Published: August 2016Contents
i) What are the hot topics?
The editors’ latest comments in the preface to The Dominance and Monopolies Review 2016 give an overview of hot topics, key developments, opportunities and challenges. Perhaps most visible are the impact of disruptive technologies, and the politicisation of competition policy in this area, driven in part by incumbents trying to delay the probably inevitable consequences of technical developments, new business models and globalisation.
ii) Tell us about any key legal developments – recent or pending – and their international impact.
There are several developments in abuse of dominance rules that appear to be common experiences internationally. Probably most important is the evolution of the object versus effect dichotomy (to use the terms of case law under Article 102 TFEU). This particularly affects two-sided markets, although there are indications that the courts at least are beginning to understand that to assess market power and the legality of conduct in two-sided markets, it is necessary to understand both sides. Jean Tirole received a Nobel prize for explaining this, and authorities should pay heed. A recent encouraging example is the judgment of the Second Circuit Court of Appeals in US v. Amercian Express. Second, concerns exist on the approach competition authorities are taking to assessing product design improvements, especially in the IT sector. Attempts to interfere with product design by authorities second-guessing business decisions could easily lead to the famous dancing procession of Echternach (Luxembourg): technology taking three steps forward and regulators pushing them two steps backwards. Thoughtful caution is necessary, rather than populist and politically driven decision-making. Third, there is the temptation to use competition laws for purposes alien to competition policy, like privacy. This could not only lead to duplication of effort, but also to inconsistency and legal uncertainty. Fourth, the application of abuse of dominance concepts to intellectual property. This continues to be a fascinating area, both in connection with standard setting and otherwise, with the advent of trolls and privateers. The US Federal Trade Commission recently published a thorough report on Patent Assertion Entity Activity, encouraging adjustment of patents laws and procedure, but leaving open the question of application of competition rules to, for instance, privateering. A final issue of concern is the eternal question of procedural delay and due process.
iii) What are the biggest opportunities and challenges for practitioners and clients?
The sheer range of global enforcement – spanning established agencies such as the EU and US FTC, to intensifying enforcement in India, China, and emerging economies – can raise challenges for practitioners and clients alike. But we hope that books such as the The Dominance and Monopolies Review can help turn each and every challenge into a productive opportunity.
Cleary Gottlieb Steen & Hamilton LLP Brussels