Todd Davies

2026 Concurrences Antitrust Writing Awards Nomination

2026-01-12T00:00:00.000Z

Every year, the competition law focused legal publisher Concurrences runs the Antitrust Writing Awards, which seek to highlight scholarship from across the discipline across a variety of categories. Spencer Cohen and I are delighted to have been nominated for the Best Student Paper this year!^[1] 🎉 Our paper, “Error Costs, Platform Regulation and Democracy”, was recently published in the Journal of Competition Law and Economics (open access). This short post briefly recaps the ideas in the paper.

The “New Platform Regulations”, like the EU’s Digital Markets Act or the UK’s Digital Markets, Competition and Consumers Act, are notable because they which enable proactive intervention against tech platforms before harm occurs. In doing so, they break with a long, ineffective tradition of competition law condemning abusive behaviour only after the fact, and represent a large shift in how competition regimes work. Our work analyses some implications of that shift.

We argue that proactive intervention has the ancillary benefit of protecting democracy in markets. After conceptualising the different ways in which democracy is understood in the literature, we find that laissez-faire approach to competition law actively undermines it. We then identify three ways in which the proactive approach of the new platform regulations, can help foster democracy.

Digital markets are always governed by somebody. The question is who. Tech giants are motivated by profit, and have the capability to boss around less powerful market participants and arbitrarily intervene in their affairs. Competition authorities, on the other hand, pursue publicly determined statutes and are subject to judicial review. The New Platform Regulations help the latter contest the decision-making of the former, and in doing so, facilitate democratically legitimate state intervention in markets where it would otherwise not take place under the laissez-faire approach.
The New Platform Regulations seek to “open up” markets and give people choice about which firms to transact with. The ability of consumers to choose from a ‘meaningful range of options’ is supposed to be a key source of legitimacy for markets; consumers can switch to a competitor if they are unhappy. Giving consumers choice lets them ‘vote with their feet, and lets them shape the direction of markets by ensuring that they are responsive to the demos.
We often have an idea in our heads that markets can “fail” and must be “fixed”. But this notion rests on a false assumption that there exists a “correct” market ordering to begin with. Markets are ‘open’ social systems, which rarely have an optimal end state. There are all sorts of competing and conflicting values that might feed into our concept of a well functioning market, and inescapable trade-offs between them. We argue the New Platform Regulations seek to actively ‘shape’ the direction in which digital markets evolve by putting forward a positive vision for how they should develop, as articulated by a clear set of rules laid out in law.

The Antitrust Writing Awards involve both a jury vote and a public vote (for the “reader’s choice” category). You can take a look at the full list of nominations and cast votes here. ↩︎

The Future of Enforcement and Compliance? How Computational Antitrust is Used

2025-12-29T07:00:04.000Z

I got the chance to appear on the Our Curious Amalgam podcast by the American Bar Association's Antitrust Law group. It was really exciting to be on!

The hosts (Matthew Hall and Anora Wang) and I had a discussion about the latest developments in computational antitrust, sparked by my previous post about the the "dark side" of computational antitrust. Among other topics, we covered:

What is computational antitrust?
The pros and cons of its adoption by competition authorities (where I caution about the hidden costs of enforcement).
The emergence of new AI-powered tools which can help companies "comply" with competition law (or do they help companies evade the law by limiting the production of evidence?).
What competition authorities might do to response.

You can find the episode here, or listen to it directly below.

Colophon

2025-12-28T07:00:04.000Z

This is a description of the tools I used to make this website.

I write in Obsidian wherever possible. The exceptions are where I am forced to write in Microsoft Word (usually for journals) or Google Docs (usually to collaborate). Obsidian is excellent. It's really an "everything" app for writing, mainly because it's so extensible. The killer features for me are that it integrates well with my reference manager (Zotero), and that the content is all Markdown formatted. Markdown lets me easily convert it to Word or LaTeX using Pandoc.^[1]

Accordingly, this website is written and managed in Obsidian. My website is simply a collection of markdown files in a folder in my Obsidian Vault. I use the obsidian-digital-garden plugin to publish the content, via GitHub to be deployed on Vercel (as detailed in the obsidian-digital-garden docs). I modified the default layouts a little, but only a little. I use the Typewriter Obsidian theme, with some custom modifications.

If you would like to know how to do this, please send me an email. I can write a blog post on it if there is demand. ↩︎

'Walk and Talk' with Duncan Hull at the University of Manchester

2025-12-15T07:40:04.000Z

I appeared on a "Walk and Talk" video with the University of Manchester, showing what graduates of the B.Sc Computer Science programme go on to do in their careers.

Who are tech experts and what can they bring to competition enforcement?

2025-12-11T07:40:04.000Z

Digital industries are a major focus of competition regulators, especially since the emergence of sector-specific legislation like the EU's Digital Markets Act (DMA). As was clear in the recent Article 19 symposium on the DMA which focused on its impact and next steps for its implementation, tech experts are playing an increasingly large role in competition enforcement, offering advice and analysis that is relied on by regulatory authorities. But who are these tech experts? What do they do? What, specifically, are they experts in?

This post starts by explaining the importance of technologists to contemporary competition enforcement. It then opens the black box of expertise by describing some different specialisms which come under the broad umbrella of a "technologist." It ends by considering how these experts can benefit enforcers, and with some suggestions for their continued integration into the discipline.

The argument for tech expertise in competition enforcement

The notion that competition law and regulation should draw on subject-specific experts is by no means new. In ordinary competition law, these experts are mostly trained in economics, and their integration into the discipline is very well established. Competition enforcement requires decoding the behavior of companies and mapping it onto the law. An authority which lacks the expertise to understand the details of how markets work will therefore be ill-equipped to enforce competition law in those markets. When it comes to digital markets, there have long been discussions about whether effective enforcement must reach beyond economics, into additional sources of expertise.

While we should be wary of a "tech exceptionalist" view of the digital economy which sees it as warranting special treatment vis-a-vis other sectors, regulation specific to digital markets like the DMA already exists, and competition authorities must generally take into account all the relevant facts surrounding a particular case, some of which may be technical in nature. As such, it seems that there is a strong argument to integrate tech expertise into enforcement agencies.

Competition authorities have consistently shown a willingness to integrate tech expertise, by which I specifically refer to those trained in fields relevant to the digital economy, into their enforcement practice. These people might not necessarily be "hard" technologists in the sense that they have scientific expertise; they could also have "soft" expertise in terms of knowledge about how platforms are actually designed, built and deployed in practice.

The UK's Competition and Markets Authority is often seen to be a leader in terms of tech expertise. Beginning in 2018, the Competition and Markets Authority (CMA) began to staff its Data, Technology and Analytics (DaTA) unit with employees from non-economic technical backgrounds. While the initial focus seemed to be on hiring data scientists, a recent report described the unit as including over 80 staff, made up of "data scientists and data engineers, technologists, behavioral scientists, and digital forensics specialists."

Turning to the EU, its landmark "Competition Policy for the Digital Era" report was written by three distinguished authors: a competition lawyer (Prof. Heike Schweitzer), a competition economist (Prof. Jacques Crémer), and a technologist (Prof. Yves-Alexandre de Montjoye). Recent developments include the hiring of Prof. de Montjoye as the inaugural Chief Technology Officer of DG Comp, and the expansion of the Commission's DMA enforcement team to include several more technologists.

It is therefore clear that competition authorities have begun to hire tech experts, and have begun to do so in earnest. Yet, who are these experts? And what exactly do they have expertise in? Clear answers to such questions are crucial if those involved in the world of competition enforcement are to make sense of these developments.

The varieties of expertise relating to digital platforms

A particularly exciting aspect of the Article 19 symposium was the breadth of technical expertise in attendance, drawn from academia, civil society, business and the European Commission itself. Modern digital markets are complex, and making them work requires a wide variety of different kinds of expertise. This fact is sometimes difficult to appreciate from the outside, meaning that different kinds of technologists can get lumped together into a homogenous group. Competition lawyers and economists reading this post will no doubt be familiar with this dynamic, from when the former get asked for advice on resolving an employment dispute, or when the latter get asked for which stocks to pick.

So what kinds of tech expertise are there? What follows is a short list, painted with a somewhat broad brush, of categories of expertise in which individuals can develop a deep and comprehensive grasp of a particular skillset, and which I believe to be relevant to the regulation of large digital platforms. The aim is to be neither exhaustive nor definitive, but rather to highlight (in no particular order) some of the heterogeneity in tech expertise pertinent to the digital economy. Some of the below kinds of expertise may not strictly fall into the category of "technical" expertise, but are nevertheless crucial to the development of modern digital platforms, and thus important to include.

Software engineers write most of the code underpinning digital platforms. Their job broadly involves taking a brief for what some software should do before designing, implementing and testing a software system to do it, as well as helping maintain the system "in production." Software engineers could be especially helpful in the context of competition enforcement when agencies need to get into the technical details of how platforms operate in practice. For instance, Jitendra Palepu's contribution to the symposium featured a technical discussion of work with his coauthors on whether Google's decision to expose a virtual machine to third-party Android forks as opposed to giving them access to the device-level hardware itself, constituted a reasonable means to avoid "compromis[ing] the integrity" of the platform as per Article 6(7) DMA. Understanding the trade-offs involved in such decisions, and making judgements as to whether such a decision is technically prudent, is a core part of a software engineer's expertise. Separately, as the people who typically build platforms, software engineers have the imaginative capacity to put forward a positive vision for how platforms could work. As such, they could be crucial when it comes to remedy design, or for assessing whether technical justifications for certain conduct put forward by tech companies are sound.

Site reliability engineers are specialist software engineers, whose role is specifically to make sure that platforms don't stop working. When a platform starts to experience issues, site reliability engineers will typically be the people recognizing, triaging and responding to them. While on the face of it, this kind of expertise does not appear immediately relevant to platform regulation, the resilience of platforms has been repeatedly highlighted as a competition-relevant issue, especially today when large parts of the digital economy are dependent on a small number of platforms (as we saw in the recent Cloudflare outage).

Data scientists are perhaps the most common kind of expertise discussed in competition enforcement circles, and perhaps not coincidentally, can be surprisingly close to economists in terms of their skillsets. They have expertise in extracting knowledge and insights from data using a combination of statistical and machine learning tools, and are therefore useful to competition agencies when it comes to handling large volumes of evidence or detecting patterns in market data. This is borne out in the most recent Cross-Agency Report from the Computational Antitrust Project, which contains many references to how agencies around the world are using data scientists in the course of their work. Data scientists are not only experts in analyzing data, but also in visualizing it and communicating the stories that the data can tell. This skill could be crucial when it comes to communicating the findings of a study or investigation to a legal or lay audience.

User experience (UX) designers focus on ensuring that digital products provide the desired experience for end consumers. They are typically responsible for both ensuring that the "look and feel" of a digital product is both aesthetic and consistent, and often conduct research studies to ensure that end consumers are able to use the product effectively. UX teams might also include UX engineers, who bridge the gap between the design of digital products and their technical implementation. UX expertise could be critical in competition enforcement as a means to assess whether platforms are effectively complying with their obligations under the law, or whether they are employing techniques such as "dark patterns" to comply with the letter of the law but not its spirit. A paradigmatic example from the symposium can be found in the work of Gemma Petrie of Mozilla, who presented UX research assessing the usability of browser choice settings as mandated by Article 6(3) DMA.

Project managers oversee the execution and delivery of the work of other members of the team building digital products, and ensure that it is completed on time and within budget. While on the surface, this might not sound like a technical role, the organizational processes involved in building, deploying and managing large digital platforms are intricate indeed, and there is a great deal of expertise involved in managing them. Project managers are also very good at detecting when the complexity of tasks has been overstated. As such, they could be of great benefit to competition agencies trying to establish whether complaints from platforms about the onerous nature of regulatory requirements are legitimate or not. Similarly to software engineers, they also tend to possess a strong sense of what is possible when it comes to the design and implementation of platforms. Furthermore, when it comes to competition regulation, knowledge of the organizational processes at play within the companies producing digital platforms can be just as important as knowledge of the technology itself. Along those lines, my contribution to the symposium was inspired by how project managers build formal review processes to ensure that updates to digital products are only launched when all relevant stakeholders have approved them. As such, I proposed that the DMA work more like merger control, such that project managers would be required to get positive ex ante approval from the Commission before launching major updates to core platform services.

Last but not least, computer scientists tackle the theoretical end of digital platforms. Sometimes described as applied mathematicians, they focus on the fundamentals of algorithms, data structures, and computation itself. When it comes to assessing the theoretical feasibility of proposed technical remedies, considering privacy and security guarantees of particular algorithms, or deeply understanding how AI training works, computer scientists have the theoretical chops to dive deep and give rigorous answers.

Naturally, the above list is not complete. It aims to give a flavor, not a complete taxonomy, of tech expertise relevant to the oversight of digital markets. It could have also included database administrators, cybersecurity or digital forensics experts, for example. Above all, the list aims to show that if authorities are to holistically understand the way in which digital platforms work, then they will need to hire broadly across these different kinds of expertise to build up a comprehensive picture.

Conclusion and next steps

In my view, the strongest argument for investment in a broad variety of tech expertise is that it would afford agencies the capability to better investigate each step of the process of a digital platform's production. In doing so, they could identify competition, fairness or contestability issues more thoroughly and precisely. They could also widen their conception of the means of intervention, and allow for more creative thinking when it comes to the imposition of remedies, thus opening up the potential for a more experimentalist approach to regulation.

Relatedly, and keeping in mind that markets are made, not found, a wider range of tech expertise would allow agencies to better imagine how digital markets could work. With a better understanding of "how the sausage is made", they would be better placed to understand how digital platforms could be developed, and thus adopt a shaping approach with regards to how digital platforms should develop, in line with the purpose of the laws and regulations they are enforcing. This would help wrest the direction of platform development from the control of large, undemocratic tech companies, and strengthen its oversight by authorities with a mandate to act in the public interest.

An outstanding question, which is too large to tackle here, is how best to integrate tech expertise into competition agencies. One suggestion, mentioned in a CMA discussion paper, is to formally create the role of "competition technologists" within agencies. I am broadly supportive of such an initiative. In doing so, however, we must be mindful of naively "transplanting" tech expertise into competition law and regulation. Without its careful integration, the knowledge of tech experts risks becoming lost in translation, and potentially doing more harm than good.

An antidote to this, in my view, is for agencies to invest in training their tech expert hires, so that they also have a solid foundation in law. While this would admittedly incur an up-front cost, such experts would then be better placed to pursue an interdisciplinary approach, which would commensurate the means and goals of the law with novel and sector-specific perspectives. Such training programs would help ensure a synthesis between the "new" kinds of expertise specific to digital markets, and the "pre-existing" yet no less important expertise which already exists in abundance within competition agencies.

This essay was originally published on Tech Policy Press. Thank you Spencer Cohen, Chris Williamson and Leon Handreke for your comments on previous drafts.

The AGCM imposes interim measures in its case against Meta

2025-11-28T07:40:04.000Z

As previously covered on this blog, Meta recently decided to integrate its AI assistant (Meta AI) into its WhatsApp platform, introducing the ability to chat to Meta AI at various points within the WhatsApp app. Its conduct raised eyebrows as a potential abuse of dominance, and later became the subject of an investigation by the Italian Competition Authority (the AGCM). This blog post covers two subsequent developments of that case, Meta’s decision to double down on its behaviour by updating its terms to stop third parties offering rival AI assistants on its platform, as well as the AGCM’s subsequent decision to expand the scope of its investigation and impose interim measures aiming to prevent further harm to competition.

To recap: the AGCM’s investigation

On the 30th of July 2025, the Italian Competition Authority (AGCM) filed Case A576 against Meta for deciding “to pre-install its artificial intelligence service [(Meta AI)] on the WhatsApp app”. As detailed in a previous post, Meta’s decision to integrate its AI assistant into WhatsApp was a fairly clear cut abuse of dominance case, so the AGCM’s decision was relatively unsurprising. To briefly recap, AGCM alleges that WhatsApp is dominant in the relevant market for “consumer communications apps”, and Meta has imposed “the use of its chatbot and AI assistance services on its users […] without any prior request from users". In other words, the Authority is concerned that Meta has tied its AI assistant into WhatsApp. This conduct, in the eyes of the AGCM, allows Meta to channel “its customer base into the emerging market [for AI assistants], not through merit-based competition, but by ‘imposing’ the availability of the two distinct services upon users, potentially harming competitors.”

Meta doubled down

As observers had noticed, Meta also offers a WhatsApp Business Solution alongside its consumer-facing platform, which allows third-party undertakings to communicate with customers by messaging them directly on WhatsApp. This fact is relevant to the case at hand because some third-party undertakings have launched their AI assistants on WhatsApp using the Business Solution, including Open AI’s ChatGPT. In a manner reminiscent of its “move fast and break things” era, Meta has doubled down on its apparently abusive behaviour by updating its WhatsApp Business Solution Terms to strictly prohibit “[p]roviders and developers of artificial intelligence or machine learning technologies, including but not limited to large language models, generative artificial intelligence platforms, general-purpose artificial intelligence assistants, or similar technologies” from using its Business Solution. This change comes into effect on January 15 2026, after which OpenAI has indicated that “ChatGPT will no longer be available on WhatsApp”.

Such a move by Meta was easily foreseen, not least because Meta has a clear incentive to undermine its rivals in the competitive market for AI assistants. Yet as I noted in my original blog post on this topic, and in a subsequent follow-up paper, the recent Android Auto judgement would prohibit Meta from preventing third-party undertakings from providing a rival AI assistant through its WhatsApp Business Solution, since its Solution was clearly built “with a view to enabling third-party undertakings to use it” (para 47). As such, Meta’s new terms of conditions likely constitute an infringement competition law in and of themselves.

Reaction of the AGCM

Meta’s decision to actively interfere with the ability of rivals to compete on its dominant platform therefore constitutes a refusal to deal under the Android Auto doctrine. This fact did not escape notice of the AGCM. On the 25th of November 2025, the Authority announced that it had “expanded [its] investigation procedure” against Meta to include the aforementioned WhatsApp Business Solution Terms.

More importantly, the AGCM also decided to initiate “the procedure for the adoption [of] precautionary measures”, i.e. interim measures, regarding Meta’s integration of its AI assistant into WhatsApp and its updated Terms. The decision to pursue interim remedies is welcome, and one which I have repeatedly suggested in the face of such a clear abuse and its concomitant ongoing harm to competition. Especially following the recent ban on competing AI assistants being offered through WhatsApp, reporting indicates that rivals have also requested interim measures. The AGCM’s recent case update acknowledged the urgent need for intervention, pointing out that the “unrepeatable” opportunities to train AI models in the current moment, and the “exponential” growth of AI assistant services, and the fact that Meta has “exclusive” access to an “enormous” user base, means that the undertaking’s conduct may “may seriously and irreparably affect market” outcomes.

In terms of next steps, Meta now has a week to submit arguments defending itself against the imposition of interim measures. Paragraph 14 of the decision explains that if the interim measures are subsequently implemented, they will have two overarching effects. First, they will suspend the application of the new WhatsApp Business Solution Terms, thereby allowing third-party undertakings to launch rival AI assistants on WhatsApp. Second, they will broadly prohibit Meta from making further modifications to WhatsApp which would “amplify the presence of Meta AI on WhatsApp to the detriment of competitors”. Whatever happens, given the pace of this case and the apparent unwillingness of Meta to choose a business strategy that is commensurate with EU competition law, it seems that this case will continue to be one to watch over the coming months and potentially years.

Originally published on the Kluwer Competition Law Blog.

The dark side of computational antitrust

2025-10-28T07:40:04.000Z

Given the creeping complexity of cases, expanding evidence bases, and the ever present threat (or reality) of budget cuts, competition authorities around the world are on the lookout for ways to streamline their enforcement activities. In response, some commentators have advanced the idea of "computational antitrust", which entails the development of "computational methods for the automation of antitrust procedures and the improvement of antitrust analysis", as a means to help authorities navigate these challenges. As of 2025, computation antitrust is being applied by agencies around the world to detect bid-rigging and cartels, assess merger risks, run web-scraping pipelines to track historical changes in market conditions, and more.

Of course, it would be surprising if academics and enforcers were the only people interested in applying computation methods to help them with competition cases. The use of computational methods is fast becoming mainstream, as shown by a LexisNexis report which found that over a quarter of lawyers use AI on a "regular" basis. It therefore stands to reason that undertakings subject to competition law would also look to make use of computational techniques as well.

A novel application of computational antitrust: sanitising email

This week, I came across British startup Lexverify, which in its own words, offers AI tooling to companies which can help "ensure all communications are compliant, every email, every message, every time." As of writing, the homepage of its website shows a draft email with the text "[o]ur competitors suggested that prices can't go any lower if the business is to be sustainable", and an accompanying warning identifying the text as a "competition compliance risk". The purpose of this post is not to single out Lexverify in particular. An increasing number of companies, responding to market demand, offer similar services. Yet Lexverify's product is the first I have seen which appears to cater directly to undertakings' "competition compliance risk", and hence makes for a useful starting point for analysis.

A screenshot from Lexverify's website.

The premise is, or seems to be, that emails are a key source of evidence in legal cases, and that by identifying and flagging emails that are likely to appear as evidence in future court cases before they are sent, such evidence can simply not be generated in the first place. That emails are a key source of evidence is indisputable, especially in competition cases, as demonstrated by Google Android, Trucks, DOJ's case against Apple, the Libor scandal, and even an entire Substack of "internal tech emails". Emails can give an insight into what decision makers in a company were thinking at critical time periods, and in doing so, can help support the facts of an authority's case, whether that's the way in which a market has been defined, or to demonstrate anti-competitive intent.

I have often wondered how effective AI would be if used for such purposes. While I've not had the chance to try out any commercial tools in practice, I did manage to test out the idea by building a prototype at a Law and Tech hackathon during the summer. The results were clear: even with non-specialised and freely available LLMs, generative AI technology was easily able to identify language which could later be used as evidence in a competition law case. It could even suggest re-wording the email in a way which would be less likely to raise concerns. If you'd like to try it out yourself, try pasting the prompt I used into an LLM of your choice.

The problematic implications of computational techniques

Needless to say, from the point of view of competition law enforcement, the emergence of such tools is problematic. Big companies have long tried to prevent email evidence from being written, yet as far as the author is aware, have relied only on guidance as opposed to automated tooling to do so. If new AI-powered tools supercharge the ability of companies to avoid leaving digital traces of their anti-competitive behaviour, the discovery and procedural costs involved in competition law cases could rise dramatically. Lacking email evidence, competition authorities will have a harder time in clearly establishing the facts of the case, and may then struggle to convince courts that intervention is necessary and proportionate. To fill the evidentiary vacuum, authorities may then need to resort to using forms of evidence which are more theoretical in nature, such as by relying more heavily on economic experts, an approach which comes with its own pitfalls pertaining to technocracy and bias. Competition cases would then become more expensive to bring and harder to win, with the risk being that anti-competitive behaviour will proliferate as a result.

The emergence of AI powered tooling 'on the other side' of antitrust cases shows that computational antitrust should not be regarded as some kind of deus ex machina of competition policy. Rather, computational antitrust is just another step in a century-long arms race between public bodies looking to foster competitive markets which operate in the public interest, and capital looking to insulate itself from profit-draining competition. Indeed, the fact that computational antitrust can be mis-applied has been recognised even by its most prolific proponents: the very first publication in the Stanford Computational Antitrust series ended with a warning that "[c]omputational antitrust should not become a zero-sum game in which the gains made by companies or agencies systematically penalize the other".

A more positive path forward

There is reason for hope. As I have argued elsewhere, the designers of digital products and services are afforded incredible flexibility in terms of how such products are built. The sheer scope for imagination is perhaps best illustrated with a somewhat silly example. A group of software developers once decided to have a competition for who could build the most ridiculous volume control interface. The ingenuity of the entrants, my favourite being one where changing the sound level of the computer entailed shouting into the computer's microphone at the desired volume, shows how the sky really is the limit when it comes to software design. As such, the designers of digital products have the privilege of being incredibly creative in terms of what features they build, and how those features operate.

To return to Lexverify for a moment, as of writing, the design of its product appears to encourage the re-writing of emails prior to sending, such that emails that could later become evidence never get sent in the first place. The risk here is systemic. If competition law is treated as a compliance risk to be 'solved' with technology, then infringements may not be detected and remedied as easily, leading to the underenforcement of competition law, harm to market competition, and knock on effects like decreased market efficiency or increased economic inequality.

The good news is that different applications of the same idea are possible, including ones which remain commensurate with the interests of undertakings, yet are more commensurate with the underlying aims of competition law. The product could, for instance, be designed to only alert the writer to a potential issue after the email has been sent. Such emails could be then automatically forwarded both to the undertaking's legal department, and also to a national competition authority, where they could be treated as part of a leniency procedure. While this kind of wiretapping-esque approach may at first glance appear extreme, it is not without precedent, and one could argue that if the risk of competition law infringement is high enough for an undertaking to use AI to mitigate their risk, then it is also high enough for competition authorities to take a proactive approach to enforcement. It is possible, in other words, to imagine AI tools being deployed in a way which both reduces legal risk for undertakings while also being aligned with the broader goals of competition policy.

For the time being, it seems that such positive applications are only a figment of the imagination. After all, there is admittedly less commercial incentive to build a public-interest oriented version of this technology. In the status quo, it frankly appears to be only a matter of time before the AI is deployed by those engaging in anti-competitive behaviour, with the intention of minimising their exposure to competition law scrutiny. Given the risk that the use of such tools may reduce the effectiveness of competition law enforcement on a systemic level, it may be prudent for competition authorities to adopt a precautionary approach and issue guidance advising against the use of such tools. Authorities should also keep a keen eye on the development and adoption of all commercial AI powered "risk-mitigation" and "compliance" tools as part of their horizon scanning activities. If undertakings start to use them en masse, as appears likely, then regulatory intervention may be required to ensure that competition enforcement remains effective, pre-empt the emergence of a culture of corporate lawbreaking, and to avoid the "zero-sum" game that competitional antitrust advocates have warned about.

Originally published on the Kluwer Competition Law Blog, re-published with light edits here.

Generative AI - Innovation or Infringement of competition law?

2025-10-24T07:40:04.000Z

I'm featured on the Shaping Competition in the Digital Age podcast (Spotify link) with Anush Ganesh and Kena Zheng.

The conversation is about, among other things, how I got into competition law from being a software engineer, how there really is no excuse for dominant undertakings designing internet platforms to be anti-competitive, and the need for conceptual clarity in competition law. The content of the episode draws from my preprint about Gen AI & Article 102 TFEU.

The European Commission can and must act on excessive pricing

2025-10-08T07:40:04.000Z

Originally published on ProMarket, along with Aline Blankertz, Justine Haekens and Nicholas Shaxson.

The European Commission has struggled to tackle excessive prices in Europe, despite evidence of how they arise in relation to market power. We argue that adopting accounting and financial analysis as part of its toolkit can enable the Commission to understand and act when firms are exploiting their market power.

Coordination across the channel II

2025-07-18T07:40:04.000Z

On May 20th 2025, the European Commission and the UK’s Competition and Markets Authority (CMA) announced that they had agreed on a competition cooperation agreement (the Agreement). Their announcement follows on from the conclusion of technical negotiations about such an agreement, which we previously blogged about last year. The Agreement is an important milestone in the evolving relationship between the EU and the UK in competition enforcement, which became institutionally more complex as a result of Brexit.

As can be seen in the OECD’s formidable inventory of such documents, formalised relationships between competition authorities can come in many shapes and sizes, such as administrative arrangements, terms of reference or memorandums of understanding (MoUs). The aim of such initiatives is to help agencies work together across national borders, especially when tackling anti-competitive practices with an international component. Agreements such as the subject of this post are, generally speaking, the strongest of such initiatives, since they create a formal framework for inter-agency cooperation with legally binding obligations. As such, they generally only take effect after ratification procedures by the parties in question.

This post will introduce the content of the Agreement, compare it to the pre-Brexit scenario as well as to other similar agreements that the Parties have signed, before concluding with our thoughts.

The Agreement

The Agreement covers matters related to competition law and merger control, as set out in Article 2. Other related matters, like sector competition regulation, such as the DMA, DMCCA or state aid, are not included in the Agreement. The authorities listed in the Agreement are the European Commission and the National Competition Authorities (NCAs) of Union Member States, and the UK’s CMA. The inclusion of NCAs is notable, since other similar bilateral agreements that the EU has entered into (such as the EU-US agreement) only mention the EU Commission (from the European side). As such, it goes some way to restoring the pre-Brexit level of cooperation between the CMA and European NCAs, when the former was a member of the European Competition Network (ECN). Notably, however, the agreement excludes other agencies which may also have the competence to enforce competition law, such as the UK’s Office of Rail and Road, and doesn’t cover domestic competition law in Union Member States.

Article 3 of the Agreement states that the parties must notify each other if their enforcement activities are “likely to affect the important interests” of the other party. This permits them to coordinate their enforcement activities as set out in Article 4, in cases where they are pursuing “the same or related enforcement activities”.

Article 5 contains negative comity provisions, which seek to ensure that the enforcement activities of one party do not “adversely affect the important interests of any of the other [parties]”. In cases where they might, the enforcing party must make “all reasonable efforts to arrive at an appropriate accommodation of each other’s important interests”.

Articles 6-9 contain perhaps the most interesting aspects of the Agreement, which pertain to information sharing. Article 6 contains provisions to let competition authorities party to the Agreement to share information between each other, to the extent allowable under domestic law. As noted by McGrath and Maneti, the UK recently amended Section 243C of the Enterprise Act 2002 to allow the sharing of confidential information in the context of international cooperation agreements such as this one. The Agreement also permits the transmitting competition authority to specify terms and conditions under which information can be used.

Negative comity appears again in Article 9, which compels competition authorities to work together in the case that shared information is accidentally disclosed or used in a manner contrary to the Agreement. In such cases, the parties “shall promptly confer on appropriate steps to minimise any harm resulting from such use or disclosure”.

Finally, the last articles of note are 10 and 11, which facilitate dialogue between the UK and EU competition authorities with regards to the functioning of the Agreement (Article 10), and stipulate that it must be reviewed within two years (Article 11). The inclusion of such provisions - which are rarely seen in such agreements - indicates that the parties are particularly keen to “further [develop] their cooperation” in the future.

Comparing to before Brexit

As mentioned above, the nature of the document in question - an Agreement - allows for a relatively strong form of cooperation. The provisions of the Agreement in question cover information sharing, coordination of enforcement activities, negative comity, and facilitate dialogue between the competition authorities party to the agreement. But while the Agreement represents a significant step forwards in the level of post-Brexit EU-UK competition enforcement cooperation, it is important to remember that before Brexit, the CMA was an NCA of an EU Member State, and therefore a member of the European Competition Network (ECN). With that in mind, the following section compares the current situation to that before Brexit

The Commission Notice on cooperation within the Network of Competition Authorities explains that cooperation between the EU Commission and its Member States’ NCAs, as well as between those NCAs themselves, allows for and encourages several modes of cooperation not present in the UK-EU Agreement. These include the re-allocation of cases between NCAs, positive comity, exchange of confidential information, and assistance in evidence gathering. Keeping in mind that the UK used to be an EU Member State, and used to be able to take advantage of these modes of cooperation, the following paragraphs will consider the value of each.

Re-allocation of cases is most helpful in regional, rather than bilateral, cooperation agreements. In the latter, both jurisdictions can typically pursue the case simultaneously. In the former, closely-linked jurisdictions may need to pass cases between another to ensure that a case is handled by the competition authority of the jurisdiction most affected by the practice in question. Despite their bilateral relationship, this latter case may also arise between the EU and UK, as the high levels of trade between them may mean that a practice notified to the EU Commission, for instance, affects both jurisdictions but more strongly affects the UK (or vice-versa). Such situations are typically handled with the inclusion of a positive comity provision, which would allow one Authority to request that another initiate an investigation. In that case, the requesting Authority could benefit from the outcome of the investigation (if the offending undertaking ceases the anti-competitive practice, for instance) or from the evidence gathered during the course of the investigation, which it would then use to reach its own outcome.

Positive comity is not covered by the EU-UK Agreement, despite the OECD recommending the inclusion of such a provision in Article IV of its 2014 Recommendation of the Council Concerning International Co-operation on Competition Investigations and Proceedings. In its Inventory of International Co-operation Agreements on Competition, the OECD describes positive comity as a tool for “effective allocation of enforcement resources by allowing the better-placed party to deal with the problem (for example, it avoids difficulties of obtaining evidence in a foreign jurisdiction) [which] minimises conflicts between jurisdictions that may be caused by enforcement actions against activities occurring in another jurisdiction”. Some agreements that include positive comity are those between the EU and Switzerland (2013), the EU and Korea (2009), and Canada and Japan (2005). Given these precedents, and the fact that provisions allowing for positive comity usually explicitly stipulate that they do not limit the discretion of the party being asked to carry out the investigation under its own competition laws and priorities, it is somewhat surprising that the current Agreement does not include one. One reason could be that, post Brexit, the UK was keen to protect its regulatory sovereignty, and minimise the degree to which EU institutions could influence its enforcement procedures.

The provisions allowing for exchange of confidential information, under the new Agreement, are relatively wide in scope, including compared to pre-Brexit. As described above, Article 6(2) of the current Agreement states that “It is not necessary for a competition authority to seek that consent to the extent that the sharing of that information without consent is permitted by applicable domestic law”. The OECD, in its Recommendation, refers to the exchange of confidential information between competition authorities without the need for obtaining consent from the parties in question, subject to certain conditions, as “information gateways”. An example of the conditions required is found in the above-mentioned cooperation agreement between the EU and Switzerland, which states that, in the absence of consent from the investigated parties allowing the competition authorities in question to share confidential information, the competition authorities can transmit information as long as: 1) the information in question relates to the same or related practices, which are being investigated by both authorities, 2) the request for information is clear and in writing, and 3) the requested competition authority determines which information is relevant to share. Similarly, the 2020 MoU between the competition agencies of the UK, Australia, Canada, New Zealand, and the US creates an avenue for the sharing of confidential information, “recognising that their respective jurisdictions all have some form of information sharing legislation that allows for sharing of confidential information in certain circumstances”. In these cases, competition authorities can exchange confidential information, under certain circumstances, without an explicit waiver from the parties involved, saving time and keeping the status quo of investigations more confidential. As such, we think that the information gateway established in the current Agreement is robust, and is in-line with that found in other agreements.

Finally, the EU Commission and European NCAs can assist one another in evidence gathering, even if the assisting competition authority is not investigating the same or related practices. While this is not ruled out under the current Agreement, neither is it explicitly provided for. An example of a provision to this effect is found in the Nordic Cooperation Agreement (2017). Article 4 of that Agreement states that “The competition authority of a Party may in its own territory carry out any requests for information under its national law on behalf and for the account of the competition authority of another Party in order for the requesting authority to apply competition rules or merger control rules”. Such provisions allow an investigating authority to obtain evidence that it may not otherwise be able to gather without requiring that the assisting competition authority is investigating the same, or a related, matter, which saves on time and resources.

Conclusion

The EU-UK Agreement is robust and will enable significant cooperation between CMA on the one hand, and the European Commission and Member State NCAs on the other. This should be celebrated since, as we explained in last year’s post, cooperation between competition authorities across the Channel is beneficial for both sides. While the Agreement does not fully restore the level of cooperation to that prior to Brexit, it might also be a little much to expect that the UK CMA to be given the same rights or obligations of a European NCA. Nevertheless, some of the integral aspects of intra-EU cooperation - such as positive comity and assistance in evidence gathering - should be kept in mind for future evolutions of of the EU-UK relationship, especially given that these aspects are provided for in other Agreements and MoUs, including those to which the EU or UK are party. Given that the Agreement stipulates that it should be reviewed within the next two years, there will be plenty of opportunities to consider such changes in the future.

Originally published on the Kluwer Competition Law Blog with Marina Iskander.

Did Meta tie its AI assistant to WhatsApp?

2025-04-30T07:40:04.000Z

In March 2025, Meta rolled out its AI assistant in Europe, which is accessible through its WhatsApp Messenger and will soon be available on Instagram and Facebook Messenger, too. The feature grants users of its platforms access to a “reliable and intelligent assistant” via a “new blue circle icon” on the apps. Trans-Atlantic observers may note that the launch comes almost a year after the same features launched in the United States, which, in Meta’s words, is a result of it having to “navigate [Europe’s] complex regulatory system”.

Some commentators view Meta’s move as evidence of its “dynamic efficiencies” and “value creation”, made possible by the synergies originating from the 2014 Facebook/WhatsApp merger, which is now being leveraged in the intense “race of LLMs”. But, the firm’s decision to integrate its assistant directly into its consumer apps may, however, be of interest to competition regulators.

Indeed, the firm has been under intense competition law scrutiny as of late. This past Monday (April 17, 2025), Meta’s Mark Zuckerberg took the stand against the Federal Trade Commission (FTC), which is seeking to break up Meta based on concerns that it excluded competitors as a result of its 2012 and 2014 acquisitions of Instagram and WhatsApp. The firm was also recently fined almost €800 million by the European Commission for integrating Facebook Marketplace into Facebook, a decision which it is appealing.

Given that everything is to play for in today’s AI market, competition authorities should be on high alert when it comes to looking for anti-competitive behaviour which could tip the market in favour of an incumbent, not least since experience shows that other digital markets have often ended up being dominated by a single firm. In this blog post, we consider whether Meta’s launch of its AI Assistant in WhatsApp could see it running afoul of competition law once again.

A Tying Case

Tying is a well-established abuse under Article 102 TFEU. It entails a firm making one product (the tying product) available only together with another product (the tied product). A long line of case law has established that four elements must be present in order for an abuse to be found. First, there must be two distinct products; second, the undertaking must be dominant in the market for the tying product; third, the undertaking must not give its customers a way to obtain the tying product without the tied product; and fourth, the tying must be capable of having exclusionary effects. Our view is that Meta’s recent AI assistant launch could satisfy each of these elements. Accordingly, we will briefly examine each.

First, as explained in the Commission’s recent draft guidelines on exclusionary abuse, it can be established that the tying and the tied products are two separate products if there is separate consumer demand for both. It seems highly plausible that WhatsApp and Meta’s AI Assistant have separate consumer demands, not least in light of AI assistants such as ChatGPT, Claude, or Le Chat, each of which offers a paid tier.

The second element, finding that Meta holds a dominant position through WhatsApp, depends principally on market definition, although it should be noted that the presence of network effects in social media markets may increase the likelihood that Meta may be found to hold a dominant position (as was the case in the Commission’s recent Facebook Marketplace decision).

The third element - that it must not be possible to obtain the tying product without the tied product - is the most interesting one. At the time of writing, it appears that Meta does not allow users to turn off its AI assistant from within its tying services, as has been reported in several news outlets. Although users of WhatsApp are not forced to use the AI assistant per se, the Commission has said in its Facebook Marketplace decision (paragraph 750) that “compulsion or coercion can still exist where the party accepting the tied product is not required to use it or is entitled to use the same product supplied by a competitor of the dominant undertaking”. Indeed - just as certain features of Facebook’s social network were exclusively available to its Marketplace product - only Meta’s own AI assistant is available through the AI button and search bar on WhatsApp. Once a consumer has interacted with the AI, it appears in the list of conversations, as shown in the image above.

The fourth element, that the conduct has exclusionary effects, could hinge on an argument that users would be less likely to use competing AI assistants from third-party providers (regardless of whether they multi-home or not). Such an argument could be buttressed by arguing that Meta could benefit from increasing returns to scale as a result of its conduct, while simultaneously denying that same scale to rivals, particularly with regard to accruing data on its users, which can be used to train its LLM.

This would be in line with a pattern of behaviour - first observed in programming forums - whereby users increasingly interact directly with LLMs inside a closed ecosystem, which forecloses valuable interactions that other undertakings seeking to develop competing LLMs could use to train on. For instance, platforms like Stack Overflow or Reddit have experienced a notable decline in activity, as many users now prefer to consult LLM-based tools such as ChatGPT. Unlike open forums, whose content constitutes “a collective digital public good due to their non-rivalrous and non-exclusionary nature”, which has historically been scraped and used as training data, closed platforms do not make their user interactions publicly accessible. This shift not only reduces the availability of high-quality, domain-specific training data in the public domain but also reinforces the advantage of incumbents who already operate at scale and can leverage proprietary data flows to improve their models.

A self-preferencing case

Another potential theory of harm is that Meta could have privileged its own AI assistant over those of rival firms, as occurred in Google Shopping. Such a theory of harm would require that other AI assistants be accessible over the WhatsApp user interface. As of today, it appears that this is not the case - just about. In fact, the infrastructure to supply an AI assistant over WhatsApp actually already exists; Meta offers business accounts, which allow other companies to communicate with customers via WhatsApp in order to offer promotions, provide customer service, share updates on order status, etc. These functions are increasingly powered by AI chatbots, and are surprisingly simple to set up, although we are not aware of any that are marketed as a general AI assistant.

If a competing AI assistant, such as ChatGPT, Claude, or Le Chat, were to launch on WhatsApp, then it would strengthen the case for self-preferencing. In light of the recent Android Auto decision - which widened the essential facilities doctrine, finding that not allowing competitors to utilise the dominant firm’s platform could constitute an abuse, so long as the infrastructure was intended to be open in the first place - Meta would likely not be able to deny rival undertakings from launching AI assistants on its platform, given that its business account infrastructure was built ‘with a view to enabling third-party undertakings to use it’. In other words, Meta would risk abusing its dominant position if it were to deny other providers of AI assistants access to the WhatsApp platform under its existing business account infrastructure.

Here, we already start to see the effects of Android Auto play out. At first glance, the ruling appears to encourage firms to create closed ecosystems, as it imposes a duty to deal on dominant firms to any infrastructure developed “with a view to enabling third-party undertakings to use it.” This is likely to give dominant firms pause when deciding whether to allow third-party undertakings access to their infrastructure.

However, a more dynamic and innovation-first perspective on competition yields a different set of incentives. Closed ecosystems are less likely to benefit from the complementarities arising when different firms contribute to value creation, since innovative firms may be excluded from participating. Indeed, ecosystems derive much of their value from third-party innovation, which depends on the extent to which third parties can access the infrastructure they need to innovate. For instance, the Android Auto ecosystem would be less valuable if third parties such as ENEL were not able to create apps for it. Opting for a closed ecosystem that relies exclusively on first-party infrastructure would mean that the dominant company must therefore shoulder the innovation costs for whatever products are built on that infrastructure. In the medium to long term, such ecosystems may struggle to compete with open, permissionless alternatives with greater possibilities for innovation.

Thus, the trade-off facing a dominant firm is not simply about access, but about the broader design of the ecosystem itself. On the one hand, an open ecosystem maximises the value of the ecosystem as a whole, yet limits the ability of the dominant firm to capture value within that ecosystem. On the other hand, a closed ecosystem maximises the dominant firm’s ability to capture value, yet forces it to bear the burden of more innovation costs, and may result in it losing out against a rival ecosystem which is more open and vibrant.

Potential Remedies

Our post has so far explored two theories of harm related to Meta’s recent practices: tying and self-preferencing. While finding Meta to be in violation of Article 102 TFEU would entail a deeper analysis, the post highlights some potential, real-life harms that may materialise if Meta does not change its approach. Accordingly, we make some suggestions, which need not involve large changes to Meta’s approach, but would protect the effective structure of competition and minimise harm to consumers, as well as reduce Meta’s risk of violating competition law in the EU or elsewhere.

First, the firm could avoid the third element of the above test by giving its consumers a way to opt-out of any AI integrations in its products and thereby allow users to obtain WhatsApp without its AI assistant being integrated. This may, however, lead to concerns that innovation would be harmed by the firm not being able to use AI in its products and offer that AI to its consumers in a convenient and accessible way.

Second, therefore, Meta could nullify the fourth element of the above test by allowing consumers to use competing AI assistants inside the WhatsApp UI. Given that much of the functionality already exists within WhatsApp, this could be surprisingly easy. WhatsApp could offer its AI assistant as a chatbot through the same interface that its business account customers use and then give its end consumers a choice of which AI ‘backend’ they would like to use. In that case, Meta would have to make a modest change to its WhatsApp interface, such that when consumers use AI-powered features, they would be taken to the AI assistant of their choice, perhaps one provided by a third-party firm, rather than Meta’s own AI assistant (similar remedies have been proposed for online advertising and content moderation).

This would let other AI assistants be offered via exactly the same interface to exactly the same users and therefore compete on a level playing field. Since this functionality for third-party integration with WhatsApp chats already exists, and users already interact with Meta’s AI assistant through the same chat interface, the technical burden on Meta would likely be extremely reasonable. This path forward would allow rival AI assistants to compete with Meta’s offering, while entailing low overhead costs in terms of implementing the remedy on Meta’s side and still retaining the benefits of AI assistant integration in WhatsApp.

It is worth noting that Meta’s rivals may not want to be intermediated by WhatsApp if Meta has access to data produced through consumers’ interactions with their LLMs through the WhatsApp platform. Given that digital markets are prone to tipping, rivals may be reluctant to allow Meta access to the chats produced with consumers, on which it may also be able to train its AI models and ultimately gain a competitive advantage. There is, however, a technical means to address this challenge, which is to simply ensure that any chats with third-party AI assistants have end-to-end encryption turned on, such that Meta could not view and train on the interactions with its competitors’ AI assistants. This would remove disincentives for rivals to offer their AI assistants through Meta’s interfaces and ensure a level playing field to facilitate competition on the merits.

Conclusion

In fast-moving digital markets, it is important to quickly identify potential abuses before anti-competitive harm can accumulate. In this blog post, we put forward a case that Meta’s choice to integrate its AI assistant directly into its social networks may harm competition in the adjacent AI assistant market. We considered whether such behaviour could constitute tying or self-preferencing under EU competition law and found that the possibility could indeed warrant further investigation, at least beyond what is possible within the scope of a blog post. Regardless, it would appear that there are several adjustments that Meta could proactively make to its current approach, which would help preserve the effective structure of competition - and give its consumers wider choice - and thus limit its exposure to competition law scrutiny.

Originally published on the Kluwer Competition Law Blog with Marina Iskander.

Google ad tech - break up or break out

2025-01-31T07:40:04.000Z

Originally published on the EU Law Enforcement Blog.

Why does Google hold a dominant position in AdTech? This blog post, summarising my paper in Utrecht Law Review, examines why and proposes a novel remedy which would entail Google divesting its AdTech stack and permitting consumers to choose which advertising network monetises their useage of its online platforms.

Democracy or domination

2025-01-23T07:40:04.000Z

Competition law, given its history and potential as a tool of anti-domination, is a natural fit to protect and revitalise democracy in Europe from the threats posed by excessive concentrations of private power. Yet competition law is often seen as a limited tool, capable of playing only a marginal role in Europe’s response to the emerging plutocracy. Historically, competition has always been fundamental to liberal democracy. Law, in turn, is central to maintaining competition because it protects against the winners locking-in their gains by subverting the competitive process and saving themselves the hassle of having to compete in the future. Free speech law protects cultural competition, electoral law protects political competition, and competition law protects economic competition.

However, the protection of democracy is habitually said to fall outside the proper scope of competition enforcement, which has been placed on a thin diet of consumer welfare since its ‘economic turn’ two decades ago. As a result, competition law has been disempowered and under-enforced. Its narrow implementation has contributed to widespread economic inequality, the rise of ultra-dominant Tech oligarchs, and – as we argue in a recent paper – the decline of economic democracy in Europe.

This version of competition law has proven especially powerless in the face of a new generation of oligarchs who pursue value capture over value creation in the belief that ‘competition is for losers’, seeking to opt-out of competitive constraint wherever possible. Having amassed huge amounts of wealth by placing themselves at strategic chokepoints in the economy, they have shown themselves to be adept at converting economic power into political and cultural power, and then back again.

Today’s narrow approach to competition law and its enforcement has helped lay the groundwork for the emergence of plutocracy. Now, however, competition law must also be part of any attempt to reverse the trend, and should look to protect and reinvigorate democracy in Europe going forward. To do so, the discipline must rediscover a conception of democracy that extends beyond the thinner objectives which currently dominate the competition-democracy landscape. Any attempt to arrest the current vicious circle of private power accumulation will require a holistic, systemic approach to understanding exactly what ‘democracy’ competition law can protect, and how.

The Competition-Democracy Nexus

As Elias Deutscher shows in his recent book, democracy has been considered a core value which has underpinned competition law from its very inception, through Ordoliberal thought in Europe and the antimonopoly tradition in the United States. This democratic function, known within the field as the competition-democracy nexus, has waxed and waned over the history of competition law. In recent decades, a broad neoliberal consensus and the supposed end of antitrust history has reduced competition law to a predominantly technocratic instrument, constituting a low water-mark for the nexus.

In this context, courts and scholars have developed a minimalist conception of the competition-democracy nexus. This view gives democracy an ad hoc role in competition enforcement, operative in only certain individual and often politically salient cases. But this piecemeal approach overlooks the structural role that competition law can play in enabling either the conditions for economic and political democracy, or as it currently does, the foundations of plutocracy. Although we agree with Prof. Robertson’s contribution to this debate on many points, we see aspects of the minimalist approach in her writing.

Our view is that competition law has a deeper, quasi-constitutional role in the EU’s liberal democratic order. Competition law acts as a key structuring force in the political economy of modern Europe, both in obvious ways like through its market integration imperative, but also more subtly, by defining which forms of economic relations are permissible and which are not. Countering the current threat of oligarchy – rooted first and foremost in drastically unequal economic relations – therefore entails an understanding of how competition law has a systemic role. Such a view focuses not on the immediate impact of legal rulings, but rather on the higher order effects they have on the structure of the European political economy. While we do not believe that competition law alone can address the accumulation of private power we see today, we think that it must be a core pillar of any effective and integrated approach to tackling the foundations of oligarchic power through the law.

This effort should be sustained through the notion of “republican liberty”, a concept of liberty where freedom is understood as being in a state of non-domination: not being subject to the “arbitrary power of someone else”. The main way in which competition law can foster republican liberty on markets is by fostering their contestability; underwriting the freedom of businesses to compete with incumbents, and thereby ensuring that consumer-citizens have a choice of which market participants to transact with. By doing so, powerful economic entities are prevented from dominating smaller trading partners or coercing them into undesirable business arrangements. Instead, in a competitive market, these smaller partners can freely choose to do business with a competitor. By preventing domination in this way, markets serve as institutions of antipower.

A Systemic Approach to Economic Democracy

In a recent paper, we describe how these ideas, which have lain dormant in competition policy, can be operationalised in competition law doctrine. We put forward three ways in which competition law and sector-specific competition regulation – which together, make up the competition regime – can further democratic values going forward.

First, we argue that the bar for competition intervention should be lowered. Currently, strict legal tests must be met for competition intervention to pass muster under the courts. Yet such tests were crafted using a time of heady optimism about the functioning of markets which has shown itself to be ill-founded. Since markets in many cases do not ‘naturally’ function well, the discipline has found itself struggling to attend to flagrant abuses of economic power which would, under the logic of republican liberty, not have accumulated in the first place.

Second, we stress the critical importance of fostering choice and contestability in markets. Where economic democracy is concerned, choice is a key source of legitimacy in markets, since consumers are free to switch to a competitor when dissatisfied. It also ensures that markets are directed by the needs of consumers from the bottom-up, rather than by the whims of oligarchs from the top-down. As Cory Doctorow has emphasised, where consumers are denied choice, firms are able to slowly ‘enshittify’ their products to extract more value from consumers.

Third, we emphasise the potential to ‘shape’ markets using competition tools. Again, this perspective is not new. Karel van Miert, Competition Commissioner from 1993 to 1999 eloquently wrote on how under his leadership, the Commission took an “engineering” approach to market competition. This approach should be revived, not least as a way to ensure that markets are in-line with the values expressed in the European Treaties. Competition law is conceptually agile enough to do so, and the current discourse around the “EuroStack” provides the perfect opportunity.

Going Forward

The urgency of Europe’s creep towards plutocracy calls for a similarly urgent response. Competition law, given its history and potential as a tool of anti-domination, is a natural fit to protect and revitalise democracy in Europe from the threats posed by excessive concentrations of private power. For it to be effective for that purpose, competition scholars must clearly articulate which democratic values, like non-domination, competition law should seek to pursue, and clear-mindedly design mechanisms through which to channel them.

Today, the competition regime is undergoing transformational change. It is being augmented by new regulatory tools, which are animated by an expanded set of values and objectives. As the extractive dynamics and wide harms of concentrated digital markets become clearer, we think that these new tools present regulators with an opportunity to experiment, and incorporate democratic concerns – from the protection of consumer choice to non-domination – as part of a strategic set of competition interventions. In this manner, competition law can contribute to a whole-of-law approach to addressing the structural foundations of oligarchical power, and shore up the foundations of European liberal democracy.

Originally published on the Verfassungsblog with Spencer Cohen. A follow up chapter was published in Todd Davies and Spencer Cohen, ‘Democracy or Domination: The Role of Competition Law in the Face of Oligarchy’ in Alberto Alemanno and Jacquelyn D. Veraldi (eds), Musk, Power, and the EU: Can EU Law Tackle the Challenges of Unchecked Plutocracy? (1st edn, Verfassungsbooks 2025)

Coordination across the channel I

2024-11-25T07:40:04.000Z

The UK’s withdrawal from the European Union put European competition policy in a somewhat awkward state. The schism left EU and UK competition law as geographical neighbours and almost identical twins in both legal form and substance, yet worlds apart in terms of their ability to coordinate. Prior to Brexit, and as the competition authority of an EU Member State, the UK’s Competition and Markets Authority (CMA) was a member of the European Competition Network (ECN). As such, it was institutionally and legally embedded within the competition law enforcement efforts across the whole continent. That included being kept abreast of investigations launched by other National Competition Authorities (NCAs), coordinating and information sharing on investigations, as well as participating in discussions on issues of common interest.

Today, that is no-longer the case. As the NCA of a third country, the CMA is no-longer a member of the ECN, and has limited abilities to cooperate with either the Commission or NCAs on competition investigations. As a result, we have already started to see missteps in the previously harmonious dance of competition policy among European member states, perhaps most notably when the CMA and the Commission reached different conclusions when it came to deciding whether to let Microsoft buy Activision. Thankfully, it is common practice for the EU to sign competition cooperation agreements with third countries as to avoid situations where peer authorities end up treading on each other’s toes in investigations with a supranational scope; the EU already has agreements with the US, Canada, Japan, South Korea and Switzerland. In fact, data from the OECD shows an increase in bilateral cooperation agreements between competition agencies. Collusion might be illegal for firms, but it’s certainly not for competition authorities (at least, with a cooperation agreement)!

In that context, in October 2024, the EU and the UK concluded technical negotiations on their own bilateral Cooperation Agreement (EU press release, UK press release), which should enter into force in 2025, after ratification by EU and UK institutions. Such an Agreement would put cooperation between the CMA and EU Authorities on a footing more like it was pre-Brexit. Given that, it’s tempting to dismiss the current Agreement as relatively inconsequential; the end to a momentary lack of coordination in competition policy.

We disagree for two reasons. First, the Agreement is of utmost importance because of the importance of coordination between competition authorities, especially since the CMA, no-longer subordinate to the Commission in the hierarchy of EU competition law, has had to become a qualitatively different organisation with an expanded scope post-Brexit. Second, the competition policy landscape of 2024 is vastly different from that of the pre-Brexit world. Among other changes, the geopolitical context in which competition policy occurs has also changed massively, especially in light of the recent re-election of US President Donald Trump. Coordination between competition authorities, especially in Europe, is as important as ever.

Cooperation where it Counts

Brexit has meant that the CMA has expanded its competence to include tasks previously undertaken by the EU Commission when the UK was an EU member state. This includes reviewing mergers which would previously be reviewed by the Commission under the EUMR’s “one stop shop” approach, as well as a responsibility for investigating breaches of competition law which would previously have been handled by the Commission. In short, Brexit meant that some investigations must happen in both jurisdictions at once, whereas before, they would have been only undertaken by either the Commission or the CMA.

The possibility of multiple competition authorities investigating the same subject matter is not new. Multinational corporations often come under scrutiny in several jurisdictions at once. Yet, if these investigations reach different conclusions, it can cause major headaches for both the competition authorities and the firms involved. It is legitimate for different competition authorities to reach different conclusions, for instance, if their competition laws dictate different outcomes for the same set of facts or given the inherent openness of competition law. However, cooperation agreements are nevertheless vital to minimise accidental disharmony, as well as to ensure that if there is reasonable disagreement, then it can be managed appropriately.

The recent Microsoft/Activision merger serves as a prime example of the difficulties which can arise from the lack of coordination between competition authorities. In April of 2023, CMA blocked the merger after its phase 2 investigation concluded, only for the Commission to approve the same deal around a month later, subject to conditions. That particular conundrum was resolved by a restructured merger deal put forward by Microsoft (essentially the same as the original but with the rights to stream Activision’s games on the cloud outside of the EEA being sold to Activision’s competitor Ubisoft). In September of 2023, the restructured deal was subsequently approved at the phase 1 stage in a separate review by the CMA, bringing the UK authority back in line with its EU counterpart. Despite the relatively minor changes to the merger, the CMA did not give much reasoning for why the restructured deal was permitted, yet the original one was blocked. While we will not comment on the merits of the case here, we do note that the CMA’s about-face was perhaps not as graceful as it could have been.

While the Microsoft/Activision saga is now over, and it remains to be seen what the longer-term effect of the merger on competition will be, it could likely have been avoided entirely if a cooperation agreement existed between the UK and EU competition authorities. The episode therefore highlights the importance of cooperation between competition authorities. The proposed Cooperation Agreement reportedly does not allow EU and UK authorities to share sensitive commercial information with each other without consent from the parties involved, but it does allow them to coordinate on essentially everything else about competition investigations. This includes which cases are being run and the strategy that the authority is pursuing for the case. We think that in terms of harmonising their approach to enforcing competition law, these aspects are most important since commercially sensitive information used to justify decisions can always be acquired by the Authorities when they know what to look for (as laid out in Articles 18 to 21 of Regulation 1/2003 and Chapter III of the Competition Act 1998 respectively), even if it cannot be shared explicitly as we will discuss below.

Geopolitical Concerns

The Agreement, and cooperation between European competition authorities, is all the more important given current geopolitical events. Not only are multinational firms becoming ever more powerful, and ever harder to keep in check with the competition laws, but the recent re-election of US President Donald Trump also leaves us with uncertainty regarding the future direction of the US antitrust policy and enforcement. The EU has already shown some concern regarding the dominance of US firms on the continent; cooperation between the CMA and the EU Commission may serve as a means to help address these issues. Working on their own, NCAs, including the CMA, may lack the geopolitical clout to aggressively enforce the competition laws vis-à-vis big businesses headquartered on other continents. Coordinating in terms of approach, assessment, and perhaps decisions, may render enforcement against such undertakings more successful, as it could reduce the chance of conflicting decisions, and create stronger, unified policy statements.

Posing a united front should not be difficult for the EU and UK competition agencies, since their competition regimes are much alike. The polycentric policy goals and normative assumptions of the EU and UK competition regimes overlap in many aspects, largely due to their intertwined origins. The current approaches to competition law in the two jurisdictions are also largely similar. Both authorities have also shown an increased integration of environmental considerations in their decisions, as a matter of policy. The Draghi report highlights this, as does the CMA’s Areas of focus for 2024 to 2025. Both have shown an increased focus on digital markets, with the EU enacting the Digital Markets Act and the UK recently passing the Digital Markets, Competition, and Consumers Act (although it remains to be seen if the Agreement will also cover sector-specific competition regulation). The two agencies have recently carried out investigations in the sector. As mentioned above, investigations have often concerned the same market player, such as Amazon (the initial UK press release mentioned that the CMA would ‘seek to liaise’ with the EU Commission, but this was not mentioned in the UK or EU’s decisions to impose commitments), Meta (in which case the UK imposed commitments and the EU a fine), and Apple (the UK closed the case for reasons relating to prioritisation, and the EU applied commitments on the undertaking).

In terms of industrial policy - an ever more important concern - both jurisdictions have an ambition to grow their digital sectors and make them more competitive globally: the 2024 Draghi report on the future of EU competitiveness mentions this point on several occasions, as does the UK’s recent “Invest 2035: The UK’s Modern Industrial Strategy” report. In fact, the Draghi report and a speech by CMA CEO Sarah Cardell responding to the Invest 2035 report make it clear that both agencies may in the future play a more active role in supporting wider industrial policy goals, specifically by increasing the use of behavioural remedies in mergers. Cooperation in the area of merger control may be especially beneficial; the EU and the UK have carried out parallel investigations of 11 mergers since Brexit, five ending with divergent outcomes. While a cooperation agreement does not entail a complete harmonisation of competition policy across the Channel - nor is such result necessarily a positive outcome - it would increase the number of stronger, unified decisions, which could support the goals pursued by both jurisdictions.

Aside from avoiding conflicting approaches, coordination can also help agencies optimise their approach to enforcement, as outlined in the OECD 2014 Recommendation of the Council Concerning International Co-operation on Competition Investigations and Proceedings. Even without the power to share confidential information, sharing theories of harm would save on agency resources in terms of time and staff members allocated to a single case. Of course, the agencies could still potentially share confidential information if parties to an investigation sign waivers allowing the agencies to do so. Previous examples of agency cooperation have indeed resulted in faster, more coordinated decisions. For example, cooperation between the Australian ACCC and Pakistan’s CCP (regarding the acquisition of Pfizer Nutrition by Nestle in 2012) did not entail the sharing of confidential information, as no waivers were used. The authorities nevertheless reported that the high-level cooperation between them in reviewing the economic concentration facilitated the exercise of understanding market structures and identifying theories of harm. Similarly, cooperation between the EU Commission and the US DoJ in the Cisco/Tandberg case (2010) allowed both agencies to save on investigation efforts; as the US DoJ had already begun its investigation by the time the EU started its own investigation, the latter was able to benefit from the conclusions of the former, and both agencies issued similar decisions at the same time. Exchanging opinions on theories of harm could thus potentially save resources for the EU and UK authorities, given the overlaps between the two jurisdictions’ approaches.

Inter-agency cooperation can also be beneficial in terms of mutual learning. For instance, while the EU has shown interest in introducing new market investigation powers, namely through the New Competition Tool, the UK has had similar powers for a decade, since the 2013 amendments of the Enterprise Act 2002. While the EU Commission also has expertise in carrying out sector inquiries and devising remedies, the CMA’s specific experience may be beneficial to the former.

Conclusion

Agency cooperation presents a number of advantages - all of which are augmented by current geopolitical concerns and the never-ceasing effort to ensure a level playing field, both nationally and globally. We have argued that the proposed Agreement is an important development in light of the new role of the CMA post-Brexit, and the increasingly challenging geopolitical environment. The impact of the agreement, however, can only be assessed after it comes into force, which is planned to take place in 2025. Its success will largely depend on the willingness of both agencies to generally share knowledge and expertise, as well as their proactive choice to cooperate on cases of shared interest. Ultimately, it hinges on their willingness to enact a positive vision for European competition law post-Brexit, which acknowledges the similarities between their two competition regimes in terms of goals and policy.

Originally published on the Kluwer Competition Law Blog with Marina Iskander.

Big Tech is harming Britain

2024-09-05T07:40:04.000Z

Originally published on the Comment Central.

Big Tech firms degrade our information environment, both within and beyond the boundaries of their platforms. Dominant firms describe themselves as providing walled gardens which are safe and secure, and claim to invest heavily in combating problematic content. Yet aside from scandals suggesting otherwise, there is reason to be sceptical. Inflammatory and addictive content drives levels of engagement and, thus advertising revenue on platforms. Large platforms are also juicy targets for scammers and spammers, and need to rely on automated systems to moderate content at such a vast scale. By virtue of their monopoly power, these firms are also unlikely to be responsive to customer demands for higher quality content.