favour its own products that have, through a time-and-error evolutionary process, emerged as a reward of the economic efficiency of the original distributing services. Fining by-products and the ‘prominent placement’ parent companies can grant to these by-products is tantamount to the prohibition of end aisle displays for products manufactured by the parent distributing company.

Rivals’ demotion is illustrative of the Commission’s underpinning antitrust theory. ‘Demotion’ is a word that comes from human resources management – the fact of downgrading the title or the rank of an employee. ‘Rivals’ refer to individual companies rather than to the general concept of competition. Consequently, rivals’ demotion is an illustrative expression used by the Commission which reveal its concern on the harm caused on identifiable individual companies rather than the general theory of harm to the consumers or to the lessening of level of competition. It is explanatory of the Commission’s approach to its available evidence: whereas no harm to consumers or to the competitive process can be evidenced, the entire evidence pertains to the harm caused onto competitors. Indeed, following the alleged abuses of demoting rivals’ products and/or promoting own products, the European Commission considered that the harm was evidenced by the ‘sudden drops’ of the use of competitors’ shopping services together with an increase in Google Shopping services traffic.

Demotion of rivals is nothing different to the promotion of one’s own products. Nevertheless, the benefit of the expression ‘rivals’ demotion’ is its linguistic twist that encloses the necessary inquisitorial pitch for the elaboration of an ad hoc antitrust infringement. Yet, Google has succeeded in the new digital economy because it precisely pioneered the sector with the design of complex and innovative algorithms aimed at both improving consumer experience and, presumably, favouring its own products when Google Shopping was created. The competitive advantage obtained by Google, through a fair and transparent competitive process, in designing complex algorithm enables Google to enter (and even create!) other markets which improve customer experience on Google search engine. Indeed, by deploying other activities than the sole search engine, Google is progressively and innovatively becoming a general platform increasing thereof consumers’ satisfaction.

In the present case of Google search engine results having allegedly demoted rivals of the Google Shopping comparison service, such demotion of rivals is tantamount to bundling discounts. Indeed, by using Google search engine, consumers are incentivized through Google self-promote conduct, to use Google shopping when they shift from one relevant market where Google is dominant – namely, search engine market – to another relevant market where Google Shopping is not dominant – shopping comparison services market. Google bundles one market with another so that it can effectively compete with incumbent companies on shopping comparison market such as Amazon, eBay, Zalando, etc… The European Commission overlooks the absence of any dominance of Google Shopping on shopping online markets: digital applications platforms and other selling websites such as Amazon and eBay have much more established reputations on selling services markets.

Bundling discounts can either have pro- or anti-competitive effects. But, when it is carried out in targeted market where the company is not dominant, there cannot be an abuse of dominance according to Article 102 TFEU. In that respect, Google Shopping being not dominant in its own relevant market, Google’s bundling discounts granted to Google Shopping via ‘prominent placement’ of ads is a legitimate self-promote behaviour which fosters competition since Google Shopping is a new entrant facing powerful incumbents in the shopping comparison services market. Thereby, demotion – or alternatively self-promotion – in absence of market dominance strengthens competition.

Conclusion

Without expressly stating it, the European Commission condemns Google for having leveraged its dominant position in the search engine market onto the comparison shopping market. In a nutshell, leveraging by demoting. I have demonstrated that demotion is part of the competitive process. Consequently, the fine has a deterring effect by creating innovation costs.

Indeed, this record-breaking fine on Google imposes prohibitive innovation costs and undoubtedly lessens the competition level and inappropriately stifles innovation without providing competitors any substantial benefits. Antitrust analysis concludes to the presence of efficiency net benefits for society of demotion as competition strategy for new entrant as illustrated by Google Shopping, or by incumbents as illustrated by the widespread practice of Amazon’s placing prominently its own end-products on its platform’s search results. The Google decision is based on dubious conceptual principles – such as the implicit quest for search neutrality – and flawed perceptions of Google’s competitive strategies in different markets.

Furthermore, the Google decision is detrimental in light of the so-called ‘error-cost framework’. This framework helps understanding that the social cost of Type I errors (false positive) is always greater than the social cost of Type II errors (false negative): Type I errors (i.e. erring by committing flawed antitrust interventions) are more costly than Type II errors (i.e erring by omitting appropriate antitrust interventions) because market forces compensate for the latter error type (but not the former). From an error cost perspective which encapsulates the cost of error in curbing firms’ practices in expect of limiting anti-competitive behaviours, the cost of errors are clearly greater than the benefits derived from the future behaviour of Google in line with the Commission’s requirements.

To conclude, Google decision is fraught with zealous antitrust, fuelled by a politically-dictated (if not populist-driven) antitrust agenda rather than by sound economic reasoning and legal coherence. This decision is inevitably detrimental to innovation on search engines markets, comparison shopping websites, and more generally on digital platforms. Digital platforms are only a nascent market: this wrong-headed fine is undoubtedly imposed too early and too heavily. Such unfortunate decision, except providing the media numerous headlines, should be overturned in favour of a more economic and innovation-laden perspective during the coming litigation procedure.

 

Joseph Simons’ nomination as FTC Chairman: A European perspective

On the 19th of October 2017, President Trump nominated Joseph Simons as Chairman of the Federal Trade Commission (“FTC”), jointly with the nomination of consumer protection advocate Rohit Chopra and the chief counsel for Senator John Cornyn, Noah Philips.

Essentially, the nomination of the Joseph Simons as FTC Chairman is not only to be welcomed, but most importantly is illustrative of the differences that still prevail between the competition authority of the US and its counterpart in the EU – the Directorate General Competition (« DG Comp ») of the European Commission.

Indeed, Joseph Simons’s profile demonstrates that he is a suitable Chairman for the FTC given his expertise background and wealth of experiences on antitrust matters. As partner of law firm Paul Weiss Rifkind Wharton & Garrison LLP and co-chair of its Antitrust Group, Joseph Simons focused on antitrust both in litigation and counseling. He has extensive experience of the FTC thanks to his role, from 2001 to 2003 of Director of the Bureau of Competition of the FTC, after having joined the FTC since the late 80s.

As an expert of antitrust and merger, Joseph Simons has accumulated a large experience by representing clients in the law or by his position as the chief antitrust enforcer during his time at the FTC. Therefore, having gained both public sector and private sector expertises on antitrust, Joseph Simons has appropriately appeared, for the White House, to be the perfect fit for the Chairmanship of the FTC.

The other great antitrust enforcer in the US – the Antitrust Division of the Department of Justice, unique body in charge of criminal matters for antitrust enforcement – is also influenced by technical expertise rather than by political activism in antitrust matters as evidenced by Makan Delrahim’s recent nomination.

On the contrary, the EU counterpart of the FTC Chairman Joseph Simons – Margraethe Vestager – has a political, rather than technical, background. After becoming Minister of Education in Denmark at only 29 years old, Margraethe Vestager was elected as Deputy Prime Minister of Denmark from 2011 to 2014, and Competition Commissioner since 2014.

Furthermore, the choice of Simons in the US comes at the expense of Maureen Ohlausen, the current Acting Chairman of the FTC, who has implicitly campaigned for the FTC Chairmanship. The conservative lean of Ohlausen might have played at her disadvantage since a more technical, rather than a political, profile was sought as evidenced by Jo Simons’s nomination. Of course, the choice of the commissioner at the FTC highly depends on the political affiliation of the candidate given that Democrat/Republican seats are reserved alternatively.

Be that as it may, the political activism of the candidate within his/her own affiliation is quite irrelevant at the FTC, as technical expertise on antitrust matters appears to be the influential criterion as explained in the table below:

 

EU

( DG Comp)

US

(FTC)

 

Comments

 

 

I/ 

Institutional independence of the entity

+ +++

The intrinsic independence of the FTC as agency departs from the DG Comp which forms an integral part of the European Commission since the head of the DG Comp is a member of the European Commission. Therefore, there is no institutional independence of the DG Comp as enshrined in the mission statement of the FTC.

II/

Political irrelevance of the nominations

++

+

The nomination of the Competition Commissioner is not really influenced by the political affiliation of the President of the European Commission given that a relative balance of right-wing/left-wing Commissioners is witnessed across the members of the European Commission. On the contrary, the Chairman of the FTC is considered by his/her political affiliation by the President of the US when the nomination is taken.

III/

Political balance within the entity

+

++

The head of the DG Comp is either left-wing or right-wing and other members are considered as civil servants without any reference to their political affiliations. Therefore, the entire DG Comp seems to transpire the political affiliation of his acting head. On the contrary, the FTC is self-limited in engaging into one specific political line since the Commissioners are equally represented amongst Democrats/Republicans. The Chairman of the FTC is therefore limited by insider’s political opponents so that a more technical stance reaches unanimity more easily.

IV/

Political activism

of the entity

+++ +

Because of the political role of the Commissioner of the European Commission as head of the Competition Policy, DG Comp endorses a duty to deliver the Competition Policy agenda agreed together with his/her fellow Commissioners in industrial policy, innovation policy, in consumer policy, etc… The agenda and programme of the Commissioner are therefore ‘validated’ by the President together with the majority of the Commissioners. On the contrary, the agenda and plan of the FTC’s Chairman is set independently and de facto favours technical expertise which favours political neutrality given the political zero sum game that is played amongst FTC commissioners.

Consequently, from these different institutional designs, the competition policies carried out in either side of the Atlantic differ greatly as recently evidenced by similar cases on digital competition where findings are unfortunately contradicting across the FTC and DG Comp (for instance, Google Shopping cases in the EU and the US).

 

Vestager’s Speech: Innovation Free or Free from Innovation?

BELGIUM-EU-GOOGLE-ANTITRUST

On 12 October 2017, Margrethe Vestager, Competition Commissioner, gave a speech on setting innovation free.

Because it is an important speech that comes after the decision to fine Google Shopping more than 2 billion euros and after the Intel judgement from the Court of Justice – a rather busy year for algorithmic antitrust at EU level -, I insert the Commissioner’s speech in full below, before commenting this speech:

“Bpifrance Inno Génération, Paris, 12 October 2017

“PLEASE CHECK AGAINST DELIVERY”

Ladies and gentlemen,

In my office, I keep a plaster model of a hand, with its middle finger raised in a gesture that’s not very polite. It was a gift to me when I was minister of economy in the Danish government from some people in a trade union. They weren’t too pleased with the decisions we took to put Denmark’s finances back on track.

I keep it because it reminds me of something important. When you do things differently, when you transform the way things work, you can’t expect to make everyone happy.

Innovators know that very well. For every disruptive innovation, there’s a business that gets disrupted. For every new idea that makes people’s lives better, there’s a company whose profits depend on keeping things exactly the way they are.

So innovation is not just about good ideas. It’s about winning the argument in favour of change. And in Europe, our competition rules help to create the space to make that argument.

As the European Commissioner for Competition, it’s my job to make sure companies which dominate the market don’t misuse their power to stop others competing. That they don’t shut down innovation before new ideas have the chance to show customers what they can do.

That’s why, earlier this year, we fined Google nearly two and a half billion euros. Not because it dominates the market for Internet searches. But because it used the power of its search engine to stop others competing and innovating.

We’re living at a time when technology is transforming our world. Intelligent algorithms, working with huge amounts of data, are changing every part of the way we live. And I think we’ve reached a point where the limits to what we can do are not technological. They’re about whether technology undermines people’s basic expectations from society. For freedom, for privacy, for protection and support.

Right now, less than a quarter of Europeans trust online businesses to protect their personal information. If that doesn’t change, we won’t get the most out of the power of data, to make us healthier, happier and greener. So technology companies need to win back people’s trust. To show that they incorporate privacy by design, not as an afterthought.

And we also need to make sure digital businesses pay their fair share of tax. Because our societies are built on the principle that everyone makes a fair contribution to the services that make a decent society – health services and education, infrastructure and the welfare systems that protect us when things go wrong.

Last week, we decided that Luxembourg had to claim back around 250 million euros in unpaid taxes from Amazon. Amazon allocated the bulk of its operating profits in Europe to a Luxembourg company that paid no tax at all in that country. And yet that made no economic sense, because the company was a shell – with no employees, no office, and above all, no activities that could justify that allocation.

Special treatment like that, which benefits some companies and not others, is against our state aid rules. But it’s only one part of a much bigger picture. And the state aid rules alone can’t solve all the issues we face. Because the fact is, our tax systems just aren’t designed to make sure that digital companies pay their share of tax.

So we need to change the tax rules, not just in Europe but all around the world, so that technology companies make a fair contribution. Our hope is to agree a new international approach by spring 2018.

As public authorities, we know innovation matters. But we also know that we can’t predict or control it.

What we can do is give innovators the room to succeed. We can clear the path of obstacles. We can make sure innovation doesn’t undermine the basic expectations people have of society.

And then we can leave it to you to do what you do best – to do things differently, and transform our world.

Thank you.”

 

I would make few comments to this plain speech on innovation.

First and most importantly, the Commissionner explained in clear language the rationale that underpins the Google shopping decision. She argued that Google “misused” its market power by stopping competitors “competing and innovating”. First, I would like to stress out the rather non-perceptible but quite telling shift of language use: the Commissioner speaks of “misuse” rather than “abuse” of market power. They could be seen as synonymous words. There are not.

According to Cambridge dictionary, a “misuse” defines the use of something in a “unsuitable” or “unintended” way. Contrariwise, an “abuse” defines the use of something in a “harmful or morally wrong” way or for a “wrong purpose”. Clearly, the ideas of justice and of legality are more clearly disrespected with the concept of abuse, which yields a greater threshold for qualification, rather than with the concept of misuse, which is more likely to be found anytime a regulatory authority appreciates the suitability of market actors’ decisions.

Furthermore, with respect to the EU competition rules that the Commissioner is addressing  in her speech, Article 102 TFEU which was the legal basis for fining Google in the Google Shopping decision. This article states that is deemed to be illegal “any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.” Consequently, not only must an “abuse” – and not simply a “misuse” – be evidenced for triggering anticompetitive investigations, it must also be evidenced an effect on “trade between Member States”. Therefore, the misuse condemned by the Commission seems way below the double threshold required by the law, consisting of evidencing an abuse and an effect on trade between Member States.

Definitely, this abuse of language is deliberate: the more policy-oriented (rather than economically-oriented) view on competition policy is easily grasped from the Commissioner’s speech where she highlights the notable policy goals EU competition policy is entrusted to pursue: “freedom“, “privacy“, “protection and support”…

The Commissioner seems to appropriately take the measure of how quickly (and deeply) algorithm-driven corporate strategies and data-laden innovation shape current competition understanding and practices. However, the pitfall lays on the conceptual need for competition law reforms given the too little weight given to innovation arguments to antitrust analysis. In short, dynamic efficiency rationale underpins too marginally the overall allocative efficiency rationale dominating current antitrust/competition practices.

Indeed, the Commissioner argued “[i]t’s my job to make sure companies which dominate the market don’t misuse their power to stop others competing. That they don’t shut down innovation before new ideas have the chance to show customers what they can do. That’s why, earlier this year, we fined Google nearly two and a half billion euros”. First, Google Shopping is not about new ideas (referencing products online, what’s new?) but about new ramifications and technologies (from Google search results to Google shopping helped by powerful algorithms). Therefore, competitors could have equally introduced new methods of referencing products online since this is the only innovation Google Shopping provides to customers. Also, Google can hardly be seen as a non-innovative company.

Second, you cannot ensure that innovation is not “shut down” before “new ideas have the chance to show customers what they can do”. Innovation is a result of a long, highly expensive, greatly uncertain, profoundly indeterminate process generated by a combination of few original ideas, some intuitions and chances, and a lot of patience. It is therefore not the role of any competition authority to ensure that new ideas “show customers what they can do” because i) it is not for regulatory authorities to decide which time-span is optimal between the emergence of innovative ideas and the materialization of these innovations to customers’ daily lifs; and ii) because new ideas are not, and should not, be directly at the benefit of the customers but could be indirectly useful by contributing to another process of innovation before these patterns of innovation is conducive of any material benefits for customers. Regulatory authorities should not supervise how innovation is generated and delivered to customers but should rather focus on the optimal regulatory framework for companies to become innovation-intensive within a competitive environment.

On taxes, the Commissioner is clearly right. Big digital companies cannot sustainably keep on paying so little taxes while making tremendous profits. It is a matter of political and democratic acceptability for these companies to be subjected to a tax level comparable to other small and medium-sized entreprises. But this tax law issue (i.e., how to effectively tax them without chilling out innovation) should not be spilled over the competition law practice with a negative (and protectionist) bias leading to condemn generally pro-competitive practices. Competition law is a different area of law which is not concerned with legitimate redistributive tax-transfers. It must, quite the contrary, remain focused on wealth-maximization only. Simply put, other policy goals are fulfilled by other policies.

My final comment would be a comparative analysis of the above speech from the Competition Commissionner with the speech of her DG Johannes Laitenberger from the 12th of October 2017, too. He delivered a speech which emphasized the aim of competition rules to be protective of the competition process, of competition as such. He also emphasized that digital competition is relatively less impacted by classic notions of competition policy such as price, quantity and relevant market, but more by elements such as quality, choice and innovation. The DG Johannes Laitenberger argues that since “there is no monetary price, one focus will inevitably be competition on quality […] We need to define the relevant market in view of product functionalities, instead of comparing products’ price movements in relation to each other.” Classic competition analysis, resting on fundamental concepts such as the SSNIP test, the notion of relevant market and the concept of market power seem out-of-touch with contemporary antitrust issues. When there is no price on the market, there can hardly be any antitrust concern (cf. Kinderstart.com ). When there is no price (or few) prices which are not fully portraying the exchanges and stakes on the market (because the aim is more data collection rather than direct profits), SSNIP test makes little/no relevance —  needless to precise their following concepts such as relevant market and market power/dominance.

Therefore, the need for an update of competition rules is now crucial. DG Johannes Laitenberger and his Commissioner agree on the sheer particularity of digital players for competition rules but both fail to conclude that these competition rules need a profound transformation in order to match this sector’s specificities and, more generally, to be adapted to new antitrust challenges.

 

First blog post

startline

On the 11th of October 2017, I am writing the very first blog post on this personal academic website! This post is the beginning of – I hope! – a long thread of posts on ‘algorithmic antitrust’, an expression obviously in need of definition admittedly.

Be that as it may, these posts will touch upon theoretical and practical issues raised by algorithmic antitrust, discuss the current viewpoints by scholars and practitioners, and ultimately provide useful conceptual and practical guidelines for the design of an optimal regulatory framework applicable to algorithmic antitrust.

That’s all for now! After this very introductory and ‘topic-less’ blog post, I immediately jump over the first topic of my second blog post.