EU Commission to set out ‘speedier and more effective’ antitrust toolkit

Future EU investigations into tech giants will go beyond mere cease-and-desist orders that simply mirror the conduct in question, a Law Society webinar heard earlier this week.

Future legal remedies will have more prescriptive or authoritative elements, according to Nicholas Banasevic (head of unit in the European Commission’s Directorate-General for Competition).

These situations are not new, Banasevic said, at the joint Californian Bar Association and Law Society webinar, which compared EU and US action and inaction vis-à-vis major tech companies.

Future antitrust remedies

Future antitrust remedies could involve repairing the damage caused by long-standing abuses, given the intensity of data value in digital markets, Banasevic said.

Individual antitrust enforcement is often not quick enough, he added.

“Commissioner Vestager is very keen on making sure that we are as proactive and as vigorous as we can possibly be,” he commented. “In terms of remedies, we always try and learn from our experiences.”

Legal burden

The Competition Commission may also impose interim measures on a provisional basis, pending the outcome of a full investigation, where infringements are noted during a case, on a prima facie basis.

“We’ve got that in our toolkit … so that the damage is prevented before it’s too late, essentially.

“But, it’s not something we can do lightly and we need to make sure we meet our legal burden,” he said, adding that it would make case enforcement speedier and more effective.

Anti-competitive effects

He added that establishing harmful anti-competitive effects must be done in a reasonable, pragmatic, and timely way.

By its nature, antitrust enforcement is done on a case-by-case basis, rather than dealing with more general problems, he said.

However, large and powerful platforms are acquiring a so-called ‘gatekeeper’ role, and this has a significant general ability to affect how markets operate, notwithstanding the benefits of high-tech digital tools to consumers.

Legislative proposals in the offing

“While that is not for an individual competition case as such to deal with … we are due to come up with legislative proposals next week,” he said.

These proposals will be ex-ante rules for large and powerful digital gatekeepers, where certain conducts are prohibited.

“Our vision is to have a very good complementarity between effective and vigorous antitrust enforcement, and more general regulatory provisions,” he said.

‘F’ is for fines

ALG partner Dr Vincent Power SC, who specialises in EU law, told the webinar that European Commission fines are the single-biggest accrued expense and current liability of Google’s parent company Alphabet.

This was referring to Google’s fight against a €2.4 billion antitrust fine, meted out by the EU to Google for favouring its own price-comparison shopping service.

The Google case is under appeal at the CJEU in Luxembourg, hinging on two-sided markets and network effects.

Google has disagreed with the findings, but did agree with the antitrust legal analytical framework of the case, Nicholas Banasevic said.

EU interest in big tech

Dr Power said that the EU interest in big tech is long established, but is also a work in progress.

“The general court has yet to speak, though the Google appeal was heard on 12-14 February this year,” Dr Power added.

Britain has shaped the global debate on digital markets, Dr Power noted, though a wide set of jurisdictions was involved.

Anti-American bias?

"Is there an anti-American bias in the EU?” he asked. “The answer is no.

“The European Commission could hurt EU investors in these companies by these enormous fines.”

He said that the difference between the US and EU was that the US privatised complaints through litigation, but the EU ‘communitised’ them.

The EU was both similar and different to the US, he noted.

The citizen’s data rights

The European Commission is very keen to ensure the law is upheld, and that can sometimes mean going against the interests of powerful member states, he said.

Politicians don’t make these decisions, one way or another, he said, but policy does.

“A lot of these decisions, when you boil them down, are about the protection of the individual citizen, and the data rights of the individual citizen,” he said.

That’s how the EU maintains its validity and authenticity to its citizens, and it must actually protect them, he said.

Delay inherent in EU system

“We learnt in Brexit that, if the population of the members states don’t realise the value of the EU, they won’t stay around,” he said.

Dr Power said that delay seemed to be inherent in the EU system.

“What’s really impressive about the European Commission’s work recently is the idea of looking for a tool to deal with things more quickly, and for building the architecture much more,” he said.

More legislation was needed, he said, and private litigation had been missing in Europe.

‘Most expensive words’

"The most expensive words you can utter to a client are ‘this case will make new law’,” he commented. Therefore, it was easier to get the European Commission to take cases.

But the Commission must use its resources skilfully and wisely, and make sure that it has a good case at the outset, he added.

Antitrust fines were high in the EU, and would remain so, he opined.

Dr Power said he would like to see less of an ad hoc, case-by-case approach, and more ‘building out of the rules’, so that companies could know immediately when they were in breach.

Fighting with Washington?

Cormac Little (William Fry) said there was already comity between the US and EU on anti-trust issues.

Paula Blizzard (antitrust section of the California Attorney General’s office) said that, despite a perception that her state was fighting with Washington on these issues: “we agree with the federal government 99% of the time”.

“In the vast majority of cases, the feds and the states are aligned,” she commented. “But we do sometimes have differences, and go different routes. This is exactly how it is designed to work.”

Nicholas Banasevic said that Washington-Brussels co-operation had always worked very well, and had been valuable – even if the same outcome had not been reached by both entities.

“It’s very useful to have a sister agency where you can discuss thematic issues,” he said.