Big Tech – Transatlantic regulatory cooperation and an evolving antitrust picture

On both sides of the Atlantic, there has been a significant number of recent court rulings, investigations and hearings to review the way Big Tech operates and to address antitrust, as well as wider data issues.

In the last few weeks, the EU, US and UK regulators have issued joint statements outlining their commitment to co-operate on the on-going review of Big Tech companies; this common approach is likely to have an eventual impact on the current and future antitrust reviews of Big Tech.

1. The Joint Statement of the Department of Justice Antitrust Division (DOJ), Federal Trade Commission (FTC) and the UK Competition and Markets Authority (CMA)

On 3 December 2021, the DOJ, FTC and CMA issued a joint statement as part of the Competition Enforcers Summit in London and which took place under auspices of the 2021 G7 Digital and Technology Track in connection with the UK’s G7 presidency. 

In the context of the Digital and Technology Track, the US agencies discussed cooperation between the US and UK.  Following the meeting’s conclusion, the US agencies and the CMA underscored the similar challenges they face as enforcement agencies, highlighted their close relationship and affirmed their intention to strengthening collaboration and coordination with each other. They referred to new and evolving challenges and that they often review the same mergers or confront similar potentially anti-competitive conduct. Given the many parallel investigations, they are committed "to working closely together to promote fully informed decision-making and to facilitate best practices on pursuing effective remedies". They are also committed to regular engagement and to implement robust cross-border enforcement regimes.

2. The Joint Statement of the DOJ, FTC and the European Commission (Commission) following the inaugural EU-US Joint Technology Competition Policy Dialogue

On 7 December 2021, the DOJ, FTC and Commission launched the EU-US Joint Technology Competition Policy Dialogue (Joint Dialogue) to reaffirm their close cooperation in antitrust enforcement and policy. 

The DOJ's Assistant Attorney General Jonathan Kanter, FTC Chair Lina Khan and Executive Vice President (EVP) Margrethe Vestager of the Commission issued a joint statement reaffirming their commitment to ensuring and promoting fair competition and vigorous enforcement on both sides of the Atlantic. Some of the more significant points in the joint statement are as follows:

  • Technological developments, including the digital economy, have changed the landscape in the EU and the US, requiring changes to the competition law/antitrust assessments undertaken by the competition authorities. 
  • In digital investigations, competition agencies now more regularly consider network effects (e.g. where Big Tech services increase in value with the total number of customers), the role of large amounts of data, interoperability, and other characteristics in new technology and digital markets. 
  • The Commission and the US agencies reaffirmed their mutual interest in cooperating on competition policy and enforcement overall and "especially in technology sectors". 
  • Cooperation will include sharing insights and experience to attempt to coordinate on policy and enforcement. 
  • The agencies intend to explore new ways to facilitate coordination, knowledge and information exchanges to ensure that enforcement authorities can address new challenges together. 
  • The Joint Dialogue will include high-level meetings as well as regular staff discussion focused on shared competition enforcement and policy issues arising in technology markets. 
  • The co-operation and exchanges as part of the Joint Dialogue are intended to occur in parallel with other forms of co-operation and exchanges between the EU and US on digital policies and legislation (including within the context of the EU-US Trade and Technology Council).

3. Speech by EVP Margrethe Vestager at the American Chamber of Commerce's Transatlantic Business Works Summit - "Europe's call" (Washington DC)

On 9 December 2021, EVP Margrethe Vestager gave a speech covering a range of technology-related issues including digitalisation. As well as the challenges and opportunities for democracy of technological innovation (including defining the rights and principles citizens should have online), some issues that were addressed in the speech included:

  • The first meeting of the Trade and Technology Council launched a joint dialogue for competition policy on common EU and US challenges in tech and digital markets.
  • On digital markets, the proposed Digital Markets Act (DMA) is designed to ensure open and contestable markets as well as recognising the special responsibility of large gatekeeper platforms. Certain obligations will be imposed by the DMA to safeguard competition, protect small digital players, and ensure value and choice for consumers. 
  • The proposed Digital Services Act (DSA) which is designed to keep online consumers protected from illegal and dangerous products and to protect rights and freedoms (including freedom of speech). The DSA will not regulate content rather the way in which digital companies deal with content and there will be greater accountability of large platforms.

The DMA and DSA are both progressing through the EU legislative system and can be expected to feature in the near term, possibly as soon as 2022. 

In Ireland, the sign-posted Competition (Amendment) Bill should bring greater enforcement power for the Competition and Consumer Protection Commission (CCPC) under EU and Irish competition law in Ireland both in terms of anti-competitive conduct (particularly as a result of ECN+ and including the ability of the CCPC to impose civil fines) but also Irish merger control (e.g. the ability of the CCPC to unwind mergers/bring gun-jumping prosecutions). Whether any such increase in competition law enforcement powers in Ireland for the CCPC will mean a focus on Big Tech in Ireland is open to question, particularly given the wider cross-border effect of Big Tech activity, the more frequent activity of the Commission in this sector and the system of case-allocation under EU competition law (e.g. Regulation 1/2003).

Comments
Transatlantic cooperation on regulating Big Tech is increasing. With the implications of recent legislative developments on both sides of the Atlantic, a recent decision of the General Court of the EU on single-firm conduct and a decision of the CMA on merger control blocking an acquisition in the Big Tech space, 2022 promises to be an involved year for Big Tech regarding antitrust. However, while the recent statements by the US and EU agencies suggests greater cooperation, it still remains to be seen exactly how this will translate into similar or coordinated antitrust findings by the EU, UK and US agencies.

Sources:
https://www.justice.gov/opa/pr/justice-department-federal-trade-commission-and-uk-competition-and-markets-authority-issue
https://www.justice.gov/opa/pr/justice-department-federal-trade-commission-and-european-commission-issue-joint-statement
https://ec.europa.eu/commission/commissioners/2019-2024/vestager/announcements/speech-evp-margrethe-vestager-american-chamber-commerces-transatlantic-business-works-summit-europes_en

For more information on this topic please contact Alan McCarthy, Partner or any member of A&L Goodbody's EU, Competition & Procurement team.

Date published: 13 December 2021