Look around you. You are most likely sitting comfortably on a chair or sofa, in a heated or cooled room, surrounded by your comfort technology – from your smart water-resistant mobile phone, to your new extra thin laptop with its long-life battery. As you read this introduction, you might be interrupted by notices on your phone, video chats from friends and reminders from your digital assistant. You might then step out and go to your favourite shop, where choice is abundant, to buy reasonably priced food and goods. You might later meet friends in your favourite hangout where the service is excellent. Maybe travel around town in your reasonably priced car or ride sharing service, watch a movie, or just explore the market.
Your environment is characterized by ample choice, smiling service providers and reasonably priced goods. Sure, things can always improve. No doubt. But pause for a second and appreciate one of the key drivers that make this environment possible – the competitive process.
It is the rivalry between businesses and traders that delivers the abundance of choice, the lower prices, the increased innovation, and the better quality of goods and services. It is this process of competition which enables your money to go the extra step: to buy more for less. A process which has generated much of the prosperity of the western world. Without it, you would most likely have been sitting in a somewhat bare room on an uncomfortable chair that was purchased from an unpleasant seller at an inflated price. Your money would buy you less. Less goods, less services, less quality, and less innovation. Not so rosy.
And so, as a society, we strive to protect the beneficial dynamics of competition as a means to enhance consumer welfare, deliver efficiencies, and encourage innovation.
At times, society has to work hard to maintain the abundance that comes with competition. While competition benefits us, the consumers, it makes the life of producers, sellers and service providers rather difficult. They need to improve to stay in business. They need to invest in new products, new technologies, new processes. They need to offer us goods and services at an attractive price. If they fail to remain competitive, they may find themselves being pushed out of the market. And so, at times, these sellers and service providers may look for ways to dampen the competitive process. Think, for example, of price-fixing cartels or market sharing agreements which result in us paying more and getting less. Think of powerful companies that might abuse their power to distort the market, for example, by stopping their customer from buying from other companies. Or maybe large merger transactions between two giant companies that could leave us dealing with a single dominant seller that benefits from concentrated power.
Our antitrust and competition laws are designed to address these risks, remedy possible market failures, and safeguard consumer welfare. Our competition agencies and courts are tasked with enforcing the law. As they do so, they face the challenge of correctly identifying what amounts to an anti-competitive activity, and curtailing it to ensure dynamic and competitive markets.
This book is about these market dynamics, their promises and limitations. It is about the laws that are used to safeguard the process of competition, and the way they are enforced. About the delicate and challenging relationship between a free market economy and government intervention. It is about the fascinating forces of competition that influence your wealth and shape our modern society.
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Biography
Ariel Ezrachi is the Slaughter and May Professor of Competition Law and a Fellow of Pembroke College, Oxford. He serves as the Director of the University of Oxford Centre for Competition Law and Policy.
He is co-editor-in-chief of the Journal of Antitrust Enforcement (OUP) and the author, co-author, editor and co-editor of numerous books, including Competition Overdose (2020, HarperCollins), Virtual Competition - The Promise and Perils of the Algorithm Driven Economy (2016, Harvard), EU Competition Law - An Analytical Guide to the Leading Cases (7th ed, 2021, Hart), Competition and Antitrust Law - VSI (2021, OUP), Global Antitrust Compliance Handbook (2014, OUP), Research Handbook on International Competition Law (2012 EE), Intellectual Property and Competition Law: New Frontiers (2011, OUP), Criminalising Cartels: Critical Studies of an International Regulatory Movement (2011, Hart), Article 82 EC - Reflections on its recent evolution (2009, Hart) and Private Labels, Brands and Competition Policy (2009, OUP).
His recently published papers focus on the digital economy, e-commerce, parity clauses, marketplace bans, vertical agreements, buyer power and the limits of competition law. They include the award winning papers 'Sponge', 'Artificial Intelligence & Collusion', and 'Sustainable and Unchallenged Algorithmic Tacit Collusion'. He is also author of the BEUC consultation paper on 'EU competition law and digital economy' and co-author of the report on 'Digital Platforms' (Stigler Center, Chicago University, Booth School of Business) and the Independent Expert Report on Digitalisation and its Impact on Innovation (EU Commission).
His research and commentary have been featured in The Economist, The New Yorker, Wall Street Journal, Financial Times, The Guardian (opinion), The Guardian, Nikkei, Times Higher Education, Harvard Business Review, HBR (2), Berkeley Technology Law Journal, Chicago University Pro Market, New Scientist, Politico, Politico-pro, Politico-Tec, China Daily, OBLB, WIRED, Click - BBC, BBC Radio 4, CPI, Bloomberg, Concurrences, GCR, The Scotsman, The Times, Sunday Times, Fast Company, Nesta, NewStatesman, UNCTAD, OECD, Forbes, Factor, The Australian, NRC 2016, NRC 2018, Business Insider, CMS Wire, Workology, Cited, IAI, Les Echos, ACCC, ZDnet, Financial Express, CLI, Sina, Project-syndicate, and other international outlets.
His work on algorithmic collusion (together with Prof Stucke) has been central to policy discussions in international organisations and competition agencies (including, among others, the CMA, OECD, UN, ICN, House of Lords, Monopolkommission, Autorite de la concurrence and the Bundeskartellamt).
He is part of a reserch project on Competition Policy and Economic Inequality, funded by the Leverhulme Trust.
Prof. Ezrachi develops training and capacity building programmes in competition law and policy for the private and public sectors, including training programmes for European judges endorsed and subsidised by the European Commission. He is an Academic Advisor to the European Consumer Organisation - BEUC, member of the Independent Committee on Digital Platforms, member of UNCTAD Research Partnership Platform, and a former Non-Governmental Advisor to the ICN.
Publications
Recent additions
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AE Ezrachi, Competition and Antitrust Law: A Very Short Introduction (OUP 2021) AE Ezrachi, EU Competition Law An Analytical Guide to the Leading Cases (7th Edition) (Hart 2021) AE Ezrachi and Maurice E. Stucke, 'Artificial Intelligence & Collusion' (2021) 4 Journal of Competition Policy Research (China) 19
Journal Article (42)
New competition dynamics in the digital economy raise questions as to the normative scope of competition enforcement. The question - ‘Is this a competition problem?’ has become common in the face of new business strategies, new forms of interaction with consumers, the accumulation of data and the use of big analytics. This paper seeks to outline the goals and values advanced by European Competition law, and their application to digital markets.
ISBN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3191766
E-commerce promises to bring us closer to some economists’ ideal of perfect competition – where ample choice, better quality and lower prices reign. The new online world promises to reduce entry barriers and search costs, and increase transparency and market access.
But a closer look reveals an imperfect online environment. Following the wave of innovation and competitiveness introduced by e-commerce are powerful anti-competitive undercurrents. More online markets are exhibiting increased concentration, barriers to expansion and entry, and anticompetitive strategies.
At times, these anticompetitive strategies may be based on contractual frameworks – such as parity clauses and online marketplace bans. Indeed, the European Commission’s sector inquiry on e-commerce noted the increased use of selective distribution systems online ‘to better control their distribution networks, in particular in terms of the quality of distribution but also price.’ It also noted increasing ‘restrictions on the use of price comparison tools and exclusion of pure online players from distribution networks.’ Moreover, licensing practices may impede entry by new online business models and services. Rather than promoting the flow of goods and services across the EU, the sector inquiry found that ‘almost 60% of digital content providers who participated in the inquiry have contractually agreed with right holders to “geo-block,”’ which ‘prevents consumers from purchasing consumer goods and accessing digital content online from other EU Member States.’ At other times, competition may be at risk due to other potential anticompetitive strategies, from algorithmic tacit collusion to abusive behaviour by powerful providers or gatekeepers.
This paper explores three emerging antitrust threats in the online world -- algorithmic tacit collusion, behavioural discrimination, and abuses by the emerging super-platforms – and the enforcement challenges they raise. We note the growing realisation by competition agencies as to the imperfections of the online environment, the ability to utilise new technologies to dampen competition, and additional risks of data-opolies.
“All you need to do is say,” a recent article proclaimed, “‘I want a beer’ and Alexa will oblige. The future is now.” Advances in technology have seemingly increased consumers’ choices and opened markets to competition. As sales migrate from brick–and–mortar shops to online sites, consumers seemingly are getting more of what they desire, including better prices and quality. And yet, looking beyond the ease of online shopping, several emerging threats arise, including algorithmic collusion, behavioral discrimination and abuses by dominant super–platforms. Thus, a more complex reality exists.
To see why, this Article examines the emerging frontier of personal digital assistants. These helpers are being developed by the leading online platforms: Google Assistant, Apple’s Siri, Facebook’s M, and Amazon’s Alexa–powered Echo. These super–platforms are heavily investing to improve their digital assistant offerings. We show how network effects, big data and big analytics will likely undermine attempts to curtail the digital assistant’s power, and will likely allow it to operate below the regulatory and antitrust radar screens. As a result, rather than advance overall welfare, these digital assistants—if left to their own devices—can undermine our collective welfare. But the harm is not just economic. The potential anticompetitive consequences from these assistants will likely take a toll on privacy, well–being and democracy.
For those who grew up watching The Jetsons, the prospect of a personal helper might seem marvelous. Many already rely on Google’s search engine to find relevant results, Facebook to identify relevant news stories, Amazon for book recommendations, and Siri to place phone calls, send text messages, and find a good restaurant nearby. Many also already benefit from basic digital assistants. Apple iPhones users may instruct Siri to call their family members on speakerphone. Siri can “predict” what app users might want to use, which music they would like to listen to. Navigation apps can anticipate where the individual is heading throughout the day and provide traffic updates and time estimates. Even one’s favorite coffee outlet may send a notification and prepare the loyalty card on one’s device whenever one is near an outlet.
Now personal digital assistants—or “digital assistants”—are seeking to interact with users in a human–like way. With its increasing sophistication, a digital assistant promises to transform how individuals access information, communicate, shop, are entertained, control smart household appliances, and raise their children. The digital assistant will also undertake mundane tasks and free our time. Amazon’s voice recognition personal assistant, Alexa, for example, can already perform many tasks. Alexa can shop for its users (knowing everything its user previously bought through Amazon); plan one’s mornings, including accounting for upcoming meetings, traffic, and weather; entertain one with music; suggest movies, shows, or audiobooks; and control one’s house’s smart appliances. In 2016, Google showed a video of a suburban family undergoing its morning wakeup routine: “The dad made French press coffee while telling Google to turn on the lights and start playing music in his kids’ rooms. The mom asked if ‘my package’ had shipped. It did, Google said. The daughter asked for help with her Spanish homework.” As the digital assistant—powered by sophisticated algorithms—learns more about its users, their routine, desires, and communications, it can excel in its role. In a human–like manner, it can be funny—at just the appropriate level—and trustworthy.
These digital assistants can provide more than information and services; they can anticipate one’s needs and requests. After all, being privy to so many of its users’ activities, the assistant will become their digital shadow. As Alphabet’s CEO noted, “[y]our phone should proactively bring up the right documents, schedule and map your meetings, let people know if you are late, suggest responses to messages, handle your payments and expenses, etc.” The digital assistant, with their users’ trust and consent, will likely become the key gateway to the World Wide Web. Consumers will happily relinquish other less personal and useful interfaces, and increasingly rely on their digital assistant to anticipate and fulfill their needs. With this unique position of power, the digital assistant will act as a gatekeeper in a multi–sided market.
And yet, despite their promise, can digital assistants actually reduce one’s welfare? Might their rise reduce the number of gateways to the digital world, increase a few firms’ market power, and limit competition? And if so, what are the potential social, political, and economic concerns?
Our Article seeks to address these questions. Part II discusses the current race among Google, Apple, and Amazon to control as many aspects of the online interface and reap the associated benefits. The stakes are high, given several data–driven network effects, that will likely lead to one or two digital assistants that primarily undertake most people’s tasks and make the majority of decisions.
So what are the implications of this winner–take–all contest to be the chief digital assistant? Part III considers the toll a dominant digital assistant can have on competition, democracy, and privacy. Given these risks, one would expect and hope for a “virtuous assistant”—a class of independent assistants, developed by independent firms with the users’ personal interests paramount. Part IV identifies several factors that favor one of the four super-platforms (Google, Apple, Amazon, and Facebook) capturing the digital assistant market, and disfavoring the independent virtuous assistant. As market forces will not necessarily prevent and correct the harms we identify, Part V outlines several issues and challenges confronting antitrust enforcers. Part VI concludes.
When government officials argue for purity, one would expect raised eyebrows. But few question competition officials who, in speeches in foreign lands, praise the “purity” of competition law. They warn the hosts of polluting competition policy with social, ethical, and moral concerns. They warn of industrial policy, regulation, and rent-seeking. After the hosts provide dinner, the competition officials leave for the airport, where they prepare the same speech for another audience. The hosts will politely agree on the key objectives that competition policy should promote, but beneath this veneer, ill-defined terminology, open-ended goals and differences in enforcement philosophy remain.
Differences, in one’s understanding of the ends of competition law often transform into a ‘purity battle’ – the claim that competition analysis has been polluted by some, and that a pure approach, as propagated by others, would deliver better, optimal results. Often, these claims accompany large transactions, state aid, and foreign jurisdictions, possibly threatening the domination of national champions through enforcement of their competition laws. Sometimes these claims will be made by the competition agency. Sometimes by politicians or leading corporations. At times, the true source of the claim – politics, business, law or economics – may be hard to ascertain.
This is not to say that purity arguments are without merit. A consensus exists that competition law cannot be all things to all people: a panacea for every policy concern, ranging from labour to the protection of national champions. And yet, the pretence of purity may be misleading as it propagates a mirage of objectivity, clarity and analytical superiority – traits that are not always present.
Indeed, competition law is often perceived as a stable discipline. In fact, one is often reminded that competition law must be based on economic considerations and reject external social, or political objectives. This paper argues that this appealing view – which embodies a sense of purity – is merely an illusion. It ignores the ‘sponge-like’ characteristics of the law – its susceptibility to national peculiarities originating in its design and evident in its application and its exposure to intellectual and regulatory capture. While the idea of a stable, predictable and economically-based antitrust discipline is in all of our interests, these traits are not inherent to the law. They are forced onto the sponge in an attempt to ‘discipline’ its natural tendencies, and propagated as reality, to support its legitimacy.
Technological advancements, big data and big analytics have changed, and will continue to change, the dynamics of virtual competition. Notably, they have significantly affected pricing strategies, including the stealth-mode use of dynamic personalized pricing. Retailers and service providers can approximate consumers’ reservation price and engage in “almost perfect” price discrimination. Among the key market conditions necessary for successful online discrimination are access to personal data, ability to predict the consumer’s willingness to pay, and ability to monitor and limit available outside options. When observing discrimination in our modern online environment, notable is the shift from third-degree, imperfect price discrimination to near perfect, or first-degree, price discrimination. Online sellers, in tracking us, collecting data about us, and segmenting us into smaller groups can better identify our reservation price—our willingness to pay.
The progressive, anti-monopoly, New Brandeis School of antitrust is making the news. Its rise follows mounting evidence indicating greater concentration, greater profits in the hands of fewer firms, and greater wealth inequality world-wide. Driven by concerns as to the competitive dynamic (or lack of it) in many markets, it advocates for more intervention. Signs of this trend are evident across the board. More antitrust enforcers and courts are emphasizing fairness. Liberals and conservatives are increasingly warning that consumers are not benefitting from the (meager) competition in many markets. Their concern is that the current state of competition law (and crony capitalism) benefits the select few at the expense of nearly everyone else. Even the laissez faire “Chicago School” ideology has lost some of its appeal, most notably at the University of Chicago. Furthermore, legislation in the U.S. is being proposed to restore the Clayton Act to its original purpose.
Against this wave, others, in advocating antitrust’s purity, warn of an overly inclusive approach to competition law. Ironically, this claim sometimes arises in conferences sponsored by monopolies, and at times by speakers whose work is funded directly or indirectly by these same monopolies. In arguing for a “pure” antitrust, they endorse, outside of cartels, a “light” touch enforcement, if any. They warn about enforcement chilling pro-competitive behavior, and undermining the market’s ability to self-correct. They are content with the lack of antitrust enforcement against monopolies in the U.S., critical of enforcement actions in the EU, unconcerned about the trend toward concentration, and reject fairness or distribution concerns as part of competition policy.
The debate has intensified with the rise of virtual competition. On the one hand, non-interventionists state that the threat of disruptive innovation pressures even dominant firms to innovate and compete. This, they argue, justifies the light, if any, touch. Others, on the other hand, warn of the increased concentration and rise of gatekeepers, which benefit from network effects, and access to big data and big analytics. While monopolies of the past might subject us to higher prices and poorer quality products, abuses by today’s super-platforms will affect not only our wallets. They can affect the news and entertainment we receive and ultimately, our privacy, well-being, and democracy.
So what is going on here?
One may attribute the increasingly polarizing debate to an ideological divide: between those who believe markets necessarily self-correct and those who believe intervention is necessary to safeguard long-term innovation and prevent the abuse of market power. Increasing the friction are other divisions: Between those who believe that the rising economic consolidation is yielding significant efficiencies and those warning about the detrimental effects that economic consolidation has on the person, the family, the community, and society; between those who believe that what is easily measurable, largely counts, and those, like economist F.A. Hayek, who dismiss the notion that only what is countable primarily counts (especially when many goods and services today are ostensibly free, and where our data and privacy are the cost).
Ultimately the divide is over the soul of antitrust: Is antitrust solely about promoting some form of economic efficiency (or as cynics argue, the interests of the powerful who hide behind a narrow utilitarian approach) or the welfare of the powerless (the majority of citizens who feel increasingly disenfranchised by big government and big business)?
Not surprisingly, with so much profit (and power) at stake, corporate interests are fueling the debate. Some who favour a narrow technocratic antitrust policy – including some dominant firms, their investment bankers, and their legal and economic experts - want to keep the M&A pipeline open and minimize the relevance of ex-post intervention. For them competition policy has evolved to its optimal point. Some who favour more intervention do so selectively when it promotes their commercial interest: Encouraging a particular enforcement action which may help improve their (or their client’s) market position and profitability, but not society overall.
In an environment so captured, those in search of purity should look elsewhere.
The reality is that ‘competition law’ has never been, nor will it ever be, pure from normative political, social and economic values. Ultimately it comes down to the values we want to promote and our belief in how competition works.
Granted, antitrust cannot cure every ailment. A consensus exists that competition law cannot be all things to all people. Indeed, other vehicles, such as data protection law, may better remedy some of today’s concerns. And yet, competition law cannot be Orwellian -- sanctioning anticompetitive agreements, monopolistic abuses, and greater consolidation in already concentrated markets, all for the sake of promoting a vague “consumer welfare” objective.
Also counselling against antitrust’s “purity” is that its objectives and legal standards often reflect trade-offs. For example, a society may sacrifice some efficiency in media markets to promote a vibrant marketplace of ideas. So, antitrust law does not exist as a Platonic ideal out there for us to find. Rather it is for us to design. As we design, we must return to antitrust’s core values: what do we, as a society, want to promote?
What South Africa, the EU, the U.S., and other jurisdictions seek to promote may differ at the margins. Calling one country’s antitrust goals impure hardly advances the debate. While differences may exist at the margin, ultimately, competition law worldwide can advance several common political, social and economic goals. One would hope that our common optimal goal will be to promote our welfare in an economy that is inclusive (i.e., benefits many citizens, not just the wealthiest 1 percent), protects the privacy interests of its citizens, promotes overall well-being, and promotes a healthy democracy.
Winner of the 2016 ‘Concurences’ prize for best article on collusion.
The Agency Effectiveness Study explores a wide range of the daily concerns faced by competition agency heads and their staff, with an emphasis on the formal and informal ways in which they are addressed. Managing and operating a competition agency is very much a process of learning-by-doing. The aim of the study is, therefore, to capture and make available the know-how that competition agency officials accumulate during their service. In particular, it aims to provide a candid account of the practical challenges encountered and solved by heads of agencies and their staff as they navigate through changing legal, social, political, and organizational landscapes.
As part of the study, current and former agency heads and competition law officials, of both young and more established agencies, were interviewed and asked for their views on a wide range of topics linked to agency effectiveness. A qualitative method was adopted to capture the knowledge and first-hand experience of competition officials. The data were collected through both face-to-face interviews and questionnaires with the aim of exploring practical, managerial, and structural challenges, which may influence an agency’s effectiveness.
We note that by virtue of the employed methodology, the study has natural limitations. The information captured is likely to have been influenced by the subjectivity of the individuals and possible biases. To minimize these effects, participants were drawn from a wide range of agencies from around the world—both comparatively young and more established. These included agencies from Europe, North America, Latin America, Asia, Africa, Middle East, and the Caribbean. To encourage frank discussion, the identities of contributors are not included in the public report. These confidentiality protections were put in place to reassure participants that they can freely provide a candid account of their experiences without those experiences being directly linked to a jurisdiction or an individual.
The study’s findings depict a challenging reality facing competition officials in the day-to-day running of a competition agency. It is this complexity that the study hopes to help untangle, by offering competition agency officials the benefits of insights from current and past competition agency leadership. The fruits of the study are aggregated in this report under nine headings. Each section includes a summary of the main points, as well as a selection of quotes from officials who participated in the study.
The JAE editors, Dr Maria Ioannidou, Dr Julian Nowag, and Mr. Hugh Hollman, acted as the study coordinators and contributed immensely to the collection of the data and the formulation of the report.
We hope that this study will constitute a repository of experience for the day-to-day management of competition agencies, and provide a source of inspiration to current and future agency heads around the world.
The strive for tighter control of distribution, quality and price - has led an increasing number of producers to include restrictions on the use of online marketplaces in their selective distribution agreements. This paper considers the effects of such restrictions and the legal approach they call for. While acknowledging the legitimacy of proportionate restrictions on distribution, the article illustrates how an absolute ban on the use of online marketplaces may have a detrimental effect on market transparency, price competition, entry and expansion. The discussion illustrates how the legitimate interests of producers may be protected through less onerous means, without the increase in consumers’ search costs and the dampening of price competition. With that in mind, it is argued that these restrictions should be analysed on a case-by-case basis and should not benefit from the Vertical Block Exemption. Furthermore, the article considers whether absent proportionality and objective justification, the harmful effect of online marketplace bans, justifies their condemnation as anticompetitive by object.
The examination of buyer power in merger control may relate to one of two forms of power. It may relate to the merging parties ability to exercise buyer power to the detriment of consumers. Alternatively, it may relate to the presence of countervailing buyer power that can relax some of the effects generated by an upstream transaction. This paper examines the economic and policy implications of buyer power and reviews the European Commissions decisions in cases in which buyer power considerations were present. The analysis reviews the weight attributed to buyer power considerations in finding a significant impediment to effective competition or, conversely, the role of countervailing buyer power as a mitigating factor in the analysis of upstream mergers. The discussion highlights a certain gap between the limited emphasis given to buyer power in merger analysis, in contrast to the extensive and heated discussion it triggers outside legal analysis at policy, social and economic levels.
Recent decades have witnessed a marked internationalization of competition law enforcement and dialogue. Multinational, regional and bilateral efforts, have contributed to the approximation of competition law regimes worldwide and to collaborative enforcement. However, notwithstanding these valuable developments, domestic social, political, industrial and market considerations still affect the scope and application of national competition laws. This paper explores the meeting points between the domestic perspective of competition law enforcement and growing international collaboration and enforcement efforts. In doing so, it highlights the intrinsic national nature which is embedded in the DNA of competition law and the natural limits of international convergence and collaboration in this area.
The paper explores the retail price effects of upstream and mid stream horizontal mergers. It questions the prevailing assumption in merger review according to which such transactions will have similar effects on retail price as that of downstream horizontal mergers. The analysis illustrates how a sophisticated profit-maximizing merged entity may find it more profitable to enter into efficient contracts which seek to maximise the profit of the distribution channel, and so ensure that retail prices are not raised. The merged entity uses its market power and improved bargaining position to extract as much of that profit as possible from the retailer. We therefore argue that one cannot simply assume a direct link between the creation of market power upstream following a merger transaction, and the subsequent increase in retail prices. An analysis of the effects of upstream mergers on retail prices should call for a more nuanced appraisal which distinguishes the transfer of wealth within the operators in the distribution chain from the possible price impacts on final consumers.
ISBN: 1744-6414
This paper considers the welfare implications of input price fixing and the enforcement standard to be applied to these arrangements. It explores the way in which European competition law approaches input price fixing, the scope of the object-based approach and the instances in which effects-based analysis may be used in the appraisal. In doing so, the paper sets to clarify the legal approach to price fixing of procured input. It outlines a possible benchmark for the assessment of input price fixing, with the aim of sharpening the dividing line between instances which restrict competition by object, and those which necessitate consideration of effects.
ISBN: 1744-6414
The paper explores the effects buyer power may have on product quality. It argues that, at times, excessive pressure on input price will trigger direct welfare costs to consumers in the form of disguised inferior products. To illustrate quality erosion, the discussion focuses on the unique area of private labels and the relationship between the powerful buyer and its private-label supplier.
This article explores the interface between competition law and intellectual property rights (IPRs) in the context of compulsory licensing. It considers how European competition law has been applied to limit the protection awarded to IPR holders and reflects on the remedy of compulsory licensing.
In doing so, the article considers how current policies may affect innovation and welfare. In our analysis, we consider two questions that are inter-linked. The first relates to the threshold for finding that a refusal to license IPRs amounts to an abuse of a dominant position. We consider whether the current European threshold for intervention is adequate and clear. Our analysis illustrates that the use of competition law as an external balancing tool has gradually eroded the protection conferred by IPR. Furthermore we show that the European Commissions Guidance Paper on Article 102 of the Treaty on the Functioning of the European Union (TFEU)1 has contributed
to this trend. We argue that these processes have blurred the principles
which limit the application of competition law to IPR, creating a potentially detrimental effect on competition and innovation.
We consider the characteristics of the compulsory license remedy and
reflect on its adequacy in resolving competitive and innovative injuries
caused by the refusal to license. In doing so, we review the aims of compulsory licensing, as well as its advantages and disadvantages. We then propose an offense-remedy distinction, which allows substantive analysis of abuse, independent of the remedy. This method enables antitrust authorities to evaluate the offense with less risk of reaching a conclusion that is based on a false positive.
ISBN: 1744-6414
The application of competition law in an international setting has long been a challenging area for competition agencies. Legal and practical obstacles often limit an agencys ability to obtain information on multinational violations and engage in effective enforcement and prosecution.
These limitations have been particularly noticeable in the case of developing countries and economies in transition. These regimes are characterised by limited enforcement capacity and tend to focus their attention on domestic violators and on efforts to foster a competition culture. The challenge of tackling sophisticated cross-border anticompetitive activity and the imposition of effective sanctions on international violators may be beyond their reach.
Unfortunately, the limited enforcement capacity of these regimes often results in an increased and disproportionate exposure to multinational anticompetitive activity. This exposure is particularly harmful given the ever growing level of cross-border trade. Indeed, in many instances, unless the cross-border activity is challenged by other, more powerful jurisdictions, developing economies and economies in transition remain exposed to negative transfer of wealth.
This reality serves as a powerful incentive for these regimes to enhance their enforcement capacity in order to effectively tackle cross-border infringements. To facilitate these efforts, UNCTAD has recently launched a new initiative that will foster transparent information flow and collaboration between competition agencies. This initiative known as the Collaborative Information Platform - forms part of UNCTADs on-going work on international cooperation and enforcement.
EU competition law enforcement has undergone significant changes in the past decade, aimed at improving its effectiveness by employing more actors (national competition authorities and courts) and more flexible procedures (commitments decisions and settlements). Occupying centre stage alongside these developments were efforts to advance private EU competition law enforcement and consumer involvement therein. Yet, while the number of damages actions in competition cases has steadily increased in some Member States, this increase has been modest and uneven across Europe. Procedural difficulties, excessive costs, risks and the multitude of legal systems involved, are only some of the obstacles still curtailing the availability of effective judicial redress in competition law cases. In addition, difficulties in launching group actions and adopting a harmonised Euro-wide collective redress mechanism, further limit access to corrective justice.
This paper addresses shortcomings in the private enforcement of competition laws across Europe. It explores the possibility and desirability of deploying public enforcement to promote some of the objectives traditionally linked to damages actions in national courts. More specifically, it advocates in favour of including elements of compensation for injured parties, as part of the public enforcement of competition law (hereafter Public Compensation). Under the proposed mechanism, at the end of a public investigation, the competition authority would be able to impose not only a fine but also award a certain form of compensation to the injured parties, either individually identified or defined more broadly as the injured class.
This mechanism provides an attractive vehicle for supplementing damage claims; narrowing the gaps in corrective justice, while fulfilling the traditional deterrent function of public enforcement. These benefits, we argue, justify consideration of a formal approach toward Public Compensation, which would facilitate its implementation across the European Union. Such mechanism could be implemented alongside possible future changes to the private enforcement landscape.
This paper advances a two-fold argument addressing the questions of why and how Public Compensation is desirable. We begin by identifying the gap in the enforcement system that Public Compensation could fill, and offer further normative justifications for Public Compensation. We then consider the merit in advancing a more formal, fused approach toward competition law enforcement. Subsequently we move on to review cases in which the competition authority imposed or accepted compensation as part of the public inquiry. These cases provide inspiration for the ensuing proposal of a formal, institutional approach.
ISBN: 2041-7764
The role of antitrust in curtailing excessive prices has long been a
contentious area. Consequently, the charging of excessive prices has
been subjected to diverse levels of enforcement across the world.1 U.S.
antitrust law, for example, does not encompass the charging of high
prices as such,2 and was held not to condemn the resultant of those
very forces which it is its prime object to foster: finis opus coronat.3 By
contrast, competition laws in other jurisdictions provide for the condemnation of excessive or unfair pricing. Such is the case under EU competition law,4 the competition provisions in the European Member
States,5 and in other jurisdictions across the world.6 But even among
those competition regimes which do intervene against the charging of
excessive prices as such, one may identify different levels of enthusiasm
for doing so. In Europe, for example, recent years have witnessed a restrained approach by the European Commission7 but a more proactive
approach by some of the competition authorities of the Member States.8
Varying levels of intervention reflect a controversy as to the merit of
prohibiting excessive pricing.
Three main grounds are often used to justify
non-, or limited-, intervention: (1) intervention is not necessary, as
high prices would be competed away by new entry, attracted by the ex-cessive price; (2) there are practical difficulties in speculating what a
price would have been had there been competition and in determining
the excessiveness of the prices actually charged; and (3) enforcement
which targets excessive prices may chill innovation and investment.9
To illustrate the difficulties of assessment and to question some of the
justifications that are used to rationalize non-intervention, this article
reviews the recent litigation in South Africa related to alleged excessive
pricing by Mittal Steel.10 We use the decisions of the South African Competition Tribunal and the South African Competition Appeal Court as a
case study to highlight both the complexity of, and possible merit in,
antitrust intervention against excessive pricing.
Our analysis focuses on the three grounds for non-intervention. First,
with respect to the self-correcting nature of excessive prices, we illustrate
how excessive prices, in and of themselves, do not attract new entry,
when potential entrants are either informed or uninformed about their
post-entry profits. Referring to our previous work on this subject,11 we
question the South African Competition Tribunals holding in the Mittal
case with respect to the prerequisite conditions for intervention against
excessive pricing. Second, we consider how the difficulties of assessing
what is an excessive price affected the outcome in the Mittal litigation.
Without underestimating these difficulties, we consider how they may be
alleviated in certain cases through reasonable methods for inferring
what may constitute an excessive price. Third, while acknowledging the
possible validity of concerns about chilling ex ante investment, we outline
instances in which these concerns should not serve to support nonintervention.
It should be stressed that this article does not advocate across-theboard
intervention. It does, however, question the validity of a categorical
hands-off approach, which deems excessive prices to be outside the
realm of competition law. We consider separately the weight that should
be assigned to each ground for non-intervention. Subsequently, we argue
in favor of a case-by-case approach which explores the factual matrix of each case and considers the benefits, costs, and net effects of
intervention.
ISBN: 0003-6056
Recent decades have witnessed a distinct increase in the sales and popularity of private labels. The growing market share of private labels has transformed the landscape of retail competition in developed countries. Major retailers are no longer confined to their traditional roles of purchasers and distributors of branded goods. By selling their own label products within their outlet they compete with their upstream brand suppliers on sales and shelf space.
This vertical competition is not confined solely to value categories of products. These days, retailers offer private label goods catering for the value, specialized and premium markets. These developments, and the increasing confidence that consumers have in private labels, have increased the bargaining position and market power of retailers as their labels compete directly with the leading manufacturers brand and its value alternatives.
This unique relationship and the increased role played by private labels raises fundamental questions as to their pro-, and possible anti-, competitive effects. It further highlights the shifting power balance between the producer and distributor and between the private label and branded good.
This paper focuses on the effects of private labels, sold in major supermarkets, on retail competition and consumer welfare. In particular, it considers how supermarkets affect competition due to the fact that they retain control over shelving, in-store promotion and the pricing of branded and own label goods in addition to having superior access to consumer data. Furthermore, it reviews the enforcement of competition law in a private label environment and the difficulty in balancing the beneficial short-term effects of private labels and their possible, harmful, long-term effects. It subsequently questions whether these difficulties imply a lack of competitive harm or reflect a gap in regulation, as traditional analysis fails to encompass the increased market power of retailers and the existence of vertical competition.
ISBN: 1011-4548
In recent years the debate on the soul of Article 102 TFEU and the effects based approach have dominated the competition law landscape. While many would agree on the clear merit of introducing more carefully balanced analysis when establishing abuse, the practicalities of such an approach have been difficult to agree upon. The recent Guidance Paper on Enforcement Priorities in the Application of Article 102 TFEU, which stemmed from the public consultation, has further sparked the public debate in this area. Concerns were raised as to the scope of the effects based variants in the Guidance Paper and the innovation it heralds - for example in the treatment of fidelity rebates and the use of the new proposed efficiency defence.
Beyond the substantive and conceptual complexities that an effects based approach carries, its practical application has given rise to an interesting and somewhat disconcerting duality. On one hand, the European Court has not yet warmed to the effects based approach. In its judgements, the Court, has by large, continued to hold that it is not necessary to demonstrate that the abuse in question had a concrete effect on the markets concerned. It has generally ignored the lively debate on the effects based approach and even at times, the opinion of its own Advocate General . On the other hand, the Commission has pushed toward an effects based analysis, not only in its Guidance Paper but also in its decision making. In the Prokent/Tomra decision the Commission noted that it has completed its analysis by considering the actual effects of the dominant companys practices and did not satisfy itself with the lower formalistic threshold established by the Court. Similarly, in Intel Corporation , the Commission took the decision in line with the orientations set out in its Guidance Paper and considered the effects of the fidelity rebates. The Commission noted, however, that even with the absence of harmful effect, Intels behaviour may be condemned under the formalistic analysis of abuse as applied by the Court, thus using a dual benchmark in its decision making.
This Form based approach at the European Court and the Effects based approach as applied by the Commission, trigger apparent legal and business uncertainty.
ISBN: 1744-6414
ISBN: 9770972509009
DOI: 10.1093/ojls/gql006
ISBN: 1464-3820
ISBN: 1011-4548
ISBN: 0882-6420
Book (17)
Look around you. You are most likely sitting comfortably on a chair or sofa, in a heated or cooled room, surrounded by your comfort technology – from your smart water-resistant mobile phone, to your new extra thin laptop with its long-life battery. As you read this introduction, you might be interrupted by notices on your phone, video chats from friends and reminders from your digital assistant. You might then step out and go to your favourite shop, where choice is abundant, to buy reasonably priced food and goods. You might later meet friends in your favourite hangout where the service is excellent. Maybe travel around town in your reasonably priced car or ride sharing service, watch a movie, or just explore the market.
Your environment is characterized by ample choice, smiling service providers and reasonably priced goods. Sure, things can always improve. No doubt. But pause for a second and appreciate one of the key drivers that make this environment possible – the competitive process.
It is the rivalry between businesses and traders that delivers the abundance of choice, the lower prices, the increased innovation, and the better quality of goods and services. It is this process of competition which enables your money to go the extra step: to buy more for less. A process which has generated much of the prosperity of the western world. Without it, you would most likely have been sitting in a somewhat bare room on an uncomfortable chair that was purchased from an unpleasant seller at an inflated price. Your money would buy you less. Less goods, less services, less quality, and less innovation. Not so rosy.
And so, as a society, we strive to protect the beneficial dynamics of competition as a means to enhance consumer welfare, deliver efficiencies, and encourage innovation.
At times, society has to work hard to maintain the abundance that comes with competition. While competition benefits us, the consumers, it makes the life of producers, sellers and service providers rather difficult. They need to improve to stay in business. They need to invest in new products, new technologies, new processes. They need to offer us goods and services at an attractive price. If they fail to remain competitive, they may find themselves being pushed out of the market. And so, at times, these sellers and service providers may look for ways to dampen the competitive process. Think, for example, of price-fixing cartels or market sharing agreements which result in us paying more and getting less. Think of powerful companies that might abuse their power to distort the market, for example, by stopping their customer from buying from other companies. Or maybe large merger transactions between two giant companies that could leave us dealing with a single dominant seller that benefits from concentrated power.
Our antitrust and competition laws are designed to address these risks, remedy possible market failures, and safeguard consumer welfare. Our competition agencies and courts are tasked with enforcing the law. As they do so, they face the challenge of correctly identifying what amounts to an anti-competitive activity, and curtailing it to ensure dynamic and competitive markets.
This book is about these market dynamics, their promises and limitations. It is about the laws that are used to safeguard the process of competition, and the way they are enforced. About the delicate and challenging relationship between a free market economy and government intervention. It is about the fascinating forces of competition that influence your wealth and shape our modern society.
Using dozens of vivid examples to show how society overprescribed competition as a solution and when unbridled rivalry hurts consumers, kills entrepreneurship, and increases economic inequality, two free-market thinkers diagnose the sickness caused by competition overdose and provide remedies that will promote sustainable growth and progress for everyone, not just wealthy shareholders and those at the top.
Whatever illness our society suffers, competition is the remedy. Do we want better schools for our children? Cheaper prices for everything? More choices in the marketplace? The answer is always: Increase competition.
Yet, many of us are unhappy with the results. We think we’re paying less, but we’re getting much less. Our food has undeclared additives (or worse), our drinking water contains toxic chemicals, our hotel bills reveal surprise additions, our kids’ schools are failing, our activities are tracked so that advertisers can target us with relentless promotions. All will be cured, we are told, by increasing the competitive pressure and defanging the bloated regulatory state.
In a captivating exposé, Maurice E. Stucke and Ariel Ezrachi show how we are falling prey to greed, chicanery, and cronyism. Refuting the almost religious belief in rivalry as the vehicle for prosperity, the authors identify the powerful corporations, lobbyists, and lawmakers responsible for pushing this toxic competition—and argue instead for a healthier, even nobler, form of competition.
Competition Overdose diagnoses the disease—and provides a cure for it.
The book was listed as one of Inc. Magazine top business books you need to read in 2020 and one of Publishers Weekly Top 10 Business & Economics books for Spring 2020.
“This is a groundbreaking, critical work—a major contribution to the field of competition law.”—Frank Pasquale, author of The Black Box Society
“Ezrachi and Stucke provide a compelling analysis challenging the orthodoxy that modern technology empowers consumers. Their findings will send a shiver down the spine of consumers, businesses, public policy makers and anyone working in the competition field. Virtual Competition is a fast-paced, mind-boggling thriller that you can’t put down; a thriller in which we are all set to be the victim.”—Alan Giles, Saïd Business School, University of Oxford
“Virtual Competition provides an intriguing and provocative look at the potential dark side of big data and big analytics. The debate over digital competition is just beginning, and Ezrachi and Stucke have laid down a marker that is likely to capture wide attention.”—Jonathan Levin, Stanford Graduate School of Business
“Ezrachi and Stucke’s insights into data-driven opportunities, collusion scenarios, discrimination, and ‘frenemies’ will help authorities distinguish between true efficiencies and anti-competitive problems, and ensure that most enforcement at least keeps up with technological developments. Forward-thinking competition authorities can use these insights proactively to help craft government policies that ensure that innovation and competition are real, while problems are addressed quickly and thus—hopefully—remain virtual.”—Philip Marsden, Inquiry Chair, Competition and Markets Authority
“A thought-provoking, clearly written examination of the coming effects on markets and competition of computer algorithms, big data, big analytics, and ‘super-platforms,’ drawing on real-life examples, on neoclassical and behavioral economics, and on the authors’ deep understanding of U.S. and EU competition law.”—Harry First, New York University School of Law
A look at the international competition law landscape reveals consensus as to the main goals of competition law. Indeed, core economic reasoning and market analysis serve as the backbone to competition analysis and support assimilation of thought and policy worldwide. Orbiting that core, one may identify a wider, heterogeneous, range of policies advanced by competition regimes. These policies are sometimes viewed as external to the pure competition analysis and, as such, may be regarded as illegitimate. Overall, the in and out methodology presupposes the presence of a legal and analytical structure which defines competition law and to which jurisdictions are expected to align. This paper explores that proposition. It considers the inherent properties of the law and questions the presence of a clear dividing line between competition law and external considerations. It argues that the law, by its nature, provides for an absorbent and flexible platform which soaks up national values and interests. Accordingly, the inherent scope and nature of modern competition laws are not necessarily as consistent and objective as one might like them to be.
This is the fourth edition of the highly practical guide to the leading cases of European Competition Law. It explores the application of Article 101 TFEU, Article 102 TFEU and the European Merger Regulation, as well as the public and private enforcement of Competition Law. In addition, it reviews the intersection between Competition Law and Intellectual Property Rights and the application of Competition Law to State action. Each chapter outlines the relevant laws, regulations and guidelines for each topic. Within this framework, cases are reviewed in summary form, accompanied by analysis and commentary.
. .
'This book should be in the library of every competition law practitioner and academic. The summary of cases is first class. But what makes it really stand out is the quality of the commentary and the selection of the material which includes not only the most important European judgements and decisions but also some of the leading cases from the US and European Member States.'
Ali Nikpay, Gibson, Dunn & Crutcher LLP, Former Senior Director, Office of Fair Trading
. .
'The study of EU Competition law requires the analysis and understanding of a number of increasingly complex European Commission and European Court decisions. Through the provision of case summaries, excerpts from the important passages and concise commentary linking these decisions to other key case law and Commission documents, this unique and impressive book, now in its fourth edition, provides the student and practitioner of EU competition law with an extremely clear and useful introduction to these leading decisions.'
Dr Kathryn McMahon, Associate Professor, School of Law, University of Warwick
. .
'This book is especially valuable for competition law specialists in Europe and abroad who are interested in the jurisprudence and policy of the European Union and its member states. Familiarity with the European regime is essential for proficiency in competition law today, and this volume provides an excellent foundation.'
William E Kovacic, Global Competition Professor of Law and Policy, George Washington University Law School, Former Chairman, US Federal Trade Commission
. .
'The Guide is an invaluable tool for both students and practitioners. It provides a compact overview on the fundamental cases and highlights the essential problems in a clear and sharp analysis.'
Dr Christoph Voelk, Antitrust Practice Group, McDermott, Will & Emery LLP
The proliferation of antitrust enforcement regimes around the world has transformed the enforcement landscape in recent decades. This trend has led to increased focus on the competitiveness of markets and the curtailment of anticompetitive activities, to the benefit of consumers. It has also led to increased bilateral, regional and multinational cooperation resulting in a gradual process of assimilation of thought and law.
However, while record numbers of competition agencies progressively apply similar principles and law, competition law enforcement remains domestic in nature. Indeed, a look at the active jurisdictions reveals a range of substantive and procedural approaches. Differences in the competition agencies mandate, priorities and enforcement powers, as well as different political, social and legal environments are only several of the variants which underscore the heterogeneous enforcement landscape.
This reality presents challenges for companies and undertakings operating across borders. With increased globalization of business and increased extraterritorial application of competition laws, it is often the case that an activity, agreement or transaction will be subjected to a range of overlapping competition regimes. Subsequently, the task of managing the legal and financial risks associated with competition law infringements requires a careful exploration of the law and practices around the world.
This multi-jurisdictional compliance guide addresses this complexity and offers a comprehensive and detailed multi-country review of critical antitrust compliance issues. The book outlines the laws and practice in forty three of the leading antitrust jurisdictions around the world. With compliance requirements in mind, this book provides businessmen, law firms and in-house lawyers with the necessary information to explore the changing global antitrust landscape.
This book is a resource for those responsible for competition and corporate compliance programs and for those interested in the international enforcement landscape of competition law. It assists in tailoring global compliance programs while considering multijurisdictional effects and policies. In addition, it provides a clear and accessible benchmark for the consideration of agreements, activities and transactions on a case by case basis.
Contributions to this book have been authored by leading competition law practitioners from their respective jurisdictions. Chapters in this guide enable assessment of personal and corporate risk exposure. The reader will find information on each regimes laws and practice. Areas covered include enforcement procedure and substance. These include, among others, the enforcement environment and enforcement priorities, leniency programs, penalties, fines and individual sanctions. In addition chapters outline the laws applicable to horizontal and vertical agreements, market power and the abuse of a dominant position and merger control.
This book is inspired by the international
movement towards the criminalisation of cartel
conduct over the last decade. Led by US enforcers,
criminalisation has been supported by a growing
number of regulators and governments. It
derives its support from the simple yet forceful
proposition that criminal sanctions, particularly
jail time, are the most effective deterrent to such
activity. However, criminalisation is much more
complex than that basic proposition suggests.
There is complexity both in terms of the various
forces that are driving and shaping the movement
(economic, political and social) and in the effects
on the various actors involved in it (government,
enforcement agencies, the business community,
judiciary, legal profession and general public).
Featuring contributions from authors who have
been at the forefront of the debate around the
world, this substantial 19-chapter volume captures
the richness of the criminalisation phenomenon
and considers its implications for building an
effective criminal cartel regime, particularly
outside of the US. It adopts a range of approaches,
including general theoretical perspectives (from
criminal theory, economics, political science,
regulation and criminology) and case-studies of
the experience with the design and enforcement of
existing or contemplated criminal cartel regimes
in various jurisdictions (including in Australia,
Canada, EU, Germany, Ireland and the UK). The
book also explores the international dimensions of
criminalisation - its specific practical consequences
(such as increased potential for extradition) as
well as its more general implications for trends of
harmonisation or convergence in competition law
and enforcement.
This book is designed as a working tool for the study and practice of European Competition Law. It is an enlarged and updated second edition of the highly practical guide to the leading cases of European Competition Law, first published in 2008.
This second edition focuses primarily on Article 101 TFEU (Ex Article 81 EC), Article 102 TFEU (Ex Article 82 EC) and the European Merger Regulation. In addition it explores the public and private enforcement of Competition Law, the intersection between Intellectual Property Rights and Competition Law and the application of Competition Law to State action.
Each chapter begins with an introduction which outlines the relevant laws, regulations and guidelines for each of the topics, providing the analytical framework for the case entries that follow. The case entries are then set out is summary form, accompanied by analysis and commentary.
ISBN: 1849460477/97818494
ISBN: 9781841136745
Internet Publication (7)
The prevalence of third-party tracking in our modern ecosystem cannot be ignored. Trackers, on our websites and apps, enable multi-sourced data gathering, at distinct volume, velocity, verity and veracity. While operated by numerous operators, the majority of these trackers are controlled by a handful of data giants. In this paper we consider the rise and growth of this industry, the power it has bestowed on a handful of operators, and the possible implications to consumer welfare and competition.
Algorithmic collusion is a hot topic within antitrust circles in Europe, US and beyond. But some economists downplay algorithmic collusion as unlikely, if not impossible. This paper responds to these criticisms by pointing to new emerging evidence and the gap between law and this particular economic theory. We explain why algorithmic tacit collusion isn’t only possible, but warrants the increasing concerns of many enforcers.
Report (3)
Subcommittee on Market Structure and Antitrust
This working group came together to address specific problems arising from the digital platforms’ reach, scale, scope, and use of data. We were asked to examine concerns stemming from the market structure contemporary platforms have created, and to investigate their competitive behavior, including the consequences of network effects that can create barriers to entry for new innovators and entrench incumbents. The global nature of many of today’s platforms, a result of their scale, scope, and business models, creates novel complexities and considerations, particularly a concern that the digital platform may be a unique combination of economic forces that require both new analysis and new public policy. Regulatory authorities throughout the world are now turning their attention to these same questions. This report contributes to this international analytical project by providing some of the necessary frameworks and inputs. We intend it to be a complement to other recent work, as experts across the world wrestle with how to ensure that markets remain open and healthy, allowing beneficial technological and social advancements to continue. Many of our conclusions and suggestions echo the findings of reports that have come out in the past year, and we hope they will be helpful to those reports not yet released. The list of antitrust experts and agencies working on this problem includes Australia, the United Kingdom, Germany, the European Commission, France, Israel, and Japan
Innovation is generally seen as good. Promoting innovation especially in the digital economy is often deemed vital. Increasing the level of innovation, after all, can promote sustainable development, economic growth, prosperity, and citizens’ overall welfare. So how can policy makers spur innovation in the digital economy? While there is no simple recipe, this study explores the interplay between innovation and the digital economy.
Through the various prisms of economic theory, market data, policy, and law, the study reveals the complex links between innovation and market concentration, the key trends of, and obstacles to, innovation, and ways policy makers can promote innovation in modern digital markets.
Our first angle is a familiar one -- the theoretical economic literature on market characteristics and innovation. The general economic consensus is that by delivering technological improvements, and new products, services, and business models, innovation forms a central pillar to efficient markets and a key to future prosperity and economic growth. Innovation processes can stimulate dynamic markets, enhance citizens’ welfare, and help offset otherwise diminishing marginal returns.
The relationship between innovation and market dynamics, however, has been subjected to a range of theoretical assumptions. Under the Schumpeterian hypothesis, market concentration is understood to allow internalization of the rewards flowing from innovation efforts (increase monopoly rents). Firms innovate to escape competition. Under the Arrowian hypothesis, competitive pressure forms the key to investment in innovation, and that significant market power disincentivizes investment in further innovation. More recent scholarship notes the complex relationship between market concentration and innovation. Notable is the inverted U-shaped relationship between competition and innovation levels. Philippe Aghion and his co-authors suggest that an increase in competition (from an initial low position) increases the rate of innovation, but that high levels of competition decrease the rate of innovation. The reason for the inverted-U shape is that when there is not much competition, firms have little incentive to innovate. Increasing competition, accordingly, will increase the average innovation rate. But once competition is intense, increasing the competitive pressure further may result in a slower average innovation rate. In addition, other variables may impact the investment in innovation, including industry and company characteristics and the political/industrial dimension.
After this familiar angle, we examine how innovative are many markets today. Our second angle offers a macro view of the current level of innovation in the EU and US. It focuses on the supply of innovation – that is the extent to which companies invest in research and development of new products, systems, and processes. While the dynamism of many digital markets may suggest heavy investment in innovation, macro data give rise to concern. From high above, it appears that competition is below optimal levels in many US sectors, and to a lesser extent, in the EU. The data from this angle suggests that many markets are becoming more concentrated and less competitive. Profit margins are widening, with a few firms reaping a significant share. Innovation levels also appear sub-optimal. The reduction in competition in the US, one recent economic paper points out, also coincides with a decrease in labor’s share of profits, a slowdown in output and GDP, a decrease in the startup rate of new firms, due to higher barriers erected by incumbents, and an increase in wage inequality.
One noteworthy study is the OECD Digital Economy Outlook 2017. The OECD acknowledges information and communication technologies as enablers of innovation but notes emerging signs that business dynamism and entrepreneurialism are falling short of their potential. The OECD further notes that while small start-ups are better placed to seize new opportunities offered by digital technologies, access to capital and high finance costs may undermine this potential.
Across the Atlantic, innovation also appears to be lagging behind its potential. The head of the Council of Economic Advisers under the Obama administration similarly noted a slowdown in the creation of new businesses, with top firms capturing more market shares. Of concern are signs that higher returns to capital have not been associated with an increase in investment. Businesses in markets with rising concentration and less competition are investing relatively less.
Several 2018 empirical papers also reflect these disturbing trends. There is a significant increase of markups between prices and marginal costs of publicly traded firms in developed economies. The rise in measured markups is associated with increased market power and market concentration. In line with the inverted U-shaped relationship, an IMF study finds that high markups are correlated initially with increasing and then with decreasing investment and innovation rates. This non-monotonicity is more pronounced for firms that are closer to the technological frontier. More concentrated industries also feature a more negative relation among markups, investment, and innovation.
So from our macro view, we see that increased concentration levels and less competition are generally associated with greater profit margins, but not greater investment in innovation. In fact, indicators suggest a decrease in investment, in line with an inverted U-shaped relationship.
Our third angle looks at several emerging trends in the digital economy. Among the key characteristics, noteworthy are the use of data as a key resource for innovation in the digital economy and the ongoing investment in Big Data. Data acts as a significant engine for innovation, but can also act as a barrier in inhibiting entry and growth. We observe a positive feedback loop that may help powerful firms become stronger, as the weak get weaker. Beyond data, the exponential growth of the Internet and mobile communications has seen a proliferation of platforms that often act as intermediaries and as such occupy a central junction for users and service providers. The access to data on users and suppliers places platforms in a favorable position that, at times, act as gate keepers in industries characterized by network effects. Data-driven network effects, may at times, tilt the market in favor of a single winner, which thereby is significantly protected from competitive pressure.
These trends can directly impact citizens’ welfare and choices. They may facilitate control over the users’ interface. Moreover, they may enable providers to affect the use of, and access to, competing services, increase friction in switching to alternatives, reduce awareness of outside options, and promote the platform’s own services. Through the use of personal data and advanced algorithms, platforms and their suppliers may control to a greater extent the digital paths seen and used.
So, what is the price we might pay if a dominant platform suppresses some types of innovation? Our fourth angle examines the implications of sub-optimal innovation levels. At least two perspectives emerge. The first, being narrow, acknowledges that many markets today may not be as innovative as their current potential, but views this as a transitory state. Policy decisions today can be used to affect future levels of investment in innovation and help optimize markets for innovation. The second, wider perspective, offers an evolutionary view. The level and nature of innovation, being path dependent, may not necessarily return to their natural state. Under this evolutionary perspective, current impediments to innovation can affect not only future levels of innovation but also the types of innovation. Basically, some types of innovation may be lost forever. As a result, today’s policy decisions affect not only future levels of investment, but also the paths for innovation and the nature of innovation. This view puts greater responsibility on policy makers to preserve competitive portals, which can have a crucial role to play in the shaping of tomorrow’s innovation.
Given these potential stakes, what can policy makers do to promote innovation in the digital economy? We offer policy makers three key perspectives – the supply of innovation, the demand for innovation, and the nature of innovation.
Our fifth angle assesses the variables that affect the supply of innovation. The supply of innovation, as we synthesize from the literature, will likely depend on four key variables: market contestability (markets need to remain contestable for innovation to flourish), appropriability (the extent to which a firm can capture the value created by its innovation and protect the competitive advantage associated with it will increase the incentive to innovate), synergies (for instance, the combination of complementary assets necessary to engage in R&D will enhance the ability to innovate), and the nature of innovation.
From this angle we can see the complex relationship between market structure, and the levels and nature of innovation. No optimal ratio exists among these variables to increase the supply of innovation. Some degree of market power, at times in some industries, serves as an incentive that stimulates innovation (appropriability). But while greater concentration might result from a firm’s welfare-enhancing innovation, one cannot say that increasing market concentration, by itself, will necessarily spur welfare-enhancing innovation. As we also see, innovation can continue to occur in heavily concentrated markets, but the nature of innovation might change. For example, open systems, relying on user-driven innovations, might slowly close after a few firms dominate the industry. Users, rather than develop and modify products and services for their own use, rely instead on the dominant firm’s innovations. Finally, the primary beneficiaries from the innovation might change. Innovation may simply reinforce the dominant platform’s power and user lock-in.
After viewing how these key variables can affect the supply of innovation, we switch perspectives to explore the demand for innovation. Using five stages in the users “innovation-adoption process,” we identify how large platforms can influence the demand for, and rate of adoption of, different kinds of innovation.
Adoption of several key technologies in the past took decades. The good news is that with dominant platforms, the adoption rate for some technologies can be shortened to years, if not months. But just as powerful platforms can help users through the five stages in deciding to adopt an innovation, they can increase barriers in one or more of these stages, thereby impeding the technology’s adoption. Tactics used to thwart an innovation’s adoption may include limiting the potential user’s exposure to competing technologies, the use of defaults to take advantage of status quo bias, or the use of data-advantages to reduce users’ likelihood of adopting competing products or technologies. Among our examples is how Google and Apple successfully thwarted for years ad blocking technology for smartphones.
The insights from this sixth angle illustrate how a powerful gatekeeper can influence users’ adoption of innovations. As a result, one should not solely focus on contestability, appropriability, and synergies that affect the supply of innovation. Policy makers must also consider the pathway of innovation from the angle of user adoption of that technology. Dominant firms can reduce the demand for, and adoption of, technologies, even when markets are contestable, synergies exist with other innovative products, and the dominant platform does not seek to appropriate any gains from that technology.
We often assume increasing innovation levels improves our collective well-being. But does it? Our seventh angle looks beyond the veneer of innovation. From this vantage point, we consider how characteristics of the digital economy may impact the nature of innovation. Because dominant platforms can promote some innovations, while thwarting other innovations that threaten their dominance or business model, one might ask whether innovations are always good? Does increasing the level of innovation necessarily increase overall welfare? Not always.
In examining the nature of innovation, we describe three categories of innovation: positive, negative, and mixed. We explore several examples of this negative innovation. Firms employ these innovations to maintain or obtain monopoly power without benefitting consumers. At times, they use this negative innovation to transfer wealth from consumers to themselves, or to exclude competitors. From this angle, we consider how changes in market characteristics may impact the nature of innovation and the possibility of it being exploitative, exclusionary, or cannibalistic.
Several key takeaways emerge from this perspective. First, the nature of innovation may take a path that runs against societal goals and benefits a few at the expense of many. Second, increasing the overall level of innovation will not necessarily increase overall welfare. Third, while policy makers generally do not want to chill the incentives to innovate, some types of innovation should be chilled. Fourth, policy makers cannot assume that market forces or regulators will generally deter negative innovation. Some types of negative innovation may be beyond the scope of antitrust, privacy, or consumer protection law. Even when they aren’t, enforcers may be overly deferential to the claimed innovation. Finally, developing the tools to determine when innovation is positive, negative, or mixed, what conditions foster the myriad forms of negative innovation, and implementing policies to deter negative innovation will be critical.
Thus, the goal for policy makers is to not simply increase the overall level of innovation, as that will not necessarily increase overall welfare. Ideally, the regulatory framework would reduce firms’ incentive/payoffs to engage in negative innovation, while promoting (or at least not chilling) their incentive to invest in innovations that generally promote overall welfare. So what is the recipe to achieve this balance?
We would caution policy makers about anyone peddling a simple recipe. In our final part, we review several of the available policy instruments used to facilitate innovation. Inevitably, the level, nature, and direction of innovation may be influenced by a variety of regulatory policies, including in the digital economy, privacy, consumer protection, competition and state aid, education, taxation, intellectual property, access to capital, and property law. Thus, boosting positive innovation requires a comprehensive policy approach.
With these challenges in mind, we explore the benefits and limitations of several available policy and enforcement measures. We consider it preferable to focus future intervention on ex-ante measures – aimed at creating a regulatory and economic landscape, which helps open the competitive portals for positive and welfare-enhancing mixed innovation. Even then, one should be aware that any form of intervention night influence the identity of the winners and losers of tomorrow. Ex-post, case-by-case intervention should be limited primarily to instances when actions by companies are clearly in breach of existing legal regimes such as competition, privacy, consumer protection, or intellectual property laws.
Whenever reaching into the tool box, policy makers should assess the challenges and risks associated with intervention or the lack of it. It therefore underscores the need for a measured and careful approach. On one hand, excessive intervention comes at a cost and could chill innovation, hinder disruptive positive innovation, undermine investment, increase the burden on smaller operators, and determine the likely winners and losers. On the other hand, non-intervention should not be seen as benign, as it too reflects a policy decision on the likely winners and losers under the status quo, and may be detrimental to welfare-enhancing innovation. The goal is to optimize the preconditions for welfare-enhancing innovation, while accounting for the legal, business, technological, and market environments.
Ultimately, there is no easily available recipe for policy makers on how to promote the good forms of innovation, while deterring the bad. Indeed, one key takeaway from this paper is that such a recipe is illusive, and would likely need to be continuously updated. In a rapidly evolving environment, the task is far from simple. Nonetheless, the seven angles outlined herein can help policy makers refine their tools to promote welfare-enhancing innovations. But in this pursuit, it is worth reminding ourselves that innovation, like competition, is not an end to itself. It is simply one of many means to promote overall well-being. Citizens may sacrifice innovation, at times, to further other, more important, values, including privacy and autonomy, necessary for our well-being.
Chapter (12)
ISBN: 9781845421816
W (2)
A central mantra of competition policy is that competitive market forces, besides lowering prices, can increase efficiency, product quality, the level of services, the number of choices, and ultimately consumers welfare. Indeed, the antitrust community generally accepts a relationship between greater competition and lower prices and uses the latter as the prime metric in assessing competitive behavior and the effects on consumer welfare. Alongside the consideration of price, competition authorities recognize that quality can be as, if not more, important in some markets.
But as competition authorities also recognize, identifying the dimensions of competition important to many consumers is difficult. Even when these dimensions of quality are identified, measuring them represents additional challenges.
To circumvent these challenges, competition authorities rely on several heuristics when assessing a mergers, cartels or monopolistic restraints impact on quality. One heuristic is that more competition will generally increase quality for a given price or reduce price for a given level of quality. A second heuristic is that when prices and quality vary, consumers will weigh the offerings using an internal price-quality metric. Price adjusts for quality, and consumers rely on the heuristic you get what you pay for. Often the heuristics work well for the competition authorities.
However, at times, market realities are more complex and these heuristics fail to reflect the relationship between competition and quality. In this paper we focus on these instances in which the positive correlation between competition and quality breaks down. We explore two necessary, but not sufficient, variables, which affect that correlation. The first relates to the consumers limited ability to accurately assess quality differences. The second concerns imperfect information flows that make it difficult or costly to convey to consumers the products or services inherent quality differences. Companies recognize that neither they nor their competitors can easily or inexpensively convey to consumers the inherent quality differences in their and their competitors product offerings. With these variables in mind, we consider instances when an increase in competition will not increase quality (when one would expect it should) and when competition is inversely correlated with quality, and its increase would lead to quality degradation.
Importantly, we do not posit a normative argument: namely that consumers are choosing poor quality goods and services (e.g., reality television shows) when they should be demanding higher quality fare (e.g., investigative news programs). Nor do we posit a social welfare argument, namely competition involving status goods (where price may correlate more with conspicuous consumption than quality), which increases envy to the detriment of overall well-being. Our assumption is that while different customers have different desires and seek a range of quality, many customers for certain goods and services desire a similar specific dimension of quality. Our focus is on the ability of the competitive process to deliver that desired quality attribute.
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Competition LawNews articles for Ariel Ezrachi
Blog posts by Ariel Ezrachi
10 May 2020
Contemplating COVID-19 and Competition—Returning to the Rat Race or Aspiring for Something Nobler?
By Ariel Ezrachi, Pembroke College | Maurice Stucke, Institute of European and Comparative Law
Oxford Business Law Blog 01 May 2019
Enforcing European Competition Law in a Global Digital Economy
By Ariel Ezrachi, Pembroke College | Agustin Reyna
Oxford Business Law Blog 06 Feb 2019
Putting Technology to Good Use for Society: The role of corporate, competition and tax law
By John Armour, Faculty of Law | Ariel Ezrachi, Pembroke College | Luca Enriques, Faculty of Law | John Vella, Faculty of Law
Oxford Business Law Blog 18 Dec 2018
Competition, Market Power and Third-Party Tracking
By Ariel Ezrachi, Pembroke College | Viktoria Robertson
Oxford Business Law Blog 05 May 2017
2016-2017 Oxford Business Law Blog Round-Up: Most Read Opinion Pieces
By John Armour, Faculty of Law | Horst Eidenmüller, St Hugh's College | Pavlos Eleftheriadis, Mansfield College | Luca Enriques, Faculty of Law | Ariel Ezrachi, Pembroke College | Cheng Lim | Bruno Meyerhof Salama | Calum Sargeant | TJ Saw | Maurice Stucke, Institute of European and Comparative Law
Oxford Business Law Blog 10 Apr 2017
The E-Scraper and E-Monopsony
By Ariel Ezrachi, Pembroke College | Maurice Stucke, Institute of European and Comparative Law
Oxford Business Law Blog 16 Feb 2017
How Online Competition Affects Offline Democracy
By Ariel Ezrachi, Pembroke College | Maurice Stucke, Institute of European and Comparative Law
Oxford Business Law Blog
13 Feb 2017
How Online Competition Affects Offline Democracy
By Ariel Ezrachi, Pembroke College | Maurice Stucke, Institute of European and Comparative Law
Law and Technology Research Group 05 Oct 2016
The Rise of the Machines – How Automated Digital Assistants Can Reduce Competition (and the Cash in Your Wallet)
By Ariel Ezrachi, Pembroke College | Maurice Stucke, Institute of European and Comparative Law
Oxford Business Law Blog