Trendy Antitrust for Digital Markets: Are Market Investigations the New Black?
Abstract
The race to enrich the antitrust enforcement toolkit in response to challenges posed by digital markets seems endless. A new trend is indeed circulating in EU competition policy circles. Inspired by the UK regime, Member States are increasingly prone to entrusting their national competition authorities (NCAs) with market investigation powers. As a result, NCAs would have the possibility to intervene upon a suspicion that competition in a sector is being weakened by the market structure or the behavior of players, issuing behavioral and structural remedies without establishing an antitrust violation. Taking stocks from a comparative analysis of different legislative initiatives and investigating the interplay with conventional antitrust enforcement, sector-specific regulation, and digital markets regulation, the paper aims at showing that these new competition tools may bring more perils than promises.
I. Introduction
As the specter of digital gatekeepers is haunting Europe, antitrust authorities have started demanding new competition tools according to the motto that extraordinary times require extraordinary measures. On these premises, the Digital Markets Act (DMA) has been enacted.[1] The DMA is, indeed, explicitly grounded on the assumption that competition law alone is unfit to effectively address challenges and systemic problems posed by the emergence of a few large platforms orchestrating ecosystems. However, the DMA empowers the European Commission, leaving to national competition authorities (NCAs) the role of supporting actors.[2]
As a result of the tension between the European Commission and NCAs, which accompanied the entire legislative iter of the DMA, Member States are increasingly looking for new provisions that would strengthen and enlarge their respective antitrust enforcement toolkits, ultimately giving them a greater role compared to the Commission.[3] After all, the DMA has been conceived as (at least formally) different from competition law. Therefore, legislative initiatives aimed at updating national competition laws cannot be considered in conflict with the DMA as long as they refrain from imposing further obligations on designated gatekeepers.[4]
Along this path, with the tenth amendment to its national competition law, Germany introduced platform-specific competition rules entrusting the Bundeskartellamt with new powers aimed at taming undertakings of “paramount significance for competition across markets” and their potential anticompetitive effects on markets.[5] Belgium amended its Code of Economic Law adding a provision on the abuse of economic dependence with the explicit justification to fill a legislative gap on digital platforms.[6] Germany and Italy enacted provisions to strengthen their national rules on economic dependence as well.[7]
However, the strengthening of the NCAs’ enforcement arsenal does not end here as several Member States are envisaging and, in some cases, have already enacted provisions aimed at equipping NCAs with market investigation tools.[8] Accordingly, NCAs would have the power to launch investigations upon a suspicion that competition in a sector is being weakened by the market structure or the behavior of players and to issue behavioral and structural remedies subsequently, without establishing an antitrust violation. As such, the introduction of a market investigation tool would complement both existing competition laws and sector regulations. Indeed, similarly to competition law, it is applicable across all sectors of the economy and, similarly to regulation, it results in a form of ex ante intervention.
The comparative reference is represented by the UK regime where, since 2002, the Competition and Market Authority (CMA) has widely used its competence to intervene in markets whose features cause an adverse effect on competition, irrespective of whether there is a violation of antitrust provisions.[9] Market investigation provisions are also contemplated by the Hellenic competition law, although these powers have been used only in one sector so far (i.e., the gasoline industry).[10]
Inspired by the UK, the German legislator has recently further revised its competition law by approving the eleventh amendment that enables the Bundeskartellamt to address cases of “significant and continuous malfunctioning” of competition as a result of sector inquiries and to remedy such malfunctioning by imposing behavioral or structural measures.[11] In a pretty peculiar way, the same tool has been grabbed by the Italian Competition Authority (ICA) thanks to a controversial interpretation provided by the highest administrative court on a recent legislative initiative seemingly aimed at just tackling excessive price increases on certain air routes during the holiday season.[12] Finally, the Danish Parliament has recently voted in favor of several amendments to the national competition act, including one that grants the Danish Competition and Consumer Authority (DCCA) the power to initiate market investigations.[13]
The time for a new competition tool seems to have arrived in the Netherlands as well. Indeed, the Chairman[14] and the Chief Economist[15] of the Authority for Consumers and Markets have recently advocated the introduction of an extra set of instruments to face increasing market power and practices hampering competition without violating the law. In a similar vein, the Swedish governments is also evaluating the possibility of endowing their competition authorities with an additional and broader competition tool.[16]
In summary, in what appears to be a regulatory competition race within the EU, NCAs are apparently striking back. Further, they are benefiting from a Commission’s missed opportunity. Indeed, the Commission explored the possibility of introducing an EU-wide market investigation tool a few years ago. Notably, opening a public consultation on a potential new competition tool, the Commission envisaged the possibility of intervention that would address “gaps in the current EU competition rules” and allow for “timely and effective intervention against structural competition problems across markets.”[17] The proposal has been folded into the DMA and watered down into market investigations that will allow the Commission to qualify companies as gatekeepers, dynamically update the obligations on gatekeepers when necessary, and design remedies to tackle systematic infringements of the DMA rules.
Against this background, relying on the UK experience, the paper aims at showing that the assessment of the merits of market investigation powers revolves essentially around the definition and the respect of rigorous limiting principles. In this regard, the paper sounds a note of caution about the promises of recent legislative initiatives. Notably, albeit the measures would be applied across all sectors, the rationale for these interventions seems being yet another attempt to fill the (perceived) enforcement gap in digital markets, which however recently have been already subject to a massive regulation in the EU. In such a case, national new competition tools would just increase frictions with the DMA and ultimately result in a highly fragmented legal environment. Consumers may be negatively affected as well because of the risk of a fragmented user experience. After all, the digital sector is supranational by design and, therefore, naturally better scrutinized at the EU level. Further, outside the digital sector, additional overlaps and conflicts would emerge in other regulated sectors (e.g., telecommunications, energy markets, postal services, banking, transportation services).
In addition, and more fundamentally, the cross-border nature of services provided by digital platforms raises questions about the legitimacy of all the recent national provisions granting new powers to NCAs. Indeed, once applied to digital players, such measures will inevitably determine effects beyond national boundaries, thus affecting trade between Member States. As a result, they are apparently at odds with the general principle of primacy of EU competition law sets out in the Modernisation Regulation.[18]
Finally, the paper maintains that the sudden interest in market investigation powers may reflect not merely the need (and the natural ambition) of NCAs to expand their competition law toolbox, but also the (dangerous) desire to go beyond competition law. Considering the enhanced and expanded remedial powers within a market investigation framework, concerns arise regarding the potential NCAs’ inclination to displace traditional competition law enforcement and engage in market engineering.[19] In this perspective, an unchecked use of these new powers would mark a further and unwelcome shift from competition law to industrial policy.
The paper is structured as follows. Section II provides a comparison between the UK regime, the European Commission’s proposal on the new competition tool, and the recent market investigation powers introduced in Germany and Italy, illustrating their features, legal design, and raison d’être. Section III investigates potential consequences of the increasing adoption of such a new competition tool at national level, analyzing its interaction with conventional antitrust enforcement, sector-specific regulation, and digital markets regulation (in particular, the DMA). Section IV concludes.
II. Several Shades, Common Rationale: Market Investigations as a Means to Go Beyond Traditional Antitrust Enforcement
In general terms, the trigger of a market investigation is represented by the existence of structural competition problems that cannot be addressed under traditional competition rules. Therefore, like any regulatory intervention, its justification lies in the unfitness of competition law to deal with certain structural issues. The latter involve both the case of market features adversely affecting the competition regardless of firms’ conduct and the case of firms’ conduct that, albeit having anticompetitive effects, are not forbidden under competition law (e.g., tacit collusion).[20] As a consequence, remedies imposed at the end of market investigations are usually aimed at dealing with such critical market features by tackling the roots of the problems, rather than limiting the behavior of companies.[21] Further, the different rationale of market investigations in comparison to conventional antitrust provisions implies that the former do not require the detection of either an antitrust infringement or a dominant position.
Alongside market investigations, antitrust authorities are also allowed to conduct market studies or sector inquiries as a way to inform themselves about the competitive conditions of specific markets. For instance, the European Commission may conduct an inquiry into a particular sector of the economy or into a particular type of agreements across various sectors if “the trend of trade between Member States, the rigidity of prices or other circumstances suggest that competition may be restricted or distorted within the common market.”[22] In the course of the inquiry, the Commission may request undertakings to supply information and may carry out inspections. However, differently from market investigations, sector inquiries (at least in their original formulation) do not enable the authorities to impose remedies outside the scope of individual infringement proceedings.
The peculiar characteristics of market investigations strongly suggest that clear limits and stringent requirements should be set to ensure that such new tools complement, rather than replace, competition law. The combination of powerful remedies and lower standards of proof could indeed induce antitrust authorities to systematically prefer the exception (i.e., market investigations) over the rule (i.e., conventional competition provisions), thus transforming themselves into market regulators instead of antitrust enforcers. Such concerns stress a further risk, which involves the interplay with sector regulations. Indeed, market investigations are supposed to complement both existing competition laws and sector-specific regulations. Finally, for all these reasons, the legal design of new competition tools would also require proper checks and balances to safeguard due process and legal certainty.
As recent attempts to introduce market investigation powers at the European level as well as in some Member States take inspiration from the UK, our analysis shall necessarily begin by illustrating requirements and procedures that the competition authority must satisfy therein. The UK overview will help to assess whether such a framework has been consistently envisaged and designed by other policymakers following its path.
A. The UK Model
The Enterprise Act 2002, as amended by the Enterprise and Regulatory Act 2013, entrusts the CMA with the power to carrying out market studies and market investigations, along with conventional tools involving competition enforcement, merger control, and consumer protection.[23] Sector regulators can initiate market studies as well and potentially refer to CMA for a market investigation to further examine the market and consider whether there are competition concerns.[24]
Market studies are described as “examinations into the causes of why particular markets are not working well for consumers.”[25] They take an “overview of regulatory and other economic drivers in a market and patterns of consumer and business behaviour.”[26] They are “not limited to markets in the economic sense” as they are also conducted to improve “the knowledge of markets or practices.”[27] Their rationale and scope are limited to cases where enforcement action appears “impractical” or “ineffective”, hence unable to “address all of the root causes of any problem, or behaviour across a whole market or markets.”[28] In such cases, market studies provide with a “holistic perspective” looking “beyond individual abuses of dominance, agreements that reduce competition, or breaches of specific consumer protection legislation, and consider[ing] all aspects of market structure and conduct.”[29]
However, at the conclusion of a market study, there are no authoritative powers to issue legally binding orders. Notably, a market study may give a “clean bill of health” for the market, concluding that some or all of the potential consumer detriment identified during the project proposal stage is not substantiated by the information obtained, or that intervention would not be proportionate to the detriment.[30] Further, a market study may suggest campaigns to raise consumer awareness, make recommendations to businesses and/or the government, and inform potential enforcement actions.[31] Nonetheless, if the findings indicate “reasonable grounds for suspecting that any feature, or combination of features, of a market” prevents, restricts, or distorts competition[32], a market study may also lead to a market investigation reference.[33]
Therefore, to trigger a market investigation, the following statutory criteria should be met: i) there are reasonable grounds to suspect that competition is prevented, restricted or distorted in some market in the UK; ii) a feature, or combination of features, of a market causes this “adverse effect on competition” (AEC); and iii) a market investigation reference is the most appropriate way of proceeding.[34] However, the CMA has the discretion, rather than a duty, to make a market investigation reference and, at the same time, a market study is not a prerequisite to a reference.
Market investigations are “more detailed examinations” into whether there is an AEC in the market(s) for the goods or services referred to.[35] Market features include the structure of the market concerned or any aspect of that structure, any conduct (whether or not in the market concerned) of one or more persons who supply or acquire goods/services in the market concerned, or any conduct relating to the market concerned of customers of any person who supplies or acquires goods/services.[36] With regards to potential theories of harm in market investigations, the main sources from which competitive harm may flow include unilateral market power (including market concentration), barriers to entry and expansion, coordinated conduct, vertical relationships, and weak customer response.[37] However, as pointed out in the Guidance, problems supporting a market investigation reference involve “industry-wide market features or multi-firm conduct”, while single-firm conduct will, “where necessary and possible”, be dealt with under the competition law or appropriate sectoral legislation.[38] More explicitly, it is not the intention of the CMA to “make market references based on the conduct of a single firm, whether dominant or not, where there are no other features of a market that adversely affect competition.”[39]
There are four types of market investigation references[40]: “cross-market” references (actionable by the CMA when a specific feature or a combination of features existing in more than one market can be investigated without also having to refer to the whole of each market concerned)[41], “restricted public interest” references (where the Secretary of the State refers a matter to the CMA for investigation of competition issues, while the former retains the ability to consider public interest issues), “full public interest” references (where the Secretary of the State requests the CMA to investigate public interest issues alongside competition issues in relation to the matter referred), and “ordinary” references (which are not cross-market and do not raise public interest issues).
Market investigations must follow specific procedural steps and a timetable setting out the key stages (e.g., information gathering, hearings, provisional decision report, response hearings, and final report).[42] If the investigation finds an AEC, the CMA is required to consider whether remedies are appropriate, namely how to remedy, mitigate, or prevent the AEC concerned and to remedy, mitigate, or prevent any detrimental effects on customers so far as they have resulted from, or may be expected to result from, the AEC.[43] The remedy implementation stage is subject to procedural steps and time limits as well.[44]
Over the years, the CMA has launched around twenty market investigations, which concerned a wide range of sectors (e.g., energy, banking, airports, groceries, buses, pay tv, aggregates, healthcare, motor insurance, funerals) and remedies (e.g., disclosure, data portability, divestiture, price cap).[45]
The most well-known case is the Open Banking remedy. Relying on the EU Directive on payment services (PSD2), which introduced the access to account rule forcing banks to share, upon user request, real-time data on customers’ accounts with third-party providers (TPPs) and execute payment orders[46], the UK opted for a more invasive implementation and promoted a standardized model of Open Banking. In particular, the CMA required the largest nine banks to agree on common and open API standards, data formats, and security protocols that would allow TPPs to connect to customers’ bank accounts according to a single set of specifications.[47] The CMA delivered the remedy as a result of a review of retail banking which reported structural and longstanding competitive weaknesses.[48] The investigation revealed that the market was concentrated and market shares remained stable over time. Further, the market study found that a substantial proportion of customers were paying above-average prices for below-average service quality and customer engagement was low.[49]
However, the CMA has not overlooked limits and implications of such a market tool, acknowledging the challenges in its application and pointing out that it cannot be considered the “panacea” for all the problems affecting competition.[50] Some factors associated with its design and use highlighted by the CMA are particularly relevant to the analysis of more recent initiatives emulating the UK model. Indeed, the CMA notes that one of the main practical considerations to take into account is that market investigations are a “one-off exercise” as they offer an assessment of market issues at a specific moment and a single opportunity to intervene.[51] Therefore, revisiting the market later on to modify or adapt solutions can be challenging as markets change over time. This is, in particular, the case of fast-moving digital markets.[52] Therefore, it is necessary to conduct a “careful case-by-case assessment” of the specific circumstances when determining the proper tool.[53] Further, considering the potential for remedies with wide-reaching implications, it is essential to ensure that any intervention is grounded in “robust analysis.”[54]
B. The Commission’s Proposal on the New Competition Tool
Within the debate over the fitness of traditional antitrust rules to tackle the challenges posed by digital markets and the emergence of large technology platforms, in 2020 the European Commission explored the possibility to expanding its arsenal with the adoption of a New Competition Tool (NCT).[55] The proposal was described as complementary to the current competition law framework, the existing sector-specific regulation, and even the DMA.
While the initiative closely resembled the UK regime[56], its inspirational reason lied in the peculiar features of digital markets and the related competitive risks posed by the increasing digitalization of the economy.[57] Notably, the Commission referred to the fact that market characteristics, such as extreme economies of scale and scope, strong network effects, zero pricing, and data dependency, have favored the emergence of a few digital gatekeepers and a radical decrease in competition (tipping) and ‘winner-takes-most’ scenarios. More explicitly, the Commission declared that the initiative aimed at addressing structural competition problems that “tilt the level playing field in favour of only a few market players.”[58]
Against this background, according to the Commission, existing competition rules have proven to be unable to tackle such problems or to address them in the most effective manner.[59] In particular, the NCT initiative mentioned two categories of structural competition problems distinguishing whether the harm is about to affect or has already affected the market.[60] The former (“structural risks for competition”) referred to scenarios in which a threat to competition may arise as a result of certain market features (e.g., network and scale effects, lack of multi-homing and lock-in effects) and the conduct of companies with an entrenched market and/or gatekeeper position. Accordingly, in such situations, the NCT was supposed to intervene preemptively in tipping markets. Additional scenarios involved non-dominant firms employing unilateral strategies to monopolize a market through anticompetitive methods. The latter category (“structural lack of competition”), instead, referred to inefficient outcomes because of structural market failures and included markets exhibiting systemic deficiencies (e.g., high concentration, entry barriers, consumer lock-in, limited data access or accumulation) that extend beyond the actions of individual companies with market power and oligopolistic market setups with heightened potential for tacit collusion, including markets with enhanced transparency facilitated by algorithm-driven technological advancements.
The proposal has been met with much criticism. Supporters of an UK-like regime, while seeing a case for the introduction of an EU-wide market structure-based NCT applicable across markets, drew concerns about its application to potential harms included in the category of structural risks for competition. In particular, it has been noted that it would be difficult to identify when a market might tip.[61] Pre-emptive intervention poses genuine risks and challenges in the absence of thorough investigation and robust information-gathering capabilities to ascertain the markets where intervention may be necessary and impactful.[62] Indeed, the category of structural risks for competition falls outside the scope of the UK regime, which instead is focused on harms in markets as they exist at the time of the market investigation.[63]
Further concerns regarded its design and governance, namely the need to ensure checks and balances, including due process and judicial review.[64] As reported by the Commission, some NCAs stressed that their support for the NCT was subject to its design.[65] Finally, requests have been advanced to clearly set limits and boundaries in order to define the interaction between the NCT and traditional antitrust rules as well as sector-specific regulations, digital markets regulations, and other market investigation powers introduced or envisaged at the Member State level.[66]
The proposal was eventually abandoned. However, it opened the door to national initiatives inspired by the same model and the same goal.
C. The New German Sector Inquiry Measures
Moving from the same premises that motivated the European Commission to deliver the DMA and to propose the NCT, Germany has been the most active Member State in revisiting the antitrust enforcement toolkit. Notably, on the assumption that competition law by itself is inadequate for effectively tackling systemic issues presented by digital markets, in the last couple of years the German legislator adopted two amendments to the national competition law. After having empowered its NCA with a new tool to address platform-specific abusive practices that are similar and functionally equivalent to the DMA[67], it also reformed the provisions on sector inquiries.[68]
While the Bundeskartellamt was already allowed to conduct an investigation into a specific sector of the economy or (across sectors) a specific type of agreement or practice if circumstances suggested that domestic competition may be restricted or distorted, the original version of Section 32e GWB only enabled the NCA to gather information from undertakings and associations concerned. As a result of the 11th amendment to the GWB, instead, a new Section 32f has been added granting further powers to the NCA. Notably, if, at the end of a sector inquiry, the Bundeskartellamt determines the existence of a “significant and continuing malfunctioning of competition”, it may impose any behavioral or structural remedies necessary for eliminating or reducing such malfunctioning.[69] The remedies are potentially far-reaching as they may include: i) the granting of access to data, interfaces, networks or other facilities; ii) requirements for the business relations between undertakings; iii) the obligation to establish transparent, non-discriminatory, and open norms and standards; iv) requirements for certain types of agreements or contractual arrangements, including contractual provisions regarding the disclosure of information; v) the prohibition to unilaterally disclose information that facilitates parallel conduct by undertakings; vi) the accounting or organisational separation of parts of undertakings or business divisions; vii) disposal of shares and assets.
Therefore, if the 10th amendment to GWB introduced the notion of undertakings of “a paramount significance for competition across markets” to illustrate the German version of gatekeepers, the 11th amendment adds the new concept of “significant and continuing malfunctioning of competition” to characterize the German version of the NCT. As well as the UK AEC, the concept acts as a trigger for the application of the novel powers. To this end, consistent with the UK experience, Section 32f GWB provides a definition of the concept and clarifications about the scope of the provision in relation to both traditional antitrust tools and sector-specific regulation.
Notably, a “malfunctioning” of competition is deemed to exist in the cases of: a) unilateral supply or buyer power; b) restrictions on market entry, market exit, the capacities of undertakings or switching to another supplier or buyer; c) uniform or coordinated conduct; or d) foreclosure of access to input factors or customers through vertical relations.[70] Further, such a malfunction is considered “continuing” if, over a period of three years, it has existed permanently or occurred repeatedly and, at the time the decision is issued, there are no indications that the malfunction is more likely than not to cease to exist within two years.[71]
Furthermore, the provision clarifies that such additional powers could be used by the Bundeskartellamt only insofar as traditional competition law enforcement appears “unlikely to be sufficient” to eliminate the malfunctioning of competition effectively and permanently.[72] Moreover, in the case of regulated sectors (railways, postal services, and telecommunications) and regulated electricity and gas supply networks, the NCA is allowed to impose remedial measures only with the Federal Network Authority’s agreement.[73]
Finally, as already seen in the UK scenario, both market investigation and remedy implementation are subject to procedural steps and time limits.[74] Further limits are introduced for the case of divestment orders.[75] Firstly, while the other remedies may be addressed to any undertaking, although particular account will be taken of its market position[76], the disposal of shares and assets may be imposed only on dominant players and undertakings of a paramount significance for competition across markets. Secondly, such measures may be applied only if the accounting or organisational separation is impossible, not equally effective, or more burdensome for the undertaking. Thirdly, before issuing the decision, the NCA must set up an oral hearing with the Monopolies Commission and the supreme Land authorities competent in whose territory the undertaking has its registered seat. In addition, assets must be divested only if the price offered by the purchaser amounts to at least 50 per cent of the value determined by an auditor appointed by the NCA.
D. The Italian Job
Waiting for other Member States to follow this trend, Italy represents the latest European country to introduce market investigation measures as well as the perfect case to illustrate the risks of such an antitrust arms race.
As in Germany and consistently with the power granted to the European Commission under the Modernization Regulation[77], the original version of the Italian competition law merely allows the ICA to conduct sector inquiries if the trend of trade and prices or other circumstances suggest that competition may be restricted or distorted.[78] To this aim, the ICA may request undertakings to provide information. However, in a very recent initiative targeting excessive price increases on certain air routes during the holiday season, the Italian legislator has introduced a paragraph that significantly expands ICA’s sector inquiry powers.[79] Indeed, according to this provision, at the end of a sector inquiry, the ICA may adopt “any structural or behavioral measure”, that is “necessary and proportionate” to eliminate distortions of competition.
Nonetheless, at first glance, the novelty (albeit potentially disruptive) appeared merely applicable to air passenger transport services. After all, the goal of the legislative initiative is explicitly to tackle airlines’ price hikes during holidays, as confirmed by the header and the paragraphs of the provision, which all refer to such a specific sector. The paragraph at issue includes a reference to the airline sector as well, where it states that, in the adoption of appropriate measures, the ICA may take into account several factors (such as market structure, pricing methods, risks arising from the use of algorithms based on artificial intelligence or user profiling, competitive and pricing dynamics related to the seasonality of demand, needs of territories that are difficult to reach by means of transportation other than air, and the protection of particularly vulnerable consumers).
The ICA did not share the above viewpoint and submitted a request for clarification to the Italian highest administrative court (i.e., the Council of State) on the scope of its new market investigation powers, namely whether the latter apply broadly to all sectors, rather than limitedly to air passenger transport services. The Council of State concurred with the broad interpretation suggested by the ICA arguing that, despite the text of the new provision and the intention of the legislator being ambiguous, an interpretation limiting the scope to a specific sector would be unreasonable and discriminatory.[80] According to this line of reasoning, the overall rationale of the legislative initiative is, indeed, to introduce a tool that would enable the ICA in all circumstances where a competitive distortion and related harm to consumers arise from the structure of the market, rather than from conduct or regulatory restraints.[81] Further, in the Court’s view, these findings are supported by the comparative analysis of similar powers granted to other NCAs, such as the CMA and the Bundeskartellamt.[82]
However, a comparative approach would have also suggested remarking on the apparent differences with the UK and German experiences. In those cases, as well as in countries where there are ongoing similar proposals on the table, the granting of such unconventional, wide-ranging, and potentially radical powers has been the result of extensive public consultations. In Germany, for instance, changes and significant improvements to the original text of the bill were introduced because of criticism raised during the consultation process.[83] In Italy, instead, the new competition tool has been approved on the sly, hidden within a paragraph of a provision addressing a different and extremely specific topic. Even the ICA never requested the introduction of a similar provision. Indeed, in response to the emergence of digital gatekeepers, three years ago, the antitrust authority submitted to the government reform proposals to strengthen its enforcement powers, explicitly referring to the German approach.[84] However, the document did not include any suggestions about the adoption of market investigation measures. On that occasion, with regards to its current powers to conduct sector inquiries, the ICA merely suggested an amendment to the competition law that would allow the possibility of imposing administrative sanctions in case of refusal or delay in providing the requested information or in the presence of misleading or omissive information.[85] The very same request was reiterated just a few months ago.[86]
Moreover, the Italian version of the market investigation lacks any requirements, limiting principles, safeguards, checks and balances. As a consequence, it provides the ICA with carte blanche to intervene at will.
This result is confirmed by the recent communication released by the ICA to provide guidance on its new powers.[87] In general, it is questionable that such relevant aspects and implications of market investigations are handled by soft law instruments, rather than being laid down in the legislation.[88] It is even more troublesome when soft law instruments do not include any substantive requirements, procedural safeguards, and time limits. The ICA’s document contains a few pages so vague that it is difficult to consider them guidelines.
E. The Danish Way
Waiting for other Member States to follow this trend, Denmark is the latest European country to introduce market investigation measures. At the end of May, the Danish Parliament approved several amendments to the national competition act, including one that grants the DCCA the power to initiate market investigations.[89] Notably, according to the new Section 15f of the Danish Competition Act, the DCCA may initiate a market investigation of behavior or structures in one or more sectors if the Competition Council finds signs that conditions in these sectors weaken effective competition. This can be done following a public consultation and with approval from the Competition Council.
The Danish initiative resembles the vagueness of the Italian approach. To trigger market investigation measures, the new rule refers to behavior or structures in one or more business sectors that “clearly impair effective competition,” without providing any definition or guidance. Similarly, the provision does not include significant safeguards, merely stating that a decision must be made no later than two years after the publication of the Competition Council’s approval of the market investigation. However, it is important to note that the DCCA is not entitled to impose structural measures as part of a market investigation, but it may only adopt behavioral orders or enter into binding commitment agreements.
III. The Uncertain Perimeter of Market Investigations
From the previous comparative overview, some relevant takeaways emerge. Firstly, policy makers’ recent interest for market investigations reflects the search of new competition tools to address the increasing concerns about developments in digital markets. To this aim, the adoption of market investigation powers is proposed as an additional solution to fill the perceived gap in competition law enforcement.
Further, the UK regime represents the reference model because of its more than twenty years of successful implementation, although it has not been conceived in the digital economy era. The UK framework provides indications about criteria to meet in order to trigger such a tool and its far-reaching remedies, as well as about procedural steps and time limits to respect in order to guarantee adequate checks and balances.
However, the way in which the UK model has been adopted by EU jurisdictions has been (unsurprisingly) highly differentiated so far. Germany and Italy are, indeed, at opposite ends of the spectrum. While the former added further limits to both the activation of the procedure and the adoption of structural remedies, the latter, instead, crafted a tool with no boundaries at all. The degree of fragmentation of the EU landscape is expected to increase in the near future as other national proposals are under discussion. Concerns about divergences in the application of national market investigation provisions are so real as to induce some scholars to raise the question of whether there is a need to adopt an EU-wide tool by restoring the NCT proposal, rather than promoting harmonization within the European Competition Network (ECN).[90]
Risks of fragmentation and legal uncertainty appear the natural result of the increasing blurring of the boundaries between competition law and economic regulation. Although these boundaries have always been erratic, the emergence of digital platforms impacted significantly on such an interplay as it questions the fitness of traditional competition rules. In the EU, for instance, the DMA has been advanced by celebrating the added value of ex ante measures vis-à-vis ex post enforcement.[91] Accordingly, it has been conceived as a solution aimed at departing from antitrust concepts (i.e., market dominance) and standards of proof (i.e., relevant market definition and anticompetitive effects of the conduct).
However, the debate on the fitness of antitrust rules apparently also involves the long-standing discussion about the goals of competition law. Notably, the dissatisfaction with profit allocation, undue corporate power, and market concentration in digital markets has fueled the revival of fairness as opposed to pure efficiency-oriented approaches.[92] This is particularly apparent in the EU, where all the recent legislative initiatives in the digital economy are explicitly declared to be aimed at promoting fairness to correct market outcomes and ensure fair economic results, rather than merely to address the anticompetitiveness of some practices.[93]
Against this background, market investigation powers may represent a further step in the just illustrated direction. Indeed, they share most of the features of the recent regulatory initiatives undertaken in digital markets. In particular, they do not require to detect either the dominance on a market or an antitrust violation and they allow authorities to directly intervene on the market structure. Therefore, from this perspective, they might be functional to grant authorities a blanket license to intervene bypassing competition rules and disregarding the economic analysis. In other words, they could be used as an expedient to side-step competitional law and engage in industrial policy.
To avoid such a result and guarantee the always proclaimed complementarity with competition law, clear and stringent limiting principles to market investigations are needed. Notably, the necessary starting condition for a market investigation should be the meeting of a certain and clearly defined threshold of risk for competition. As noted by the literature, such an intervention trigger should be solidly anchored in economics, requiring both the demonstration of a potentially significant consumer harm and the definition of a clear theory of harm.[94] The very same limits and robust analyses should guide the definition of the potentially far-reaching remedies.
A. The Interplay with EU Competition Law
Regardless of the proper definition of limiting principles, the increasing introduction of market investigation powers, as well as other national provisions enlarging the antitrust enforcement toolkit, faces a fundamental limit in the general principle of the primacy of EU competition law. Notably, according to Article 3(1) of the Regulation 1/2003, if there is an effect on trade between Member States, NCAs and courts must apply EU competition law.[95]
The above principle is hardly respected whenever national competition rules are applied to digital platforms. Indeed, the latter usually provide cross-border services and deploy their business models globally. Therefore, the effects of any measures taken on the basis of national antitrust provisions and targeting digital players will most likely extend beyond territorial boundaries, thus affecting trade between Member States. After all, this is exactly the justification provided by the European Commission with regards to the DMA for a harmonization at the EU level.[96] The nature of services provided by digital platforms would not only make it impossible for Member States acting alone to effectively address the identified competition problems. The application of national rules is also deemed to undermine the functioning of the Single Market for digital services and the functioning of digital markets at large.[97]
Further, it is difficult to argue that market investigation powers benefit from the exceptions introduced under Article 3(2) and 3(3) of Regulation 1/2003, according to which the general rule of primacy for EU provisions does not preclude the adoption of stricter national competition rules on unilateral conduct as well as national rules pursuing a predominantly different objective.
It is true that such limitations to the general principle resulted in an unworkable test, being so incomplete and vague as to hamper the level playing field across the EU and to increase regulatory fragmentation, legal uncertainty, and compliance costs for firms engaged in cross-border trade.[98] Nonetheless, it is equally relevant to emphasize the role of Article 3 of Regulation 1/2003, which defines the relationship between EU competition and national laws, and has also inspired the DMA serving as a model for determining the Commission’s competence.[99]
Against this background, because of the growing trend of expanding national antitrust tools and powers, allowing NCAs to systematically derogate from the application of EU competition law would undermine the goals and effects of the latter.
B. The Interplay with Sectoral Regulation
Risks and concerns of fragmentation and legal uncertainty do not involve just the interplay between market investigation tools and conventional antitrust rules. Indeed, the former are supposed to also coexist with current sector-specific regulations, thus generating further issues about potential overlaps and conflicts between NCAs and national regulatory authorities (NRAs).
The situation is well illustrated in the opinion delivered by the Body of European Regulators for Electronic Communications (BEREC) in response to the public consultation on the NCT proposal.[100] Referring to the potential overlap with the established ex ante regulation, the BEREC noted that regulatory authorities are in an “optimal position” to carry out an analysis aimed at identifying structural competition problems.[101] Further, the BEREC pointed out that a conflict between NCT and sector-specific regulation could result in “inconsistent application of ex-ante regulation, forum shopping by market actors and potential regulatory uncertainty on whom, how and under which circumstances a market actor is subject to regulation.”[102] Such a legal uncertainty could have “serious implications for investment in a dynamic and competitive sector.”[103] Therefore, to avoid an overlap in competences between different authorities, market investigations should be allowed just in “exceptional cases” not currently addressed by sectoral regulation and they would be “more efficient” if carried out by the competent regulatory authorities, who have the relevant experience in the field.[104]
In such a scenario, as firms active in a sector would face relevant costs because of uncertainty and conflicting guidance, it seems at least preferable to grant to NRAs a sort of veto power on the remedies that NCAs may impose at the end of market investigations,[105] rather than merely relying on a duty of loyal cooperation between authorities.[106]
C. The Interplay with the DMA
Finally, the introduction of market investigation powers at national level may pose problems of coordination with EU digital markets regulations, in particular with the DMA. Indeed, recent initiatives enacting or envisaging provisions on market investigations describe the measure as being part of the overhaul of competition laws to better equip the NCAs for the digital blizzard. Further, it is not a secret that some NCAs are disappointed from the DMA institutional design, namely from the decision to opt for the centralization of its enforcement at EU level against the traditional decentralized or parallel antitrust enforcement at national level.[107] As a result, on the premise that the DMA is different from competition law, some Member States have updated their national competition provisions granting new powers to their NCAs and ultimately allowing them to “compete” with the EU Commission in the enforcement against digital players.
From this perspective, market investigations share the same goal as other national initiatives aimed at lowering legal standards and evidentiary burdens by introducing platform-specific presumptions (i.e., Germany) or economic dependence provisions (i.e., Belgium, Germany, and Italy). Actually, because of the wide range of remedies potentially available, market investigations are more powerful than not only other national solutions but even the DMA. Nonetheless, it is worth noting that, in contrast to other novel national competition provisions, market investigations have an evident regulatory nature that makes them (also formally) at odds with Article 1(5) DMA, according to which Member States shall refrain from imposing further obligations on gatekeepers.
To avoid such a conflict, an expedient that NCAs may decide to adopt is similar to the solution undertaken by the Bunderkartellament in its first decision applying Section 19a GWB.[108] After having designated Google as gatekeeper under the new German competition law (i.e., undertaking with paramount significant for competition across markets), the antitrust authority challenged its data processing terms and, in particular, its privacy policy as it allegedly failed to give end users sufficient choice as to whether they wish to consent to cross-service data processing. This practice would infringe Section 19a(2) GWB that is essentially the national replica of Article 5(2) DMA. Accepting Google’s commitments, the Bundeskartellamt confirmed that the application of Section 19a(2) GWB and the application of Article 5(2) DMA “touch upon each other at various levels.”[109] Therefore, in order to avoid conflicts, the Bundeskartellament stated that Google’s commitments are intended to “correspond in substance to an extension of Google’s obligations under Article 5(2) DMA” to services not designated as core platform services under the DMA.[110] Further, in case of doubt, the terms used in the commitments must be “interpreted in accordance with their meaning in the DMA.”[111]
In a similar vein, we may expect that NCAs imposing market investigation remedies on undertakings designated gatekeepers under the DMA would avoid conflicts by narrowing down the scope of the measures to markets not designated as core platform services. However, despite such a formal expedient, it seems apparent that players would face a substantial risk of being exposed to fragmentation and inconsistency because of the overlap between these regulatory tools.
IV. Conclusion
On the premises that digital markets are so peculiar to deserve special attention as opposed to the traditional oversight of competition law, the EU is experiencing a season of legislative activism at both national and supranational levels. This trend is at odds with the main purpose of the DMA, which has been conceived as a special intervention complementing the enforcement of conventional antitrust provisions and is supposed to provide a harmonized response to the challenges posed by digital markets.
The DMA has apparently produced the opposite outcome. Actually, the European legal framework is becoming more fragmented as the number of national interventions continues to grow. Such a tendency seems to reflect the regulatory competition between NCAs and the European Commission rather than the genuine need to address the emergence of digital gatekeepers.
Against this backdrop, market investigation tools are just the latest poison fruit of the DMA, namely a novel attempt undertaken by Member States to equip their NCAs with powers that would allow them to compete with the European Commission in ruling the digital world. Although inspired by the UK experience, the timing with which other countries have discovered the virtue of market investigations is indeed somewhat suspect since the UK regime has been in place for more than twenty years now. Further, there are evident risks that copy and adapt strategies may focus more on the leeway and wide-reaching remedies granted by the UK model than on its design and limiting principles.
While waiting to appreciate the added value of new competition tools, the picture of a crowded and fragmented European legal landscape seems to attest the failure of the Commission’s competition policy strategy for digital markets.
[1] Regulation (EU) 2022/1925 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act), (2022) OJ L 265/1.
[2] Ibid., Article 38(7): while the Commission is the sole enforcer of the DMA, NCAs may on their own initiative conduct investigations into cases of possible non-compliance with the DMA, however the opening of proceedings by the Commission will relieve them of the possibility to conducting such investigations or end them where they are already pending.
[3] Giuseppe Colangelo, The European Digital Markets Act and antitrust enforcement: a liaison dangereuse, (2022) 47 European Law Review 597.
[4] Regulation (EU) 2022/1925, supra note 1, Article 1(5).
[5] GWB (Gesetz gegen Wettbewerbsbeschra?nkungen) Digitalization Act, 18 January 2021, Section 19a.
[6] Belgian Royal Decree, 31 July 2020, Article 4.
[7] GWB Digitalization Act, supra note 5, Section 20; Italian Annual Competition Law, 5 August 2022, No. 118, Article 33.
[8] It is worth noting that, in a similar vein, the U.S. is experiencing a competition between state law provisions and federal antitrust law enforcement as shown by the recent Epic Games v. Apple case where, despite Epic’s federal antitrust claims against Apple’s anti-steering provisions have been rejected, the same practice has been found illegal under the California Unfair Competition Law, which attempts to introduce state level abuse of dominance provisions [559 F. Supp. 3d 898 (N.D. Cal., 2021), reversed in part and affirmed in part by 67 F.4th 946 (9th Cir., 2023), certiorari denied]. As a result, the District Court issued a nationwide injunction against Apple forcing it to allow links and other calls to action that would bypass its payment system.
[9] UK Enterprise Act 2002, Part 4. For an overview of the around twenty market investigations launched by the CMA so far, see Richard Whish, Market Investigations in the UK and Beyond, in Market Investigations. A New Competition Tool for Europe? (M. Motta, M. Peitz, and H. Schweitzer, eds.), Cambridge, Cambridge University Press, 2022, 216.
[10] Law 3959/2011, Article 11 (and previously Law 703/1977, Article 5).
[11] GWB, 25 October 2023, Sections 32e and 32f. For a preliminary comment, see Nada Ina Pauer, The 11th Amendment of the German Act Against Restraints of Competition—A ‘New Competition Tool’, Facilitated Disgorgement and the DMA’s Enforcement, (2023) 14 Journal of European Competition Law & Practice 354.
[12] See Law, 9 October 2023, No. 136, Article 1, and its interpretation provided by Consiglio di Stato, 29 January 2024, No. 61.
[13] See Law, 21 May 2024, No. 121, Section 1.8 adding a new Section 15f to the Danish Competition Act.
[14] Martijn Snoep, More tools to combat market power, please, (2023) https://www.acm.nl/en/publications/blog-martijn-snoep-more-tools-combat-market-power-please.
[15] Paul de Bijl, A new phase in competition oversight, (2023) https://www.acm.nl/en/publications/blog-new-phase-competition-oversight. See also Jasper van den Boom, Inge Graef, Giorgio Monti, Cédric Argenton, and Eric van Damme, Towards Market Investigation Tools in Competition Law: The Case of the Netherlands, (2023) 14 Journal of European Competition Law & Practice 553.
[16] Other Nordic countries, albeit not EU Member States, contemplating similar measures include Iceland and Norway. In the former, the market investigation tool has been introduced by the Act No. 14/2011, which amended Article 16 of the Competition Act No. 44/2005, while its scope, objectives, and procedure are illustrated in the Competition Authority (Samkeppniseftirlitið), Rules on market investigations, (2013) https://en.samkeppni.is/competition-rules/legislation/rules-on-market-investigations/. The Norwegian government has, instead, recently published a consultation paper proposing amendments to the national competition law with the aim of supplementing the competition authority’s traditional enforcement powers, thus allowing it to impose behavioural or structural remedies as a result of a market investigation: Nærings- og fiskeridepartementet, Høringsnotat – Lov om endring av lov 3. mai 2004 nr. 12 om konkurranse mellom foretak og kontroll med foretakssammenslutninger (konkurranseloven) om innføring av nytt markedsetterforskningsverktøy, (2023) https://www.regjeringen.no/contentassets/ade08fba20b6430e82cbdb5441c62a75/horingsnotat.pdf.
[17] European Commission, Incept Impact Assessment “New Competition Tool”, Ref. Ares(2020)2836004, https://competition-policy.ec.europa.eu/public-consultations/2020-new-comp-tool_en.
[18] Regulation (EC) No. 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, [2003] OJ L 1/1, Article 3(1).
[19] Massimo Motta, Martin Peitz, and Heike Schweitzer, Market Investigations in the EU A Road Map, in Market Investigations. A New Competition Tool for Europe? supra note 9, 1, 6.
[20] Massimo Motta and Martin Peitz, Intervention Triggers and Underlying Theories of Harm, in Market Investigations. A New Competition Tool for Europe? supra note 9, 16, 19.
[21] See Amelia Fletcher, Market Investigations for Digital Platforms. Panacea or Complement? in Market Investigations. A New Competition Tool for Europe? supra note 9, 352, 356, arguing that, in contrast with market investigations, the usual antitrust enforcement is essentially focused on the conduct of firms.
[22] Regulation 1/2003, supra note 18, Article 17. In the same vein, see, e.g., the original version of the Italian Competition Law (10 October 1990, No. 287, Article 12) and the German GWB, Section 32e.
[23] Supra note 9. For a recent overview of the UK regime, see, e.g., Gregory S. Crawford, Patrick Rey, and Monika Schnitzer, An Economic Evaluation of the EC’s Proposed “New Competition Tool”, in Market Investigations. A New Competition Tool for Europe? supra note 9, 320; Vasileios Tsoukalas, Should the New Competition Tool be Put Back on the Table to Remedy Algorithmic Tacit Collusion? A Comparative Analysis of the Possibilities under the Current Framework and under the NCT, Drawing on the UK Experience, (2022) 13 Journal of European Competition Law & Practice 234; Whish, supra note 9.
[24] See, e.g., the recent market investigation into cloud services launched by the CMA following Office of Communications (Ofcom)’s referral (https://www.gov.uk/government/news/cma-launches-market-investigation-into-cloud-services).
[25] UK Office of Fair Trading, Market studies: Guidance on the OFT approach, (2010) §2.2, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/284421/oft519.pdf.
[26] Ibid.
[27] Ibid., §2.3.
[28] Ibid., §2.15.
[29] Ibid. See also Fletcher, supra note 21, 356-357.
[30] UK Office of Fair Trading, supra note 25, §5.3.
[31] Ibid., §§ 5.4 – 5.12.
[32] UK Enterprise Act 2002, supra note 9, §131.
[33] UK Office of Fair Trading, supra note 25, §5.13.
[34] UK Office of Fair Trading, Market investigation references: Guidance about the making of references under Part 4 of the Enterprise Act, (2014) §1.10, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/284399/oft511.pdf.
[35] UK Competition and Markets Authority, Market Studies and Market Investigations: Supplemental guidance on the CMA’s approach, (2017) §1.11, https://assets.publishing.service.gov.uk/media/65cdfc4f130549000c867a9f/A._cma3-markets-supplemental-guidance-updated-june-2017.pdf.
[36] UK Enterprise Act 2002, supra note 9, §131(2).
[37] Competition Commission, Guidelines for market investigations: Their role, procedures, assessment and remedies, (2013) §170, https://www.gov.uk/government/publications/market-investigations-guidelines.
[38] UK Office of Fair Trading, supra note 34, §2.7.
[39] Ibid.
[40] UK Competition and Markets Authority, supra note 35, §§1.13-1.14.
[41] Ibid., §2.31.
[42] Ibid., §3.29 and §§3.36-3.64.
[43] UK Enterprise Act 2002, supra note 9, §138(2).
[44] UK Competition and Markets Authority, supra note 35, §§4.1-4.14.
[45] See Whish, supra note 9, 276-290.
[46] Directive 2015/2366 on payment services in the internal market, (2015) OJ L 337/35, Articles 64-68. For an analysis, see Oscar Borgogno and Giuseppe Colangelo, Data, Innovation and Competition in Finance: The Case of the Access to Account Rule, (2020) 31 European Business Law Review 573.
[47] UK Competition and Markets Authority, The Retail Banking Market Investigation Order 2017, (2017) https://www.gov.uk/government/publications/retail-banking-market-investigation-order-2017. For an analysis, see Dize Dinçkol, Pinar Ozcan, and Markos Zachariadis, Regulatory standards and consequences for industry architecture: The case of UK Open Banking, (2023) 52 Research Policy 104760; Oscar Borgogno and Giuseppe Colangelo, Consumer inertia and competition-sensitive data governance: the case of Open Banking, (2020) 9 Journal of European Consumer and Market Law 143.
[48] UK Competition and Markets Authority, Retail banking market investigation – Final Report, (2016) https://www.gov.uk/cma-cases/review-of-banking-for-small-and-medium-sized-businesses-smes-in-the-uk#final-report.
[49] After seven years since its introduction, the UK celebrates the success of its model: see UK Joint Regulatory Oversight Committee, Recommendations for the next phase of open banking in the UK, (2023) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1150988/JROC_report_recommendations_and_actions_paper_April_2023.pdf, claiming significant take-up and accelerating growth of Open Banking as over 7 million consumers and businesses (of which 750,000 are small to medium-sized enterprises) are using Open Banking-enabled products and services. See also Tania Babina, Saleem Bahaj, Greg Buchak, Filippo De Marco, Angus Foulis, Will Gornall, Francesco Mazzola, and Tong Yu, Customer Data Access and Fintech Entry: Early Evidence from Open Banking, (2024) NBER Working Paper 32089, http://www.nber.org/papers/w32089, finding that the introduction of Open Banking in the UK led to increased fintech entry across a wide range of financial products and improved both consumer and SMEs’ outcomes.
[50] UK Competition and Markets Authority, The CMA’s response to the European Commission’s consultations in relation to the Digital Services Act package and New Competition Tool, (2020) §69, https://www.gov.uk/government/publications/ec-public-consultations-on-the-digital-services-act-package-and-the-new-competition-tool-cma-response.
[51] Ibid., §70.
[52] Ibid.
[53] Ibid., §6.
[54] Ibid, §71.
[55] European Commission, supra note 17.
[56] See, e.g., Crawford, Rey, and Schnitzer, supra note 23; UK Competition and Markets Authority, supra note 48, §45. The Commission’s initiative, actually, comprised two different tools, i.e. a dominance-based and a market structure-based tool: the latter was similar to the UK CMA investigation regime.
[57] European Commission, supra note 17, 1. See also European Commission, Summary of the contributions of the National Competition Authorities to the impact assessment of the new competition tool, (2020) 3, https://competition-policy.ec.europa.eu/public-consultations/2020-new-comp-tool_en, reporting that NCAs suggest that digital markets are more prominently affected by structural competition problems than other markets.
[58] European Commission, supra note 17, 2.
[59] Ibid.
[60] Ibid.
[61] See, e.g., Crawford, Rey, and Schnitzer, supra note 23, 343-347; UK Competition and Markets Authority, supra note 50, §65.
[62] UK Competition and Markets Authority, supra note 50, §65.
[63] Crawford, Rey, and Schnitzer, supra note 23, 343.
[64] Ibid., 348-349; Bo Vesterdorf and Kyriakos Fountoukakos, A New Competition Tool into Old Bottles? Considerations on the Legal Design of the European Commission’s Proposed NCT, (2021) 12 Journal of European Competition Law & Practice 284, 287.
[65] European Commission, supra note 57, 8.
[66] Crawford, Rey, and Schnitzer, supra note 23, 348-349; Vesterdorf and Fountoukakos, supra note 64, 291; European Commission, supra note 57, 8 and 11-12.
[67] GWB, supra note 5, Section 19a.
[68] GWB, supra note 11, Sections 32e and 32f.
[69] Ibid., Section 32f(3).
[70] See, ibid., Section 32f(5), adding that particular account will be taken of: 1) number, size, financial strength and turnover of the undertakings active in the markets concerned or across markets, the undertakings’ market shares and the degree of business concentration; 2) links between the undertakings in the relevant, upstream and downstream markets or otherwise related markets; 3) prices, quantities, choice and quality of the products or services offered on the relevant markets; 4) transparency and homogeneity of the goods on the relevant markets; 5) contracts and agreements between undertakings in the relevant markets; 6) the degree of dynamism in the relevant markets, and 7) the efficiency gains demonstrated, in particular cost savings or innovations, while allowing consumers a fair share of the benefit.
[71] Ibid.
[72] Ibid., Section 32f(3).
[73] Ibid., Section 32f(8).
[74] Ibid., Section 32e(3-4) and Section 32f(7).
[75] Ibid., Section 32f(4).
[76] Ibid., Section 32f(3).
[77] Regulation (EC) No. 1/2003, supra note 22, Article 17.
[78] Italian Competition Law, supra note 22, Article 12(2).
[79] Article 1 of Law, 9 October 2023, supra note 12, Article 1(5).
[80] Consiglio di Stato, supra note 12, §§3.3, 3.5, and 3.6.
[81] Ibid., §3.5.
[82] Ibid., §3.7.
[83] See van den Boom, Graef, Monti, Argenton, and van Damme, supra note 14, 582; Florian Wagner-von Papp, The 11th Amendment to the ARC and Germany’s New Competition Tool, (2023) https://www.d-kart.de/blog/2023/05/03/the-11th-amendment-to-the-arc-and-germanys-new-competition-tool/.
[84] Autorità Garante della Concorrenza e del Mercato, Proposte di riforma concorrenziale ai fini della Legge annuale per il mercato e la concorrenza – Anno 2021, (2021) §VII, https://www.agcm.it/competenze/tutela-della-concorrenza/attivita-di-segnalazione/dettaglio?db=C12563290035806C&uid=914911A1FF8A4336C12586A1004C2060.
[85] Ibid., §VII(F).
[86] Autorità Garante della Concorrenza e del Mercato, Proposte di riforma concorrenziale ai fini della Legge annuale per il mercato e la concorrenza – Anno 2023, (2023) §12, https://www.agcm.it/dettaglio?db=C12563290035806C&uid=B64EC3137901211CC12589D400390BB7&view=vw0301&title=AS1893-PROPOSTE%20DI%20RIFORMA%20CONCORRENZIALE%20AI%20FINI%20DELLA%20LEGGE%20ANNUALE%20PER%20IL%20MERCATO%20E%20LA%20CONCORRENZA%20ANNO%202023&fs=21-Attività%20di%20segnalazione%20al%20Parlamento%20e%20al%20Governo.
[87] Autorità Garante della Concorrenza e del Mercato, Comunicazione relativa all’applicazione dell’articolo 1, comma 5, Decreto-Legge 10 agosto 2023, n. 104, convertito con modificazioni dalla legge 9 ottobre 2023, n. 136, (2024) Bulletin No. 19, 113.
[88] See Pierre Larouche and Alexandre de Streel, The Integration of Wide and Narrow Market Investigations in EU Economic Law, in Market Investigations. A New Competition Tool for Europe? supra note 9, 164, 198-199.
[89] Supra note 13.
[90] van den Boom, Graef, Monti, Argenton, and van Damme, supra note 14, 563.
[91] See Regulation (EU) 2022/1925, supra note 1, Recital 5.
[92] See Giuseppe Colangelo, In fairness we (should not) trust. The duplicity of the EU competition policy mantra in digital markets, (2023) 68 Antitrust Bulletin 618.
[93] Ibid., 621.
[94] See Larouche and de Streel, supra note 88, 198; Motta, Peitz, and Schweitzer, supra note 17, 8; Motta and Peitz, supra note 20, 70.
[95] Supra note 18.
[96] European Commission, Proposal for a Regulation on contestable and fair markets in the digital sector (Digital Markets Act), Explanatory memorandum, COM(2020) 842 final.
[97] Ibid. See also Regulation (EU) 2022/1925, supra note 1, Recital 6.
[98] See Or Brook and Magali Eben, Article 3 of Regulation 1/2003: a historical and empirical account of an unworkable compromise, (2024) 12 Journal of Antitrust Enforcement 45, calling for reform of Article 3 to ensure that conduct that should be governed by EU law is not assessed under national rules and standards that differ from one Member State to another.
[99] Ibid., 47-48.
[100] BEREC, Response to the Public Consultations on the Digital Services Act Package and the New Competition Tool, (2020) BoR (20) 138, https://www.berec.europa.eu/en/document-categories/berec/others/berec-response-to-the-public-consultations-on-the-digital-services-act-package-and-the-new-competition-tool.
[101] Ibid., 37.
[102] Ibid.
[103] Ibid.
[104] Ibid., 36.
[105] GWB, supra note 11, Section 32f(8).
[106] See, e.g., Hellenic Competition Law, supra note 10, Article 24(1).
[107] See ECN, How national competition agencies can strengthen the DMA, (2021) https://www.autoritedelaconcurrence.fr/sites/default/files/DMA%20-%20Joint%20EU%20NCAs%20paper.pdf; German Federal Ministry for Economic Affairs and Energy, French Ministére de l’Économie, les Finance et de la Relance, Dutch Ministry of Economic Affairs and Climate Policy, Strengthening the Digital Markets Act and its Enforcement, (2021) https://www.bmwi.de/Redaktion/DE/Downloads/XYZ/zweites-gemeinsames-positionspapier-der-friends-of-an-effective-digital-markets-act.pdf?__blob=publicationFile&v=4.
[108] Bunderskartellamt, 5 October 2023, Case B7-70/21, Alphabet.
[109] Ibid., §76.
[110] Ibid., §78.
[111] Ibid.