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  • P P Craig, 'Delegated and Implementing Acts ' in R Schutze and T Tridimas (eds), Oxford Principles of European Union Law, Volume I: The European Union Legal Order (Oxford University Press 2018)
  • A Ezrachi, 'EU Competition Law Goals and the Digital Economy' (2018) SSRN
    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.
  • P P Craig, 'Brexit and Relations between the UK and the EU' in M Dougan (ed), The UK after Brexit, Legal and Policy Challenges (Intersentia 2017)
  • P P Craig, 'Brexit, A Drama: The Interregnum ' (2017) Yearbook of European Law 1
  • P P Craig, 'Comparative Administrative Law and Political Structure' (2017) Oxford Journal of Legal Studies 1 [Review]
  • P P Craig, 'Development of the EU' in C Barnard and S Peers (eds), European Union Law (Oxford University Press 2017)
  • A Ezrachi and M. E. Stucke, 'Emerging Antitrust Threats and Enforcement Actions in the Online World' (2017) Competition Law International
    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.
  • Maurice Stucke and A Ezrachi, 'How Digital Assistants Can Harm Our Economy, Privacy and Democracy' (2017) Berkeley Tech. L.J.
    “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.
  • P P Craig, 'Judicial Power, the Judicial Power Project and the UK' (2017) University of Queensland Law Journal 355
  • P P Craig, 'Judicial Review of Questions of Law: A Comparative Perspective ' in S Rose-Ackerman and P Lindseth (eds), Comparative Administrative Law (Edward Elgar 2017)
  • P P Craig, 'Miller, Structural Constitutional Review and the Limits of Prerogative Power' (2017) Public Law 48
  • P P Craig, 'Miller, the Legislature and the Executive ' in M Sunkin and S Juss (eds), Landmark Cases in Public Law (Hart Publishing 2017)
  • R Widdershoven and P P Craig, 'Pertinent Issues of Judicial Accountability in EU Shared Enforcement ' in M Scholten and M Luchtmann (eds), Law Enforcement by EU Authorities, Implications for Political and Judicial Accountability (Edward Elgar 2017)
  • S R Weatherill, Principles and Practice in EU Sports Law (Oxford University Press 2017)
    ISBN: 978-0-19-879365-6
  • P P Craig, 'Process: Brexit and the Anatomy of Article 50 ' in F Fabbrini (ed), The Law & Politics of Brexit (Oxford University Press 2017)
  • P P Craig, 'Proportionality and Judicial Review: A UK Historical Perspective ' in S Vogenauer and S Weatherill (eds), General Principles of Law, European and Comparative Perspectives (Hart Publishing 2017)
  • P P Craig, Herwig Hofmann, Jens-Peter Schneider and Jacques Ziller, ReNEUAL Model Rules on EU Administrative Procedure (Oxford University Press 2017)
  • A Ezrachi, 'Sponge ' (2017) The Journal of Antitrust Enforcement
    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.
  • A Ezrachi and Maurice Stucke, 'Tacit Collusion on Steroids ' (2017) VOLUME 3 COMPETITION LAW & POLICY DEBATE (CLPD)
  • A Ezrachi and Maurice Stucke, 'The dream of ultimate personalization (and the disturbing reality of behavioural discrimination)' (2017) No 4-2017 Concurrences
    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.
  • P P Craig and M Markakis, 'The Euro Area, its Regulation and Impact on Non-Euro Member States' in P Koutrakos and J Snell (eds), The Law of the EU’s Internal Market (Elgar 2017)
  • P P Craig, 'The Eurogroup, Power and Accountability' (2017) 23 European Law Journal 234