grounded in #economics (ie remove presumption for #tying); (vii) formulate a #theoryofharm for abuse in every case; (viii) provide #guidance on what type of evidence may be accepted for #objectivejustification and #efficiencies; (ix) subject all #verticalforeclosure abuses to the same analysis.

rebuttable and explain what type of evidence may be brought forward to rebut them and the #standardofproof for rebuttal; (v) explain how the #presumptions are to operate alongside the 'requirements' of abuse for practices subject to a #specificlegaltest; (vi) ensure that presumptions are

consumers; (ii) acknowledge fully the relevance of the #AsEfficientCompetitor principle in the case law; (iii) introduce #safeharbours for price above cost and dominance (with economically sound market share thresholds, ie not 10% as currently); (iv) clarify that all the #presumptions are genuinely

to remedy these issues, the revised Guidelines should: (i) define #competitiononthemerits in line with the #consumerwelfare objective (ie conduct is competition off the merits if it ultimately harms intermediary/final consumers) and/or define #exclusionaryeffects as those to the detriment of

do not provide much guidance; do not adopt an #effectsbased approach; demonstrate a selective reading of the case law of Court of Justice of the European Union; can de facto reverse #burdenofproof; and can threaten the uniform application of #EU #competitionlaw across MSs. We recommend that in order

#Bronner apply. Like other parts of #EU #competition law (eg VRs), the ruling is not #technologically #neutral.
papers.ssrn.com/sol3/papers....

purpose or scope of the prohibition in #Article102.
4- The implication of the ruling is to somewhat perversely encourage #walledgarden #closed #ecosystems without any possibility of competition over open ecosystems; where the infrastructure is closed by design, then the stricter requirements of

Guidelines and the Commission would be advised to take note of [37] and [51]. Likewise, [54] confirms the relevance of #effects on #asefficientcompetitors (again as we argued 👇) for establishing abuse, and notably there is no reference to #object when expressing the

around harm to #consumers and proving that requires an #effects analysis. Further, the Court also connects the concept of #competitiononthemerits to #harmtoconsumers, as we argued in our submission to #Article102Guidelines consultation (see 👇). This is highly important for the revised

and the firm seeking access are at least #potentialcompetitors on an at least potential downstream market (see [85]) where the authority can demonstrate capability of hashtag#anticompetitive #effects.
3- The Grand Chamber confirms that the ultimate aim of the #Article102 #prohibition revolves

are presumably actual/potential competitors of the dominant firm on the #downstream market. On that note, the Court appears to limit the application of #AndroidAuto (ie the restrictive reading of #Bronner) indeed to cases where the competition authority can demonstrate that the dominant firm

think of as a #discrimination case rather than a #refusaltosupply case although no one seems to have argued this. Essentially, the potentially abusive conduct appears to be giving access to some app developers whilst not giving access to other app developers, where the ones being refused access

#refusaltosupply case (see No 2), then we can say that there is a hashtag#slidingscale of abuse in these cases depending on the characteristics of the #infrastructure and the potential impact of hashtag#compulsorysupply on #incentives, etc.
2- Conceptually, the case may be more appropriate to

was not created for the sole use of the dominant firm, the traditional reasons for which one would not want to easily provide access to it (investment incentives, free riding, freedom of contract, etc) do not apply. This is basically what the Court says in [41]-[46]. Thus, if this case is a

the sole use of the dominant firm by the dominant firm; in #AndroidAuto the infrastructure of the dominant firm was not created for the sole use of the dominant firm. Indeed, the latter infrastructure is intended as a business model where others are given access to it). Where the infrastructure

regulation outperforms competition enforcement (spoiler alert: not looking great in terms of #speed and #avoidinglitigation). It was great to connect with leading practitioners & enforcers from around the world & hear about global developments. Many thx to the organisers for the invitation.

My remarks covered the UK's new #digitalcompetition regime; the #FacebookGiphy saga and the theory of harm to #dynamiccompetition; pros and cons of #exante #regulation vs #competition #enforcement and the early indications from the enforcement of #DigitalMarketsAct in terms of whether ex ante

in #digitalmarkets, international developments, #regulation, #enforcement, and more. Recordings will be available in due course. Many thanks to the organisers for this well-balanced event and excellent organisation.

My focus will again be on #regulation and #antitrust #enforcement in digital markets. Both agendas look great and can be found above inc details on how to register. If you will be around at either and would like to catch up, do DM me.