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This international report synthesises the eleven national reports answering the questionnaire on the growth of online sales platforms.
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Austria, Australia, Belgium, Brazil, France, Germany, Italy, Hungary, Sweden, Switzerland and United Kingdom.
Articles 3 and 15 of Regulation 1/2003.
For competition law purposes, the notion of the ‘new economy’ covers three specific and related industries. The top element of this set of businesses and companies is the (1) manufacture of computer software; the second is (2) services provided by Internet-based businesses; and, finally, (3) communication service and equipment as production factor for both businesses.
This notion is considered in this International Report as referring to a service based economy from a manufacturing one. It ties in with the idea of Uber being the largest taxi company, but owning no taxis; or AirBnB owning no hotels. However, the issues with ‘online sales’ are wider than this. Some online platforms – eBay, Amazon Marketplace, Etsy – have stimulated manufacturing.
See Dynamic Competition in Online Platforms – evidence from five case study markets, prepared by Europe Economics on behalf of the UK Department for Business, Energy and Industrial Strategy, March 2017, page 6.
See the Australian International Report, Section 1.
To some stakeholders high investment costs are a feature of the online businesses. They do not have to invest in brick-and-mortar stores but do have to invest in marketing, software creation. To others, it also allows suppliers to avoid investing in expensive retail distribution systems if they can link up to an established sales platform (eBay/Amazon) or sell through their own website.
To Hungary, [t]he resulting restrained online visibility affects small and medium-sized dealers more adversely as they usually have limited resources for creating, adequately maintaining and promoting their own online stores than their large rivals. See Section 4.3. of the Hungarian report.
According to the French report, Section 20: [I]n a case-by- case effects analysis, a prohibition of sales on marketplaces could be considered as creating a barrier to entry from the point of view of SMEs, which do not necessarily have sufficient resources to develop mobile applications with secure payment systems.
Deloitte Access Economics, The sharing economy and the Competition and Consumer Act (2015, ACCC), available at https://www.accc.gov.au/system/files/Sharing%20Economy%20-%20Deloitte%20Report%20-%202015.pdf (‘Deloitte Study’).
In particular, there is concern that, at present, sharing economy providers have fewer regulations applied or enforced than traditional businesses and this puts them at competitive disadvantage. See Australia National Report, Section 1.
Switzerland National Report, Section 1: [t]he use of the Internet as a decisive medium before making any purchase decision is increasing.
For more information see the UNCTAD Intergovernmental Group of Experts on Competition Law and Policy, Fifteenth Session (2016), available at http://unctad.org/en/pages/MeetingDetails.aspx?meetingid=965. Accessed 11 January 2018.
Austrian Cartel Act 2005 complements the Cartel Act and contains rules on the Federal Competition Authority; EU’s Directive 2014/104 on antitrust damages actions; Austrian Unfair Competition Act; Austrian Price Indication Act.
Competition and Consumer Act 2010; Australian Competition and Consumer Commission Misuse of market power guidelines; Australian Competition and Consumer Commission Authorization Guidelines; Australian Competition and Consumer Commission Merger Guidelines; Trade Practices Legislation Amendment Bill 1992, explanatory memorandum, paragraph 12, as cited in Merger.
Guidelines on Vertical Restraints; Treaty on the Functioning of the European Union; Code of Economic Law (CEL); Article 1382 of the Belgian Civil Code.
The Brazilian Antitrust System is structured by Federal Law No. 12,529 of 30 November 2011.
Law of August 6, 2015 for growth, activity and equal economic opportunities (known as the Macron Law); Loi n° 2016-132, 7 October 2016 for a digital Republic; French Consumer Code; Commercial Code; French Code de procédure civile.
Act against Restraints of Competition (GWB); Regulation 139/2004.
Article 101 TFEU; Law 287/1990 on the interpretation of the Italian antitrust norms; Regulation 330/2010.
The competition Act: Act LVII of 1996 on the Prohibition of Unfair Trading Practices and Unfair Competition regulates the entire scope of competition matters; Article 101 and 102 TFEU; Act CXL of 2004 on the General Rules of Administrative Procedures and Services; Act XLVII of 2008 on the Prohibition of Unfair Business-to-Consumer Commercial Practices; Directive 2005/29/EC of the European Parliament and council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market; Act V of 2013 on the Civil Code that contains the general rules for concluding contracts by electronic means; Act CVIII of 2001 on Electronic Commerce and on Information Society Services; Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market; Act XXV of 2005 on the financial service contracts concluded as distance contracts. Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC; Government Regulation No 45/2014 on the detailed rules of contracts between businesses and consumers; Commission Notice Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty; Council Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty The relationship of EU and national merger control is separately regulated by way of the EU Merger Regulation [Council Regulation 139/2004 of 20 January 2004 on the control of concentrations between undertakings; National laws on B2C unfair commercial practices were fully harmonised by way of the Unfair Commercial Practices Directive; Government Regulation No 205/2011 (X. 7.) on the exemption of certain categories of vertical agreements from the prohibition of restriction of competition; Act XI of 1997 on the Protection of Trademarks and Geographical Indications.
The Swedish Competition Act of 2008 (Konkurrensskadelagen); Swedish Competition Damage Act of 2016; The Act implements the EU Directive 2014/104 of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union; Commission Regulation 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices; Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty on the Functioning of the European Union.
Cartel act on Cartels and Other Restraints of Competition (9RS 251.4) (1) Anticompetitive agreements (Article 5 CartA), (2) abuse of a dominant position (Article 7 CartA) as well as (3) merger control (Articles 9-10 CartA);
Section 26(1) and (2) of the Enterprise and Regulatory Reform Act 2013, with effect from 1 April 2014. Guidelines on Vertical Restraints; Competition Act 1998; Health and Social Care Act 2012.
See Brazilian National Report, Introduction and Section 1.
Law of August 6, 2015 for growth, activity and equal economic opportunities (known as the Macron Law), then was modified in 2016, Loi n° 2016-132, 7 October 2016 for a digital Republic.
UK report, Sec. 2.2. Vide also the DSM being one of President Juncker’s key objectives. https://ec.europa.eu/commission/publications/president-junckers-political-guidelines_en.
The Australian report (Section 2.1.) states that reflecting one of the issues discussed in the Harper Report, the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017, was introduced as a private members’ bill on 16 February 2017 and proposes to address the issue connected with access to justice for small businesses. It recognises that small businesses do not possess the sufficient or significant financial resources necessary for litigating anticompetitive practices. This is particularly an issue for s 46 of the CCA (‘misuse of market power’) litigation where the accused party possesses significant market (and/or bargaining) power while a potential private plaintiff will in most cases be a much smaller entity.
German report, Section 2.1.2.
This is the case of Australia and Switzerland. Brazil has also a relevant Consumers’ Defence Code but not applied to the competition authorities, as it somehow used to happen in the prior competition law (1994).
Austria and Hungary.
In the sense of Paris Union Convention from 1883 (according to the art. 10 of CUP, it is more related to Intellectual Property).
The UK is not normally regarded as having a law of ‘unfair competition’ (although it does have consumer protection, trade-mark, passing-off laws).
In Brazil, in the 1990s and 2000s, the policy maker used to consider the possession of IPR or related rights as evidence of regular rights use and not subject to the antitrust law. See the Anfape case.
There is an example of an anti-trust infringement leading to free riding when a competitor uses exclusionary practices (like misuse of IPR) to deviate clients of an efficient competitor. They are widely regarded as anticompetitive even though do not involve cooperation between competitor. Probably this practice would be more common more common in concentrated markets, more likely in developing countries. In Brazil, the ShopTour case.
Many systems of competition law provide for damages actions by victims (companies excluded from a market by an exclusionary abuse or customers charged higher prices because of as cartel). That is now true in all EU cases, as well as, eg, the US. In the UK, there is no compensation for ‘unfair competition’ because they do not have that as a concept.
Is the point that the boundary between competition law and ‘unfair competition’ law is set in the same place for all EU countries, because in all them the scope of the competition rules is somewhat the same as the competition law and unfair competition are the two sides of the so-called competition policy.
Whereby a player with market power or dominant position eliminates competitors.
Swiss national report, Section 1.
In the Austrian report, Section 1.5.1.: ‘ Pioneer was fined in the amount of EUR 350,000 for violating Art 101 TFEU, namely agreeing in vertical price restrictions; Pioneer was also fined for hindering distributors from selling electronic products online. Without referring to a “restriction by object”, the Cartel Court considered this concerted practice of being a – literally – “key infringement”.’
The Act was previously named the Trade Practices Act 1974 (Cth). The Australian Constitution, the Commonwealth of Australia Constitution Act (1900), limits the extent to which the federal government can legislate. For that reason, states and territories enacted a ‘schedule’ version of the Part IV of the CCA, which contains core provisions on competition law. The CCA and the enacted schedule ensure a nationally consistent competition law.
See the ‘Harper Report’ (2015).
See the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 (‘Bill 2017’) and the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 (‘Bill 2016’).
Australian National Report, see Section 2.1. ‘This is particularly an issue for s 46 of the CCA (“misuse of market power”) litigation where the accused party possesses significant market (and/or bargaining) power while a potential private plaintiff will in most cases be a much smaller entity.’
In the case of being a reference to the Article 102 case law of the European courts (which is binding, rather than ‘guidance’ within the EU).
RS 251.4, available on www.admin.ch.
Swiss National Report, Sec 2. Article 5 para. 3 CartA.
Swiss National Report, Sec 2. Article 5 para. 4 CartA and Article 10 of the Notice on the Treatment of Vertical Restraints.
Swiss Federal Case law 2C_180/2014 dated 28 June 2016, Gaba/WEKO. In this decision, the Federal Tribunal considered that the vertical agreements on territories are considered as hardcore cartels that presumably lead to the elimination of effective competition.
M. Amstutz, B. Carron, M. Reinert, Commentaire Romand, droit de la concurrence, ad. Article 5 CartA para. 2.
Law No. 12.529 of 30 November 2011.
Re Queensland Co−operative Milling Association Ltd., Defiance Holdings Ltd. (Proposed Mergers with Barnes Milling Ltd.), (1976) ATPR ¶40−012.
Re Queensland Co−operative Milling Association Ltd., Defiance Holdings Ltd. (Proposed Mergers with Barnes Milling Ltd.), (1976) ATPR ¶40−012, at 17,242 (emphasis added).
Re 7-Eleven (1994), ATPR 41-357 at [42,777].
Swiss Report. See Article 5 para. 2 CartA.
DPC/RPW 2011/3 Behinderung des Online-Handels, para. 111.
Belgian Competition Authority (BCA), Case MEDE-I/0-15/0002, Immoweb, 7 November 2016.
According to the Belgian report, ‘BCA, Case MEDE-I/0-15/0002, Immoweb, 7 November 2016, §13-14. In this decision, the BCA’s Investigation and Prosecution Service stated that ‘Most Favoured Customer clauses’ inserted in the contracts between Immoweb and developers of software for real estate agencies could be at odds with the prohibition laid down in Article 101 and 102 TFEU and Articles IV.1 and IV.2 of the CEL. However, Immoweb offered commitments and therefore the BCA did not definitively rule on the question of whether the MFC clauses in the contracts between Immoweb and the developers of real estate software infringed Article 101 and 102 TFEU (and their Belgian equivalents, Articles IV.1 and IV.2 of the CEL).’
Decision of the Swedish Competition Authority of 15 April 2015, file ref. 596/2013.
Decision of the Swedish Competition Authority of 5 October 2015, file ref. 595/2013.
Decision of the Swedish Competition Authority of 4 April 2016, file ref. 658/2015.
MMP Framework, para 4.4.
SHWARTZ, FLYNN and FIRST, Free Enterprise and Economic Organization: Antitrust, Foundation Press, New York, 1983, page 284.
According to the Australian Report: In theory, s 45 also covers vertical agreements which do not contravene s 47 (‘exclusive dealing’) and/or s 48 (‘resale price maintenance’).
Part IV, Division 1 of the Competition and Consumer Act 2010 (Cth). This incorporates price-fixing, output restrictions, allocation of customers, suppliers or territories and bid rigging. This conduct is both a criminal offence and subject to civil penalties. Certain joint venture activity is excluded from the scope of the per se prohibition, but remains subject to the general prohibition against anticompetitive agreements in s 45.
Section 2.2. of the Australian National Report indicates that [I]f Bill 2017 is passed, third line forcing and primary boycotts will no longer be per se prohibited but will be evaluated under the substantial lessening of competition requirement.
Unlike other forms of exclusive dealing, it is per se prohibited, but it is possible for the conduct to be ‘notified’ and receive immunity on public benefit grounds. This occurs when supply is made on the condition that goods or services are purchased from an unrelated third party (or there is a refusal to supply because of failure to agree to such a condition).
It is not possible for conduct to be retrospectively authorised; approval must be provided in advance of the conduct occurring or it will contravene the Act notwithstanding any demonstrated public benefits.
Australian report, Section 7.
See Australia report, Section 5.4. ‘Australia does not apply the essential facility doctrine in the same way as, for instance, the United States of America. In general, s 46 (misuse of market power) deals with situations where a natural monopolist and/or an owner of a bottleneck in a bottleneck industry misuses its market power; for example, in the form of a refusal to supply or provide access. This section has been used successfully in such situations in the past.’
Ibidem; ‘the Australian specific law dealing with essential facilities, the national access regime law, will not apply to this example for a number of reasons, including the fact that duplication of an online platform is both possible and not “uneconomical”’. And, in this sense, the report states the following consideration ‘[I]n the context of online sales platforms, it will be difficult to obtain access via this regime. The primary mechanism for obtaining such access is to have a service “declared”, after which negotiation for access can take place. The first hurdle is to establish that there is a service. Although the definition of service in s 44B includes “a communications service or similar service”, which could capture online sales platforms, the “supply of goods”, “the use of intellectual property” and “the use of a production process” are expressly excluded from the definition of “service” for the purposes of the access regime. As online sales platforms frequently involve the supply of goods, and this is excluded from the scope of the access regime, the circumstances in which the regime will apply are quite limited.’
See Australian National Report, Section 9.
See the Australian National Report, Section 9.
Australia report, sec. 6.1. ‘A corporation with significant bargaining power can contravene s 46 by demanding a most favoured nation clause from suppliers. This was demonstrated in the case of Safeway. Safeway was the largest supermarket chain and the largest bread retailer in Victoria (the second most populous state in Australia). The relevant market was the market ‘for the sale and acquisition of bread by wholesale in Victoria’. Safeway’s conduct, which involved refusing to acquire bread from a supplier if the supplier sold bread for less to another buyer, was held to constitute a misuse of market power. In order to find a contravention, the court was required to find that Safeway held substantial market power and that it had taken advantage of that power for an anticompetitive purpose.’
Belgian Competition Authority (BCA), Case MEDE-I/0-15/0002, Immoweb, 7 November 2016.
Decision of the Swedish Competition Authority of 15 April 2015, file ref. 596/2013.
Decision of the Swedish Competition Authority of 5 October 2015, file ref. 595/2013.
Decision of the European Commission of 4 May 2017. Case No. 40153 (E-book MFNs and related matters – Amazon).
See the release of the EU Commission in http://europa.eu/rapid/press-release_IP-17-1784_en.htm.
In the EU Commission release is possible to access the following Commissioner declaration. ‘Commissioner Margrethe Vestager, in charge of competition policy, said: ‘ Google has come up with many innovative products and services that have made a difference to our lives. That’s a good thing. But Google’s strategy for its comparison shopping service wasn’t just about attracting customers by making its product better than those of its rivals. Instead, Google abused its market dominance as a search engine by promoting its own comparison shopping service in its search results, and demoting those of competitors.
What Google has done is illegal under EU antitrust rules. It denied other companies the chance to compete on the merits and to innovate. And most importantly, it denied European consumers a genuine choice of services and the full benefits of innovation.’
Available at http://europa.eu/rapid/press-release_IP-17-1784_en.htm. Accessed 12 January 2018.
To the Commission, ‘ [C]omparison shopping services rely to a large extent on traffic to be competitive. More traffic leads to more clicks and generates revenue. Furthermore, more traffic also attracts more retailers that want to list their products with a comparison shopping service.’
The evidence shows that consumers click far more often on results that are more visible, i.e. the results appearing higher up in Google’s search results. Even on a desktop, the ten highest-ranking generic search results on page 1 together generally receive approximately 95% of all clicks on generic search results (with the top result receiving about 35% of all the clicks). The first result on page 2 of Google’s generic search results receives only about 1% of all clicks. This cannot just be explained by the fact that the first result is more relevant, because evidence also shows that moving the first result to the third rank leads to a reduction in the number of clicks by about 50%. The effects on mobile devices are even more pronounced given the much smaller screen size.
According to de Swiss report: ‘This effect occurs when the use of the platform of one group of users depends directly on the participation of the second group of users. For instance, for hotel online booking platforms, the more hotels and end-consumers use the platform, the more said platform becomes attractive for both group of users. This indirect network effect may create a high market concentration with only a few dominant undertakings sharing the market.’
‘The online platforms however kept their “narrow MFN clauses” barring hotels from offering lower prices on their own website. With the new narrow MFN clauses, the hotels are however entitled to offer lower prices on their direct distribution channels if those prices are not public and to determine freely their prices, room capacities and other better conditions on competing online platforms. The Swiss Competition Commission mentioned that those new narrow MFN clauses appeared to be less restrictive but considered that their effect on the market still had to be reviewed in the future.’ Swiss report, Section 3.2.2.
DPC/RPW 2017/1 Annual Report 2016 of the Competition Commission, p. 62.
Belgian National Report, Section 2.
See the Interregional Framework Cooperation Agreement between the European Community and its Member States, of the one part, and the Southern Common Market and its Party States, of the other part – Joint Declaration on political dialogue between the European Union and Mercosur. According to the UE, the sectors of cooperation include: trade, standards, customs, statistics and intellectual property; economic cooperation, with the emphasis on industrial, energy, scientific and technological cooperation, telecommunications, the environment and investment promotion. See the link address http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=405. Accessed 12 January 2018.
See the Swiss guidelines, DPC/PRW2011/3 Behinderung des Online-Handels, para 76 ff.
See Swiss national report Section 220.127.116.11. and Article 4 of the Notice on Treatment of Vertical Restraints.
‘ For instance, for hotel online booking platforms, the more hotels and end-consumers use the platform, the more said platform become attractive of both group of users.’
Article 2 of the Notice on the Treatment of Vertical Restraints; see also the Explanatory Statement on the Notice on the Treatment of Vertical Restraints, para. 21.
See Swiss Report, Section 3.2. The geo-blocking practices are also considered as qualified circumstances. In this case, according to the Competition Commission, territorial agreements are considered to be qualified circumstances if they provide that (1) a distributor will prevent final consumers in Switzerland to have access to its website and/or which will re-route the client automatically towards the webpage of the manufacturer and/or of the Swiss distributors, or that (2) the distributor will stop the transaction if the client’s credit card reveals that the client is not from the attributed territory. Explanatory Statement on the Notice on the Treatment of Vertical Restraints para. 20, citing DPC/RPW 2011/3, Behinderung des Online-Handels, 381, para. 74 and DPC 2014/1 Kosmetikprodukte (Dermalogica) 198 para. 142; see also DPC 2014/2, Jura, 413 para. 62.
Higher Regional Court Düsseldorf, Decision of 5 April 2017, VI Kart 13/15 [V].
Vide also the Austrian Report, sec. 2. ‘ Interestingly, the question, whether the former distribution system of Asics was also in breach of core antitrust rules because of Asics’ prohibition on its distributors to use Google AdWords and third party online marketplaces, was left open. The German Federal Cartel Authority (Bundeskartellamt) had ruled in first instance, and later argued before the Higher Regional Court Düsseldorf, that such a general ban on sales on third-party online sales platforms is a hardcore infringement for its own.’
Commission (2017) Final Report on the E-commerce Sector Inquiry, http://ec.europa.eu/competition/antitrust/sector_inquiry_final_report_en.pdf.
The ACCC observed that barriers for a new entrant to achieve sufficient scale to compete with Expedia, Wotif or Booking.com would be high and would include significant sunk costs in the form of advertising. However, the ACCC observed that recent changes to the market, which included consideration of significant global players, like Amazon, who might have the ability to overcome those barriers, combined with developments in adjacent markets, such as metasearch platforms like TripAdvisor and Google, would ensure the market remained dynamic and there would be significant competitive constraints on OTA incumbents.
For further information see, ACCC, ‘Expedia and Booking.com agree to reinvigorate price competition by amending contracts with Australian hotels’ (Media Release, 2 September 2016) (available at https://www.accc.gov.au/media-release/expedia-and-bookingcom-agree-to-reinvigorate-price-competition-by-amending-contracts-with-australian-hotels).
See Dynamic Competition in Online Platforms – evidence from five case study markets, issue by the UK Department for Business, innovation and Skills in march of 2017.
UK Dynamic Competition in Online Platforms, page 6. Available at https://www.gov.uk/government/publications/dynamic-competition-in-online-platforms. Accessed 12 January 2018.
- International Report
João Marcelo de Lima Assafim