Résumé

Le développement de l’Intelligence Artificielle (IA) générative fait l’objet d’une attention particulière de la part des autorités de concurrence. Ses impacts peuvent être déterminants en ce qu’elle peut aussi bien rebattre les cartes du jeu concurrentiel, c’est-à-dire affaiblir les positions de force des grandes firmes pivot des grands écosystèmes numériques actuels, que donner lieu à une nouvelle consolidation, en leur permettant d’étendre leur contrôle à cette technologie d’usage général qui est appelée à exercer un rôle déterminant dans la structuration de notre économie. Le ressort des initiatives des régulateurs de la concurrence tient à la crainte que le contrôle de certaines ressources essentielles conduise à étendre la puissance économique de ces acteurs vers ce nouveau marché. Les autorités de concurrence feraient dès lors face aux mêmes enjeux que ceux induits par les situations de dominance et de verrouillage des écosystèmes actuels : difficultés dans la définition et dans la mise en œuvre de remèdes concurrentiels effectifs ou encore nécessité d’instaurer des réglementations spécifiques pour prévenir les dommages concurrentiels.

Abstract

Competition authorities are paying particular attention to the development of generative Artificial Intelligence (AI). Its impact can be decisive in that it can both reshuffle the cards of the competitive game, i.e. weaken the positions of strength of the major firms at the heart of today’s major digital ecosystems, and give rise to new consolidation, by enabling them to extend their control over this general-purpose technology which is destined to play a decisive role in the structuring of our economy. The driving force behind the initiatives of competition regulators is the fear that control of certain essential resources will lead to the economic power of these players being extended to this new market. Competition authorities would face the same challenges as those arising from dominance and foreclosure in current ecosystems: difficulties in defining and implementing effective competitive remedies and the need to introduce specific to prevent competitive damages.

Abstract

This paper examines algorithmic collusion from legal and economic perspectives, highlighting the growing role of algorithms in digital markets and their potential for anti-competitive behavior. Using bandit algorithms as a model, traditionally applied in uncertain decision-making contexts, we illuminate the dynamics of implicit collusion without overt communication. Legally, the challenge is discerning and classifying these algorithmic signals, especially as unilateral communications. Economically, distinguishing between rational pricing and collusive patterns becomes intricate with algorithm-driven decisions. The paper emphasizes the imperative for competition authorities to identify unusual market behaviors, hinting at shifting the burden of proof to firms with algorithmic pricing. Balancing algorithmic transparency and collusion prevention is crucial. While regulations might address these concerns, they could hinder algorithmic development. As this form of collusion becomes central in antitrust, understanding through models like bandit algorithms is vital, since these last ones may converge faster towards an anticompetitive equilibrium.

Abstract

Mergers and acquisitions shape industry competition. Effective merger remedies are important for market efficiency and consumer welfare. This paper explores the need for more flexible remedies to address changing markets after mergers. While the EU permits some flexibility with less restrictive remedies, we conceptually advance the design elements of a dual-phase, bifurcated merger
control system. This system integrates ex-ante processes with more systematic and comprehensive ex-post measures. Such an approach can address the shortcomings of the current system and, consequently, holds the potential to enhance merger control in dynamic markets.

Definition

American economists played no role in the enactment of the 1890 Sherman Act and had very little influence in the development of the Federal Trade Commission Act and the Clayton Act in 1914, even though the 1912 presidential campaign had focused on the antitrust issue. Former President Theodore Roosevelt had very harsh words to say about the effectiveness of antitrust policy, considering it at best vain if not counterproductive. Louis Brandeis, a populist attorney who advised Woodrow Wilson in the course of his presidential campaign, was one of the key players in the establishment of the FTC. However, even the future Supreme Court justice only intended the agency to be preventive, not curative.

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Self-preferencing by a powerful service provider is usually analyzed as constituting an exclusionary abuse of market power. Examples of this kind of abuse might include the provider manipulating search and recommendation rankings to favor its own goods over close competitors (Google Shopping case) or integrating its own applications into an operating system that artificially worsens the performance of competing software (Microsoft case; Android case). This focus stands in line with the practice of competition authorities and courts on both sides of the Atlantic, and we are not denying that it represents an important avenue of competition policy enforcement.

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Abstract

The policy initiatives announced on both sides of the Atlantic to complement competition rules focus on two key dimensions: the contestability of markets on the one hand and fairness in their functioning on the other. The underlying idea is that the market positions of Big Tech would be inexpugnable – insofar as high barriers to entry protect them from self-regulating competition and insofar as they would have regulatory power over their respective ecosystems. Competition for the market would no longer be free, and competition in the market would be distorted. Our purpose in this working paper is to discuss these two dimensions. Are digital markets still contestable, and is the competition in them still competition on the merits? Finally, we discuss the remedies proposed to address these two alleged phenomena.

Abstract

The applicability of the notion of killer acquisition to digital platforms has long been debated. The case of the proceedings brought by the U.S. Department of Justice against Visa in November 2020 (before their joint dismissal in January 2021) is even more interesting insofar as it makes it possible to illustrate and discuss its different facets ranging from the notion of competition suppression to that of consolidation and extension of the dominant position. Even if the acquisition project was eventually withdrawn, the complaint analysis also makes it possible to question inter-digital ecosystem competition and shed light on the issues related to monitoring acquisitions undertaken by dominant companies.