1. The special advisers' report on competition policy in the digital era

3. Context (1) Part of broader reflection on digital issues
Consultation July-Sept 2018
Conference Jan 2019
Internal reflection
Reflections/reports in other countries
Reports in Germany
UK report ("Furman report")
U.S. FTC hearings
Australian report
Etc

4. Context (2) Focuses on data, platforms, innovation/mergers
The special advisers' own views
Focuses on substance, not procedure or institutions
A discussion paper, not fully worked-out proposals
What's next?
Not algos, blockchain, personalised pricing, fake news

5. The report: general points
Fit for purpose?
"The basic EU competition law framework is sound and sufficiently flexible"
But: need to "adapt and refine concepts, doctrines and methodologies"
"Effects analysis"
"There will be underenforcement if we insist that the harm be identified with a high degree of probability"
"Under-enforcement in the digital era will be of particular concern, as the harm will presumably be longer-term than in traditional markets"

6. The report: data
3 objectives: disseminate data while protecting investments and privacy
Interpret GDPR through the lens of competition
Data pooling
Efficiencies & competition concerns
More guidance needed
Essential facility doctrine (EFD)
For complementary markets, not for unrelated markets
Consider data flows, raw data, consent
Consider regulation

7. The report: platforms (1)
Promote/preserve competition for the market
Case-by-case analysis but rebuttable presumption of anti-competitiveness if dominant platforms hinder (potential) rivals’ ability to attract users and generate their own positive network effects, through, e.g.
MFNs
Restrictions of multi-homing / switching / interoperability
Dominant platforms to show either lack of adverse effects or overriding efficiencies

8. The report: platforms (2)
Promote/preserve competition on the platform (market)
Platforms as regulators (analogy with sport federations cases): duty to ensure level playing field – rules cannot anti-competitively exclude or discriminate users
Leveraging
Self-preferencing: not abusive per se, but subject to effects test – also below the “essential facility” threshold
Remedies: Structural vs behavioural / restorative remedies
No need to regulate platforms with no market power

9. The report: merger control
No need to change EUMR at this stage
Too early to change jurisdictional thresholds
Monitor impact of national reforms and functioning of referral system
Revisit substantive assessment to minimize false negatives
Inject some “horizontal” elements into the “conglomerate” theories of harm
Shift of burden of proof? If acquisition is plausibly part of a strategy to strengthen/ring-fence ecosystem, notifying parties should show overriding merger-specific efficiencies