Europe’s antitrust warned Apple

Europe’s antitrust chief, Margrethe Vestager, warned Apple that its recent changes to privacy rules must not give preferential treatment to its apps over those of its competitors or it might be in violation of antitrust norms. Apple has framed those changes as being designed to protect users’ personal data, but that does not exempt its actions from competition rules.

This warning came in reaction to recent changes to the Cupertino-based group’s privacy policy, which led other platforms in the digital advertising market to accuse it of unduly distorting competition.

Specifically, the changes to Apple’s privacy policy will make blocking ad tracker software targeting users’ personal data the default setting on all apps sold for use on Apple devices (meaning through the Apple Store). Apple users can choose to allow ad tracking of their data, but they must actively provide consent.

 

Presented by Romano Pisciotti

MAYBE THE EUROPEAN COURT IS WAKING UP

“In its judgment in Case C-59/19 Wikingerhof the CJEU has ruled that a hotel using the platform Booking.com may, in principle, bring proceedings against Booking.com before a court of the Member State in which that hotel is established in order to bring to an end a possible abuse of a dominant position. According to the Court, in so far as such an action is based on the legal obligation to refrain from any abuse of a dominant position, it is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012 (Brussels Ia).”

To learn more about this and other recent CJEU cases, join ERA’s Webinar on Latest Developments in EU Antitrust Law on 10 December 2020.

CORTE MAYBE THE EUROPEAN COURT IS WAKING UP Romano Pisciotti Schermata 2020 12 08 alle 09.36.26 MAYBE THE EUROPEAN COURT IS WAKING UP Romano Pisciotti

 

Presented by Romano PIsciotti

Creative destruction

How Antitrust Regulation Hinders Innovation and Competition

Few economic concepts elicit such strong reactions as that of monopoly, and the policy intended to address it—antitrust regulations (called competition policy in the European Union). Yet, both supporters and opponents of antitrust regulations agree on one fundamental point—that effective competition is vital to the American economy and the welfare of its citizens. However, they differ in how the law should encourage this. There are essentially three schools of thought regarding antitrust policy:

  1. Interventionist. Regulators should use the law proactively to break up companies that are abusing their market power and restore a competitive market. The size of a company is a good guide as to when this should be done.
  2. Consumer welfare. Abuse of market power is rare and dominant market positions can be achieved through delivering improvements in consumer welfare. Therefore, antitrust laws should be used not to break up companies that have grown big through successful competition, but to address instances of collusion, price fixing, or other anti-competitive behavior.
  3. Free market. Antitrust law is unnecessary. Market processes routinely undermine monopolies—and attempts to create monopolies. Laws against “unfair competition” prevent property owners from experimenting with joint ventures and other innovations that can improve consumer welfare.

Until recently, there was a sharp partisan divide between these schools, which can be roughly described as liberal, conservative, and libertarian, respectively. Traditionally in practice, this meant that antitrust conservatives would more often side with the libertarian camp, while leaving some room for cooperation with the liberal faction. However, the recent rise of “big tech” has led some conservatives to turn to the most interventionist approach with a zeal that threatens innovation in America’s world-leading technology industry.

The interventionist approach suffers from the same problems classical liberal economists have long identified with government interventions in markets.

First, there is the “knowledge problem”—how do regulators know better than the market what the best market structure is?

Then there are what are known as public choice considerations—regulators might exercise their powers to promote their own preferred policy positions. The very existence of those powers will lead to intense lobbying by regulated entities—both those seeking regulatory relief and those who benefit from entry barriers that limit competition from potential new entrants in a market.

The consumer welfare approach also has problems. Retaining antitrust law as an option that may be used against entrepreneurs carries the same threat to innovation posed by the interventionist approach. For instance, politicians with an animus against certain companies may pressure regulators into opposing mergers involving those companies. Regulators assessing unfair competition will not be immune from the knowledge problem and public choice effects. Entrepreneurs, eager to avoid provoking antitrust enforcement actions, will be dissuaded from pursuing innovations that might run afoul of the law.

The third approach, abolishing antitrust law, is extremely controversial. There is a widespread belief, among policy makers, the media, and the public, that without the threat of antitrust law, companies will disregard customer preferences, extract excessive profits, and kill off competitors. Yet there is no such thing as a dominant market position unless it is guaranteed by government. AOL, Borders, Blockbuster, Sears, Kodak, and many other firms once considered dominant in their markets have fallen as the result of competition, without any antitrust action.

This process of creative destruction, succinctly described by the economist Joseph Schumpeter, is a major driver of the kind of innovation that helps raise living standards. It will surely continue unless, ironically, antitrust regulators gain too much power. Were that to happen, large firms will be tempted to reach accommodations with a government that restricts their activities in exchange for not being broken up. Those accommodations will usually include protections and guarantees that act as entry barriers against potential innovative challengers. The result will be less competition, fewer innovations, and lower consumer welfare.

Creative destruction is the best answer to dominant market positions. Rather than use antitrust law aggressively, those who wish to see big companies fall quickly should instead work to end antitrust law. As for other barriers to creative destruction—for instance, financial regulations that make launching an initial public offering of stock prohibitively costly—increased competition can be achieved through deregulation in those other areas.

 

Presented by Romano Pisciotti

Antitrust law and antitrust compliance

Rechtsanwalt Dr. Rübenstahl has worked as a defense lawyer and in an advisory capacity in the areas of white collar crimes, criminal law and criminal tax law for over fifteen years. He began his career at a law firm which specialized in appeals of criminal cases at the Federal Court of Justice’s seat in Karlsruhe. He has also worked in large international law firms in Frankfurt, with an increasing focus on the areas of compliance and internal investigations. Between 2015 and 2017, he was a successful attorney and founding partner of a renowned boutique criminal-law firm specializing nationwide in medical, white collar, and criminal tax-law with offices in Cologne, Frankfurt am Main, and Berlin before founding the law office of Rübenstahl and Associates in 2018.

aser 1024x396 Antitrust law and antitrust compliance Romano Pisciotti

Rechtsanwalt Dr. Markus Rübenstahl, Mag. iur., is Co-Editor of the first edition of the book “Kartell Compliance | Prävention – Investigation – Corporate Defense – Remediation” and author of the chapter „Strafbare Submissionsabsprachen und (Submissions-)Betrug“. The handbook covers the topic of civil and criminal offences, antitrust law and antitrust compliance comprehensively. In the book you will also find chapters on antitrust compliance requirements in CH, A, F, I, E, USA, China, Russia and Brazil.

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Presented by Romano Pisciotti

MARKET

“Market” is any area within which the meeting between supply and demand for goods and services takes place and the exchange of them through the price mechanism, determined precisely by this meeting: operators decide independently and individually their behavior, in particular, the prices and quantities of sales and purchases, such that the overall market performance, in terms of global prices and quantities, is the result of the countless decentralized decisions taken by the actors operating there and their interactions. The term “competition” can have two meanings and both presuppose the notion of market set out: one of them refers to the conduct of companies, the other to a particular structural conformation of the market. The first meaning is that which recalls rivalry, competition and struggle between companies, which implement independent behavior in order to increase their position on the market, to the detriment of rivals. The second, however, consists of the situation characterized by a large number of operators on the market, each of which offers such a small share of the same product or service that it is not able to individually influence the price level following a change in the quantity offered.

For the polysemy of the term “market” see, in particular, M.R. FERRARESE, Law and market, Turin, 1992, p. 17 ss., Which sorts the variety of meanings into four categories: a) market as place; b) market as ideology; c) market as a paradigm of social action; d) market as an institution.

Summarizes the characteristics of the market economy model: a) free market of production factors (raw materials, capital and labor); b) freedom of private economic initiative; c) organization of the private enterprise according to the principle of capital sovereignty; d) free play of competition; e) consumer sovereignty.

 

Romano Pisciotti browsing the web….about antitrust

POSTE ITALIANE sotto la lente dell’Antitrust

Le raccomandate non consegnate

L’operazione è partita dopo l’avvio dell’istruttoria “per accertare una presunta pratica commerciale scorretta, posta in essere nell’ambito del servizio di recapito della corrispondenza e, in particolare, delle raccomandate”.

Romano Pisciotti: Ho accertato personalmente questa pratica scorretta, la Magistratura dovrebbe intervenire direttamente, non solo l’antitrust.

Moneta elettronica (virtuale)

La moneta elettronica gestita da Facebook torna a far parlare di sé per via dei rischi che potrebbe creare a livello globale per lo scambio d’informazioni e la gestione dei dati degli utenti. A indagare su Libra questa volta è l’Antitrust dell’Unione Europea.

Che intervenga l’Antitrust mi fa piacere, anzi, che intervenga anche la Corte di Giustizia e i NAS…moneta tarocco.

Una sola nota: se dovessero approvare questa valuta virtuale perché non potrebbe esistere una Lira elettronica del nostro Ministero del Tesoro o i mini-bot?

Romano Pisciotti

 

 

Crisis cartel

ItEng.version Crisis cartel Romano Pisciotti
It:Eng.version

 

La recessione è potenzialmente ostile alla politica della concorrenza

“The recession is potentially hostile to competition policy”

J.FINGLETON

L’esperienza della Grande Depressione negli Stati Uniti mostra segnali contraddittori, che vanno dalla sospensione al rafforzamento della politica antitrust.

Fino alla crisi attuale, il diritto antitrust europeo non ha dovuto affrontare recessioni gravi, ma solo crisi settoriali o congiunture negative di limitata entità.

La crisi attuale ha investito gli ordinamenti dei paesi capitalistici in una fase storica in cui le norme antitrust, pur scontando le perenni incertezze nell’individuazione dei principi ispiratori, si trovavano in una fase di allentamento applicativo evidente, in un quadro ideologico iperliberistico; a ciò si aggiunga che la modernizzazione del diritto antitrust comunitario, entrata in vigore nel 2003, è figlia di un periodo di grande sviluppo e di prevalente ideologia neoliberista, e non si pone neanche il problema della possibile sopravvivenza della figura del “cartello di crisi”, senza considerare che una procedura di self- assessment può essere una soluzione razionale ed efficiente se attuata da imprese efficienti e prospere, mentre si presenta molto meno credibile se attuata da imprese che si trovano in condizioni di emergenza o di vera e propria crisi strutturale di settore. La grave crisi finanziaria mondiale, apertasi nell’autunno del 2008, ha creato un clima di emergenza, nel quale alcuni stati membri hanno pensato di dovere immediatamente intervenire, in primo luogo per il salvataggio di banche in difficoltà.

The experience of the Great Depression in the United States shows contradictory signals, ranging from suspension to strengthening antitrust policy.
Until the current crisis, the European antitrust law has not had to face serious recessions, but only sectoral crises or limited negative conjunctures.
The current crisis has invested the laws of the capitalist countries in a historical phase in which the antitrust norms, while discounting the perennial uncertainties in the identification of the inspiring principles, found themselves in a phase of evident application loosening, in a hyperliberistic ideological framework; in addition to this, the modernization of the EU antitrust law, which came into force in 2003, is the result of a period of great development and prevailing neoliberal ideology, and there is not even the problem of the possible survival of the figure of the “crisis cartel” , without considering that a self-assessment procedure can be a rational and efficient solution if implemented by efficient and prosperous companies, while it is much less credible if implemented by companies that are in an emergency or real structural crisis than sector. The severe global financial crisis, which began in the fall of 2008, created an emergency climate, in which some member states thought they would have to intervene immediately, primarily for the rescue of troubled banks.

 

Antitrust seems to be a luxury that the country cannot afford in any crisis

“L’antitrust sembra essere un lusso che il paese non può permettersi in nessuna crisi”

 

Schermata 2019 06 16 alle 18.16.04 150x122 Crisis cartel Romano Pisciotti
Pisciotti antitrust

 

Presented by Romano Pisciotti

USA: The National Law of Unfair Competition

Schermata 2015 08 25 alle 19.53.10 300x259 USA: The National Law of Unfair Competition Romano Pisciotti
Unfair competition

Romano Pisciotti recommends this book about business competition, infringement of the Law and antitrust:

Schermata 2015 08 25 alle 20.02.45 USA: The National Law of Unfair Competition Romano Pisciotti
Harvard Law Review

Charles Bunn
Harvard Law Review
Vol. 62, No. 6 (Apr., 1949), pp. 987-1001
Published by: The Harvard Law Review Association
DOI: 10.2307/1336314
Stable URL: http://www.jstor.org/stable/1336314