Competition Policy in Digital Markets

Industry Overview - The report focuses on the competition policy in digital markets, particularly the combined effect of ex ante and ex post instruments in G7 jurisdictions [1][3] - Regulators are increasingly concerned about the market power of large digital platforms and their influence across markets, leading to debates on the effectiveness of competition law enforcement in addressing digital competition concerns [3] - The OECD was tasked with compiling an inventory of legislative reforms aimed at addressing digital competition issues in G7 jurisdictions, with the analysis expanding to non-G7 jurisdictions in 2023 [4] Core Findings - The report highlights the convergence and divergence between regulatory regimes proposed to address digital competition concerns, focusing on key competition issues and enforcement patterns in G7 countries [6] - It analyzes recent antitrust cases to identify problematic conducts and the remedies implemented by competition authorities, with a focus on the complementarities and overlaps between ex ante and ex post instruments [7] - The report also examines the extraterritorial effects of national enforcement activities in digital markets, particularly how platforms' compliance strategies may impact global markets [7] Key Competition Concerns Anti-Steering Practices and MFNs - Anti-steering practices and most-favored-nation (MFN) clauses have been a major focus of competition enforcement, with platforms like Apple and Amazon facing scrutiny for restricting business users from offering better terms or steering consumers to alternative channels [13][14] - Remedies in these cases often require platforms to remove or not enforce anti-steering and MFN provisions, with similar measures being incorporated into ex ante regulations like the EU's Digital Markets Act (DMA) [18][19] Use of Data - The accumulation and use of user data by large platforms have raised competition concerns, particularly around platforms leveraging data to gain unfair advantages in related markets [22] - Enforcement actions have targeted platforms like Amazon and Meta for using non-public data from business users to inform their own retail or advertising decisions, with behavioral commitments being accepted to address these concerns [23][24] Self-Preferencing - Self-preferencing, where platforms favor their own products or services over those of competitors, has been a growing concern, with investigations targeting Amazon, Google, and Apple [30][31] - Remedies in these cases vary, with some jurisdictions considering structural remedies, such as requiring divestitures, to address the underlying conflicts of interest [33] Tying and Bundling Practices - Tying and bundling practices, particularly in mobile operating systems and app stores, have been a longstanding focus of competition enforcement, with Google and Apple facing multiple investigations [37][38] - Remedies have included allowing alternative payment systems and improving interoperability, with ex ante regulations like the DMA also addressing these issues [42] Compliance and Extraterritorial Effects - Platforms generally tailor their compliance measures to the jurisdiction at stake, with limited extraterritorial effects observed [47][48] - However, in some cases, platforms have made global changes in response to enforcement actions, particularly when multiple jurisdictions investigate the same conduct [49][53] - The report notes that platforms' compliance strategies are influenced by the costs and benefits of maintaining differentiated operations across jurisdictions, with potential fragmentation of services and outcomes for users [57][58] Conclusion - The report concludes that ex ante regulations and traditional antitrust enforcement will continue to play complementary roles in addressing competition concerns in digital markets, with ongoing uncertainty about the effectiveness of remedies and compliance strategies [61][62] - International cooperation and knowledge sharing will be critical to mitigate the risks of fragmentation and ensure consistent outcomes across jurisdictions [67]