In August 2020 Steptoe’s Antitrust & Competition team in partnership with FTI Consulting hosted two webinars to discuss EU consultations which are likely to affect the regulation of digital space across Europe.
Online Platforms: A Competition Analysis of the New Ex-Ante EU Regulatory Instrument
In the first webinar, we discussed the upcoming EU ex-ante regulatory instrument of very large online platforms acting as gatekeepers. The European Commission initiative sets out options for regulating large online platforms acting as gatekeepers to ensure that markets impacted by them remain fair and competitive.
The regulatory instrument stems from the European Commission’s highly anticipated Digital Services Act (DSA). Following on from an initial round of feedback on the roadmap for this initiative, the Commission has opened a public consultation to ensure stakeholders’ voices are heard.
Charles Whiddington (Steptoe), Anne MacGregor (FTI Consulting), and Kay Jebelli (Computer & Communications Industry Association – CCIA) covered some of the contentious issues with the initiative, raised some of the burning questions that the Commission will need to address, and provided best practices on how to respond to the public consultation.
After the webinar the team identified the following key takeaways from the discussion:
- Our webinar audience poll, and feedback submitted to the European Commission (EC), so far show approval from a majority of stakeholders for some form of ex-ante regulation of gatekeeper platforms.
- For such regulation to be effective, the EC’s proposed policy options leave much to be clarified, refined and defined.
- The consultation closes on 8 September. Once the EC publishes draft legislation in Q4, opportunities for influencing this initiative will be limited, so any business affected need to engage now.
- The ex-ante consultation is part of a broader package of potential measures under discussion, including the proposed New Competition Tool. It is important to remember that in parallel, the EC is consulting on potentially updating the 1997 Market Definition Notice, also with a view to better reflecting the reality of digital markets.
- Businesses and other stakeholders should develop their policy positions in a wholistic way against the backdrop of these various important EU-level initiatives.
Enforcement of Digital Markets: The European Commission’s “New Competition Tool”
In the second webinar, we discussed the future of enforcement for digital markets and provided an overview of the European Commission’s New Competition Tool (NCT). The proposed NCT gives the EU-level antitrust enforcer powers to address structural competition problems that prevent markets from functioning correctly.
Charles Whiddington (Steptoe), Anne MacGregor (FTI Consulting), Daniel Rawling (Competition and Markets Authority – CMA), and Venessa Turner (BEUC) discussed a range of issues including:
- How the UK CMA’s long-standing market investigation tool functions, and lessons from it.
- Pros and cons of each of the EC’s proposed four policy options.
- A survey of the published feedback received so far from a wide range of stakeholders.
After the webinar the speakers identified three key takeaways from the discussion:
- Most contributors preferred having some form of tool, and the market structure-based option appears to be most favored.
- The Commission needs to reflect on how it defines “structural” market failings and should include demand-side issues directly affecting consumers, such as consumer inertia, transparency, portability.
- With a concentration of consultations being undertaken, the Commission will need to carefully consider how the NCT powers and potential remedies fit within the other initiatives being undertaken.