Competition Stories: January & February 2022

Welcome to the Competition Stories – a bimonthly exploration of recent courts and competition law agencies’ decisions. Authored by Makis Komninos, a renowned expert in the field, this new column aims to go through the latest and most important developments in competition law of the last two months. We call them “stories” because Makis has promised to include some anecdotes from time to time, and not just stay at the black letter. Enjoy!


What a start of the year this was! In what promises to be an annus mirabilis for Article 102 TFEU, the year started with the Intel renvoi judgment of the General Court. For the first time after 1979 (the curious Hugin case), there was a full annulment of the fine and the findings of an Article 102 Commission decision. Sure, there have been partial annulments of Article 102 fines and findings in the past (see e.g. AstraZeneca and Servier – currently under appeal), but Intel stands out. The General Court’s judgment has to be read together with the ECJ’s ground-breaking ruling of 2017. If the latter sets the principle, the former applies that principle to the particular facts of the case.

Apart from Intel, there were a few other interesting judgments and other developments. But, more importantly, the coming months (April-September) will bring judicial pronouncements in a broad array of Article 102 cases: there will be Advocate General Opinions and judgments in Servier, Unilever, Servizio Elettrico Nazionale, Qualcomm (exclusivity), Google Android and so on. So stay tuned.

I. General Court

  1. Intel

On January 26, the General Court finally delivered its much-awaited renvoi judgment, after the ECJ had set aside the General Court’s previous ruling. As a reminder, the ECJ’s Grand Chamber judgment of 2017 in effect reversed the previous formalistic case law (see my analysis here) and “clarified” the legal test for conditional rebates by introducing an effects-based analysis that the Commission must always perform, when the dominant company “submits, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, of producing the alleged foreclosure effects” (para. 138). That effects-based analysis is described in para. 139 of the ECJ judgment, which echoes para. 20 of the 2009 Guidance Paper. Only after this analysis can the Commission prove what the Court of Justice called “the intrinsic capacity of [a] practice to foreclose competitors which are at least as efficient as the dominant undertaking” (para. 140). The ECJ also considered that the General Court wrongly “failed to take into consideration Intel’s line of argument seeking to expose alleged errors committed by the Commission in the AEC test” (para. 147). As a result, the Court set aside the General Court’s judgment of 2014 in its entirety.

Already at this point lay some procedural difficulties for the General Court. While the ECJ had set aside the whole of the 2014 judgment, there was uncertainty as to some of the Commission’s findings, in particular, the characterisation of “exclusivity” rebates and the anti-competitive nature of the so-called “naked restrictions”, which were payments in exchange for marketing restrictions and the obligation not to test competing products. The General Court methodically and systematically clarified all this by stressing that (i) while, in principle, it had to “rule again on all the grounds and arguments put forward by the parties at first instance, with the exception of those […] concerning the Commission’s jurisdiction and procedural irregularities, which the applicant has expressly withdrawn” (para. 82), (ii) it was “bound by the decision of the Court of Justice on points of law [and] there is nothing, in principle, to preclude the Court to which the case is referred back from making the same assessment as the first-instance Court as regards the pleas in law and arguments which were not examined in the grounds of the judgment on the appeal” (para. 83). Thus, the General Court was able to brush aside the arguments and pleas that related to the “exclusivity” characterisation (para. 97) and the “naked restrictions”. As to the latter, the General Court distinguished them from exclusivity rebates and stressed in paras 90 and 93 that “nothing in the judgment on the appeal permits the inference that the Court of Justice held that the method defined in paragraph 138 et seq. of the judgment on the appeal should also apply to naked restrictions”. In other words, the effects-based analysis was not appropriate for “naked restrictions”. At this point, we have a first important implication of the judgment: the generally-applicable effects-based approach is not incompatible with an extremely narrow category of practices that may be considered as abusive “by object” (if post-Intel such a concept still stands). But we are really talking about a very narrow group. I would include pricing below AVC, abuses like in AB InBev, Lithuanian Railways and, indeed, “naked restrictions”. This is consistent with the Guidance Paper, which in para. 22 provides: “There may be circumstances where it is not necessary for the Commission to carry out a detailed assessment before concluding that the conduct in question is likely to result in consumer harm. If it appears that the conduct can only raise obstacles to competition and that it creates no efficiencies, its anti- competitive effect may be inferred. This could be the case, for instance, if the dominant undertaking prevents its customers from testing the products of competitors or provides financial incentives to its customers on condition that they do not test such products, or pays a distributor or a customer to delay the introduction of a competitor’s product.

For all other practices, a full effects-based analysis is necessary. This is where the General Court faults the Commission. It relies on three premises:

First, based on the ECJ judgment, the General Court held that exclusivity and Hoffmann-La Roche types of rebates involve “a mere presumption and not a per se infringement of Article 102 TFEU, which would relieve the Commission in all cases of the obligation to conduct an effects analysis” (para. 124). It is interesting that the word “presumption” appears for the first time here – indeed, the ECJ had not used that word. In any event, in reality, “presumption” does not mean much here. It has certainly nothing to do with the “per se” or “by object” concepts. Instead, it merely signifies an evidential rule: the dominant company has the evidential burden of proof to bring forward evidence showing no likelihood of foreclosure. In other words, this is not difference from what the ECJ held in para. 138 of its judgment. And, in my view, this is a no-brainer: every dominant company will bring forward evidence to show no likelihood of foreclosure!

Second, when a dominant company submits economic evidence to show that its practices are not anti-competitive, a duty kicks in for the Commission (not to forget the NCAs!) to perform an effects-based analysis. At that time, according to the General Court, “having regard to the wording of paragraph 139 of the judgment on the appeal, the Commission is, as a minimum, required to examine those five criteria for the purposes of assessing the foreclosure capability of a system of rebates” (para. 125). The words “as a minimum” are new and represent the way the General Court understands the ECJ’s ruling. The General Court is very serious about the effects-based analysis!

Third, although an AEC test is not required, since the Commission performed such an economic test in its Decision, “that test is one of the factors which must be taken into account by the Commission to assess whether the rebate scheme is capable of restricting competition” (para. 126).

Based on the above, the General Court proceeds to draw the legal consequences for the Commission’s Decision:

144 […] the Commission inferred from the Hoffmann-La Roche case-law, first, that the rebates at issue were by their nature anticompetitive, with the result that there was no need to demonstrate foreclosure capability in order to establish an infringement of Article 102 TFEU. Second, although the contested decision contains an additional analysis of the foreclosure capability of those rebates, the Commission took the view that, in accordance with that case-law, it was not required to take that analysis into account in order to conclude that those rebates were abusive. Third and lastly, still on the basis of that same case-law, the Commission held, inter alia, that a number of factors were irrelevant for determining whether there was abuse.

145 It must be stated that that position is not consistent with the Hoffman-La Roche case-law, as clarified by the Court of Justice in paragraphs 137 to 139 of the judgment on the appeal.

That says it all!

After these opening shots, the General Court proceeded to assess how the Commission performed its economic analysis, the AEC test, in the case at hand. Before doing so, the Court sets out some basic principles. The starting point is the presumption of innocence (in dubio pro reo). Any doubt should benefit the dominant company that is the addressee of the challenged decision (paras 160-161). On the one hand, “the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place” (para. 163) and, on the other hand, “where the Commission finds that there has been an infringement of the competition rules based on the supposition that the facts established cannot be explained other than by the existence of anticompetitive behaviour, the EU Courts will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and which thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement occurred.” (para. 165) Such principles are not new and the General Court takes good care to cite case law, but still it’s a very welcome systematisation.

Then, the General Court spends more than 300 paragraphs in a painstaking assessment of the job done by the Commission with regard to the AEC test, vis-à-vis each of Intel’s customers, OEMs (Dell – HP – NEC – Lenovo) and one retailer (MSH) (paras 168-482). The Court found a number of errors including (i) errors in the contestable share, (ii) errors for parts of the relevant period that cast doubt on the overall findings, (iii) use of exaggerated value for the conditional rebates, (iii) wrong reliance on the value to the customer rather than the cost to Intel, (iv) wrong extrapolations and (v) failures to state reasons.

One particular criticism that has been heard from the side of the Commission against the General Court is that the latter treated asymmetrically the evidence submitted by the parties. Whereas the Court allowed Intel to bring evidence to show that the Commission’s economic analysis was wrong, it considered inadmissible evidence adduced ex post by the Commission. However, this is not as simple as it sounds and that criticism is unfair. Let me give an example that relates to the contestable share: The Decision had used a contestable share of 7.1% for the AEC analysis of the rebates which Intel granted to Dell. In paras 219-233, the General Court explains that Intel referred to evidence in the file making it likely that the contestable share may have reached even 25% during the relevant period. Then, in para. 235, the Commission seems to argue that even if it were necessary to calculate the contestable share on the basis of the documents relied upon by Intel, a contestable share of between 12.5% and 17.5% could not be inferred from it, as Intel maintains. However, the General Court rejects as inadmissible this evidence in para. 236, because it was never included in the reasoning of the challenged Decision. Then, in paras 237-254, the General Court refers to certain evidence and analyses that the Commission submitted for the first time during the appeal proceedings. According to these analyses, the contestable share could have been 10.4%. Indeed, from para. 238 it transpires that the Commission relied on these analyses to make the argument that the 7.1% figure was reasonable bearing in mind a possible range between 5.6% and 10.4%. And while it is true that in paras 239 and 254 the General Court says that the result of the AEC test could vary depending on whether the contestable share used was 7.1% or 10.4% or between 8.2% and 10.1%, the truth remains that the Decision did not include the analyses mentioned in paras 252 and 253. Such analyses were made for the first time before the Court and so could not be taken into account. In other words, the judicial review in Europe is not about establishing an objective “truth” but rather about the legality and correctness of the challenged measure, i.e. the Decision at the time of its adoption, which the General Court cannot rewrite. This is how things work in Luxembourg!

Aside from the specific errors on the AEC test, the General Court came back to the effects-based criteria mentioned in para. 139 of the ECJ judgment and held that the Decision had erred in so far as two of these criteria were concerned: coverage and duration. Coverage, i.e. the share of the market covered by the contested practices, is seen as a very important parameter (para. 492). There were two main problems. First, the Commission never calculated the market coverage. As the Court held in para. 499, “the Commission failed to determine the share of the market covered by the practice at issue, contrary to the requirement placed on it pursuant to paragraph 139 of the judgment on the appeal. It should be added that that is, moreover, contrary to the Commission’s own guidelines on the analysis of cases falling within the scope of Article 102 TFEU, and in particular contrary to paragraph 20 of the Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7)”. That’s a nice one – a direct reference to the Guidance Paper! Second, the Commission had assessed the impact of the rebates by looking at the shares of the OEMs affected rather than the entire market demand and the General Court was unimpressed by the Commission’s focus on qualitative factors, such as the “strategic importance of OEMs which benefited from Intel’s rebates” (para. 494).

As far as duration is concerned, the General Court was equally unimpressed by the Commission’s analysis and used quite critical words. E.g. in para. 515, the Court speaks of the “haphazard and limited manner” of the Commission’s analysis.

As a result, the General Court annulled the (most important) parts of the Decision that relate to the treatment of the conditional rebates, while leaving intact the findings on the “naked restrictions”. The General Court also annulled the €1.06 billion fine in its entirety, because it was not itself “in a position to identify the amount of the fine relating solely to the naked restrictions” (para. 529). This means that the Commission will now have to repay the full fine plus interest (which is 3.5% plus the ECB reference rate multiplied by 14 years). We are talking about billions! The Commission may also decide (and I expect it to do so) to re-open proceedings and impose a fine for the “naked restrictions” part. Meanwhile, we now know that the Commission has appealed to the Court of Justice. This is a first. Never before has a party filed an appeal against a renvoi judgment in the antitrust area. So the saga never ends…

The Intel saga will remain as a turning point in the development of the Article 102 case law. We can now declare formalism officially dead. We must not concentrate our attention only to the question of the AEC test. The most important implication is that the Commission is now under a duty to perform an effects-based analysis, having recourse to specific parameters “as a minimum”. As for the AEC test, which we must distinguish from the broader and more important AEC principle – that in the words of AG Rantos in his Opinion in Servizio Elettrico Nazionale is part of the acquis of EU competition law, it remains a very useful quantitative tool for pricing abuses, such as conditional rebates. Some will say that the Commission is never again going to do an AEC test after Intel. This is a rather superficial reading of Intel. In reality, there is no difference if the Commission volunteers the AEC test or responds to an AEC test submitted by the parties. In the latter case, the Commission will still need to evaluate the AEC test and explain why such a test carries no weight. In practical terms, the AEC test, either affirmatively or negatively, will still be part of the effects-based analysis in such cases. Of course, the AEC test is not the Alpha and Omega in conditional rebates cases. The Commission can always rely on other qualitative and quantitative evidence – on top of the parameters mentioned in para. 139 of the ECJ ruling, to establish the capacity of certain conduct to foreclose as efficient competitors. But the Commission must always explain why such parameters trump the quantitative tool. As for companies, I think the AEC test remains a quite useful tool for compliance. Especially if performed in tempore non suspecto, i.e. at the time a rebates scheme is put in place, when there is no antitrust investigation yet, such an AEC test would carry a strong degree of persuasiveness, especially if it relies on credible and conservative assumptions. In such a case, if comfortably passed, that AEC test can even act as safe harbour. I draw this conclusion from my discussions with Commission officials and also from para. 529 of the Commission’s Qualcomm (exclusivity) Decision.

  1. Deutsche Telekom

The judgment has to do with how to calculate the interest that the Commission has to pay, once it repays an annulled antitrust fine. Deutsche Telekom (DT) had been found guilty of an abuse of a dominant position back in 2014 – this is the well-known case that ultimately gave rise to the Slovak Telekom judgment. DT then appealed and in 2018 the General Court reduced the fine considerably. The Commission repaid the relevant part of the fine but without default interest for the period between the date of payment and the date of reimbursement of the relevant part of that fine. DT brought the matter to the General Court, which upheld in part DT’s action for annulment and compensation.

In so doing, the Court gave a number of clarifications on how to calculate default interest for repaid fines. The Court relied on Article 266 TFEU, which provides that the EU Institutions are required to take the necessary measures to comply with the judgments of the EU Courts, and held that default interest is an essential component of the obligation to restore an applicant to its original position. As a reminder, there is EU secondary legislation on this issue: Commission Delegated Regulation 1268/2012, which regulates companies’ right to claim restitution for fines provisionally paid and later cancelled and reduced.

The General Court also held that the fact that the amount of the fine paid by DT did not yield interest while it was in the Commission’s possession is immaterial. The Commission was required to reimburse DT fully. The interest due was default interest, not compensatory interest. DT’s principal claim was a claim for restitution and that claim existed and was certain as to its maximum amount or at least could be determined on the basis of established objective factors at the date of that payment. The Commission had no discretion in that regard and so the General Court concluded that the refusal to pay that interest to DT constituted a serious breach of Article 266(1) TFEU and the Commission was liable to pay damages. Given the direct link between that infringement and the harm consisting in the loss of default interest on the repaid portion of the fine, the General Court awarded DT damages in the amount of € 1,750,522, which corresponded to the rate provided for in Article 83(2)(b) of Delegated Regulation 1268/2012, i.e. the rate applied by the ECB in January 2015 to its principal refinancing operations, that being 0.05%, increased by 3.5 percentage points. Not bad at all! That also gives you an idea as to how much Intel will request from the Commission…

  1. Sped-Pro

Little diamonds are sometimes hidden in obscure and unknown cases. This is a ground-breaking judgment by the General Court, annulling a Decision by the European Commission that rejected a complaint brought by a private company against a public company in Poland for abuse of dominance (refusal to supply) in the freight rail transport sector. The Commission essentially said “go away – go to the Polish Competition Authority which is better placed to deal with this”. So far so good. Many complaints are rejected on similar grounds. But the applicant raised some interesting arguments. It pointed to “systemic or generalized deficiencies in the rule of law in Poland and, in particular, the lack of independence of the Polish competition authority and the national courts with jurisdiction in the field” (para. 71).

The Court took such concerns seriously. Very interestingly, it transposed to competition law the criteria developed in the case law of the Court of Justice in the area of criminal law (LM case) and emphasized that “respect of rule of law is a pertinent factor that the Commission must take into account, while determining the competition authority that is best placed to examine a complaint” (para. 92). The Court then referred to the evidence presented by the applicant about the risks its complaint faced in Poland (the General Court did that very diplomatically – without actually taking a position) and held that the Commission wrongly ignored that evidence.

One particular fact that the applicant had stressed was that the president of the competition authority can be removed by the Prime Minister at any time and actually since 2014 that happened many times… This was a very important case and this can be also proven by the fact that the General Court decided to refer the case to an extended composition of the Tenth Chamber at the latter’s suggestion (uncharacteristically for a case about a rejection of complaint). The General Court’s President was also sitting and presiding! So, Polish companies, onwards to the Commission with your complaints… Not to mention Hungarian and other companies…

  1. Gazprom cases

There are two cases here: one is a judgment rejecting PGNiG’s challenge of the Gazprom commitments Decision and the other is a judgment annulling the Commission’s Decision rejecting a complaint by PGNiG.

Let me start from the second judgment. The Commission’s Decision rejecting the complaint was annulled for both procedural and substantive reasons. First, the Commission mentioned the “State action” defence in its Decision for the first time, without including any reference to it in its letter to the complainant, concerning the intended rejection of the complaint. Thus, the Commission failed to inform the complainant under Article 7(1) of Regulation 773/2004 and the General Court also found that the contested Decision might have been substantively different as far as this specific ground was concerned. However, according to the Court, this would not be enough to lead to the annulment of the Decision. The other main ground had to be problematic, too. The other ground referred to the certification decision of the Polish Energy Regulatory Office to certify the operator of the Polish section of the Yamal pipeline, Gaz-System S.A., as an independent system operator, which meant that there was limited likelihood of establishing an infringement in relation to infrastructure-related conditions. So, second, the General Court found that the Commission could not give decisive importance to the certification decision based on a number of circumstances, which I will now leave aside, since they were quite detailed. Consequently, the General Court found that the Commission committed a manifest error of assessment in referring to the certification decision in support of its finding that there was a limited likelihood of establishing an infringement by Gazprom in relation to infrastructure-related conditions. As a consequence of that manifest error of assessment and the prior finding of an infringement of Article 7(1) of Regulation 773/2004, the General Court annulled the contested Decision. Of course after the latest geopolitical developments everything is now up in the air in this case…

The Commission fared better in defending its commitments Decision and the General Court dismissed all six arguments raised by PGNiG. The case relates to the long-standing investigation against Gazprom in relation to the supply of gas in eight Member States, namely Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland and Slovakia. The case was eventually settled with the Commission accepting a series of commitments and rendering them binding in 2018. The General Court in its judgment found that the Commission did not commit any manifest error of assessment while accepting the commitments, in terms of the latter adequately addressing its concerns. Certainly, though not stating this explicitly, the Court thought that the Commission’s discretion ought to be safeguarded.

I will stay at one particular point, which I consider the most interesting in this judgment. It has to do with a topic that is very dear to me: the relationship between arbitration and EU competition law. PGNiG took issue with a particular argument in para. 178 of the Commission’s Decision which went as follows:

The Commitments require the arbitration proceedings to take place within the European Union. This obliges the arbitral tribunals to respect and apply EU competition law as a matter of public policy irrespective of the private interest of the parties to the arbitration. In relation to this obligation on the arbitration tribunals, the Commission, as the guardian of EU law, may decide to intervene as amicus curiae in the arbitration proceedings, especially so if the arbitration concerns a matter covered by the Commission’s commitment decision.”

PGNiG thought that the Commission erred in holding that an EU-based arbitral tribunal would necessarily respect EU law while resolving gas price disputes. According to PGNiG, arbitral tribunals are not bound by EU law and are not “courts or tribunals” in the Article 267 TFEU sense, that can send preliminary reference questions to the Court of Justice (paras 284-287).

This argumentation gave the General Court the opportunity to explain in a superb way the relationship between EU competition law and international commercial arbitration, following the 1999 seminal Eco Swiss judgment. The Court started by reminding that the Treaty competition rules “are fundamental rules which are indispensable for the accomplishment of the tasks of the Union, in particular the functioning of the internal market, since they have as their objective to prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers” (all this is unofficial translation since everything is in French). In stating this fundamental principle, the Court relied on Article 3(3) TEU and on Protocol No 27 on the internal market and competition, annexed to the Treaty of Lisbon, and referred to paras 20-22 of TeliaSonera and para. 36 of Eco Swiss. Therefore, according to the General Court, Articles 101 et 102 TFEU constitute rules of public policy (ordre public), also in the sense of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which means that national courts within the EU are under a duty to set aside an arbitral award that violates those provisions (para. 290). The General Court referred here to paras 36-41 of Eco Swiss, and para. 31 of Manfredi.

At that point, the General Court very aptly draws the implications for international arbitration tribunals. Although such tribunals are not directly bound by the EU competition rules and notwithstanding the fact that the judicial review of arbitral awards by the national courts is limited, still it remains the case that “if one of these tribunals were to adopt an award that runs counter to Article 102 TFEU, the national courts of the Member States would have the duty, in case of a request, to set aside such an award. This results in leading these tribunals to make certain that the arbitral award adopted respects that provision of the Treaty” (para. 291). In other words, the arbitration tribunals are not themselves directly bound to respect EU law, but indirectly they must do so, otherwise their awards would be liable to be annulled or refused recognition/enforcement within the EU. This is a principle that I have long defended ever since I was a young academic working in the area of EU competition law and arbitration, twenty-two years ago (see here my Common Market Law Review case note of Eco Swiss). There is no reason to fret that the arbitrators will be turned to vehicles of illegality. They will play their role honourably and will no doubt make sure that their awards are fully enforceable within the EU.

So the General Court says that the above para. 178 of the Commission Decision, which referred to the arbitral tribunals being “obliged” to “respect and apply EU competition law”, may have been “somewhat clumsy”, but there was no manifest error to say that Gazprom’s obligation to submit to arbitration within the EU reinforced the effectiveness of the commitments (para. 295).

All this part of the General Court’s judgment is a very welcome restatement of the principles that apply to the relationship between arbitration and EU competition law at a time when some voices are imprudently hostile to commercial arbitration (see my “stories” of November-December 2020, when I was referring to the International Skating Union case).

  1. Scania

This was another case involving a staggered hybrid settlement. The Commission adopted a cartel settlement with a number of companies that produce and sell heavy trucks used for long-haulage transport but Scania decided not to join that settlement. So the Commission went on with the normal procedure and fined separately Scania. Scania appealed but this did not result in improving its situation. The General Court left the fine intact and gave some clarifications on the legality of the hybrid settlement procedure and the concept of “single and continuous infringement”.

With regard to the first question, I don’t think there was anything new. The Court held that staggered hybrid settlements do not necessarily infringe the presumption of innocence, the rights of the defence or the duty of impartiality (see also the Pometon case and my “stories” of March-April 2021). After reviewing the facts, the Court held that none of the above principles was infringed in this specific case. With regard to the second question, the Court held that a “single and continuous infringement” does not necessarily presuppose that a number of infringements have been established, each of which falls within Article 101 TFEU. Instead, it relies on the demonstration that the various instances of conduct form part of an overall plan designed to achieve a single anti-competitive objective. In the case at hand, there were different collusive contacts which took place over time at different levels but the Court found that the Commission had proven sufficient links between the various levels. Interestingly, the fact that the Scania employees at one level did not know that they were involved in the continuation of the practices that had taken place at the other levels, or that the Scania employees who participated in the meetings at one level were not aware of the meetings at top management level was of no relevance to the finding that there was an overall plan. Awareness of the existence of such a plan must be assessed at the level of the undertakings involved and not at the level of their employees (para. 478).

II. Other developments

I think we can stop here. There were a few other judgments, such as the UPS case, where the General Court rejected UPS’s claim for damages, but I don’t think anybody expected this to be successful – such claims are simply impossible, because the case law is too restrictive. On the Commission front, I would mention the Commission’s final report in its sector inquiry in the consumer Internet of Things (IoT). The Commission identified a number of potential concerns having mainly to do with (i) exclusivity and tying practices in relation to voice assistants, as well as practices limiting the possibility to use different voice assistants on the same smart device, (ii) extensive access to and accumulation of large amounts of data, which allow voice assistant providers to improve their market position and to leverage it more easily into adjacent markets and (iii) lack of interoperability due to the prevalence of proprietary technology, leading at times to the creation of “de facto standards”. In reality, the sector inquiry played the role of a “market investigation” à la DMA and this led ultimately to the inclusion of virtual assistants in the “core platform services” list of the Digital Markets Act (DMA). But we will get back to this at a more appropriate time.


Citation: Makis Komninos, Competition Stories: January & February 2022, CONCURRENTIALISTE (April 11, 2022)

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