The UK’s Competition Appeal Tribunal yesterday published Epic’s separate claims against Apple and Google, which accuse the companies of abusing their dominance in the markets for distributing apps and processing in-app payments in their respective app stores.
Becket McGrath, a partner at Euclid Law in London, said substantive differences in UK, US and Australian law mean it is “perfectly conceivable” that Epic could have a successful abuse of dominance claim in the UK and an unsuccessful monopolisation claim in the US, or indeed vice versa.
Most of the ongoing discussions around digital markets and competition law concern the balance between regulation – such as the European Commission’s Digital Markets Act or the introduction of the UK’s digital markets unit – and public competition enforcement by authorities, he said.
“While that is very important, this is a good reminder that there is the private litigation aspect of it too”, which on this occasion involves an aggrieved and well-resourced claimant and a system that welcomes these types of claims, McGrath said
To read the full GCR article: https://globalcompetitionreview.com/digital-markets/epic-games-files-new-claims-against-apple-and-google-in-uk
Justification for a New Competition Tool
Based on our experience of the operation of the UK market investigations regime, we agree that a new tool that goes beyond the options currently available to the Commission under Articles 101 and 102 TFEU, and that enables the Commission to identify and tackle structural market issues, is likely to be a useful addition to the EU competition regime. As far as jurisdictional scope is concerned, however, while digital markets may be particularly prone to structural issues, and the need for rapid action may be greater, there is nothing inherently novel or ‘digital’ in the desirability of a ‘backstop’ regime that empowers an authority to take specific action if harms arise for which traditional antitrust tools are insufficient.
UK experience has demonstrated that, as well as being helpful for tackling issues in potentially oligopolistic markets (such as groceries or audit), such a tool can be valuable where markets are not functioning well due to wider factors, including the interplay with regulatory regimes (for example, rolling stock leasing, energy or private health care) or past government decisions (for example, airports). Each case will turn on its facts, however, justifying the need to individual assessments, within a clearly defined legal framework.
Our response to the European Commission Consultation
As lawyers qualified in the UK and Member States with significant expertise in advising clients on EU and UK competition law, our views also draw on personal experience of enforcing the UK competition regime gained by members of the firm while working for the UK Competition and Markets Authority and its predecessor, the Office of Fair Trading. Our hope is that this experience can provide useful pointers that may assist the Commission in the design of a new competition tool. To read our full response, click here.
This year’s conference topics will focus on competition litigation and vertical agreements, which are both highly relevant given the recent developments in national courts throughout Europe and the European Commission’s review of the Vertical Block Exemption Regulation. The opening speech will be given by Sir Peter Roth, President of the Competition Appeal Tribunal.