May 2016 was an important month for competition policy developments. We have reviewed the three key developments together, as they demonstrate the different policy drivers on the European Commission and national competition authorities:
While the Commission’s policy anchors are the single market imperative and innovation, national competition authorities are more attuned to domestic political concerns. In the case of the French and German authorities, could their twin assault on big data be seen as a continuation of political protectionism by other means?
25 May was a significant day for the Commission’s Digital Single Market Strategy (on which we commented on the Bristows ‘Cookie Jar’), with the publication of proposals for three new Regulations to:
• tackle unjustified geo-blocking and other forms of discrimination on the grounds of nationality, residence or establishment,
• improve cross-border parcel delivery services and increase the transparency of prices while reducing delivery costs, and
• strengthen the enforcement of consumers’ rights and provide guidance to clarify what qualifies as an unfair commercial practice in the digital world. This does not impose any new obligations on retailers, but rather is intended to improve the ability of consumers to enforce the EU Consumer Protection Regulation 2007 through national courts.
The proposed geo-blocking Regulation will ensure that:
• Consumers visiting an online site from any EU Member State will no longer be prevented from ordering and taking advantage of retailers’ international delivery options where these are generally available, and
• Consumers will be able to visit the country specific site of their choice. In other words, a UK consumer can choose to visit, e.g. retailer.fr to take advantage of different purchasing options/prices on that site. Retailers will not be able automatically to re-route customers (in this example back to the UK site) without the customer’s consent and even where consent is given, the domain must remain available.
However, notable by their absence are any proposals to tackle the geo-blocking of audio visual services. This is in stark contrast to the Commission’s original intention when the DSM strategy was launched in March 2015. This means that for the foreseeable future there will be no general right of EU citizens to access sports events broadcast under exclusive territorial licences in other Member States.
In tandem with these initiatives, Commissioner Vestager gave a speech on 24 May which set out the Commission’s view that competition supports innovation. Notably she said that to encourage innovation, there is a need for both competition and rewards for innovators.
She went on to say that the Commission does not object to standards, provided they are set up in the right way. However, when standard essential patent holders try to go back on their promises to offer their technology to everyone on fair terms, that can be a serious problem for competition.
French and German competition authorities also published a joint paper on data and competition law on 10 May. This considers the extent to which data confers market power, the types of data-related conduct that may give rise to abuse, and the interaction between competition and data protection/privacy rules.
In particular, the paper looks at: (1) whether the collection, processing and use of data may lead to market power, (2) the types of data-related conduct that are potentially anti-competitive, and (3) whether personal data protection rules take precedence over competition law rules.
Lurking in the background is the German competition authority’s investigation into Facebook’s data protection policies and the French competition authority’s sector inquiry into the use of big data in the online advertising market.
Of recent years, there has been some uncertainty over whether the issue of ‘big data’ was really a competition issue. It seems that at least the French and German authorities would disagree.