Google – a natural monopoly?

I. Introduction

In the vast landscape of technology, Google stands out as a global giant, operating the world’s largest search engine, Google Search. The sheer influence and market power of this tech behemoth has sparked debates over whether Google qualifies as a natural monopoly, which would mean that it could be subjected to ex-ante, utility-like regulation combined with separation. This contribution delves into the ongoing discourse surrounding Google’s classification as a natural monopoly, analyzing contrasting perspectives, exploring potential regulatory approaches, and analyzing their impact on enforcement. The argument built below leans on an in-depth literature review to offer insights into the complex realm of regulating a tech giant like Google. Finally, for its analysis, this contribution focusses on Google Search as it is Google’s main service and the debate on the classification of Google as a natural monopoly has been related to this service specifically.

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Not so flexible? The instrumental usage of soft law in EU telecommunications regulation

What is ‘instrumental usage’ of soft law and why does it matter?

At the hand of a case study in the telecom sector, this blogpost maintains that soft laws can erode the principles of accountability and vertical division of powers when used instrumentally/strategically by enforcers. An example of such strategic use will be the instance when, due to its ineffectiveness, a soft law instrument is converted/leveraged into hard law. The working definition of instrumental use coined by this author is as follows: deploying soft law in order to obtain enforcement outcomes that are consistent with an enforcer’s own vision of the ‘correct’ modus operandi of EU (utility) regulation (and away from public interest/public good considerations).  

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New research insights and questions for future research and practitioners on supervision and enforcement of banking, financial, digital markets and promotion of sustainability

Mira: The topic of supervision of markets and enforcement of norms and policies in the EU is an exciting, yet complex one to discuss, to design and to research (see my new chapter in Maggetti et al. 2022 aiming at capturing all relevant elements and dilemmas). The classic debates concern such pertinent issues as to which types of supervision – public and/or private, EU and/or national, compliance and/or deterrent oriented, to name but a few – should be most optimal to ensure specific policy goals and promotion of values. Next to these, new trends and challenges – globalisation and digitalisation of markets and hence enforcement, promoting sustainability and yet competitive businesses, etc.  – add to the ‘to do’ list for researchers and practitioners. Knowledge accumulation and exchange on these questions across jurisdictions, policy fields and disciplines are thus essential to advance academic and policy debates, and this blog post aims to contribute to this. It shows the pertinent research and policy questions and research conclusions of five 2022 LLM Law & Economics master graduates who have written their impressive master theses on the topics of their choice in the area of supervision of markets, enforcement and agencies under my supervision. Their results and suggestions for future research on integer (banking) supervision, sustainable, fair (digital) competition and finance are impressive and aim to promote achieving policy objectives and boost further research attention and discussion in enforcing the areas of banking, financial, digital markets and sustainability goals and beyond. 

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Polish Gas Market Liberalisation: The Impact on Competition due to 2016 – 2017 Legislative Changes

The European Union introduced common rules for the EU internal gas market as a crucial energy commodity. Published jointly as the Energy Union Strategy in 2015, the rules aim to create a common environment to facilitate trade and competition on all gas markets in EU Member States. The regulations specify the steps necessary for any given gas market to liberalize and comply with common rules for internal gas market.  Each Member State negotiates the pace at which it will liberalize according to the implementation of common rules. Thus, levels of liberalisation may be objectively assessed according to a shared metric. In one interesting case of implementation, Poland followed an initially clear vision and implementation of free market regulations. However in 2016 -2017 it took an unexpected sidestep that had profound economic impacts on the domestic gas market resulting in  many retailers being driven out of the market, and the state owned incumbent regaining its super-dominant market share.

Initial Stages of Polish Gas Market Liberalisation

Following the issuance of the Union Energy Strategy, Poland began to gradually introduce legislation aimed at gas market liberalisation in compliance with common rules for the EU internal gas market:

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The EU Response to Covid-19: the New Temporary Framework of State Aid Control

The rules on state aid have been some of the first to be challenged by Covid-19 for the obvious reason that the pandemic had immediate economic repercussions on virtually any sectors, thus requiring instant financial support from several if not all of the EU Members states (plus the UK). On the 16th of March, Competition Commissioner Vestager sent to Member States for consultation a draft proposal for a State aid Temporary Framework to support the economy in the context of the Covid-19 outbreak. On the 19th, the Commission adopted what would become the first version of a Temporary Framework (TF) that acknowledged the necessity of Member States to act swiftly and, at the same time, laid down the options available to the same Member States in terms of state aid. The word “Temporary” refers to the time limit of these measures, which will be in place until the end of 2020. The fist temporary framework was developed mainly to ensure that sufficient liquidity remains available to businesses of all types and to preserve the continuity of economic activity during and after the Covid-19 outbreak.

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A data protection response to anti-trust populism

This contribution discusses the legal complications of the digital revolution on competition law, including a call for action to the European Union to adapt the existing legal framework in order to catch data-driven conduct and ensure effective enforcement. The rise of the digital economy demands (European) policymakers and enforcers to look at ways in which privacy and competition can strengthen each other to address today’s key challenges. In relation to the incorporation of privacy or data protection principles into a substantive competition analysis, the Court of Justice of the European Union (henceforth: CJEU) and the Commission have been very restrictive. However, this contribution argues that this vision is no longer without debate and susceptible to change.

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‘I’ll see you in court!’ The ‘blind spots’ of competition policy enforcement

The lion’s share of antitrust agencies’ actions is the enforcement of policies that ensure compliance and deter market players to engage in anticompetitive practices. However, credibility of competition authorities is hindered when agencies fail to enforce policies successfully. A source of ‘failed’ enforcement policies is found in judicial appeal cases against regulatory decisions, which can delay for years the effective implementation of a sanction or can even rule out the enforcement decision of an agency. Why do regulatory agencies fail to comply with legal standards in the process of enforcing the law? Answering this question can lead us to look up into different places, such as courtrooms, texts of legislation or the market structures of the economic sectors under supervision. Nevertheless, what if we look straight into the core decision-making structure of competition agencies?

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The European Competition Network – from the NCA perspective

The aim of this post is to present a national perspective on the functioning of the European Competition Network (ECN) introduced by Regulation 1/2003. I would like to focus on some of the features to come forth with a positive impact on substantive law, despite the fact that it caused decentralisation of enforcement and what is worth mentioning that national rules on procedures and sanctions remained heterogeneous.

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United in Diversity: why we need less (not more) uniformity in (national and EU) competition policy and enforcement in Europe

Based on ‘A Framework for European Competition Law: co-ordinated diversity, (2018) Hart Publishing’

Europe’s peoples are scared, divided, and increasingly dissatisfied with uniform solutions to many local problems. Recent examples can be found in Greece, Hungary, Italy and the UK. For many years, de Búrca and Scott (Constitutional Change in the EU: from uniformity to flexibility? (2000), 2) note that in many areas of EU law, “…increased heterogeneity, political, economic and cultural…inevitably brings an increase in the heterogeneity within the functioning of…[the EU’s] institutions and policies.” Yet, the European Commission, European Parliament, as well as many academics, practitioners and other regulators strongly resist diversity in competition policy and enforcement in Europe. They fear undermining a level playing field for firms in the EU; reduced co-operation between national competition authorities (NCAs) and courts; and increasing the costs to business. In my new book, A Framework for European Competition Law: co-ordinated diversity, (2018) Hart Publishing, I underline uniformity’s benefits, but highlight the important contributions that diversity brings too, including better alignment with national preferences and more innovation and experimentation. I offer a new structure, Co-ordinated Diversity. This combines uniformity and diversity to generate more efficient, effective and legitimate outcomes, in ways which fit with the EU legal order.

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Explaining Judicial Deference in Competition Law

Judicial deference is sometimes taken with scepticism and associated with limited judicial review or even a court’s complete abdication of its role. It is not necessarily so. By referring to competition law, I would like to argue that a deferential style of judicial review of competition authorities’ determinations based on their expert knowledge is permissible on the condition that administrative proceedings are fair, competent and impartial and on the condition that judicial review is effective. If properly understood, judicial deference can positively influence the effectiveness of EU law while not undermining the protection of the rights of private firms involved in competition proceedings.

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