Welcome to our high-level guideline focusing on horizontal agreements in EU digital markets. This guide will be instrumental for professionals and businesses venturing into or already active within the European digital landscape.
1. Basic Framework
Standard EU Competition Rules: The assessment of anticompetitive agreements between competitors in digital markets follows standard EU competition rules. There are no distinct rules or exemptions specific to digital agreements.
2. Revised Regulations (Effective from 1 June 2023)
Significant Additions: The revisions include guidance on:
Data pooling
Data sharing
3. Access to Online Platforms
Commission's Stance: No enforcement actions have been taken addressing horizontal online platform access restrictions.
Highlight: A noteworthy case involved Google and Meta (‘Jedi Blue’). Initial concerns suspected preferential treatment for Meta in auctions on Google's ad platform. Following investigations, the Commission did not find any infringements and closed its proceedings.
Platform to Business Regulation: It imposes obligations on online intermediation services. Notably, a platform must clarify any restrictions on businesses' ability to offer goods/services outside the platform.
Digital Markets Act (DMA): Contains specific provisions regarding access to a gatekeeper platform.
4. Algorithms and Competition Law
Commission's Position on Algorithms:
No enforcement actions have specifically addressed algorithmic pricing in a horizontal context.
Algorithms can play roles in various horizontal settings:
Monitoring prices agreed between competitors.
Implementing a price settled through separate collusion.
Acting as communication channels for explicit collusion.
Engaging in tacit collusion without human intervention.
Revised Horizontal Guidelines:
Two Principal Tenets:
Illegal offline pricing practices are likely illegal online.
Firms can't escape liability for illegal pricing by blaming algorithms.
5. Data Collection and Sharing
Commission's Position on ‘Hub and Spoke’ Exchanges:
No specific enforcement actions were taken concerning 'hub and spoke' exchanges in digital markets.
The revised Horizontal Guidelines recognize potential scenarios of an online platform acting as a hub and facilitating anti-competitive practices.
Information exchanges using publicly available data are legal, but aggregating sensitive information into a shared pricing tool can lead to horizontal collusion.
6. Emerging Issues
Algorithmic Transparency & Monitoring: Algorithms can augment market transparency, making it simpler to monitor anti-competitive agreements. This can amplify the impacts across markets.
Case Highlight: The Commission found suppliers using algorithms for monitoring resale price maintenance can exacerbate its effects (notably in cases against Asus, Denon & Marantz, Philips, and Pioneer).
In conclusion, it's pivotal for businesses operating in the European digital realm to be cognizant of these guidelines and the evolving landscape of competition law. Always remain updated compliant, and consult with legal experts to navigate potential pitfalls.
The information provided is not legal, tax, investment, or accounting advice and should not be used as such. It is for discussion purposes only. Seek guidance from your own legal counsel and advisors on any matters. The views presented are those of the author and not any other individual or organization. Some parts of the text may be automatically generated. The author of this material makes no guarantees or warranties about the accuracy or completeness of the information.
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