Edited by Graeme B. Dinwoodie and Mark D. Janis
Nick Dadson, Iain Snoddy and Joshua White
‘Big data’ and ‘big tech’ have become central topics in recent antitrust debate and regulation. For example, the Competition and Markets Authority (CMA) recently published a report on online platforms, expressing concerns that the major platforms like Google are now protected from competition by such strong incumbency advantages. Underlying the CMA's theory of harm is the essential facility theory of antitrust, under which Google's ability to control access to its click-and-query data is seen as preventing its rivals from competing effectively. EU jurisprudence has identified three criteria to determine whether data are an essential facility and whether access should be mandated. First, the data must be indispensable to compete in the market. Secondly, absent data sharing, technical improvements by competitors must be hampered or precluded. Thirdly, there must be no objective justification to refuse competitors access to the data. It is difficult to reconcile the authorities’ concerns with Google's click-and-query data with these criteria, however. Actual and potential alternatives exist; Google's competitors have been innovating in the search market for more than a decade; and there are objective reasons to limit data access, including threats to innovation and privacy concerns.
Ambroise Descamps, Timo Klein and Gareth Shier
In the modern economy, algorithms influence many aspects of our lives, from how much we pay for groceries and what adverts we see, to the decisions taken by health professionals. As is true with all new technologies, algorithms bring new economic opportunities and make our lives easier, but they also bring new challenges. Indeed, many competition authorities have voiced their concerns that under certain circumstances algorithms may harm consumers, lead to exclusion of some competitors and may even enable firms (knowingly or otherwise) to avoid competitive pressure and collude. In this article, we explain how algorithms work and what potential benefits and harms they bring to competition.
Ina Esser, Chris Whitcombe and Robert Ryan
Economics plays a central role in effective merger enforcement, as it provides the conceptual framework to assess merger effects. Additionally, effective merger enforcement relies on the merger assessment being firmly rooted in evidence. Economic analysis is often key in interpreting this evidence. This article discusses the role of economists and economic analysis in merger investigations by the Competition and Markets Authority, in particular in relation to the approach to economic analysis and evidence gathering, and the wider contribution of economists at the CMA in developing the toolkit used for assessing mergers.
Gavin Bushell and Emma Whyte
Since 1 January 2021, the ‘one-stop shop’ principle under the EU Merger Regulation (EUMR) no longer applies to the UK, and UK turnover is no longer relevant for determining whether a merger satisfies the EUMR jurisdictional thresholds. Merger control analysis will now need to factor in possible interactions with both the European Commission (Commission) and the Competition and Markets Authority (CMA). The two regimes have different procedures, timelines and substantive tests, which will impact on deal planning and strategy. Dual reviews by both authorities will likely lead to an additional burden on merging parties as well as a risk of a deal being cleared by the Commission but blocked by the CMA, or vice-versa. This article assesses the procedural and practical implications of these changes and highlights some of the key risks businesses may face in merger control looking ahead.
Nicholas Levy, John Messent, Edward Dean and Chloe Hassard
On 11 November 2020, the UK Government published the National Security and Investment Bill (NSI Bill), which, if approved by Parliament, would allow the Secretary of State for Business, Energy and Industrial Strategy (Secretary of State) to screen and prohibit ‘potentially hostile’ investments that threatened UK national security.
The proposed system would represent the most significant change in the UK regulatory environment since the Government ceded the power to approve or prohibit mergers on competition grounds to an independent agency in 2002. The envisaged regime would be among the most wide-ranging and onerous in the world, adding a new layer of mandatory review and imposing non-trivial costs on investments in any company with UK activity.
This article describes the UK's existing public interest intervention regime, explains the background to the Government's proposed new regime, including similar initiatives elsewhere in the world, summarizes the principal features of the proposed new UK regime, and considers its potential implications for investments in the UK.
Data of publicly funded services that are used to accomplish a public function is Public Sector Information (PSI). More precisely, any data, information or content created, produced, retained, disseminated or otherwise managed both for official purposes and accidentally by Public Sector Bodies (PSBs) or public undertakings while performing a public task can be considered as PSI. Thus, PSI covers documents and datasets, encompassing works of any nature such as geographical, meteorological, spatial, cadastral data, statistics, metadata, administrative documents, records, compilations, databases on corporate information and financial data, and any other information and contents, no matter whether its form is printed, digital or electronic, including sound recordings. PSBs can be any central or local government office, public administration or agency, including executive offices, legislatures, ministries, courts, assemblies, whether at the federal, regional, national or local level, including local administrations, municipalities, districts, and regions. PSBs can also be sectorial institutions, such as registrars, cadaster, and offices for statistics. In some instances, the PSB may also be an international or multinational organization. Also, cultural institutions, research or educational institutions can be considered PSBs. Thus, information on cultural goods, such as description of works of art in museums (metadata), as well as their reproductions can be considered as PSI. The broader the notion of PSB, the broader is the notion of PSI. The more PSI is available to the public, the stronger may be the impact on the potential economic and social growth of a community.
The Europeanization of copyright law follows various paths. Secondary European Union (EU) copyright law, embedded in the ten directives (and one regulation) devoted to copyright issues, has indeed contributed to the approximation of national copyright laws. The obligation for the copyright directives to be transposed into national law nevertheless reduces the level of harmonization. But the Europeanization of copyright has taken another route: since its seminal Infopaq decision, the Court of Justice of the EU (CJEU) regularly delivers decisions which rule on major copyright issues, such as originality and the scope of the right of communication to the public. Those decisions not only make the law, they also show some shortcomings in the existing framework and indirectly indicate the direction that copyright reform could take in the future - if the EU continues to legislate in the field of copyright. To describe the far-reaching impact of the CJEU case law, some scholars have coined the terms ‘harmonisation by stealth’ or ‘by interpretation’. Basically, the CJEU is ‘filling the gaps’ of the primary and secondary EU laws. It is clear that a court-made harmonization of European copyright has been under way since 2009 at least. The CJEU probably offers a reasonably coherent interpretation of the substantive conditions of protection, the scope of the rights and of the exceptions, the balancing with other fundamental rights (freedom of expression, privacy, freedom to operate), the responsibilities of online intermediaries (including for hyperlinking and aggregating content), some contractual principles, etc.
Nadine Klass, Hajo Rupp and Julia Wildgans
Even though the European Union (EU) is characterised by linguistic and also cultural diversity, Europeans also share a large common cultural heritage. ‘Culture’, as a term or concept, is recognised as very hard to define. It is a sphere of intellectual expression and comprises not only material culture, but also values, ideas and beliefs. Culture, thus, also has a non-material, intangible and communicative dimension. Culture as a root for European cultural heritage legislation and policy regarding digitisation can be broken down into art, including works of literature, music or architecture, science and education. As such, it plays an essential role in human development. Cultural heritage is a valuable asset in the knowledge-based world, an important resource for the European culture industry and a catalyst for creativity, as well as an important driver of growth and the creation of jobs. Supporting and promoting culture serves as a signal for prosperity and economic competence leading to further investments and international cooperation. Therefore, it is not surprising that the European Commission has emphasised already in its ‘European agenda for culture in a globalizing world’, which was adopted in 2007, that ‘creative entrepreneurship and a vibrant cultural industry are a unique source of innovation for the future’, and that ‘culture is an indispensable feature to achieve the EU’s strategic objectives of prosperity, solidarity and security, while ensuring a stronger presence in the international scene’.