Chapter 5: Competition law and online platforms
104.The Commission, in its Digital Single Market Strategy, raised concerns that online platforms might abuse their market power in a number of ways. This chapter considers whether competition agencies are able to address the following concerns: the use of price restrictions by online platforms; asymmetries of bargaining power; vertical integration and leveraging; mergers and acquisitions; the role of data in these markets and its impact on competition enforcement, and the adequacy of competition law.
105.Box 3 provides an outline of competition law in the EU and UK.
Box 3: Competition law in the EU and UK
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Article 102 of the Treaty of the Functioning of the EU (TFEU) prohibits the abuse of a dominant position by one or more undertakings within a particular market in the EU insofar as it may restrict trade between Member States within the EU’s internal market. As noted in Chapter 4, a dominant position in EU and UK competition law refers to a position of economic strength which enables an economic undertaking to behave to an appreciable extent independently of its competitors, its customers and ultimately of consumers.166 Dominance itself is not unlawful. However, dominant businesses, because of their enhanced market power, have a special responsibility not to impair genuine competition. Where a business enjoys a strong market share, aggressive commercial behaviour which would have been perfectly legitimate if undertaken by a business with a smaller market share may constitute an ‘abuse’ of the dominant business’ market power. Abuse of a dominant position can be divided into two broad categories:
Examples of practices deemed to be abuse include charging excessively high prices, exclusive or long term arrangements, refusal of a dominant business to supply goods or services, ‘tying’ goods or services (which forces customers to buy unrelated goods) and predatory behaviour towards new entrants. The Commission is the primary enforcer of EU competition law, while in the UK the Competition and Markets Authority (CMA) has the jurisdiction to enforce both EU and UK competition law.167 The CMA replaced the Office of Fair Trading in April 2014. After investigating a firm or firms on the basis of the complaint, the Commission or the CMA can issue a Statement of Objections or take “commitment decisions” (see Box 7). A Statement of Objections lists the Commission’s objections and gives the accused firm the opportunity to exercise their right of defence. Once the firm and the complainants have presented their arguments, the Commission may decide to close the case or to draft a decision prohibiting the identified infringement. This goes through a Committee of National Competition Authorities before being agreed to by the College of Commissioners. Both the EU and UK authorities have powers to impose fines on businesses found to be in breach of competition rules (up to 10% of worldwide aggregate group turnover). The Commission policy is aimed at punishment and deterrence. As well as investigating specific complaints of abuse, where competition across a particular market does not appear to be functioning effectively, both the CMA and the Commission have the power to review the whole market and investigate how competitive conditions might be improved, even if no specific infringements are suspected or subsequently identified. |
Source: Ashurst LLP, ‘Overview of EU and UK Competition Law’ (March 2014): https://www.ashurst.com/publication-techguide.aspx?id_Content=5974#Competition [accessed 16 March 2016]
Restrictions on pricing
106.The Commission has raised particular concerns about online platforms’ imposition of restrictive terms and conditions on their trading partners. In particular, the Digital Single Market Strategy expressed concerns that some online platforms used their market power to “forbid companies from selling more cheaply elsewhere (including the seller’s own website, other platforms, and all offline distribution channels).”168 We received evidence on the price restrictions employed by a wide range of platforms, including Amazon, YouTube and the motor insurance industry, but the area that attracted most comment was the use of price restrictions by online travel agents.
Price Parity Clauses and online travel agents
107.Online travel agents (OTAs) are price comparison websites that display room rates in different hotels and also facilitate bookings between hotels and consumers, typically in exchange for a commission on the booking fee. Witnesses told us that OTAs had used so-called ‘price parity clauses’—sometimes referred to as retail-Most Favoured Nation (MFN) clauses or ‘across platform parity agreements’ (APPAs)—to ensure that hotels provided them with their best room rate.
Box 4: Wide and narrow price parity clauses used by OTAs
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‘Wide price parity clauses’ require hotels to match or offer a better room price to an OTA than the hotel offers on all online and offline sales channels. Wide price parity agreements prevent hotels from offering a lower room rate to rival OTAs. ‘Narrow price parity clauses’ only require hotels to offer an OTA the same or better room rates to that offered on their own web-sites, meaning that they are free to offer a lower room rate on alternative OTA. |
108.A major hotel chain, which asked to remain anonymous, explained that the insistence of OTAs on including price parity clauses in their contracts (see Box 4) meant that “hotels cannot offer a lower price direct to the consumer, even though when selling direct they don’t have to pay a significant commission to the OTA.”169 This concern applied to both wide and narrow price parity clauses. Ufi Ibrahim, Chief Executive of the British Hospitality Association, said these clauses forced “the actual establishment—in this case the hotel itself—not to be able to offer a customer a better or special deal.”170
109.We heard that the use of wide price parity clauses in particular prevented the emergence of competing OTAs in the hotel sector. David Viros, Head of International and European affairs at the French Competition Authority, said that such clauses meant that new OTAs could not attract hotels through lower commissions, which would in turn generate lower prices for consumers, because hotels “would in any event be forced to apply the same price on its platform as on the platform imposing the price parity clause.”171 Nelson Jung, Director of Mergers for the Competition and Markets Authority, agreed that wide price parity clauses could “restrict entry by potentially more innovative online platforms that cannot compete on price”.172 Professor Zimmer said that these clauses could have “the same effect as a cartel” because “If one major firm says, ‘We employ a price parity clause’, the price is more or less fixed in the market.”173
110.On the other hand, Mr Viros told us that “there was a valid argument on the part of the online travel agencies to the effect that there would be a risk of free-riding on the part of hotels in the sense that all of the investment made by the platform is made before the sale.” The nature of OTAs meant that it was “very simple for the consumer to see the name of the hotel and then to check the hotel’s website to see whether the prices being offered are lower, so the risk of free-riding was clear.”174 Professor Zimmer also noted that price parity clauses could “be a good thing for consumers, if a firm says, ‘If you find my service cheaper somewhere else or find that a different provider is cheaper, I will meet their price’”.175
Competition enforcement against parity clauses in the hotel industry
111.The use of price parity clauses by online travel agents has given rise to a large number of cases launched by competition agencies. In 2013 the European Commission co-ordinated investigations by French, Swedish and Italian competition authorities into the use of price parity agreements by Booking.com and Expedia, the two largest OTAs. In August 2015 this resulted in voluntary commitments by both companies to eliminate wide price parity clauses across all European markets (including the UK), but which allowed them to retain narrow clauses.176
112.Mr Viros, who worked for the French Competition Authority on this case, described the retention of a ‘narrow’ clause as a compromise, which permitted a hotel “to apply lower prices on competing platforms, lower prices in all its offline environments, lower prices in all bilateral dealings with consumers … as well as loyalty groups. The only single restriction was that it was not allowed to apply low prices on its publicly accessible website.”177
113.A number of Member States and regulatory authorities have gone further, banning even narrow parity clauses. The French Parliament did so as part of the legislative bill known as the Loi Macron.178 In Italy, the Chamber of Deputies has approved a draft law that would have a similar effect, which has yet to be approved by the Senate. The German competition authority, the Bundeskartellamt, has prohibited the use of narrow parity clauses in cases involving the OTAs HRS (Hotel Reservation Service) and Booking.com.179 In September 2015 the CMA closed its investigation into price parity clauses on grounds of administrative priority and said that it would consider whether further steps were necessary after 12 months of monitoring market developments.180
114.These divergent actions raised concerns about regulatory fragmentation and consequent regulatory arbitrage. Skyscanner said that competition authorities in France and Germany had “taken a rather different approach to the questions of MFNs”, creating “confusion for businesses and consumers alike”, and raising the possibility of “some sort of intervention by the Commission” in order to ensure uniform application of EU law.181 Professor Zimmer said the German Monopolies Commission opposed the actions of the Bundeskartellamt “because in a single market it will be difficult if you have very different rules on price setting, particularly if you have cross-border dealing.”182
Regulating price parity clauses
115.The Commission’s online platforms initiative asked whether regulatory change was needed to address restrictive pricing by online platforms. Mr Jung, from the CMA, told us that restrictions of this kind were “increasingly prevalent in online settings.” The CMA said that it received “a large volume of complaints relating to online distribution practices, including allegations of resale price maintenance (RPM), the use of … online sales bans and price parity and price relativity agreements.”
116.However, most of the economists and competition experts we spoke to agreed that generalised regulation of parity clauses would be impractical, and that case-by-case analysis of specific markets was necessary. Professor Ezrachi said that: “in vertical relations there will always be some justification for some limitations, the question—and we have to review this on a case-by-case basis—is whether that limitation is adequate and does not go beyond what is necessary in order to facilitate the competitive process and the welfare-enhancing features that we, as customers, benefit from.”183 Professors Julian Wright and Benjamin Edelman suggested that, at the very least, “Competition regulators should look critically at platforms which impose price coherence rules, be they called ‘most favored nation,’ ‘price parity,’ ‘guaranteed lowest price,’ or otherwise.”184
Discrepancy in bargaining power between hotels and OTAs
117.Ms Ibrahim explained that the increasing prevalence of price parity clauses used by OTAs reflected the discrepancies in bargaining power within the hotel sector. She described the negotiation of contracts “between the hotels and the OTA” as “extremely difficult because hotels have absolutely no bargaining power”.185 She continued: “a report a couple of years ago … found that Priceline at the time owned about 40 per cent of the industry and Expedia about 21 per cent … Priceline has now acquired Booking.com and others, and represents over half the online market for our industry, and Expedia has a considerable share of the remaining half of the sector.”186 In contrast: “over 86 per cent of our industry are small and medium sized operators … The majority of our members—80 per cent of the industry—employ fewer than five to 10 people”.187
118.As a result of this discrepancy in bargaining power, witnesses questioned whether banning price restrictions such as wide parity clauses would address the problem. Uwe Frers, owner of Berlin-based OTA Escapio, said: “Sometimes Escapio gets a rate for a hotel that is lower than what is available on Booking.com. When that happens, within about six hours, Booking.com calls the hotel demanding parity. Given that Booking.com has 50% market share in Germany, hotels listen and match the rate.”188 The hotel chain that gave anonymous evidence agreed that “the powerful OTAs can take unilateral action to punish hotels (such as by suppressing them from appearing on their websites)” if they attempted to offer consumers a lower price, even though they were now legally permitted to do so through some channels.189 The British Hospitality Association told us that, in practice, “the combination of this ‘narrow rate parity’ and the hotel’s ‘Best Price Guarantee’ means that hotels cannot discount prices through rival OTAs.”190
Other practices adopted by OTAs
119.We also heard evidence that OTAs used their market power to engage in practices which mislead their customers. Ms Ibrahim told us that OTA websites sometimes advertised that there were “No more rooms available at this hotel”, when in fact it was “just that their own quota is filled”.191 The Eastbourne Hospitality Association added that OTA websites used “flash messages encouraging the customer to purchase ‘now’ before it’s too late or ‘room just booked for this hotel’—when in fact it has not.” This encouraged consumers to rush their bookings and led to “high cancellation rates”, which is a factor that determine hotels rankings on OTA websites.192
120.The British Hospitality Association also told us that some OTAs created ‘shell websites’: “Customers who search by the name of the hotel are often drawn to an OTA or search engine webpage which is confusingly similar to the hotel website, leading some customers to believe that they are booking on the hotel website.” A member of the Association had had a “particularly bad experience”, whereby an OTA “had set up a website, which appeared to be our official website … using our photos … and which took quite a few bookings from people, who thought they were booking with us direct, on which they were charging us 23% commission.”193 Chapter 7 of this report also examines concerns about the lack of transparency regarding how OTAs rank different suppliers on their web-sites.
Conclusions
121.The increasing use of restrictive pricing practices by online platforms requires critical scrutiny by competition agencies. While some restraints may be justified to enable price comparison websites to operate, these clauses may also, especially when broadly designed, enable firms to exploit suppliers and exclude competitors. A case by case analysis by competition authorities is therefore necessary.
122.While we commend the commitments secured by National Competition Authorities from Booking.com and Expedia to drop the use of wide price parity clauses, we note that the asymmetries of bargaining power that characterise the online travel agent sector may mean that the effects of wide parity clauses persist in practice, even after the prohibition of these clauses.
123.We recommend that the Competition and Markets Authority urgently order a market investigation into the online travel agent sector. This investigation should consider the extent to which banning wide parity clauses has been effective, claims that online travel agents continue to prevent suppliers from offering other online travel agents a lower price, and other misleading practices alleged against online travel agents, including the creation of ‘shell websites’. As this is a Europe-wide issue, we recommend that the Commission support this investigation and co-ordinate any related activity by other National Competition Authorities.
124.We believe the findings of this investigation may be of wider application and could provide helpful insights about how to address similar practices in other sectors. While the evidence we received applied to travel accommodation, the findings of this investigation may be useful in considering the relationship between Online Travel Agents and other supplier businesses, which also affects fares and travel costs for consumers.
125.We note the growing regulatory fragmentation in the online travel agent sector that has arisen as a result of unilateral action by Member States. This undermines ambitions to create a Digital Single Market. We urge DG Competition to publish guidance in due course clarifying the use of wide and narrow parity clauses by online travel agents.
Asymmetries in bargaining power in other industries
126.Similar concerns are prevalent in other sectors, and in the creative industries in particular. IMPALA, the Independent Music Companies Association, claimed that YouTube had threatened to remove content and block access to its services “unless non-negotiable licensing conditions were accepted”, and had tried to impose a “’least-favoured nation’ clause ensuring the royalty rate of all independents could be aligned with the lowest rate agreed with any label worldwide.”194 The Association of Authors’ Agents said that Amazon asked “suppliers and customers to agree to terms and conditions that are liable to change without notice”.195 The British Booksellers Association agreed that Amazon’s contracts enabled it “to change the terms whenever it liked”, and added that many publishers “had been asked by Amazon to ring fence stock … without receiving a guaranteed order”.196
127.There was some debate about how unique unfair terms and conditions were to online platforms. First Tutors noted that concerns about “large companies being able to dictate to small suppliers are common in plenty of other industries (e.g. supermarkets)”.197 On the other hand, IMPALA argued that these asymmetries were particularly pronounced in online marketplaces: “A considerable ‘power gap’ exists between certain online platforms and their suppliers, especially SMEs”.198 Skyscanner agreed: “There are definite imbalances of power in all sorts of industries, but it is particularly problematic in an online environment.”199 The Rt. Hon. Ed Vaizey MP, Minister of State for Culture and the Digital Economy, concluded that “the Googles and Amazons of the world are clearly now major players in our economy … so my earlier analogy with supermarkets is valid in the sense that their working practices should come into play and be debated”.200
128.This prompted us to consider whether solutions used to address concerns about asymmetries in bargaining power in more traditional sectors of the economy could be applied to online platforms.
Codes of practice
129.IMPALA and PRS for Music recommended that the Commission facilitate a regulatory framework to ensure that all parts of the supply chain were “treated equally”, and to prevent online platforms from engaging in “unfair trading practices in their dealings with SME suppliers.”201
130.The Minister, Ed Vaizey MP, suggested that codes of practice could be developed outlining how large companies “treat their suppliers”, and that such codes could be developed specifically for different sectors: “When you are talking about TripAdvisor, you are talking about hotels; when you are talking about Amazon, you are talking about publishers”.202 As an example, he drew our attention to the Groceries Supply Code of Practice (GSCP), which sets out rules for the way designated retailers should fairly manage their relationships with suppliers.203
Market investigations
131.The Groceries Code was developed as a result of a sector-wide ‘market investigation’ by the Competition Commission, whose powers have now transferred to the CMA.204 The CMA explained that market investigations “involve an assessment of whether there is a feature or combination of features of a particular market in the UK that gives rise to an adverse effect on competition”. They allowed the CMA to “put in place legally-binding remedies to [address] … the adverse effect or any associated customer detriment” that applied across the sector. The CMA said that it had used this power to prohibit the use of wide parity clauses by Price Comparison Websites in the private motor insurance market.205
132.The European Commission also has a market-wide investigation instrument known as a ‘sector inquiry’, which permits DG Competition to investigate concerns about how markets are functioning. However, the British Hospitality Association told us that the effectiveness of sector inquiries was “limited by the European Commission’s inability to impose binding remedies”, and that the Commission would have to open formal competition proceedings if it desired to take action. The Association felt that tackling its concerns through a sector inquiry would therefore be “a lengthy process”.206
133.We support the Government’s view that developing codes of practice, most likely on a sectoral basis, could help to discourage unfair trading practices in these markets. Such codes of practice should be based on rigorous analysis. We therefore recommend that the Competition and Markets Authority use its market investigation tool to examine markets where concerns about unfair trading practices are most widespread, with a view to determining whether codes of practice are needed.
134.We note with concern that DG Competition’s ‘sector inquiry’ power does not enable it to impose legally binding sector-wide remedies. This limits the ability of the EU competition regime to address market-wide problems efficiently. We recommend that DG Competition be granted powers to impose legally binding sector-wide remedies as a result of a sector inquiry, subject to conditions to be agreed with National Competition Authorities.
Business-to-business dispute resolution mechanism
135.Ms Ibrahim called for “an arbitrator or regulator with the ability to arbitrate” disputes between platforms and their trading partners. She recommended that an adjudicator could compliment a code of practice and work “in a rapid and effective manner”.207 Mr Bailey said the possibility of introducing a new dispute resolution mechanism for businesses had been included in the Commission’s consultation because it “could be a way to address a multiplicity of disputes in an efficient manner”; it could also “allow for maximum flexibility for corporate policies, things like codes of conduct and ethics of companies”. He described such mechanisms as “a more lenient form of intervention than any other more heavy-handed possible regulation.”208
136.The Commission recently launched a ‘dispute resolution’ platform to enable consumers and traders to settle disputes over both domestic and cross-border online purchases. Disputes registered through the platform are channelled to one of the 117 Alternative Dispute Resolution bodies, which include arbitration, mediation, ombudsmen and complaints boards connected to the platform.209 Kostas Rossoglou, Head of Public Policy at Yelp, recommended that this mechanism be “extended to business-to-business disputes.”210
137.However, concerns have emerged that the online dispute resolution platform has not yet been properly implemented. News website Politico.eu wrote that, whereas the Commission had originally hailed the launch of the platform as an “easy, fast and inexpensive way” for online shoppers to settle disputes with retailers, “almost three years later, a large swath of European consumers are still waiting for the quick fix and most don’t even know it exists.” The article suggested that a majority of the dispute resolution centres had “not yet received a single complaint”.211
138.Extending the EU’s online dispute resolution platform to cover business-to-business disputes could help to address concerns about unfair trading practices by online platforms. Such a mechanism could complement codes of practice described above. However, we note that the business-to-consumer online dispute resolution tool appears not to have been well-implemented. We recommend that the Commission’s first priority should be to ensure the effective implementation of the online dispute resolution mechanism in its current form.
Protecting complainants
139.Ms Jameson of Skyscanner told us that many companies had a “fear of coming forward” and “raising these issues” with competition agencies.212 When it was suggested that an arbitrator or dispute resolution mechanism might address these concerns, she said: “it would still put the party suffering as a result of the abuse in a difficult position. Commercial retaliation is always a problem in any of these cases, so it would need to be supplemented by some sort of penalty when a dominant company retaliated in some way, otherwise it would risk not being used”.213
140.Mr Chisholm said that the CMA was aware of this issue: “in the large ecosystems, many of the people participating in the market, and who might themselves suffer competition abuse, are so dependent on one of the platforms that they might not want to come to us with that complaint for fear of retaliation.” He continued: “So we need to give some thought as to whether there is a need for wholesale protections for complainants in that situation.”214 Baroness Neville-Rolfe noted that “the need to protect complainants needs to be balanced with proper evidence and giving people the right to defend themselves”.215
141.Fear of commercial retaliation by the online platforms on which they depend may prevent complainants from approaching competition authorities. We recommend that the Competition and Markets Authority introduce new measures to protect complainants in these markets. These should include imposing substantial penalties upon online platforms that are found to have engaged in commercial retaliation.
Vertical integration and leveraging
142.The Commission’s Digital Single Market Strategy expressed concern that online platforms could use their market power to engage in “vertical integration/leverage”, whereby a platform which serves as a marketplace also acts a retailer. The Commission was concerned that an online platform could use the information gathered through facilitating the marketplace to advantage the retail part of its business.216
143.Mr Chisholm observed that the integration of different lines of business was increasingly common and that there was a tendency for platforms to “start in a core area, such as search, social media, book and music sales, and then look to extend their offer to other potential customers and suppliers through wider e-commerce opportunities”.217 Professor Clemons noted that firms being integrated in this way sometimes offered consumers benefits in terms of service quality: “Platforms also offer a range of integrated services. … The iPad is more valuable because I can synch it with my laptop, I can buy music and apps for it through iTunes and the App Store.”218
144.Dr Evans noted that vertical integration was “pretty common” in conventional businesses: “Tesco, like American supermarkets, has store brands, so in that sense it is competing with brands on the shelf.” As a result, vertical integration was “a problem that we are attuned to in competition law”.219 Professors Ezrachi and Stucke agreed that “competition authorities are sensitive to vertical integration by a dominant platform operator”, but added that it could be a problem with online platforms in particular, because a platform was able to “inhibit rivals on its platform or give preference to its own programs or services … to the detriment of rival sellers (and contrary to consumers’ wishes).”220 Charly Berthet, from the French Digital Council, agreed: “When an online platform is vertically integrated, it might restrain competition by decreasing the feasibility of the offers of its competitors to the benefit of its own offers.”221
145.Various concerns were raised about vertically integrated online platforms. The Booksellers Association told us that Amazon used data gathered from its Marketplace sellers to give itself a competitive advantage on its e-commerce website.222 The Booksellers Association also alleged that Amazon had inhibited the interoperability between the Amazon Kindle and non-Amazon e-book formats, thus vertically leveraging its dominance in e-readers into an adjacent market by requiring publishers to use its proprietary Kindle e-book publishing format. DG Competition is currently investigating these claims.223 The bulk of evidence that we received on vertical integration and leveraging concerned DG Competition’s antitrust investigation into Google Search, which is described in Box 5.
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On 30 November 2010 the European Commission opened an antitrust investigation into allegations that that Google had abused a dominant position in online search, by “allegedly lowering the ranking of unpaid search results of competing services which are specialised in providing users with specific online content such as price comparisons (so-called vertical search services) and by according preferential placement to the results of its own vertical search services in order to shut out competing services.”224 Over the following four years Google offered binding ‘commitments’ (see Box 7) in an effort to resolve the Commission’s concerns. The first set of commitments Google proposed were rejected following public comments. When Google proposed revised commitments the Commission was initially minded to accept, but complainants in the case subsequently provided new information which led the Commission to reject them. On 15 April 2015 Commissioner Vestager announced that the Commission had sent a Statement of Objections to Google outlining its preliminary conclusion that “Google gives systematic favourable treatment to its comparison shopping product (currently called Google Shopping) in its general search results pages”. The Commission said that it had chosen to publish a Statement of Objections because “overall, previous commitment proposals from Google were insufficient to address its competition concerns.” 225 The Commission said that Google’s alleged actions were anti-competitive, in that they could “artificially divert traffic from rival comparison shopping services and hinder their ability to compete on the market.” It also stated that this practice harmed consumers because they did “not necessarily see the most relevant results in response to queries” and stifled competition. The Commission proposed, as a preliminary remedy, that “Google should treat its own comparison shopping service and those of rivals in the same way.”226 The case is ongoing. Commissioner Vestager said in her Statement of Objections that: “a case focusing on comparison shopping could potentially establish a broader precedent for enforcing EU competition rules in other instances”.227 The case is therefore of wider application. |
Source: European Commission, ‘Competition: 39740 Google Search’: http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39740 [accessed 15 March 2016]
146.We heard that the dominance of Google’s search engine meant that Google had a special responsibility not to abuse its position. Mr Viros, from the French Competition Authority, said: “Google, in the light of its super-dominance, probably has extra responsibilities consistent with established case law, for instance with regard to actors such as Tetra Pak, vis-à-vis which competition law applies with extra strength as they hold a position of ‘super-dominance’.”228 Ms Jameson, from Skyscanner, said: “Google is so dominant that it is effectively the infrastructure of the market that we all operate in.”229
147.Mr Rossoglou, from Yelp, said that vertical integration by Google had a major impact on innovation, because it reduced the incentive for start-ups to develop alternative services: “They will have no access to the market. They will not be visible and therefore consumers will not use them.”230 Professors Ezrachi and Stucke said: “given the importance of search engines as a gateway to the Internet, intentional search degradation can also chill the marketplace of ideas.”231
148.Mr Rossoglou provided an example of how Google’s prioritisation of its own services could harm consumers, by degrading the quality of search results:
“There is no harm done if I get a bad slice of pizza because I ended up in a bad pizza place, but imagine that you are in a new city and you have a problem with your tooth; you look for a dentist on Google because you are on a business trip and do not know anyone in the city. You go on Google and you type ‘Dentist Manchester’ and you get bad results and end up with a bad dentist, or maybe you end up with a bad doctor or cardiologist. The stakes are quite high when it comes to a local search.”232
149.Regarding the Commission’s antitrust case, Adam Cohen, Google’s Head of Competition and Economic Policy in Europe, told the Committee:
“What I would say to that very clearly is that we have defined which parts of the page will be advertising and which parts will not. We have also defined strict criteria for ourselves and other sites about relevance. So we do not rank organic search results in the same way as we rank advertising, but we hold all the elements on the page to very high and equitable standards of relevance.”233
Effective remedy
150.Professor Clemons told us that, to address such abuses, he would “prohibit vertical integration by a search engine operator” because “search that is biased to promote the search engine’s own products and services, will always harm consumers over the long term”.234
151.Other witnesses highlighted the risk of the wrong intervention stifling innovation. Mr Viros said that ‘unbundling’ was normally only used in the context of former state monopolies, in which it could be shown that a competitive advantage was not acquired on merit, but inherited: “if you were to unbundle Google, it would beg the question of how you maintain the incentive to innovate”.235
152.Complainants in the case, Yelp and Tripadvisor, supported the Commission’s proposed remedy: that Google should treat its own comparison service shopping service and those of rivals in the same way. Skyscanner said: “in the case of Google specifically, it should not be able to give its own vertical search products preferential treatment and it should be subject to the same manner of displaying and ranking them as everybody else.”236
153.Google’s search engine shows how the tendencies to concentration in these markets may result in a successful innovator becoming the main provider of a particular service. Google Search has become a gateway through which a large proportion of the world accesses information on the Internet, which many businesses consequently depend on in order to be visible and to compete online.
154.The Google case illustrates the way in which a platform may use a strong position in one sector (in this case, general search) to integrate a range of other services into its core offering, thereby entering into direct competition with trading partners on its platform. Such integration can offer consumers benefits, such as increased convenience; it can also exclude competitors and harm consumers, if they are not directed to the best service or if innovation is reduced.
155.The evidence we have received indicates that it is not possible to formulate useful general rules about vertical integration in relation to online platforms, because each case is substantially different. Whether individual examples should be deemed an abuse must be ascertained through rigorous case by case analysis. Competition enforcement is the most appropriate instrument to deal with such concerns where they arise.
Mergers and Acquisitions
156.Several witnesses commented on the high number of mergers and acquisitions within the sector. e-Conomics referred us to a list of 187 Google acquisitions, noting that “in certain circumstances such a purchase may be interpreted as the elimination of a competitor. In this way, a powerful platform can foreclose future markets and throttle innovation”.237 They said that Google’s acquisition of DoubleClick, a leading provider of ad-serving technologies for third parties, might have lessened competition on the ad-serving market, and referred to the dissenting statement of one of the Commissioners of the US Fair Trade Commission, who objected to this merger.238
157.The existing EU Merger Control Regime is outlined in Box 6 below.
Box 6: Mergers and Acquisitions under EU and UK Law
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The EU Merger Regulation (EC) No 139/2004 prohibits mergers and acquisitions which would significantly reduce competition in the Single Market, for example if they created dominant companies that are likely to raise prices for consumers. The Commission only examines larger mergers with an EU dimension, which means that they reach certain turnover thresholds. Smaller mergers which do not meet these thresholds may fall under the remit of Member States’ competition authorities. There is a referral mechanism, which allows Member States and the Commission to transfer cases among themselves. The Enterprise Act 2002 regulates merger activity in the UK that does not have a European dimension. The Act applies to mergers where:
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Source: Ashurst LLP, ‘UK Merger Control’ (November 2015): https://www.ashurst.com/publication-techguide.aspx?id_Content=5974#Competition [accessed 16 March 2016]
158.Professor Zimmer expressed concern that “mergers in the field of the digital economy, particularly with regard to young companies, are often not subject to merger control, at the European level.” In his view, this was because the merger regime at EU level and in many Member States relied on “historical turnovers” to trigger an investigation, whereas in the digital economy “you often have very young companies that are bought away from the market at a very early stage.” This lack of oversight was “a particular concern if those acquirers are somehow in the same or neighbouring markets to that of the target, because then they may buy their competition or potential competition from the market.”239 Mr Viros agreed: “transactions, which involve an actor whose potential has yet to be monetised, go under the radar.”240
159.Mr Loriot, of DG Competition, said that although the “current turnover thresholds and the rules for jurisdiction for the Commission [did] not allow the Commission to catch directly companies that have a low revenue”, the “referral mechanism” between individual Member States and the Commission enabled the Commission to investigate if needed. He said that this referral mechanism had worked in the case of the merger between Facebook and WhatsApp.241
160.In addition to a turnover threshold, the UK merger regime includes a “share of supply test”. This considers whether, as a result of the merger, a share of 25% or more in the supply or consumption of goods is created for one firm. Mr Jung, Head of Mergers at the Competition and Markets Authority, said this was “particularly helpful”, because it enabled the Authority “to look at those mergers and assess whether there is harm that goes above and beyond pricing and also looks at quality and innovation.” For example, the test enabled the CMA to investigate the merger between Google and Waze, a map application. At the time of the merger, Mr Jung said Waze did “not generate a lot of revenue but might still impact on the marketplace overall as a result of innovative business models that they bring to the table.” The CMA considered the “extent to which that merger would result in reducing Google’s incentives to innovate in that space”. Eventually, based on “how important Waze was from Google’s perspective … in terms of developing its own products’ enhanced features for consumers”, the Authority “felt comfortable clearing” the merger.242
161.Large online platforms frequently acquire innovative firms, often at a significant premium, in order gain a competitive advantage over rivals; it is important that competition authorities are vigilant to ensure that, in doing so, they are not also buying up the competition.
162.We are concerned that mergers and acquisitions between large online platforms and less established digital businesses may escape scrutiny by competition authorities, because the target company generates little or no revenue and so falls below the turnover threshold adopted by the European Commission’s Merger Regulation.
163.We recommend that the Commission amend the Merger Regulation to include additional thresholds that better reflect this dynamic, examples of which might include the price paid for the target or a version of the ‘share of supply’ test used in the UK.
Data and competition law
164.Data and data analytics are integral to online platforms and the benefits they provide. They also play an important role in the competitive dynamics of these markets. The CMA said that “to the extent that such data is of central importance to the offering but inaccessible to competitors, it may confer a form of ‘unmatchable advantage’, making it hard for those competitors to compete.”243 Professors Ezrachi and Stucke highlighted the OECD’s finding that ‘big data’ was a “core economic asset”, which could create a “significant competitive advantage”. They also said that firms were increasingly turning to mergers to acquire a “data advantage” over rivals, noting that “according to one estimate, the number of Big Data-related mergers doubled between 2008 and 2013—from 55 to 134.”244
165.Professors Ezrachi and Stucke cautioned against the assumption that Big Data was necessarily problematic or anti-competitive, noting that: “data-driven business models can be pro-competitive”; they added that data analysis could provide firms “with insights on how to use resources more efficiently and to outmanoeuvre dominant incumbents.” However, they also said that businesses had “strong incentives to limit their competitors’ access to these datasets, prevent others from sharing the datasets, and be adverse to data-portability policies that threaten their data-related competitive advantage.” They concluded that “Companies will battle over who gets the valuable consumer data.” 245
166.Mr Cohen, from Google, downplayed the economic importance of data, noting that “there are vastly diminishing marginal returns from data, so the first few data points that you get can inform the way you build your products and services. After that, having a lot more data does not necessarily make your services that much better or more useful.”246 TechUK said that “data is fairly freely available, it is non-rivalrous and its value tends to degrade rapidly.”247
Data-driven abuses
167.The intensity of data collection and processing characteristic of online platforms can pose problems for competition authorities. Dr Weck said that data-driven insights could potentially blur the line between innovative and anti-competitive behaviour:
“The company may find out, ‘The markets I am in will develop in a certain direction. If I want to block arising competition, I have to expand into this or that market’, just based on the data the company has access to … Is this just innovative behaviour, because the company is following market developments and creating new products, or is it not really foreclosure, based on data access?”248
e-Conomics suggested that collusive agreements might arise between firms “for exclusive data collection or to prevent competitors [from] access[ing] certain data”249
168.Professor Rodden suggested that the opaqueness of decisions made by data-driven algorithms created problems of accountability: “Due to the large number of parameters that are used by the algorithms, even the engineers who constructed the system are often not able to explain why the algorithms made specific decisions”.250 Dr Koene said that one consequence of this lack of transparency was “that platform providers may not be able to guarantee that they are compliant with regulations”, and concluded that this lack of transparency “offers the potential for abusive manipulation”.251 Professor Rodden and Dr Koene both suggested that the ‘interpretability’ of data-driven algorithms should be made a priority for ‘big data’ related research funding.252
169.Professors Ezrachi and Stucke said that widespread use of sophisticated algorithms could result in ‘tacit collusion’, in which rival firms effectively coordinated strategies to reduce competition: “Collusion may be facilitated when the firm programmes an algorithm, among other things, to monitor price changes and swiftly react to any competitor’s pricing.” They said that “industry-wide use of such pricing algorithms” was “likely to push markets which were just outside the realm of tacit collusion into interdependence”, and to “support conscious parallelism”. In their view this was one possible “enforcement gap”.253
170.Professors Ezrachi and Stucke also identified a number of possible data-driven abuses specific to search engines, which involved degrading the quality of the service for users in order to increase revenues from advertisers on the other side of the platform: “a search engine, to incentivise users to click on sponsored advertisements or the results of its affiliated business, can promote, and rank higher, its sponsored results and provide fewer, and rank lower, its more relevant organic results.” They also described a “’hold-up’ scenario”, whereby “the search engine could lower the ranking of potential advertisers appearing in the organic search results to pressure the businesses to advertise with the search engine, namely to bid for keywords to get the attention of viewers who do not scroll down the list of search results.”254 In this way, Professor Ezrachi said, search engines “can actually degrade quality to some extent, because when they have to choose between the free side and the paid side—the side where they make the revenues from advertisements—their loyalty, or their interest, obviously lies with that side.”255
Degrading privacy standards as an abuse of dominance
171.We also heard that platforms could potentially abuse a dominant position by increasing the amount of personal data they collected from their users. Professors Ezrachi and Stucke said that platforms could “degrade other dimensions of quality, such as collecting more personal data and providing less privacy protection for the data, than consumers would otherwise prefer”.256 Dr Weck told us that this could become a competition problem: “If consumers do not know how their data are used, if consumer rights are not respected and content provider rights are not respected, perhaps because the platform is so powerful that it does not need to heed those rights, then that harm to consumers is a competition related problem”. He added that this could amount to “an abuse of market power”.257 Dr Orla Lynskey, Assistant Professor in Law at the London School of Economics, agreed that “powerful online platforms which control information flows” made it “more difficult for individuals to exercise fundamental rights effectively”.258 Indeed, during the course of this inquiry Germany’s Bundeskartellamt opened an investigation against Facebook, stating that: “Facebook’s use of unlawful terms and conditions could represent an abusive imposition of unfair conditions on users.”259
172.Despite the relationship between market dominance and privacy, witnesses questioned the ability of competition law to address privacy concerns. Dr Orla Lynskey felt that “competition law is not capable of adequately addressing these fundamental rights concerns”, because “individual rights interferences do not necessarily correspond to competitive faults” in markets.260 e-Conomics agreed that “In the context of competition law (i.e. all its instruments), privacy cannot be adequately protected”.261
173.Witnesses advocated various ways to deal with the overlap between data protection law and competition law. Dr Weck argued that even if the lowering of privacy standards was related to the dominance of a platform, “you should still change consumer regulation—make it and the means of enforcing consumer rights stronger—and not use the tools of competition law, because they are not very suited to that and the heart of the problem lies somewhere else.”262
174.Mr Rossoglou, from Yelp, advocated closer co-operation between these regulatory regimes instead of regulatory change: “We have rules for competition and for data protection. Just make sure that there is a merger between the two.”263 Charly Berthet, Rapporteur to the French Digital Council, referred to an example of joined up action by the Fair Trade Commission (FTC) in the US, during the merger between Facebook and WhatsApp. He said that the FTC “took the opportunity to remind Facebook of its commitments regarding privacy while it was exercising its supervision of mergers and business concentration.” In this case, “the FTC adopted an interesting approach because it dropped the silo approach. This kind of inter-regulation, mixing competition data with other sectoral regulations, is very interesting.”264
175.e-Conomics suggested that, despite competition law’s inability to deal adequately with questions of data protection, the centrality of data to these markets meant that competition authorities needed to integrate the role of data more fully into their analyses. They said competition authorities should consider “whether data market(s) exist and can be defined for the purpose of competition law (because data is traded)”, and “whether dominance is possible on such market.” In relation to investigations of possible abuses of dominance, they said “access to data, possession of datasets and/or processing capabilities should be considered when assessing market power.”265
176.Taking stock of the range of concerns about the use of data in these markets, Professor Ezrachi concluded as follows:
“The role of data is something that we still need to learn about and understand a bit more … I am not sure that we yet understand the way in which the data affects this ecosystem. We might at times give it too much weight and at other times not enough weight … competition agencies are aware of it, but more understanding is required of the unique dynamics that are developing in the online market.”266
Nonetheless, he and Professor Stucke acknowledged that “the above-described dynamics and abuses raise challenging questions as to the adequacy of the current enforcement approach by competition officials.”267
177.Data are integral to the operation of many online platforms and the benefits they provide. For this reason, exclusive access to multiple sources of user data may confer an unmatchable advantage on individual online platforms, making it difficult for rival platforms to compete.
178.As well as providing new benefits, rapid developments in data collection and data analytics have created the potential for new welfare reducing and anti-competitive behaviours by online platforms, including subtle degradations of quality, acquiring datasets to exclude potential competitors, and new forms of collusion. While some of these abuses are hypothetical, they raise questions as to the adequacy of current approaches to competition enforcement.
179.We recommend that the European Commission co-ordinate further research regarding the effects that algorithms have on the accountability of online platforms and the implications of this for enforcement. We also recommend that the Commission co-ordinate further research to investigate the extent to which data markets can be defined and dominant positions identified in these markets.
180.It is clear that dominant online platforms could potentially abuse their market position by degrading privacy standards and increasing the volume of data collected from their users. We welcome ongoing research and competition investigations that seek to clarify the circumstances under which degradation of privacy standards could be deemed abuse under competition law. In the meantime, these concerns underline the clear need for the enforcement of data protection law to be sufficiently robust to deter bad behaviour.
The adequacy of competition law
181.Witnesses were asked if competition law and its enforcement were able to deal with the new challenges we have described. e-Conomics said that EU competition law was “well-equipped to adequately address potential abuses of dominance by online platforms.”268 Mr Chisholm told us that “we have quite wide-ranging tools to be able to deal with problems where they emerge.”269
182.A number of witnesses argued that the strength of existing competition law was that it was principle-based, and therefore able to take into account the wide variety of different types of abuse that could arise. The Computer and Communications Industry Association (CCIA) said that “competition law remains fit for purpose”, because its “principles can just as well be applied to online platforms as to any other area of the economy.”270 Dr Evans reminded us that “competition authorities have been working on many different industries for over 100 years in the UK, the United States and other parts of the world”.271 He said that “competition authorities have slowly acquired the right toolkit”272 in relation to online platforms; the key was for regulators to “customise” those tools “to the set of facts that you have before you.”273
183.We also heard that ensuring that existing rules were well enforced should be a higher priority than the introduction of new regulation. Matthew Fell, Director for Competitive Markets at the Confederation of British Industry (CBI), said: “the right response is to ensure that the competition authorities are properly skilled and agile”.274 Dr Evans said that competition enforcement was “a much, much better alternative than considering regulation.” He argued that competition authorities were “much more flexible and they know how to deal with these businesses—they have a proven track record in that.”275
184.Nevertheless, online platforms pose a number of challenges for regulators. According to Professor Ezrachi, the main anticompetitive effects of dominant online platforms were “the steady degradation in quality, including the privacy protections afforded to individuals”; these were “less salient than the traditional monopolist’s steep prices”.276 Dr Evans argued that online platforms differed from other businesses because “in many cases they have a free side and a paid side”. He said regulators had to be conscious that online platforms operated in multi-sided markets and therefore should “take into account the fact that that intervention could harm the other side of the platform.”277
185.Dr Pleatsikas highlighted the challenge of differentiating between pro-competitive and anti-competitive behaviour in these markets: “While certain types of behaviour are unambiguously anticompetitive—fixing prices, market allocation and conspiracies to eliminate competitors—most types of conduct that are potentially anticompetitive cannot be so plainly classified.” For this reason, “antitrust agencies must necessarily undertake investigations that examine the idiosyncratic circumstances of each case.” He concluded that attempts to introduce prescriptive regulation to prevent abuse were doomed: “the search for universal truth and/or universal rules is bound to fail in most real world situations involving non-collusive conduct.”278
186.The sheer diversity of online platforms and the complexity of their business models raise obvious challenges for competition authorities. The lack of price signals on the consumer side, and the presence of multiple prices in multi-sided markets, create difficulties for standard antitrust analysis. Quality is a key parameter of competition in these markets, but is not easily measured.
187.While these challenges are significant, we note that the flexible, principle-based framework of competition law, which can be customised to individual cases, is uniquely well-suited to dealing with the subtlety, complexity and variety of possible abuses that may arise in these markets. We cannot see how a less flexible regulatory approach could be more effective.
Length of competition proceedings
188.One recurrent concern about the effectiveness of competition enforcement was the disjuncture between the rapid pace of change in digital markets and the slow speed at which competition law is enforced. The length of the Commission’s investigation into Google, still ongoing after five years, was felt to typify this problem.
189.Skyscanner said that the enforcement of European competition law did “not move at a sufficient pace … This is particularly true in relation to abuse by online platforms given that any Internet business can achieve momentous growth or suffer a devastating fall in such a short space of time.”279 The Computer and Communications Industry Association (CCIA) agreed that “competition law needs to be applied rapidly so as not to be irrelevant”.280
190.Yahoo suggested that the slow enforcement of competition law led to political pressure to intervene: “there is a general frustration with the length of time required to complete a competition investigation. This frustration often creates pressure for swift action in other policy areas beyond competition law”. Yahoo added that this could result “in onerous regulation in a particular market”.281
191.Mr Loriot, from DG Competition, said that although there was pressure to act quickly, “the cases are often complex and it is critical to get it right.”282 Mr Cohen, from Google, agreed: “Investigations should probably take as long as they need to take. Some of the issues involved in our business are very complicated and have evolved quite significantly even in the period during which we have been investigated.”283
Interim measures
192.In order to speed up enforcement, Professor Zimmer said that the German Monopolies Commission had encouraged the European Commission to apply interim measures, which require a firm to amend any allegedly anti-competitive conduct pending the outcome an investigation.284 Professor Zimmer explained that interim measures would enable competition authorities to say, “We order now and for the time of this proceeding that the firm has to refrain from certain behaviour”.285 Interim measures were therefore helpful when it was anticipated that markets would change quickly—within two years, he suggested—in order to ensure that the harm did not become permanent before a case concluded.286
193.The French Competition Authority has also frequently used interim measures. Mr Viros said that it had “adopted 30 interim measures decisions since 2000,” including in a case against Google regarding its AdWords service. He added that “the interim measures were not contested.”287
194.Mr Viros told us while the Commission had the power to use interim measures, “almost as a policy choice it has decided since 2001 not to use interim measures. I believe it deems that it is either best left to us or to judges.”288 Dr Weck said Commission officials were concerned about a previous case, in which “the European courts imposed a very high standard on the agency when bringing an interim measures case.”289
195.We also heard that interim measures had rarely been used in the UK. Mr Viros said that the CMA had “had a difficult time using interim measures”, because “its only decision was annulled by the Competition Appeal Tribunal.” Under the terms of the Enterprise and Regulatory Reform Act 2013, however, a lower threshold for intervention had subsequently been adopted, which Mr Viros felt meant there was “probably room for a more proactive approach.”290
196.Mr Chisholm confirmed that the CMA “need to be ready, where justified, to take speedy action through so-called interim measures or in securing voluntary behavioural changes through commitments, where necessary.”291 Baroness Neville-Rolfe said that “we are keen to speed up the process of competition decisions … [and the] time it takes to make decisions. This could include looking at changes to interim measures.”292
Commitment proceedings
197.Professor Zimmer and Dr Weck suggested that the prolonged nature of the Google case may also have been the result of the use of ‘commitment proceedings’. Professor Zimmer said these could have a “retarding effect”, because “firms offer certain measures and commitments, there are negotiations and then one side is not satisfied by what the other side says and so on.”293 Dr Weck said that the use of commitment proceedings had become common, because the competition agency “knows that it will be consensual, so it will not be appealed” and said that there was therefore “an incentive to use the tool much more than it should be used.”294
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‘Commitment Decisions’ allow the Commission to describe its concerns about a firm or firms’ practices without proving an infringement of the antitrust rules, although the Commission has to demonstrate its concerns are well founded. The accused then have an opportunity to provide commitments to address these concerns. If the Commission, in consultation with market participants, finds the commitments to be sufficient and proportionate, it takes the decision to make them legally binding. |
Source: European Commission, ‘Antitrust procedures in abuse of dominance (Article 102 TFEU)’ (August 2013): http://ec.europa.eu/competition/antitrust/procedures_101_en.html [accessed 13 April 2016]
198.Professor Zimmer therefore argued for the imposition of a time limit or sunset clause on commitment proceedings: “closing the case with a commitment decision—which means, in a way, a consensual decision, based on consensus between the authority and the firm—should be possible only within a limited time.” The aim was to create “an incentive for both sides—for the agency or authority as well as for the firm in question—to get through to timely decisions.”295
199.Competition law is perceived as being too slow to react to rapidly evolving digital markets. While the length of time taken to arrive at a decision in the Google case reflects its importance, it also highlights a wider problem. In such fast-moving markets a competitor who falls foul of anti-competitive conduct may suffer irreversible harm long before a competition case concludes. This undermines public confidence in the ability of regulators to hold large online platforms to account and may create political pressure for legislators to regulate unnecessarily.
200.In order to speed up the enforcement of competition law, and in light of recent changes in UK legislation, we recommend that the Competition and Markets Authority make greater use of interim measures. DG Competition should also make greater use of interim measures by lowering the threshold for their use, bringing it into line with that of the UK Competition and Markets’ Authority.
201.We recommend that the Competition and Markets Authority and DG Competition consider introducing time limits for the process of negotiating commitments between competition authorities and dominant firms. Restricting the period for discussion of commitments should encourage parties to offer serious proposals at the outset and prevent them from delaying the process.
202.We also note that our proposal to provide DG Competition with market investigation powers would enable the Commission to identify and address market-wide problems more efficiently and comprehensively than its current sector inquiry tool. (See paragraph 134)
167 The relationship between the different jurisdictions is set out by in the following ‘Practice note’: Practical Law, ‘Co-operation between the European Commission and national competition authorities’: http://uk.practicallaw.com/5-422-5178?source=relatedcontent [accessed 17 March 2016]
168 Commission Staff Working Document, A Digital Single Market for Europe: Analysis and Evidence, SWD(2015) 100 p 55
176 European Competition Network, The French, Italian and Swedish Competition Authorities Accept the Commitments Offered by Booking.com (1 July 2015): https://webgate.ec.europa.eu/multisite/ecn-brief/en/content/french-italian-and-swedish-competition-authorities-accept-commitments-offered-bookingcom [accessed 13 April 2016]
178 Eversheds, ‘France—Macron Law: A Focus on Online Hotel Reservation Platforms’ (20 October 2016): http://www.eversheds.com/global/en/what/articles/index.page?ArticleID=en/Competition_EU_and_Regulatory/MACRON_LAW_FRANCE [accessed 16 March 2016]
179 Hotrec Hospitality Europe, ‘Parity clauses in OTA contracts turned into a phase-out model in 2015’ (5 January 2016): http://www.hotrec.eu/newsroom/press-releases-1714/parity-clauses-in-ota-contracts-turned-into-a-phase-out-model-in-2015.aspx [accessed 16 March 2016]
180 Competition and Markets Authority, ‘CMA closes hotel online booking investigation’ (16 September 2015): https://www.gov.uk/government/news/cma-closes-hotel-online-booking-investigation [accessed 16 March 2016]
201 Written evidence from IMPALA the Independent Music Companies Association (OPL0035) and PRS for Music (OPL0036)
203 HM Government, Guidance: Groceries Supply Code of Practice (4 August 2009): https://www.gov.uk/government/publications/groceries-supply-code-of-practice [accessed 13 April 2016]
204 Competition Commission, The Groceries (Supply Chain Practices) Market Investigation Order 2009 (2009): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/461114/GSCOP-Order_v2.pdf [accessed 14 April 2016]
209 The legal basis for the establishment of the platform is Regulation 524/2013 on Online Dispute Resolution for Consumer Disputes, (OJ L 165, 18 June 2013, p 1)
211 Politico.eu, ‘The online shopping quick fix that never came’ (15 March 2016): http://www.politico.eu/article/european-shoppers-still-wait-online-dispute-tool-merchants-consumers/ [accessed 6 April 2016]
216 Commission Staff Working Document, A Digital Single Market for Europe: Analysis and Evidence, SWD(2015) 100 p 55
224 European Commission, ‘Antitrust: Commission probes allegations of antitrust violations by Google’ (30 November 2010): http://europa.eu/rapid/press-release_IP-10-1624_en.htm?locale=en [accessed 15 March 2016]
225 European Commission, ‘Antitrust: Commission sends statement of objections to Google on comparison shopping service; opens separate formal investigation on Android’ (15 April 2015): http://europa.eu/rapid/press-release_IP-15-4780_en.htm [accessed 3 March 2016]
226 European Commission, ‘Antitrust: Commission sends statement of objections to Google on comparison shopping service; opens separate formal investigation on Android’ (15 April 2015): http://europa.eu/rapid/press-release_IP-15-4780_en.htm [accessed 3 March 2016]
227 European Commission, ‘Statement by Commissioner Vestager on antitrust decisions concerning Google’ (15 April 2015): http://europa.eu/rapid/press-release_STATEMENT-15-4785_en.htm [accessed 3 March 2016]
238 Federal Trade Commission, Dissenting Statement of Commissioner Harbour In the Matter of Google/DoubleClick (20 December 2007): https://www.ftc.gov/public-statements/2007/12/dissenting-statement-commissioner-harbour-matter-googledoubleclick [accessed on 13 April]
258 Written evidence from Dr Orla Lynskey (OPL0054)
259 Bloomberg Business, ‘Facebook’s data dominance risks European antitrust clampdown’ (2 March 2016): http://www.bloomberg.com/news/articles/2016–03-02/facebook-probed-by-german-antitrust-regulator-over-user-data [accessed 3 March 2016]
284 Interim measures refer to a requirement to amend allegedly anti-competitive conduct pending the outcome of an investigation.