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Is Google's Self-Favouring to Become a Separate Theory of Harm in Antitrust?

den 19 oktober 2018, kl. 12:00

Beata Mäihäniemi (LL.D.) is a post-doctoral researcher in law and digitalization at the Legal Tech Lab, University of Helsinki Twitter: @beatamaihaniemi E-mail: beata.maihaniemi@helsinki.fi

In this talk, Dr. Mäihäniemi will focus on both the theory and practice of competition law as applied to technology in digital markets. First, she will ask should we aggressively intervene in digital markets (as proposed by New Brandeis School) or leave them alone (laissez-faire “Chicago School)? Second, she will focus on tackling algorithms or any kind of technology with competition law. It seems that technology, such as e.g. artificial intelligence, has been primarily regulated by soft law instruments and competition law regime is one of the few hard law instruments capable of embarking upon legal questions related to technology.
However, it is not that we can apply competition law to technology as it is, without updating it. The biggest challenge now is the core of antitrust that is its goals. The discussion among scholars concerns the question whether we should stick with the classical economics-rooted antitrust that is mostly concerned with efficiency, or should we start broadening the goals of competition law into fairness and other concepts (this is known as the so-called antitrust populism).
Dr. Mäihäniemi talk focuses on one particular used case where the above-mentioned questions are asked in practice. The Google case where the tech giant has been fined €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison shopping service, has been heavily discussed upon. Can digital monopolies favour their own services? If yes, when?
Dr Mäihäniemi argues that creating a new theory of harm under the Article 102 TFEU is entirely possible, even if based on fairness considerations. However, using the theory of exclusive discrimination in the way the European Commission does, without explaining its premises and conditions is wrong and creates a major legal uncertainty as well as lowers incentives to invest and innovate for other (also future) tech giants. Dr. Mäihäniemi then attempts to propose which criteria should be fulfilled for ‘self-favouring’ to be anticompetitive under the EU competition law. This is done is reference to already existing legal theories as the theory of harm offered by the Commission seems more like a hybrid of some older theories than a brand new one. Finally, Dr. Mäihäniemi offers de lege ferrenda – Is sharing (your business merits with your rivals) caring?

When: Friday, October 19th, 12-13 (coffee will be served from 11:30)
Where: Stockholm Centre for Commercial Law, Stockholm University Library building, Universitetsvägen 10, 6th floor

Professor Ulf Bernitz, Stockholm University
Associate Professor Jaan Paju, Stockholm University


This seminar is organized in collaboration with Stockholm Centre for Commercial Law.

Detta seminarium ägde rum den den 19 oktober 2018