Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Tuesday, December 31, 2019

The Impact of Stricter Merger Control on Bank Mergers and Acquisitions. Too-Big-To-Fail and Competition

  1. By: Carletti, Elena (Bocconi University, IGIER, and CEPR); Ongena, Steven (University of Zurich, the Swiss Finance Institute, KU Leuven, and CEPR); Siedlarek, Jan-Peter (Federal Reserve Bank of Cleveland); Spagnolo, Giancarlo (SITE-Stockholm School of Economics, the University of Rome Tor Vergata, EIEF, and CEPR)
    Abstract: The effect of regulations on the banking sector is a key question for financial intermediation. This paper provides evidence that merger control regulation, although not directly targeted at the banking sector, has substantial economic effects on bank mergers. Based on an extensive sample of European countries, we show that target announcement premia increased by up to 16 percentage points for mergers involving control shifts after changes in merger legislation, consistent with a market expectation of increased profitability. These effects go hand-in-hand with a reduction in the propensity for mergers to create banks that are too-big-to-fail in their country.
    URL: http://d.repec.org/n?u=RePEc:fip:fedcwq:161402&r=com

December 31, 2019 | Permalink | Comments (0)

Monday, December 30, 2019

The Impact of Merger Legislation on Bank Mergers

By: Carletti, Elena (Bocconi University, IGIER, and CEPR); Ongena, Steven (University of Zurich, the Swiss Finance Institute, KU Leuven, and CEPR); Siedlarek, Jan-Peter (Federal Reserve Bank of Cleveland); Spagnolo, Giancarlo (SITEStockholm School of Economics, the University of Rome Tor Vergata, EIEF, and CEPR)
Abstract: We fi nd that the introduction of stricter merger control legislation in the European Union in the period 1986–2007 increases the abnormal announcement returns of targets in bank mergers by 7 percentage points. In searching for potential explanations, we document an increase in the pre-merger profitability of targets, a decrease in the size of acquirers and a decreasing share of transactions in which banks are acquired by other banks. Other merger properties, including the size and risk profile of targets, the geographic overlap of merging banks and the stock market response of rivals appear unaffected. The evidence suggests that the strengthening of merger control leads to more efficient and more competitive transactions.
Keywords: banks; mergers and acquisitions; merger control; antitrust;

December 30, 2019 | Permalink | Comments (0)

Sunday, December 29, 2019

13th Digital Economics Conference JANUARY 9–10, 2020 Toulouse

 JANUARY 9–10, 2020

 

 TOULOUSE

Background and objective:

The objective of the conference, organized by the TSE Digital Center at the Toulouse School of Economics, with the help of CEPR, is to discuss recent contributions to the understanding of the digital economy and its consequences for modern societies.

Keeping the spirit of previous years, the conference will feature contributions in economics, theoretical, econometric, experimental and policy oriented, as well as contributions from other social sciences and computer and data science.

Keynote speakers:

Erik Brynjolfsson (MIT Sloan School) and Judith Chevalier (Yale University)

Organizing committee:

Alexandre de Cornière, Jacques Crémer, Daniel Ershov and Paul Seabright.

Contact:

For further information please send an e-mail to digitconf@tse-fr.eu

 

December 29, 2019 | Permalink | Comments (0)

Friday, December 27, 2019

Advertising and Markups: The Case of the German Brewing Industry

By: Simon Pröll (University of Natural Resources and Life Sciences Vienna, Institute of Sustainable Economic Development); Giannis Karagiannis (University of Macedonia, Department of Economics); Klaus Salhofer (University of Natural Resources and Life Sciences Vienna, Institute of Sustainable Economic Development)
Abstract: The beer market in Germany may be described as a monopolistic competition with many breweries supplying a very large variety of different beer styles and brands. Advertising is one means of differentiating a product and increasing prices over marginal costs. Based on production data obtained from a sample of 197 German breweries and thirteen years of observation, we derive firm-specific markups, profit ratios and prices in each year and relate those to their advertising expenditures and firm size. We are able to show that advertising expenditures are positively correlated to a brewery’s markup, profit ratio and price while firm size is negatively correlated.
URL: http://d.repec.org/n?u=RePEc:sed:wpaper:732019&r=com

December 27, 2019 | Permalink | Comments (0)

Thursday, December 26, 2019

How Does Competition Affect Innovation? Evidence from U.S. Antitrust Cases

Hyo Kang asks How Does Competition Affect Innovation? Evidence from U.S. Antitrust Cases. Worth reading!

ABSTRACT: This paper examines how market competition affects the intensity and breadth of innovation, using the formation and breakup of price fixing cartels to proxy for competition, or lack thereof. I assembled a unique dataset comprising 461 prosecuted cartel cases in the U.S. from 1975-2016, where I match 1,818 collusive firms to firm-level data on patenting and other measures of innovation. I then use a difference-in-difference methodology, matching colluding firms to various counterfactual firms. Empirical results show a negative causal relationship between competition and innovation in the cartel context. When collusion suppressed market competition, colluding firms increased R&D investment by 12%, patenting by 51%, and top-quality patents by 20%. Furthermore, at the same time, firms broadened their areas of innovation by increasing the number of patented technology fields by 33%. The main finding has a notable strategic implication – that firms shift toward innovation competition when price competition weakens. Further tests suggest that financial constraint (""ability to innovate"") and the industry’s growth rate (""incentive to innovate"") are important economic mechanisms behind the trade-off between price competition and innovation growth.

 

December 26, 2019 | Permalink | Comments (0)

Social Capture of EU Competition Policy

Jan Broulík, Amsterdam Centre for European Law and Governance addresses Social Capture of EU Competition Policy.

ABSTRACT: This article argues that EU competition policy may be becoming more lenient through social capture. Social capture is a process whereby the social environment of public officials consciously or inadvertently shapes their policy-relevant views in a direction that serves the regulated entities. Unlike in other areas of public policy, the social environment influencing competition officials is not formed by the actual regulated entities, i.e. highly heterogeneous big business, but rather by the competition practitioners advising and representing them. The practitioners work mainly for large corporate defendants, which leads to their community leaning strongly towards non-interventionism. Because of the following three channels of social influence, this worldview may become endorsed also by competition officials: First, the officials often socially identify with the community of practitioners. Second, the officials tend to perceive the practitioners as having higher status. And, third, many officials regularly interact and develop relationships with the practitioners. The risk of social capture needs to be taken seriously considering the major efforts of big business to make EU competition policy more lenient through other avenues such as lobbying and sponsored research. The article also discusses measures to address social capture, cautioning nevertheless that its causes may at the same time generate countervailing policy benefits.

December 26, 2019 | Permalink | Comments (0)

Wednesday, December 25, 2019

Technological Development as the Justification for the Approval of Mergers: What Can We Learn from the Totvs / Datasul Merger?

Carolina Saito, University of Sao Paulo has produced Technological Development as the Justification for the Approval of Mergers: What Can We Learn from the Totvs / Datasul Merger?

ABSTRACT: 

Legally, the Brazilian antitrust authority (CADE) can approve mergers that substantially reduce competition if they foster technological development; however, this has never been done. In one specific merger, CADE only discussed how industrial policies could affect and develop the software sector. The paper suggests parameters for CADE’s analysis and approval of a merger justified by technological development, based on the legal provisions and the merger mentioned above.

December 25, 2019 | Permalink | Comments (0)

Tuesday, December 24, 2019

National Security Concerns in UK Merger Control

Ioannis Kokkoris, Queen Mary University of London has written National Security Concerns in UK Merger Control.

ABSTRACT: There are a number of cases in the UK merger control where the Secretary of State intervened on the grounds of national security. This article will start by discussing the approach of the UK regime to public interest considerations, and in particular it will focus on cases that raised national security concerns and will discuss how the assessment of these transactions was conducted. Furthermore, this article will discuss the recent legislative and policy developments in the UK that aim at expanding the remit of the UK government in assessing concentrations that potentially raise national security concerns.

December 24, 2019 | Permalink | Comments (0)

Monday, December 23, 2019

The Impact of Stricter Merger Control on Bank Mergers and Acquisitions. Too-Big-To-Fail and Competition

By: Carletti, Elena (Bocconi University, IGIER, and CEPR); Ongena, Steven (University of Zurich, the Swiss Finance Institute, KU Leuven, and CEPR); Siedlarek, Jan-Peter (Federal Reserve Bank of Cleveland); Spagnolo, Giancarlo (SITE-Stockholm School of Economics, the University of Rome Tor Vergata, EIEF, and CEPR)
Abstract: The effect of regulations on the banking sector is a key question for financial intermediation. This paper provides evidence that merger control regulation, although not directly targeted at the banking sector, has substantial economic effects on bank mergers. Based on an extensive sample of European countries, we show that target announcement premia increased by up to 16 percentage points for mergers involving control shifts after changes in merger legislation, consistent with a market expectation of increased profitability. These effects go hand-in-hand with a reduction in the propensity for mergers to create banks that are too-big-to-fail in their country.
URL: http://d.repec.org/n?u=RePEc:fip:fedcwq:161402&r=com

December 23, 2019 | Permalink | Comments (0)

Sunday, December 22, 2019

Monopolists Without Borders: The Institutional Challenge of International Antitrust in a Global Gilded Age

As we see the rise of global antitrust cases against large companies and an increase in coordination for mergers and collusion as well as trade related competition issues, I have dug out an early work of mine which offers a framework for how to think about these issues.

 

Monopolists Without Borders: The Institutional Challenge of International Antitrust in a Global Gilded Age

D. Daniel Sokol, University of Florida Levin College of Law

Abstract: Antitrust has entered a gilded age of increased international cooperation and enforcement at levels never before seen. Yet, increased globalization creates challenges to combat international anticompetitive conduct. Part I introduces the Article. Part II provides a brief overview of the history of international antitrust. This overview departs from previous historical analyses as it focuses on participation within each of the international antitrust institutions to explain the historical limitations of international cooperation in antitrust. Part III identifies and explores three case studies which are generally representative of international antitrust. These case studies have been chosen because the issues they address have been at the top of the agenda of international antitrust in the past decade: mergers, cartels, and market access.

Part IV introduces the theoretical tools to address the problems of international antitrust. This Part makes the analytical case for the application of comparative institutional analysis, an analysis of the choice of the decision making process, to international antitrust. It addresses how a comparative institutional analysis framework allows for a more complete examination of both international and domestic institutions. It also explains the participation model as organizing principle for the analysis of institutions, as participation affects each institution's ability to create policy remedies. The second theoretical tool that Part IV introduces is international relations theory. Comparative institutional analysis works with international relations theory to provide an effective way to understand the interplay of institutions at the domestic and international levels, as well at the level of international institutions vis-à-vis each other.

Part V offers an analysis of the efficacy of various types of antitrust institutions to determine which of these institutions are best suited to address the problems of international antitrust. This Part evaluates the capacity of each institution to address problems that the case studies implicate. These institutions include the World Trade Organization (WTO), regional and bilateral trade agreements, the United Nations Conference on Trade and Development (UNCTAD), the International Competition Network (ICN), domestic legislatures, courts and agencies, and the market as institution.

Part VI concludes that existing institutions each have limitations in their ability to address any of the issues in international antitrust exclusively. This Article argues that the ICN, because of its structure and participation, is the least problematic institution to address international antitrust issues. This approach may assist to identify other regulatory areas in which an ICN modeled solution may prove to be the most effective way to address international issues.

December 22, 2019 | Permalink | Comments (0)

Using the Moran’s I to Detect Bid Rigging in Brazilian Procurement Auctions

CADE is Using the Moran’s I to Detect Bid Rigging in Brazilian Procurement Auctions.

ABSTRACT: In 2015, a supposed bid-rigging cartel that operated in the Brazilian implantable cardiac devices market was announced and public authorities began to investigate it. This paper evaluates if there is systematic correlation between the bids that are placed by competitors in the sealed phase of procurement auctions, which is a situation that may suggest coordinated and fraudulent behaviour. By applying Moran’s I statistic to the residuals of controlled bid regressions and using a novel and public database, we show that the bids that were placed by the investigated companies have positive and statistically significant autocorrelation. In addition, when we separate the data into two subperiods, namely, the period in which the cartel probably existed (2005-2015) and the period in which the cartel probably did not exist due to the conclusion of a leniency agreement (2015-2017), the Moran’s I statistic only points to autocorrelation in the first sub-sample. Our result has remained robust when we eliminate transitional periods and use alternative economic screens.
The main advantage of the economic screen based on Moran’s I statistic is its low data requirements and computational and statistical simplicity. In addition, the screen is versatile and can be applied to any type of market where public procurement occurs using sealed auctions. However, Moran’s I statistic requires prior knowledge of the identity of the companies that may form the bid-rigging cartel. Without information from documentary evidence, denunciations or leniency agreements, it becomes more difficult to construct the bidding matrix and to apply the screen. A partial solution to this disadvantage is to apply the economic screen to combinations of all sets of companies or apply it only to those with the largest market shares or to the most frequent bidders. Finally, another shortcoming of our economic screen is the possibility of finding the existence of a bid-rigging cartel when one does not truly exist (false positives). This can occur when bids are correlated due to the existence of unobserved variables that influence the placed bids. Therefore, our screen cannot be used as isolated and definitive proof of the existence of a bid-rigging scheme and it is necessary to collect additional documentary evidence.

 

December 22, 2019 | Permalink | Comments (0)

Friday, December 20, 2019

The Impact of Merger Legislation on Bank Mergers

By: Carletti, Elena (Bocconi University, IGIER, and CEPR); Ongena, Steven (University of Zurich, the Swiss Finance Institute, KU Leuven, and CEPR); Siedlarek, Jan-Peter (Federal Reserve Bank of Cleveland); Spagnolo, Giancarlo (SITEStockholm School of Economics, the University of Rome Tor Vergata, EIEF, and CEPR)
Abstract: We fi nd that the introduction of stricter merger control legislation in the European Union in the period 1986–2007 increases the abnormal announcement returns of targets in bank mergers by 7 percentage points. In searching for potential explanations, we document an increase in the pre-merger profitability of targets, a decrease in the size of acquirers and a decreasing share of transactions in which banks are acquired by other banks. Other merger properties, including the size and risk profile of targets, the geographic overlap of merging banks and the stock market response of rivals appear unaffected. The evidence suggests that the strengthening of merger control leads to more efficient and more competitive transactions.
URL: http://d.repec.org/n?u=RePEc:fip:fedcwq:161401&r=com

December 20, 2019 | Permalink | Comments (0)

Thursday, December 19, 2019

The Role of Media Pluralism in the Enforcement of EU Competition Law

Concurrences has released a new book entitled  “The Role of Media Pluralism in the Enforcement of EU Competition Law”. 

 

In her thesis, awarded by Concurrences PhD Award, Konstantina Bania showcases novel tools for competition law enforcement to protect quality dimensions of competition and consumer welfare in media markets where consumers increasingly pay with their attention or data rather than money. This book is a must-read study for all scholars, competition authorities and policymakers interested in the question of how competition law can apply in such a manner that antitrust and merger assessments do not disregard non-price concerns such as privacy or diversity.

 

The title is available online on both Concurrences and Amazon websites.

 

December 19, 2019 | Permalink | Comments (0)

Advertising and Markups: The Case of the German Brewing Industry

By: Simon Pröll (University of Natural Resources and Life Sciences Vienna, Institute of Sustainable Economic Development); Giannis Karagiannis (University of Macedonia, Department of Economics); Klaus Salhofer (University of Natural Resources and Life Sciences Vienna, Institute of Sustainable Economic Development)
Abstract: The beer market in Germany may be described as a monopolistic competition with many breweries supplying a very large variety of different beer styles and brands. Advertising is one means of differentiating a product and increasing prices over marginal costs. Based on production data obtained from a sample of 197 German breweries and thirteen years of observation, we derive firm-specific markups, profit ratios and prices in each year and relate those to their advertising expenditures and firm size. We are able to show that advertising expenditures are positively correlated to a brewery’s markup, profit ratio and price while firm size is negatively correlated.
URL: http://d.repec.org/n?u=RePEc:sed:wpaper:732019&r=com

December 19, 2019 | Permalink | Comments (0)

Wednesday, December 18, 2019

How can European Competition Law address Market Distortions caused by State-Controlled Enterprises?

How can European Competition Law address Market Distortions caused by State-Controlled Enterprises?

Registration is now open for the 2nd OECD Competition Open Day on Wednesday 26 February 2020 at the OECD Headquarters

Registration is now open for the 2nd OECD Competition Open Day on Wednesday 26 February 2020 at the OECD Headquarters. To register, follow this link.

 

The 2020 event will include competition topics related to competition in the digital age, FinTech and Big Tech, labour markets and merger control. A full agenda is available here.

 

The event will be webcast live and is open to those interested in the work of the OECD on competition, including legal practitioners, economists, consultants, in-house counsel, regulators, academics, and the media. We invite you to share this message with colleagues who would also be interested in attending.

 

Over the coming months, the OECD Competition Open Day Blog series will provide a preview of the discussions. Three articles are already available online:

Blog 1: Collective bargaining 4.0: using labour law to extend coverage to new forms of work

Blog 2: Competition enforcement could help labour markets function better

Blog 3: Charting the way forward for digital competition policy

A workshop for competition officials only on vertical mergers and vertical restraints will be held the day before on 25 February 2020, see oe.cd/wk-vm-vr for more information. Participation via webex will be possible, to register, please contact Angelique.Servin@oecd.org.

December 18, 2019 | Permalink | Comments (0)

CMA releases report on digital online issues

From the press release:

The work is part of the Competition and Markets Authority’s (CMA) wider digital strategy, which aims to co-ordinate the authority’s approach to tackling the new challenges of the rapidly developing digital economy. The CMA will now consult on the contents of today’s update ahead of publishing its final report next year.

In July 2019, the CMA set out to find out more about how major online platforms like Google and Facebook operate. Whilst the services these firms provide appear to be free, consumers pay for them indirectly through providing their attention and personal data, which platforms use to sell digital advertising. In the UK, people spend an average of 3 hours and 15 minutes online each day. More than a third of that time is spent on sites owned by either Google (including YouTube) or Facebook (including Instagram and WhatsApp). As a result, the digital advertising sector has grown massively and is now worth around £13 billion – much larger than any other form of advertising.

The CMA’s interim report has found that:

  • Last year, Google accounted for more than 90% of all revenues earned from search advertising in the UK, with revenues of around £6 billion

  • In the same year, Facebook accounted for almost half of all display advertising revenues in the UK, reaching more than £2 billion

‘Big’ is not necessarily ‘bad’ and these platforms have brought very innovative and valuable products and services to the market. But the CMA is concerned that their position may have become entrenched with negative consequences for the people and businesses who use these services every day.

A lack of real competition to Google and Facebook could mean people are already missing out on the next great new idea from a potential rival. It could also be resulting in a lack of proper choice for consumers and higher prices for advertisers that can mean cost rises for goods and services such as flights, electronics and insurance bought online. The market position of Google and Facebook may potentially be undermining the ability of newspapers and other publishers to produce valuable content as their share of revenues is squeezed by large platforms.

Through its market study, the CMA has used its statutory information gathering powers to build a better understanding of this complex market, the drivers behind the positions of Google and Facebook and the competition issues this might present. It has also been able to build a better picture of how these large platforms collect and use personal data to assess whether people have the right amount of control over their own information. All of this will help the CMA identify steps that could open up competition and contribute to the discussion about whether and how best to regulate this sector.

Each year, about 15% of queries on Google have never been searched for before. Other search engines like Bing will not have the same access to these queries, putting Google in a powerful position of being able to better train its algorithms and provide more accurate search results than its rivals.

The CMA has also found that the default settings people are faced with online have a profound effect on choice and the shape of competition. Last year in the UK, Google was willing to pay around £1 billion – 16% of all its search revenues – where it was the default search engine on mobile devices such as Apple phones.

Personal data collection also plays an important role in driving Google and Facebook’s powerful market position by allowing them to target their advertisements more effectively than others. Both for privacy and competition reasons, it is essential that people feel in control of their data. At the moment, the CMA is concerned that this is not always the case.

For example, social media platforms such as Facebook do not allow consumers to opt out of personalised advertising: rather, people are presented with a take-it-or-leave it offer, forcing them to share considerable amounts of personal data as a condition for using the service. And it is difficult to access privacy settings on these platforms, which are often only visible after navigating through multiple menus.

While there are examples of better practice, with search engines such as Google giving consumers better control, overall, we have found that consumer engagement with privacy settings and controls is low and, that, as a result, most consumers follow the default settings set by platforms – which may result in them giving up more data than they would like.

The CMA is also concerned about a lack of transparency in the way that business on these platforms works. Publishers, such as newspapers, who rely on Google and Facebook for about 40% of their traffic, have expressed concerns about unexplained dramatic changes in the number people visiting their websites due to changes in Google’s search and Facebook’s news algorithms. Different sorts of transparency concerns are particularly acute in the market for display adverts, where advertisers and publishers participate in a ‘black box’ process of real-time bidding but have limited ability to verify the effectiveness of their adverts.

CMA Chief Executive Andrea Coscelli said:

Most of us visit social media sites and search on the internet every day, but how these firms work can be a mystery.

So far in this study, we have used our legal powers to discover how major online platforms operate. Digital advertising fuels big businesses like Google and Facebook and we have been building a picture of how this complex new market works. We’ve looked especially at how these firms collect and use people’s data, how they monetise it and what this means for rival companies who want to compete, as well as the people and businesses using these services every day.

We’re now inviting comments on what we have found. At the end of the study, we’ll present our findings to the new Government as they decide whether and how to regulate what is an increasingly central sector in all our lives.

At this stage, the CMA agrees with Professor Furman and his colleagues who carried out a wide-ranging review of digital markets earlier this year, that there is a strong argument for the development of a new regulatory regime. This could include rules governing the behaviour of online platforms and giving people greater control over their own data. The most likely outcome at the end of this study will be recommendations to the new Government as it decides whether and how to regulate the digital sector. On the other hand, the CMA stands ready to act directly through any or all of its own powers if, ultimately, these issues are not addressed in other ways, whether domestically or internationally.

Many of the problems that the CMA has currently identified are international in nature. The Australian Government’s recent decision to create a digital markets unit and the new draft legislation in Germany on competition and digital markets demonstrates the international will to address what are shared challenges with new solutions. The CMA has taken a leading role in these global discussions for some time now and will continue to further the debate as part of its digital strategy.

While still early in its work, the CMA is also setting out proposals that it thinks are worth considering in order to address the issues it has identified. These reflect the ideas market participants have put to us and include: potential measures to open up the search market, such as access to click and query data and limiting Google’s ability to be the default search engine on devices and browsers; requiring Facebook to connect more seamlessly with rival social networking sites; measures to address the conflicts of interests and lack of transparency in digital advertising and requiring platforms to allow people to turn off personalised advertising.

The CMA is now consulting on its interim report and welcomes views by 12 February 2020. Find out more on the online platforms and digital advertising market study web page.

December 18, 2019 | Permalink | Comments (0)

Pricing by international airline alliances: a retrospective study using supplementary foreign-carrier fare data

By: Jan K. BruecknerEthan Singer
Abstract: This study provides further empirical evidence on pricing by international airline alliances. The paper covers a long sample period, which runs from 1997 to 2016, and it supplements the usual USDOT fare data with confidential fare data reported by the foreign alliance partners of US carriers. The empirical results for connecting service match earlier findings, with alliances charging lower fares than nonaligned carriers. The GTG results imply that, in the latter part of the sample period, granting antitrust immunity to two previously nonaligned carriers is equivalent to removing a competitor, with a consequent increase in fares (an effect seldom seen in previous work).
Date: 2019
URL: http://d.repec.org/n?u=RePEc:ces:ceswps:_7649&r=com

December 18, 2019 | Permalink | Comments (0)

Tuesday, December 17, 2019

Rome Antitrust Forum Fifth Meeting 29 November 2019 recap

 

Rome Antitrust Forum

Fifth Meeting

  1. Competition in digital markets, antitrust enforcement and big data; 2. Procedural steps in antitrust proceedings: Is there a confirmation bias?

 

ORGANIZED BY              ALBERTO HEIMLER

MEL MARQUIS

GIORGIO MONTI

 

29 November 2019

SCUOLA NAZIONALE DELL’AMMINISTRAZIONE

VIA DEI ROBILANT, 11

ROME, ITALY

 

Introduction

 

(English version below)

L’incontro di quest’anno

In questo quinto incontro del Rome Antitrust Forum si affronteranno due temi importanti per una efficiente applicazione della normativa antitrust in Italia: le peculiarità dell’economia digitale e il ruolo dell’antitrust nel disciplinare le imprese nella gestione dei dati che raccolgono e se gli assetti e le modalità procedurali possono favorire l’emergere di una distorsione confermativa nel processo decisionale dell’Autorità.

 

Numerose decisioni antitrust hanno riguardato importanti imprese attive nell’economia digitale. La maggior parte di queste decisioni era rivolta a impedire comportamenti e strategie tradizionalmente   presenti nella giurisprudenza e nella prassi applicativa (il contesto di riferimento era quello convenzionale). Le eventuali complessità del caso nascevano soprattutto dalle difficoltà di accertamento, piuttosto che dalla teoria del danno (esclusione dei concorrenti o l’eliminazione di una minaccia concorrenziale) sui cui esse erano basate. Alcuni casi, particolarmente diffusi nella discussione accademica e nella progettualità politica soprattutto statunitense, piuttosto che nell’esperienza concreta delle autorità antitrust, hanno riguardato  problematiche che avrebbero richiesto una modificazione delle tradizionali modalità interpretative delle norme e, in particolare, il superamento e la ridefinizione dello standard del benessere del consumatore, come obiettivo ultimo della normativa, e l’adozione di aggressivi rimedi di natura strutturale.. In un unico caso la mancata informazione dei consumatori sulle possibili utilizzazioni di dati messi a disposizione sulla piattaforma, è stata considerata un abuso di posizione dominante. Infine il controllo delle concentrazioni troppo improntato a misurare gli effetti sui prezzi delle proposte operazioni mal si presta ad affrontare problematiche non di prezzo, particolarmente diffuse nell’economia digitale e dalla molta più incerta interpretazione. Il Panel, nel discutere questi casi, intende verificare l’adeguatezza della normativa esistente e, più in generale, dell’antitrust ad affrontare le complesse problematiche associate alla diffusione delle piattaforme digitali.

 

Molti sostengono che gli assetti procedurali esistenti in Italia e soprattutto il provvedimento pubblico di avvio del procedimento tendono di per sé a favorire un processo decisionale orientato fin dall’inizio ad assumere una certa decisione. Questa possibile distorsione confermativa non è però una peculiarità italiana. In molti altri ordinamenti, caratterizzati da una minor trasparenza iniziale, l’aver assunto una decisione provvisoria rappresenta di per sé un precedente molto difficilmente ribaltabile nella decisione di merito. Si tratta quindi, molti sostengono, di un problema sistemico e associato al fatto che una volta che un’Autorità ha espresso un parere anche se non corroborato da un’evidenza ampia e diffusa, esso ha una probabilità molto elevata di essere confermato. Il Panel è stato quindi organizzato su un confronto di esperienze soprattutto europee. La descrizione delle procedure dell’Unione europea, della Francia, Germania, Italia e Spagna può condurre a una più accurata definizione del problema e all’individuazione di possibili correttivi.

 

Il Rome Antitrust Forum

Sono passati ormai trent’anni dall'entrata in vigore della normativa antitrust in Italia il mondo accademico, la stampa, le rappresentanze si sono limitati a discutere le implicazioni di singole decisioni dell'Autorità o a evidenziare eventuali limiti di alcune innovazioni normative, ma quasi mai si sono posti in una logica sistemica, suggerendo forme e modalità di un eventuale cambiamento delle prassi adottate. In questa prospettiva anche il ruolo del giudice amministrativo è limitato. Il giudice infatti interviene solo nei momenti patologici della vita dell'istituzione, ma non svolge una funzione di indirizzo né di controllo sulle sue scelte strategiche.

 

Sinora ogni cambiamento è stato innescato da riflessioni interne anche se le soluzioni individuate negli ultimi anni oggetto di estese consultazioni, secondo le migliori prassi amministrative. E' invece opportuno che l'Autorità non sia lasciata sola nella riflessioni sulle possibili innovazioni organizzative e funzionali. 

 

Ci proponiamo, tramite l'organizzazione di incontri annuali di dibattito e di studio (aperti solo agli invitati e caratterizzati dall'impegno di ciascuno di non rivelare all'esterno le opinioni individuali espresse), di svolgere una funzione di sollecitazione dell'Autorità, che sarà presente alle presentazioni e parteciperà alla discussione successiva, volta a promuovere miglioramenti e aggiustamenti delle prassi e dei processi.

 

(English version)

This year’s event

In this fifth meeting of the Rome Antitrust Forum, we will discuss two important themes that bear on the effective and efficient application of antitrust law in Italy: (i) the specificities of the digital economy and the role antitrust plays in policing digital operators when they collect and use personal data, and (ii) whether the procedural framework and modalities that apply to administrative investigations by the Antitrust Authority might lead to distortions in the Authority’s decision-making process. 

 

Numerous antitrust decisions, both in Italy and abroad, have concerned undertakings active in the digital economy. Most of these decisions were aimed at preventing behaviour and strategies that have traditionally been observed in the jurisprudence and relevant case practice (i.e, in more conventional contexts). The complexities of the case stemmed above all from the difficulties of proving the case rather than the theory of harm (usually the exclusion of competitors or the neutralization of a competitive threat). Some scenarios—widely discussed among certain academics and in political platforms especially in the United States, but not drawn from the concrete experiences of antitrust authorities—relate to issues that would require a modification of the traditional approaches in interpreting the antitrust laws, including in particular a redefinition of the standard of consumer welfare as the ultimate objective of competition law, and possibly the aggressive use of structural remedies. In one single case, the failure to provide adequate information to consumers as to how their personal data was used by the platform operator was considered an abuse of dominance. Finally, an approach to merger control that is too focused on measuring price effects may fail to capture other non-price effects which may be very relevant in the digital economy and whose evaluation is much less clear-cut than when prices are affected. In discussing these cases, the panel will consider the suitability of the existing framework and, more generally, the suitability of antitrust for the evaluation of complex issues that have appeared with the rise of digital platforms.

 

Many maintain that the existing procedural framework in Italy—and above all the public notice launching the administrative procedure tend by their nature to favour a decision-making process which from the very start is inclined toward a particular outcome. This potential distortion is not, however, unique to Italy. In many other systems, characterized by an initially limited transparency, the initial provisional decision is itself a ‘precedent’ that may be difficult to discard in the ultimate decision on the merits. According to many commentators, this is a systemic problem linked to the fact that, once an authority has expressed an opinion, even if it is not supported by an ample body of evidence, the authority is very likely to reaffirm the same findings at the end of the procedure. As this issue has general relevance well beyond Italy, the second panel will consider experiences from a broader European point of view. In particular, the practice and procedures at the EU level as well as in France, Germany, Italy and Spain may help to define the problem more accurately and to offer possible solutions.        

 

The Rome Antitrust Forum

It has been 30 years since the entry into force of the Italian antitrust law, and since then academia, the press and vested interests have tended to limit their discussions of Italian antitrust to the implications of specific decisions, or to highlight the limitations of specific normative developments. Only very rarely has there been a systematic assessment of antitrust enforcement in Italy, with a view to proposing forms and methods that improve on, or even reconceptualise, as the case may be, adopted practices. Such an assessment would go beyond what may be possible by judicial review.  Indeed, the function of the Courts is to intervene only in specific cases and when it is strictly necessary. It is not their function to determine the overall direction of the Authority, or to scrutinize its strategic choices.         

 

Thus far, every reform carried out by the Authority originated from internal reflections. The solutions adopted – though they have been developed in recent years following public consultations, in line with best administrative practices – were all nevertheless of internal origin. Yet it is in the best interests of the wider public and of the Authority itself to ensure that it is not left alone in the design of its organizational and functional evolution.

 

The Forum therefore organizes annual debates of restricted participation (and under Chatham House rules) which are designed to stimulate an exchange of views concerning enforcement processes and general administrative actions of the AGCM that will be present at the panel presentations and will actively participate in the roundtable discussions.

 

PROGRAMME

 

 

 

 

 

9:30 I: Competition in digital markets, antitrust enforcement and big data

 

Chair:

Alberto Heimler

 

  1. Introductory presentation

(15 min.)

Alberto Heimler       The objective of antitrust enforcement and digital platforms

 

9:45                   B.  Panel: the recent experience in antitrust enforcement

 

(15 min per speaker)

 

Frederic Jenny                   The Google cases        

Cristoforo Osti                    The German Facebook case

Paolo Buccirossi                 The Facebook-WhatsApp merger

Antonio Nicita                    Is there a need for an independent regulator

  

11:00                 Coffee

 

11:30                 Roundtable discussion

 

 

14:15         II: Procedural steps in antitrust proceedings: Is there a confirmation bias?

 

Chair:

Giorgio Monti

 

  1. Introductory presentation

(15 min.)

Mario Siragusa                   Effectiveness of  antitrust proceeding and the authority’s decision making process

 

 

14:30                 B.  Panel: procedures and effectiveness

 

(15 min per speaker)

Patrick Hubert                    The French experience

Frank Montag                    The German experience

Alfonso Lamadrid              The Spanish experience

Alberto Pera                       The Italian experience

 

15:30     Coffee

 

16:00     Roundtable discussion

 

17:00     Close of proceedings

 

 

December 17, 2019 | Permalink | Comments (0)