Abuse of dominance enforcement paves path for digital reform

Data leveraging

In the energy sector, European authorities are continuing to monitor so-called ‘data leveraging’ by companies who enjoy (or previously enjoyed) a state-granted monopoly, with France’s FCA imposing a fine of EUR300m on EDF for its second offence of this nature.

China's State Administration for Market Regulation relied on more conventional leveraging theories of harm in four decisions concerning tying/bundling in the water supply and natural gas markets. 

Self-preferencing

‘Self-preferencing’ has been the focus of several investigations in digital markets in Europe this year, including decisions against the e-commerce platform Allegro in Poland and Meta in Turkey, as well as Amazon at the EU level.

This builds on the EU General Court’s late-2021 Google Shopping decision, which confirmed that such conduct can amount to an abuse of dominance under EU law.

Looking forward – emerging trends in abuse of dominance

Standalone private enforcement: a rise in claims featuring unilateral conduct

2022 saw an increasing number of private proceedings being brought as standalone claims alleging abusive practices. In the U.S., consumers have continued to bring monopolisation claims against ‘Big Tech’ firms, including an ongoing USD4.7bn suit against Google based on novel theories of harm such as limited interoperability. Another recent standalone action relates to allegations against Ticketmaster. U.S. plaintiffs are also increasingly bringing claims based on decisions issued by foreign antitrust authorities.

Similarly, the UK has seen a sharp rise in collective proceedings, many of which relate to alleged abuses of dominance, albeit with a distinct consumer protection backdrop. Marcus Smith – the head of the UK Competition Appeal Tribunal – expects to see a further “explosion” in such cases, driven by cases centered on the tech sector.

It remains to be seen the extent to which this trend will filter out to other jurisdictions with established private antitrust enforcement environments. What is clear is that the UK will continue to lead the pack in private damages actions in Europe for the foreseeable future.

Life sciences one to watch in 2023

Although the life sciences sector has been a consistent area of focus for abuse of dominance enforcement in recent years, there were just four enforcement decisions in 2022, all of which were in Europe. Pharmaceutical companies in particular, however, are likely to remain on the radar of authorities.

The continuing focus on excessive pricing conduct in this sector was demonstrated by decisions against Leadiant in Italy and Spain, as well as a re-adopted decision against Pfizer and Flynn Pharma in the UK.

Looking forward, the outcome of the EC’s ongoing investigation into Teva – concerning alleged misuse of the patent system and disparagement of rivals – and the pending judgment from the European Court of Justice (ECJ) in the Servier case – analyzing so-called “pay-for-delay agreements” between Servier and generic medicine manufacturers – are likely to shape the approach of authorities across Europe.

Key themes in abuse of dominance enforcement

Authorities worldwide continue to “red flag” a broad range of conduct types. They are also increasingly investigating conduct that does not fit neatly within the traditional categories of behavior seen in case law and guidance.

This includes ‘self-preferencing’ and ‘data leveraging’ conduct, and is also possibly reflected in the increasing number of conduct types falling outside of specific categories in our dataset (33% in 2022, 29% in 2021, 28% in 2020).

This trend is perhaps in part consistent with the move towards digital reform, although – as shown below – enforcement against these new types of conduct is not limited to digital markets.

Using abuse of dominance rules to target killer acquisitions

This last year has seen abuse of dominance rules being used in increasingly innovative and novel ways to plug potential gaps in existing regimes – consumers, businesses and authorities have all asserted novel theories of harm (especially in relation to digital markets and public services). Perhaps the most high-profile development is the suggestion to use the abuse of dominance regime to evaluate “killer acquisitions”.

While the EC has continued to identify “killer acquisitions” as an enforcement priority for merger control regimes, an Advocate General opinion late last year recommended the use of the abuse of dominance rules to assess transactions that fall under EU or national merger control thresholds to fill a “gap in protection”.

This opinion was followed by the ECJ in a preliminary ruling in March 2023, which held that regulators can open abuse of dominance into below-threshold mergers after they have closed. The ruling is a significant clarification, and it will be interesting to see how companies factor abuse of dominance into merger considerations going forward.