Anna Gerbrandy Professor of Competition Law:
Contact at: A.Gerbrandy@uu.nl
Big Tech’s Modern Bigness
Challenges for European Competition Law
Setting
Setting
Outline of presentation
• Quick overview: what is happening?
• Making sense of things: what is new, conceptually and for competition law
• Now what: possible responses
• Future-casting: widening the perspective
Illustration: the new European
What is happening?
EU Apple/Spotify investigation
Dutch competition
authority investigation into apple Appstore
Officials (US justice
department) to look into whether Facebook, Google, Amazon and Apple are
unlawfully limiting competition
Illustration: Theguardian.com
Apple complaints USA:
power of the App Store
Illustration: the new York times
US states antitrust probe into Facebook
Illustration: theguardian.com
FTC probe into Amazon:
favoring its own products?
EU investigation into Amazon (retail)
But wait, what about…
Privacy as competition concern
Illustration: center for data innovation
Discrimination
Illustration:the tr@p
Filter bubbles
Illustration: the guardian
Fake news
Illustration: indedpendent.ie
Net neutrality as
competition law concern?
Illustration: wired
Lobbying of the regulators
Illustration: cnbc.com (source: senate office of Public Records)
Cambridge Analytica
Illustration: Inc.com
Gig economy workers:
changing work systems
Illustration: npr.org
Making sense of things
Making sense of things step 1: power
illustration: foreign policy.com
Conceptualizing power
Power in competition
law
Conceptualizing power
Power in compe- tition law Market
shares
Conceptualizing power as Modern Bigness
Modern bigness
Market shares
Size
Data
Gate- keeping
News
Policies
Re- arrange
labour
Making sense of things step 2: effects of modern bigness
illustration: Harvard business review
private
interest public
interest
Conceptualizing effects:
basis of competition law
Private parties State
Market
(and market rules)
Non-market (rules for public
bodies)
market non- market
Modernbigness
source is the same effects are entangled
Conceptualizing effects
Effects on market
Modern bignessFamiliar infringements, now in a digital
environment
Mapping
Cyber-dependant competition infringements
What is ‘dominant position’?
● Normatively : role of competition law
● Fundamentally: role of data (etc)
● More practically:
relevant markets
Non- market
effects
Modern bignessFamiliar issues, stemming from private power over
digital infrastructure
Mapping
Cyber-dependant issues (from private power over
digital intrastructure)
Possible responses
Studies and reports everywhere
Responses
It is not a problem … disruptive technology will change the landscape It is a problem, but … it is not my problem: regulate, new supervisory
agencies, algorithmic accountability etc.
Responses
Market-effects are a problem (for competition
law) … we should, and are, dealing with it: competition
law is fit for purpose (with a bit of tweaking perhaps)
Market-effects are a problem (for competition
law) … we might create a new ex ante regulation-
instrument for tech companies
…we might change merger regulation
… perhaps we should ‘borrow’ from net neutrality principles (etc)
This other stuff is also a problem, perhaps also
for competition law … should we extend what we use competition law for, now that it is the most powerful instrument we have countering negative effects of private market power?
The powerful positions are a problem! We should break up the tech companies!
(whether or not there is a legal basis in EU competition law)
The art of future casting
illustration: digitalintervention.com
Existing big tech platforms will continue to enter into public services
Illustration: hawraar.net
Platformisation of other markets, including agri- food sector
Illustration: reuters.com
Defense technology will blur lines between public and private
Illustration: defense-technology.com
Techlash
Illustration: financial times
Anti-techlash
Illustration: wired
Continuing quest for real ai /general ai
Illustration: emarsys
What I think this means for practice, enforcement, and courts
• Knowledge of technology is needed
• Do not be naive
• Do not overreact
• Protect legal principles, such as rule of law, legal basis for acting, and fundamental rights
What I think this means for lawmakers, regulators, governments and voters
• Knowledge of technology is needed
• Do not be naive
• Do not overreact
• Protect legal principles, such as rule of law, legal basis for acting, and fundamental rights
• Protect democracy
• Fundamentally: consider what should be the relationship between public and market, use competitoin law and
regultation accordingly
Anna Gerbrandy
Utrecht University School of Law – Renforce – Institutions of Open Societies – Governing Digital Society – ERC Grant Laureate
Contact: A.Gerbrandy@uu.nl Illustration: www.123rf.com
