ICLE Comments to Brazil’s CADE on Competition in Digital Ecosystems of Mobile Devices
I. Introduction
We are thankful for this opportunity to submit written comments to the Conselho Administrativo de Defesa Econômica’s (“CADE”) public hearing on “Competition in Digital Ecosystems of Mobile Devices (iOS and Android).”[1] The International Center for Law & Economics (“ICLE”) is a nonprofit, nonpartisan global research center founded with the goal of building the intellectual foundations for sensible, economically grounded policy. ICLE promotes the use of law & economics methodologies to inform public-policy debates and has longstanding expertise in the evaluation of competition law and policy. ICLE’s interest is to ensure that competition law remains grounded in clear rules, established precedent, a record of evidence, and sound economic analysis.
According to the hearing’s notice, CADE is conducting at least three investigations of “digital ecosystems”[2] in the wake of a “growing number of reports of violations of [Brazil’s] economic order related to digital ecosystems for mobile devices” that, together, warrant “allowing, through a hearing, society, economic agents, experts, academics, civil society organizations and other interested parties to present comments that they consider relevant for the ongoing informed decision-making by this competition authority.”[3]
Against this backdrop, our comments respectfully suggest careful consideration before enacting either sectoral regulation of digital “ecosystems”; specific reforms to competition law in Brazil that aim to deal with these ecosystems; or broad remedies that could affect the quality or affordability of such ecosystems.
We posit that competition among mobile-device operating systems is generally dynamic, competitive, and beneficial to consumers. The mobile ecosystem—where Apple’s iOS and Google’s Android are the dominant players—has experienced intense competition that has spurred innovation and benefited consumers. Contrary to claims of duopoly-induced stagnation, both platforms have continuously introduced groundbreaking features and improvements to their services.
Operating systems allow consumers to access digital services, which in turn help them to increase their productivity and enjoy relatively cheap access to information. While there are always potential competition issues and anticompetitive behavior in any market, the experience to-date in the operating-system market suggests that such issues are neither pervasive nor sufficiently unique to justify strict sui generis preemptive rules. Instead, existing antitrust law (Act No. 12,529/2011) is sufficient to address potential anticompetitive practices in digital markets. Furthermore, as demonstrated by recent cases and investigations, CADE has the necessary expertise and resources to manage these cases.
Of course, challenges do arise in applying antitrust laws to digital markets and to operating systems. For example, amid the fast-changing digital landscape, it can be difficult to define relevant markets and dominant positions in multisided-platform cases. The contours of the relevant market are not always clear, and the boundaries between the digital and nondigital world are sometimes overstated. Those challenges can, however, be properly addressed through the existing legal framework and with appropriate institutional reforms, such as equipping CADE with more resources to incorporate advanced, state-of-the-art technical expertise.
In devising alternate solutions to potential competition problems, it is important not to fall for the so-called “nirvana fallacy”—that is, comparing imperfect antitrust-enforcement systems against ideal regulations, as if they would be implemented in the real world perfectly and according to their purported goals.[4] All legal-enforcement systems are imperfect; that some imperfections can be identified is not sufficient to justify changes to the system.
In any case, any state intervention—whether it be regulation, antitrust enforcement, or the in-between “quasi-regulatory” approach—should operate under limiting principles, such as prioritizing consumer welfare,[5] and assessing the consumer impact of such interventions using clear metrics like price, output, and innovation. Interventions should also respect platform autonomy, ensuring that firms remain the primary designers of their own business models. Interventions should not stifle innovation, but rather encourage it across the digital ecosystem.[6] Blanket or per-se prohibitions on business practices like so-called “self-preferencing,” or mandated “interoperability” and/or access to platforms, will be likely to harm consumers, as these practices benefit consumers most of the time.[7]
II. Competition in Operating Systems
When competition authorities identify competition problems in the market for mobile-device operating systems, they typically assume that the entities that control these systems possess significant market power. This market power (“dominance” or “monopoly power”), they argue, enables these companies to exploit consumers or business users, leading to anticompetitive harms. For example, the UK’s Competition and Markets Authority (“CMA”) highlighted this concern in its request for comments on digital ecosystems:
Apple and Google hold an effective duopoly in mobile ecosystems. Their control over these increasingly crucial ecosystems means both firms hold powerful positions and can unilaterally determine the ‘rules of the game’, making it difficult for rival businesses such as browsers or alternative app stores to compete.[8]
Similarly, in the case initiated against Apple by Mercado Livre Brasil, CADE ruled in a preliminary-injunction decision that the relevant market is:
…composed solely and exclusively of the iOS operating system, a non-licensable operating system for mobile devices that presents itself as the central market for the entire iOS ecosystem. Accordingly, this SG defines the market of origin of the conduct as the market for the non-licensable mobile operating system iOS.[9]
Given that market definition, the only possible conclusion is that Apple has a monopoly over its own operating system. The problem with such conclusion, however, is that Apple (iOS) clearly competes with Google (Android) in the operating-system market for mobile devices. Even if these firms hold a duopoly in this market,[10] it is undeniable that the rivalry between them has been beneficial to consumers in terms of both quality and innovation. Since the first iPhone was introduced in 2007, each iteration of both companies’ operating systems has included features that could be found in previous versions of the other:
Features like picture-in-picture, live voicemail, lock screen customization and live translation were all found on the Android operating system before eventually making their way to iOS. And though the use of widgets to customize your home screen was long held as a differentiator for Android, that feature too eventually found its way to iOS.
On the other hand, Android’s Nearby Share feature is remarkably similar to Apple’s AirDrop, and Android phones didn’t get features like “do not disturb” or the ability to take screenshots until some time after the iPhone had them.
Apple removed the 3.5mm headphone jack from the iPhone in September 2016, and I distinctly remember that at Google’s launch event for the Pixel the following month, chuckles went round the room when the exec on stage proclaimed, “Yes, it has a headphone jack.” Google itself went on to also ditch the headphone jack, with the Pixel 2.
(…)
Rumors that Apple would remove the physical home button on the iPhone X were circling long before the phone was officially unveiled in September 2017. Are they the same rumors Samsung responded to when it “beat Apple to the punch” and removed the home button from its Galaxy S8 earlier that same year? Or did both sides simply arrive at such a big design decision independently?[11]
Consumers can readily find myriad comparisons of Android and iPhone devices online.[12] Moreover, both Apple and Google maintain webpages that offer to help users switch from one platform to the other (see Figure 1).[13] The business press has extensively covered the fierce rivalry between the two companies.[14] And numerous academic studies have reached similar conclusions about the nature of their competition. Nicolas Petit refers to Apple and Google as “moligopolists,”[15] while David Evans has described their rivalry as “dynamic competition.”[16] Marshall Van Alstyne and his coauthors have analyzed the strategies that both Google and Apple have deployed to outcompete one another.[17]
FIGURE 1: Apple’s ‘Move from Android to iPhone’ Tutorial
SOURCE: Apple
Finally, both Apple and Google regularly file reports with securities regulators that cite the other firm as an important competitor (if not by name). For example, Apple has noted in its 10-K filing that:
The Company believes the availability of third-party software applications and services for its products depends in part on the developers’ perception and analysis of the relative benefits of developing, maintaining and upgrading such software and services for the Company’s products compared to competitors’ platforms, such as Android for smartphones and tablets and Windows for personal computers.[18]
While Google has noted in its 10-K:
We face competition from: Companies that design, manufacture, and market consumer electronics products, including businesses that have developed proprietary platforms.[19]
The competitive landscape in which iOS and Android both seek to gain and retain market share has been marked by continuous advancements across multiple dimensions, including user-interface design, hardware integration, app-ecosystem quality, and security features. Apple’s iOS is known for its seamless integration with hardware, delivering a tightly controlled and optimized user experience. Conversely, Google’s Android offers a more open ecosystem, allowing for greater customization and a wider variety of device choices from multiple manufacturers. The fact that the companies have taken these differing approaches do not mean that Apple and Google are not direct competitors. Rather, these different business models decisions are themselves a function of competition. As Randal Picker has explained in the context of the case initiated by the European Commission against Google Android:
Google undoubtedly wanted to support Android through its advertising business as that was its great competitive advantage. Embedding Google Search in Android is the natural way to do that. It meant that Android would come with a third-party payment mechanism built in and it meant that the price of Android handsets would presumably be lower given that the Android software itself would be free.
This is really the point of business model competition. Apple was being Apple: vertically integrated hardware and software. Did that with the Macintosh, did that with the iPhone. Microsoft was being Microsoft: it had dominated the OS market for the open IBM PC architecture and it hoped to do exactly that for mobile phones. There would be lots of handset makers, just as there were PC makers and Microsoft would make money off of phone OSs. Google was offering a different business model: lots of handset makers and advertising-supported software. The competition between Microsoft and Google was precisely over which way of paying for phone OS software would win.[20] [Emphasis added.]
As we will address in Section III, state interventions (either in the form of regulation or competition-law remedies) that do not respect firms’ autonomy to remain the primary designers of their platforms and business models risk eroding this form of competition.
Arguments that both Apple and Google maintain “monopolies” over their own operating systems often focus on the role played by brand loyalty. But as Dirk Auer noted in a critique of the European Commission’s Google Android decision,[21] the data that the Commission used to support its findings can be read differently:
Take the claim that 82% of Android users stick with Android when they change phones (compared to 78% for Apple), and that 75% of new smartphones are sold to existing users. The Commission asserted, without further evidence, that these numbers prove there is little competition between Android and iOS.
But is this really so? In almost all markets consumers likely exhibit at least some loyalty to their preferred brand. At what point does this become an obstacle to interbrand competition? The Commission offered no benchmark mark against which to assess its claims.
And although inter-industry comparisons of churn rates should be taken with a pinch of salt, it is worth noting that the Commission’s implied 18% churn rate for Android is nothing out of the ordinary, including for industries that could not remotely be called anticompetitive.
To make matters worse, the Commission’s own claimed figures suggest that a large share of sales remained contestable (roughly 39%). Imagine that, every year, 100 devices are sold in Europe (75 to existing users and 25 to new users, according to the Commission’s figures). Imagine further that the installed base of users is split 76–24 in favor of Android. Under the figures cited by the Commission, it follows that at least 39% of these sales are contestable.[22] [Emphasis added.]
The purpose of defining relevant markets and measuring product substitutability is to gauge the potential for competitive discipline. Substitutability does not require that every Android user, or even most users, see Apple as a viable alternative, or vice versa. Rather, effective competitive pressure exists so long as a non-negligible segment of consumers would switch products due to price increases or diminished quality. An 18% potential switching rate is not negligible.
At this point, it is important to consider that operating systems are “two-sided platforms” that connect consumers and developers of applications and that create an important part of the value obtained from devices. This “two-sidedness” entails that one cannot consider prices or other impacts on one side of the market in isolation.[23] Even if consumers are “locked-in,” if developers can find substitutes for the platform, it is harder to conclude that that platform has monopoly power. The U.S. District Court for the Northern District of California acknowledged this in its Epic v. Apple ruling, noting that the availability of alternative distribution channels for Epic’s games indicated that iOS may not constitute a distinct relevant market:
Thus, at this stage of the litigation, and with the record before the Court, Apple’s relevant market definition is also plausible. As Apple correctly points out, alternative means exist to distribute Fortnite. Indeed, Epic Games expressly advertised the multiplatform nature of its product following its breach of the Apple terms and service. (“[The] party continues on PlayStation 4, Xbox One, Nintendo Switch, PC, Mac, GeForce Now, and through both the Epic Games app at epicgames.com and the Samsung Galaxy Store.”).) The multiplatform nature of Fortnite suggests that these other platforms and their digital distributions may be economic substitutes that should be considered in any “relevant market” definition because they are “reasonably interchangeable” when used “for the same purposes.” (dismissing antitrust claim when alleged relevant market ignored multiple ways of reaching consumers). “If competitors can reach the ultimate consumers of the product by employing existing or potential alternative channels of distribution, it is unclear whether such restrictions foreclose from competition any part of the relevant market.” [24] [Citations omitted.]
Finally, it is important to consider that consumers buy smartphones, not operating systems. In that vein, Apple and Android face competition from smartphone manufacturers like Samsung, Xiaomi, Huawei, or Oppo. Indeed, it has been widely reported that Chinese smartphone producers like Huawei, who have been working on their own operating systems.[25] These manufacturers often push the boundaries of hardware design with features that consumers care about—e.g., better cameras or foldable phones.[26] These companies constitute at least potential competition that could discipline Apple and Google, should they begin to rest on their laurels and reduce their quality or try to exploit their market power.
In sum, while the debate over competition in mobile operating systems often assumes that Apple and Google either constitute separate “monopolies” in different relevant markets or a single stagnant duopoly, market reality indicates something else. Both companies not only compete intensively with one another, but also face significant pressure for smartphone manufacturers.
III. ‘Solutions’ in Search of a Problem
Even well-intentioned regulatory interventions can lead to unintended consequences that may harm consumers and the broader market. CADE should be vigilant in identifying and mitigating such risks. For example, regulations intended to boost competition by mandating interoperability or data-sharing requirements could inadvertently compromise user privacy and security. Similarly, policies designed to curb perceived anticompetitive behaviors might dampen platforms’ incentives to invest in new features and technologies.
Lessons from international jurisdictions, particularly the European Union’s Digital Markets Act (“DMA”), offer valuable insights into the potential pitfalls of overregulation. The DMA’s stringent requirements have led to significant compliance costs for companies and have sometimes resulted in reduced functionality and a worse user experience. For instance, mandated changes to platform operations to ensure “fairness” have, in some cases, led to decreased efficiency and increased complexity for both developers and users.[27]
To avoid such outcomes, CADE should intervene in markets only after clear evidence of harm to consumers, and with appropriate and proportional remedies. CADE already has the proper legal and institutional tools to do that within the current legal regime.
To be sure, as in any market, competition problems may arise in digital markets (i.e., there may be incentives to behave anticompetitively or to engage in conduct that could have an anticompetitive effect). But any potential anticompetitive conduct can and should be addressed via the application of antitrust law, such as Law No. 12,529/2011. As Giuseppe Colangelo and Oscar Borgogno have argued:
… recent and ongoing antitrust investigations demonstrate that standard competition law still provides a flexible framework to scrutinize several practices sometimes described as new and peculiar to app stores.
This is particularly true in Europe, where the antitrust framework grants significant leeway to antitrust enforcers relative to the U.S. scenario, as illustrated by the recent Google Shopping decision.[28]
Indeed, the European Commission has initiated traditional competition-law complaints against Google that have included imposed fines,[29] while the UK CMA has settled cases with Amazon with negotiated remedies.[30] In the United States, both the Federal Trade Commission (“FTC”) and the U.S. Justice Department (“DOJ”), along with several states, have initiated cases against Google,[31] Facebook,[32] and Amazon.[33]
We believe that CADE should be able to address any potential competition issues in much the same way. CADE has already initiated investigations and cases related to alleged refusals to deal, self-preferencing, and discrimination against platforms like Google, Apple, Meta, Uber, Booking.com, Decolar.com, and Expedia—precisely the sorts of firms that would presumably be covered by any new digital markets regulation. A 2019 OECD peer review of Brazilian competition law found that “(w)hile competition law regimes in many emerging economies may still struggle to achieve enforcement goals, the Brazilian regime has largely been considered a success,”[34] adding that:
CADE is well-regarded within the competition practitioner community both nationally and internationally, the business community, and within the Government administration due to its technical capabilities. It is considered one of the most efficient public agencies in Brazil and its international standing as a leading competition authority both regionally and globally reinforces this domestic view that it is a model public agency.[35]
That should lay to rest any doubts that CADE has the institutional tools and technical expertise to deal digital-markets cases properly.
Moreover, based on the EU experience, there is a significant risk of double jeopardy when the boundaries of traditional competition law and ex-ante digital regulation become fuzzy. As Giuseppe Colangelo has observed, the DMA is based explicitly on the notion that competition law alone is insufficient to effectively address the challenges and systemic problems posed by the digital-platform economy.[36]
Indeed, the scope of antitrust law is limited to certain instances of market power (e.g., dominance on specific markets) and anticompetitive behavior more generally. Further, its enforcement occurs ex post and requires extensive investigation on a case-by-case basis of what are often complex fact sets. Therefore, proponents of ex-ante digital markets-regulation argue, traditional competition law may not effectively address the challenges to well-functioning markets posed by the conduct of gatekeepers, who are not necessarily “dominant” in competition-law terms. Regulatory regimes like the DMA thus forward a set of ex-ante obligations for online platforms designated as gatekeepers in order to serve as a complement to traditional antitrust rules. This also allows enforcers to dispense with the laborious process of defining relevant markets, proving dominance, and measuring market effects.
But despite claims that the DMA is not an instrument of competition law, and should therefore not affect how antitrust rules apply in digital markets, such regulatory regimes do appear to blur the lines between regulation and antitrust by mixing their respective features and goals. Indeed, the DMA shares the same aims and protects the same legal interests as competition law.
Further, the DMA’s list of prohibitions is effectively a synopsis of past and ongoing antitrust cases, such as Google Shopping (Case T-612/17), Apple (AT.40437) and Amazon (Cases AT.40462 and AT.40703). Acknowledging the continuum between competition law and the DMA, the European Competition Network (“ECN”) and some EU member states (self-anointed “friends of an effective DMA”) initially proposed empowering national competition authorities (“NCAs”) to enforce DMA obligations directly.[37]
Similarly, the prohibitions and obligations often contemplated by digital markets regulations could, in theory, all be imposed by CADE. In fact, CADE has investigated—and is still investigating—several large companies that would likely fall within the purview of any digital markets regulation, including Google, Apple, Meta, Uber, Booking.com, Decolar.com, Expedia and iFood. CADE’s past and current investigations of these companies covered various conduct that is also targeted by the DMA, such as refusals to deal, self-preferencing, and discrimination.[38] Existing competition law under Act 12.529/11 therefore clearly already captures such conduct.
The difference between the two regimes is that, while general antitrust law requires a showing of harm and exempts conduct that benefits consumers, sector-specific regulation—in principle—would not. But such shortcuts have a cost. Certain types of behavior often targeted by ex-ante digital market regulations are nevertheless capable of—or even central to—delivering significant procompetitive benefits. It would be unjustified and harmful to subject such conduct to per se prohibitions, or to reverse the burden of proof. Instead, this type of conduct should be approached neutrally, and examined on a case-by-case basis.[39]
In the months since the publication of the Ministry of Finance’s report on competition in digital markets,[40] the discussion in Brazil has shifted focus from ex-ante regulation to a “more flexible approach,” similar to past reforms in Japan or Germany, as well as the UK’s more recent Digital Markets, Competition and Consumers Act (“DMCC”). This “more flexible approach” is, in theory, better than ex-ante regulation, given that it would presumably require evidence of specific harms to competition and consumers before any intervention. It could therefore entail more tailored and narrow remedies.
There is, however, also the strong possibility that competition agencies—or, depending on the details of the final regulation, potentially other less-experienced authorities—may be granted extensive discretion to impose broad behavioral and structural remedies. Such broad remedies could inadvertently foreclose various kinds of pro-competitive or pro-consumer behavior.
For example, following its own market inquiry into “online intermediation platforms,” the South African Competition Commission in 2023 recommended that e-commerce firms segregate their retail divisions from any marketplace operations—a structural remedy more reasonable for markets prone to natural monopolies (such as water or electricity distribution) than for the highly competitive e-commerce market.[41]
Similarly, a market investigation unit at Mexico’s Comisión Federal de Competencia Económica (COFECE) has recommended that Amazon and Mercado Libre unbundle their streaming services and make their platforms “interoperable” with third-party logistics providers. These remedies will tend to harm rather than benefit consumers, as they would ban vertical integration that generally results in lower prices and better distribution. Moreover, such remedies may soon prove obsolete in the face of rapidly changing market dynamics.[42]
The UK CMA’s recent investigation of the internet-search market also reinforces our concern about this kind of “quasi-regulatory” approach. The CMA’s preliminary proposal (based solely on Google’s strategic market status—i.e., no specific harms had been proven) contemplates broad remedies that are, in fact, quite similar to those prescribed by the DMA. These include prohibiting self-preferencing, preventing cross-silo data transfers, and restricting the way Google uses the information it accesses from public websites to develop artificial-intelligence (AI) services.[43]
This degree of regulatory discretion is not simply a minor bug, particularly in countries without an outstanding record of upholding the rule of law. Brazil currently ranks 80th of 142 countries worldwide on that score, and 17th out of 32 countries in Latin America and the Caribbean.[44]
The Ministry of Finance’s report outlines the contours of the abovementioned regulatory regimes. Alas, it proceeds directly to its proposals without assessing their potential impact. The absence of such analysis should give CADE pause. The goal of making antitrust law more expeditious and effective can be achieved by providing agencies and courts with needed resources, as well as by streamlining procedures to address cases before market dynamics shift and render potential remedies ineffective.
Moreover, there is merit in the complexity of abuse-of-dominance cases. Because agencies need to allocate resources efficiently and intervene only in cases where challenged conduct genuinely poses a risk to competition, the slow and steady complexity of proving competition-law complaints essentially serves as a filter. The cost-benefit analysis involved in determining whether a particular business practice is anticompetitive allows agencies to better distinguish harmful conduct from potentially beneficial practices. In the end, traditional competition law is, in fact, both more flexible and more precise than the proposed “more flexible” approach.
IV. Conclusion
CADE’s investigation into Apple’s and Google’s mobile ecosystems raises important questions about competition and innovation in the digital economy. As our comments explain, however, the assumption that these ecosystems function as two monopolies, or an entrenched duopoly with limited competition, is misguided. The mobile industry is characterized by dynamic competition, with continuous innovation, significant user choice, and considerable investment in platform development.
Rather than pursuing heavy-handed regulatory interventions that could distort incentives and hinder innovation, CADE should adopt an evidence-based and cautious approach. Apple and Google compete vigorously, not just with each other but also with a broader landscape of technology firms—including manufacturers, service providers, and developers operating across various segments of the mobile ecosystem. User churn rates and the contestability of key market segments indicate that competition remains robust.
Interventions that force interoperability, restrict pre-installed applications, or mandate alternative app stores carry significant risks. Lessons from similar regulatory actions (particularly the DMA) suggest that such measures often lead to unintended consequences, including degraded user experience, increased security risks, and reduced incentives for investment and innovation. In contrast, market-driven differentiation, where consumers can choose between Apple’s integrated approach and Google’s open ecosystem, provides a natural check on anticompetitive behavior, while maximizing consumer choice.
Given the rapid pace of technological change and the evolving nature of digital markets, a prescriptive regulatory approach could stifle innovation and reduce the competitive benefits that users currently enjoy. Instead, policymakers and competition agencies should focus on clear and proportionate policy measures that address demonstrable harms without undermining the fundamental drivers of competition. The objective should not be to reengineer these ecosystems, but to ensure that competition remains vibrant and that consumers continue to benefit from technological advancements and product differentiation.
In this context, it is advisable to approach these markets with a view toward fostering innovation, preserving incentives for investment, and avoiding unnecessary regulatory burdens that could harm consumers, developers, and the broader digital economy. A well-calibrated approach—grounded in empirical evidence and mindful of the risks of intervention—will ensure that Brazil’s digital markets remain competitive and dynamic in the years to come.
[1] Audiência Pública – Concorrência em Ecossistemas Digitais de Dispositivos Móveis (iOS e Android), Conselho Administrativo de Defesa Econômica (Feb. 3, 2024), https://sei.cade.gov.br/sei/controlador_externo.php?acao=documento_conferir&codigo_verificador=1509889&codigo_crc=17F0A23B&hash_download=9ab49f9625968c225f8ebf22e5f1174d1f799be4d0585a22367aaa98e84dd9a43355a45b4ee109c31df834cfba0f8ea7f7eeb4ce360a25d3128a1ae751be3b25&visualizacao=1&id_orgao_acesso_externo=0.
[2] Administrative Inquiries No. 08700.002940/2019-76 (“Google Android case”) and 8700.009916/2024-25 (“Google Play Store case”), and Administrative Proceeding No. 08700.009531/2022-04 (“Apple App Store” case).
[3] CADE, supra note 1.
[4] See Harold Demsetz, Information and Efficiency: Another Viewpoint, 12 J.L. Econ. 1, 22 (1969), (“The view that now pervades much public policy economics implicitly presents the relevant choice as between an ideal norm and an existing “imperfect” institutional arrangement. This nirvana approach differs considerably from a comparative institution approach in which the relevant choice is between alternative real institutional arrangements.”).
[5] Brazilian Competition Law, Act 12.529/2011 considers the protection of free competition and consumers to be among its primary goals.
[6] For more detail on these operating principles, see Geoffrey A. Manne, Dirk Auer, Lazar Radic, & Mario A. Zúñiga, ICLE Comments on the CMA’s Draft Guidance for the UK’s Digital Markets Competition Regime, Int’l Ctr. L. Econ. (Jul. 12, 2024), https://laweconcenter.org/resources/icle-comments-on-the-cmas-draft-guidance-for-the-uks-digital-markets-competition-regime.
[7] Lazar Radic, Digital-Market Regulation: One Size Does Not Fit All, Truth Mark. (Apr. 17, 2023), https://truthonthemarket.com/2023/04/17/digital-market-regulation-one-size-does-not-fit-all.
[8] Invitation to Comment on Strategic Market Status Investigation into Apple and Google’s Mobile Ecosystem, Compet. Mark. Auth. (Jan. 23, 2025), at 11, https://connect.cma.gov.uk/invitation-to-comment-sms-investigations-into-apple-and-google-s-mobile-ecosystems.
[9] CADE Nota Técnica Nro. 63/2024/CGAA11/SGA1/SG/CADE (Dec. 12, 2024), https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?HJ7F4wnIPj2Y8B7Bj80h1lskjh7ohC8yMfhLoDBLddZGjmDYkx3_EXIVLLLrA_C3ojklC750gYvLk4Wjzp2CQAzNjE5yiDgT6lb0_1xdyihsVVs3J1xFcXVJMWUJOcf9.
[10] It is important to note that a duopoly (or other highly concentrated market structure) is not inherently anticompetitive. Economic models and empirical research suggest that duopolies can reach a highly competitive equilibrium. See Erwin A. Blackstone, Larry F. Darby, & Joseph P. Fuhr Jr., The Case of Duopoly, 34 Regulation 3 (Winter 2011-2012), at 12, available at https://www.cato.org/sites/cato.org/files/serials/files/regulation/2012/6/v34n4-3.pdf. Frequently cited examples of competitive duopolies include Coca-Cola and Pepsi, or Airbus and Boeing.
[11] Andrew Lanxon, Android vs. iPhone: 15 Years of Innovation Through Rivalry, CNET (Apr. 24, 2024), https://www.cnet.com/tech/mobile/smartphone-showdown-15-years-of-android-vs-iphone;
[12] See, e.g., Michael Muchmore & Gabriel Zamora, Android vs. iOS: Which Phone OS Really Is the Best?, PCMag (Nov. 13, 2024), https://www.pcmag.com/comparisons/android-vs-ios-which-mobile-os-is-best; Prakhar Khanna, iPhone Vs. Android – Which One Should You Get?, Forbes (Feb. 16, 2024), https://www.forbes.com/sites/technology/article/iphone-vs-android; Bartosz Szczygie?, iPhone vs Android Users: Key Differences in 2024, NetGuru (Jan. 8, 2025), https://www.netguru.com/blog/iphone-vs-android-users-differences.
[13] Move from Android to iPhone or iPad, Apple, https://support.apple.com/en-au/118670 (last visited Feb. 7, 2025); Switch Is Easier than Ever, Android, https://www.android.com/switch-to-android (last visited Feb. 7, 2025).
[14] See, e.g., Rhiannon Williams, Why Competition Between Apple and Google Is More Brutal than Ever, The Telegraph (Sep. 29, 2014), https://www.telegraph.co.uk/technology/google/11127694/Why-competition-betweenApple-and-Google-is-more-brutal-than-ever.html; Bianca DiSanto, Google vs. Apple: Why Their Competition Is Good for You, The Hoya (Oct. 21, 2016), https://thehoya.com/google-vs-apple-why-their-competition-is-good-for-you; Can Google or Huawei Stymie Apple’s March Towards $4trn?, The Economist (Oct. 24, 2024), https://www.economist.com/business/2024/10/24/can-google-or-huawei-stymie-apples-march-towards-4trn.
[15] Nicolas Petit, Big Tech & the Digital Economy. The Moligopoly Scenario (2020).
[16] David S. Evans, Why the Dynamics of Competition for Online Platforms Leads to Sleepless Nights But Not Sleepy Monopolies, SSRN (Jul. 25, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009438.
[17] Marshall W. Van Alstyne et al., Pipelines, Platforms, and the New Rules of Strategy, Harv. Bus. Rev. (Apr. 2016), at 1-9.
[18] Apple Inc., Annual Report (Form 10-K), at 1 (Sep. 29, 2018).
[19] Alphabet Inc., Annual Report (Form 10-K), at 5 (Dec. 31, 2017).
[20] Randal Picker, The European Commission Picks a Fight with Google Android over Business Models, ProMarket (Jul. 23, 2018), https://www.promarket.org/2018/07/23/european-commission-picks-fight-google-android-business-models.
[21] Dirk Auer, Making Sense of the Google Android Decision, Int’l Ctr. L. Econ. (Feb. 25, 2020), available at https://laweconcenter.org/wp-content/uploads/2020/02/Auer-Making-Sense-of-the-Google-Android-Decision-White-Paper.pdf.
[22] Id., at 20-21.
[23] David S. Evans & Michael Noel, Defining Antitrust Markets When Firms Operate Two-Sided Platforms, 3 Colum. Bus. L. Rev., 667 (2005).
[24] Epic Games v. Apple Inc., 493 F. Supp. 3d 817 (N.D. Cal. 2020).
[25] “Huawei Technologies Co.’s ambition in consumer devices over the past year has been to decouple from Alphabet Inc.’s Android software entirely, culminating with the December 2024 launch of its made-in-China HarmonyOS Next as part of the Mate 70 smartphone. It is the most substantial attempt at building a third mobile ecosystem outside of Apple Inc.’s iPhone empire and the Google-led Android confederation. It also builds on the company’s considerable reach, resources, and nearly a billion existing users in China. See, e.g., Huawei’s Google-Free Phones Are Making Real Progress, Bloomberg (Jan. 28, 2025), https://www.bloomberg.com/news/features/2025-01-28/huawei-harmonyos-next-review-new-phone-seeks-to-break-apple-google-dominance.
[26] Siladitya Ray, Apple Is No Longer The World’s Biggest Smartphone Maker By Volume—As Samsung Ships More Handsets In Q1, Forbes (Apr. 15, 2024), https://www.forbes.com/sites/siladityaray/2024/04/15/apple-is-no-longer-the-worlds-biggest-smartphone-maker-by-volume-as-samsung-ships-more-handsets-in-q1; William Langley & Gloria Li, China’s Smartphone Makers Head Upmarket in European Push, Financ. Times (Nov. 17, 2024), https://www.ft.com/content/a982abf2-9564-4a8c-b8df-9e614ecd2151.
[27] See Lazar Radic & Mario Zúñiga, ICLE Comments to the Brazilian Ministry of Finance on Competition in Digital Markets, Int’l Ctr. L. Econ. (May 2, 2024), https://laweconcenter.org/resources/icle-comments-to-the-brazilian-ministry-of-finance-on-competition-in-digital-markets.
[28] Giuseppe Colangelo & Oscar Borgogno, App Stores as Public Utilities?, Truth Mark. (Jan. 19, 2022), https://truthonthemarket.com/2022/01/19/app-stores-as-public-utilities.
[29] See, e.g., Antitrust Cases Against Google by the European Union, Wikipedia, https://en.wikipedia.org/wiki/Antitrust_cases_against_Google_by_the_European_Union (last visited Feb. 11, 2025).
[30] Amazon Online Retailer: Investigation into Anti-Competitive Practices, Compet. Mark. Auth. (Oct. 1, 2013), https://www.gov.uk/cma-cases/amazon-online-retailer-investigation-into-anti-competitive-practices.
[31] Press Release, Justice Department Sues Google for Monopolizing Digital Advertising Technologies, U.S. Dep’t Justice (Jan. 24, 2023), https://www.justice.gov/opa/pr/justice-department-sues-google-monopolizing-digital-advertising-technologies.
[32] See Amended Complaint, FTC v. Facebook, Inc., Case No.: 1:20-cv-03590-JEB (D.D.C. Sep. 8, 2021), https://www.ftc.gov/legal-library/browse/cases-proceedings/191-0134-facebook-inc-ftc-v.
[33] Press Release, FTC Sues Amazon for Illegally Maintaining Monopoly Power, Fed. Trade Comm. (Sep. 26, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/09/ftc-sues-amazon-illegally-maintaining-monopoly-power.
[34] OECD Peer Reviews of Competition Law and Policy: Brazil (2019), at 18, www.oecd.org/daf/competition/oecd-peer-reviews-of-competition-law-and-policy-brazil-2019.htm.
[35] Id. at 24.
[36] Giuseppe Colangelo, The Digital Markets Act and EU Antitrust Enforcement: Double & Triple Jeopardy, Int’l Ctr. L. Econ. (Mar. 23, 2022), https://laweconcenter.org/resources/the-digital-markets-act-and-eu-antitrust-enforcement-double-triple-jeopardy.
[37] How National Competition Agencies Can Strengthen the DMA, Eur. Compet. Netw. (Jun. 22, 2021), available at https://ec.europa.eu/competition/ecn/DMA_joint_EU_NCAs_paper_21.06.2021.pdf.
[38] For a detailed overview of CADE’s decisions in digital platforms and payments services, see Mercados de Plataformas Digitais, Cadernos de Cade (Aug. 2023), available at https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/estudos-economicos/cadernos-do-cade/Caderno_Plataformas-Digitais_Atualizado_29.08.pdf.
[39] See Geoffrey A. Manne, Against the Vertical Discrimination Presumption, Concurrences (May 2020), https://www.concurrences.com/en/review/numeros/no-2-2020/editorial/foreword; see also Dirk Auer, Matthew Lesh, & Lazar Radic, Digital Overload: How the Digital Markets, Competition and Consumers Bill’s Sweeping New Powers Threaten Britain’s Economy, 4 IEA Perspectives 16-21 (2023), available at https://iea.org.uk/wp-content/uploads/2023/09/Perspectives_4_Digital-overload_web.pdf.
[40] Ministério da Fazenda Apresenta Propostas para Aprimorar a Defesa da Concorrência No Ambiente de Plataformas Digitais, Ministério da Fazenda (Oct. 10, 2024), https://www.gov.br/fazenda/pt-br/assuntos/noticias/2024/outubro/ministerio-da-fazenda-apresenta-propostas-para-aprimorar-a-defesa-da-concorrencia-no-ambiente-de-plataformas-digitais.
[41] Online Intermediation Platforms Market Inquiry. Summary of Final Report and Remedial Actions, S. Afr. Compet. Comm. (Jul. 2023), available at https://www.compcom.co.za/wp-content/uploads/2023/07/CC_OIPMI-Summary-of-Findings-and-Remedial-action.pdf.
[42] See Geoffrey A. Manne & Mario A. Zúñiga, ICLE Comments on the COFECE Report on Marketplace Competition in Mexico, Int’l Ctr. L. Econ. (Apr. 23, 2024), https://laweconcenter.org/resources/icle-comments-on-the-cofece-report-on-marketplace-competition-in-mexico.
[43] Strategic Market Status Investigation into Google’s General Search and Search Advertising Services. Invitation to Comment, (Jan. 14, 2025), available at https://assets.publishing.service.gov.uk/media/678524823ef063b15dca0f04/Invitation_to_Comment.pdf; see also Geoffrey A. Manne, Brian Albrecht, Dirk Auer, Lazar Radic, & Mario A. Zúñiga, ICLE Comments to CMA’s SMS Investigation into Google’s General Search and Search-Advertising Services, Int’l Ctr. L. Econ. (Feb. 3, 2025), https://laweconcenter.org/resources/icle-comments-to-cmas-sms-investigation-into-googles-general-search-and-search-advertising-services.
[44] WJP Rule of Law Index. Brazil 2024 Overall Index Score, World Justice Proj., https://worldjusticeproject.org/rule-of-law-index/country/2024/Brazil (last visited Feb. 10, 2025).