The challenges borne of digitisation affect everyone

"To a greater or lesser extent all companies these days have a digital dimension to their business. More enforcement activity around online restrictions is to be expected. But companies also have opportunities to engage with regulators and re-shape the framework of how antitrust law applies to the online world."

Natura Gracia
As the world becomes ever more connected, digital platforms – which enable those connections – are increasingly in the enforcers’ sights.

In a very recent speech on new technology as a disruptive global force, EU Commissioner Vestager focussed on the key role played by platforms and the importance of ensuring that they deal openly and fairly with their business customers. This was one of the key concerns expressed at a conference on shaping competition policy in the era of digitisation organised by the EC in mid-January, and it explains the Commission’s efforts to pursue cases in this space.

Those efforts have included the Google case (in which the company was fined €2.4bn for abusing the power of its search engine to make it hard for rivals to compete with its comparison shopping service) and the ongoing investigation into Amazon’s Marketplace, a platform that links sellers and buyers. The Commission has set up a panel of three external advisers to report on the future challenges of digitisation for competition policy, and they will report by the end of March. But in advance of that report, Commissioner Vestager has already indicated a willingness to look at the existing competition rules, “or at least the way we enforce them.”

And the Commission is not alone; many other regulators are also scrutinising these issues and pursuing ongoing cases in the areas of digital platforms, data and digitisation (including in France, Germany, the UK, Japan, Australia, India and South Korea). For instance, the Japanese Fair Trade Commission has recently launched a large-scale survey on the business practices of online platforms, and the Australian Competition and Consumer Commission is conducting an enquiry into digital platforms, recently releasing a preliminary report, with a number of significant preliminary recommendations.

Meanwhile, following increased enforcement against online restrictions, both by the agencies and in the courts, a key area to watch is the review of the EU Vertical Block Exemption Regulation. This exempts certain agreements and practices from the EU’s general competition rules and includes specific provisions on online sales restrictions. The current regulation is due to expire in May 2022, and a consultation is expected in the first quarter of 2019, providing an important opportunity for businesses active in this space to influence the shape of the new rules.