Suchergebnisse

Triggers and catalysts -- The process -- The agenda -- A more economic objective -- A more economic concept of harm -- A more economic concept of countervailing effects -- A more economic test -- A more economic methodology -- Advantages -- Compatibility with the case law -- Other concerns

This contribution critically assesses the European Union's Digital Markets Act (DMA). The DMA is the first comprehensive legal regime to regulate digital gatekeepers with the aim of making platform markets fairer and more contestable. To this end, the DMA establishes 22 per se conduct rules for designated platforms. It also precludes national gatekeeper regulation by EU Member States, thereby calling into question the legality of the pioneering German sec. 19a GWB. The analysis shows that the DMA's rules are not as rigid as they may appear at first sight. While it is more accepting of false positives than of false negatives, the DMA contains several corrective mechanisms that could allow the Commission to finetune the rules to address both the danger of over- and under-inclusiveness. A further positive is that the new regulation incorporates key concepts of the GDPR, and requires coordination between the Commission and key EU data protection bodies. On the downside, the DMA does not contain any substantive principles for the assessment of gatekeeper acquisitions, leaving a worrying gap. While the DMA's conduct rules outlaw specific leveraging strategies in digital ecosystems and may thereby indirectly address certain non-horizontal concerns arising from gatekeeper acquisitions, it remains that the European Union's existing guidance on merger control is seriously out of date. The merger guidelines therefore urgently need updating to include (workable) theories of harm for concentrations in the digital economy.
Digital Markets Act (DMA), platform markets, gatekeepers, fairness, ne bis in idem, digital economy, abuse of dominance, merger control

Conglomerate merger control went out of fashion in the United States and the European Union several decades ago. Both jurisdictions embraced the premise that nonhorizontal mergers should normally be considered benign because exclusionary theories of harm are economically implausible, and nonhorizontal mergers are almost always certain to result in significant efficiency effects that the merged entity can be expected to pass on to consumers. Conglomerate effects analysis subsequently all but disappeared from the enforcement practice. However, the emergence of a handful of powerful digital platforms with vast global ecosystems of interconnected services is currently causing competition agencies a great deal of concern. Their growth has not been entirely internal. Collectively, Alphabet, Meta, Apple, Amazon, and Apple have acquired over eight hundred companies. Many of their targets were innovative start-ups operating in complementary markets. This contribution compares and critically assesses how this development has affected the U.S., EU, and U.K. competition agencies' approach to conglomerate merger control. It finds that, as a reaction to the advent of Big Tech, conglomerate effects analysis has made a significant comeback in EU merger control. While the U.S. and U.K. authorities have not yet intervened against any conglomerate acquisitions in practice, evidence suggests that they are also more open to nonhorizontal theories of harm again.