別添２Compendium
of approaches to improving
competition in digital markets

8 November 2023

Contributing authorities

Contents
I. Overview ........................................................................................................ 2
II. Introduction ................................................................................................... 5
III. Key Challenges ................................................................................................ 7
Market power and other positions of economic power ........................................ 7
Challenges to existing competition approaches .................................................... 9
IV. Key Findings.................................................................................................. 11
Section A: Key issues in digital markets................................................................ 12
Section B: Strengthening competition authorities ............................................... 25
Section C: Reforms to existing powers and approaches ...................................... 31
Section D: The importance of regulatory cooperation ........................................ 39
V. Conclusions and next steps ........................................................................... 49
VI. Submissions .................................................................................................. 51
Canada - Competition Bureau Canada ................................................................. 51
France - Autorité de la Concurrence .................................................................... 58
Germany - Bundeskartellamt ............................................................................... 65
Italy - Autoritá Garante della Concorrenza e del Mercato ................................... 72
Japan - Japan Fair Trade Commission................................................................... 79
UK - Competition and Markets Authority............................................................. 86
US - Federal Trade Commission............................................................................ 93
US - Department of Justice ................................................................................... 99
European Commission – Directorate-General for Competition......................... 104
Australia – Australian Competition and Consumer Commission ....................... 114
India – Competition Commission of India .......................................................... 114
South Africa – Competition Commission South Africa ....................................... 125
South Korea – Korea Fair Trade Commission ..................................................... 135

Compendium | Page 1

I.

Overview

1.

In 2021, the UK Competition and Markets Authority (“CMA”) convened a meeting of
G71 competition authorities to discuss long term coordination and cooperation topromote competition in digital markets. As part of this work, thirteen competition
authorities2 - those of the G7 and the four guest authorities of 20213 - have worked
together to discuss our respective approaches to promoting competition in digitalmarkets, identifying commonalities as well as opportunities for cross-fertilisation. In
November 2021, a compendium was published, providing an overview of thesepolicy approaches.4

2.

The 2021 Compendium proved to be a useful tool for the agencies involved, othercompetition authorities outside the G7 as well as other stakeholders and theinterested public. This is why in 2022, under the German G7 presidency, theBundeskartellamt decided to follow up on the success of the first edition and again
joined forces with the other competition authorities to publish an updated version,reflecting the latest developments in the area of competition enforcement andpolicy in digital markets.5 In 2023, the Japan Fair Trade Commission (“JFTC”), under
the Japanese G7 presidency, again updated this useful resource by incorporating the
up-to-date information in cooperation with other competition authorities.

3.

The growth of digital markets has brought enormous benefits to business,consumers, and society as a whole. At the same time, digital markets have created
new challenges for competition enforcement and policy. Around the globe,
governments and competition agencies are reflecting on how best to address thesechallenges. The updated compendium provides a high-level overview of current
developments in each jurisdiction, including enforcement actions, policy projects,

1

The G7 (Group of 7) is a forum where the world’s most influential and open societies and advanced
economies are brought together for close-knit discussions on issues such as finance, climate,technology, trade, health and foreign development.
2
The G7 competition authorities are: Autoritá Garante della Concorrenza e del Mercato (Italy),
Autorité de la concurrence (France), Bundeskartellamt (Germany), Competition Bureau (Canada),
Competition and Markets Authority (United Kingdom), Department of Justice (United States ofAmerica), Directorate General for Competition (European Commission), Federal Trade Commission(United States of America) and Japan Fair Trade Commission (Japan).
3
In 2021, the UK invited Australia, India, South Korea and South Africa as guest countries, and thecompetition authorities for those countries – Australian Competition and Consumer Commission(ACCC), Competition Commission of India (India), Korea Fair Trade Commission (South Korea) andCompetition Commission South Africa (South Africa) – also made contributions to this compendium.
4
The 2021 edition of the Compendium can be accessed here.
5
The 2022 edition of the Compendium can be accessed here.

Compendium | Page 2

and legislative and regulatory reforms and proposals. Looking across jurisdictions
provides valuable insight into common concerns and approaches and serves as astarting point for developing a consensus view on these global challenges.
4.

The updated compendium shows that competition authorities continue to dedicate
an enormous amount of activity to digital markets, and that the level of commonality
in the approaches that authorities are taking to address competition concerns
remains high. Most agencies have opened investigations, conducted studies, orbrought enforcement actions to address concerns about the exercise of market
power of platforms e.g. in (i) digital advertising markets, (ii) app stores, and/or (iii)
online marketplaces. These initiatives involve concerns about misuse of data anddata aggregation as a barrier to entry, self-preferencing, parity obligations (alsoknown as Most Favoured Nation clauses (MFNs)), non-competes, informationexchange or price fixing, abuse of superior bargaining position, the imposition of
unfair trading conditions and other conduct. While most agencies have investigations
or enforcement actions involving the largest tech companies, many also havebrought action against smaller tech firms operating in national or regional markets.
In the last year, continuing from the year before last, a number of investigations andenforcement actions have been successfully concluded, while a substantial numberof new ones have been initiated.

5.

Many competition authorities are also grappling with new complex issues within
digital markets, like business practices of cloud computing, the role of algorithms anddevelopments and potential challenges of generative AI. Authorities are trying tounderstand new and next generation technologies so they can address competition
concerns at an earlier stage and, ultimately, prevent harm from occurring.

6.

In scrutinising mergers and acquisitions, many competition authorities have blocked
or remedied deals involving concerns about how the merged entity would use data
to entrench market power, mergers involving nascent digital competitors, and many
vertical or horizontal mergers involving software, including in consumer-facing
industries. Many contributions also highlight procedural reforms introduced toincrease the scope of digital transactions subject to merger review, as well as
proposals to change the substantive test for merger reviews in digital markets.

7.

All competition authorities are working to strengthen institutional capability andbuild knowledge to ensure they are equipped to address the specific challenges ofdigital markets. New relationships are being cultivated with other regulators, andwith technical experts, to understand a range of complex issues.

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8.

In addition, many governments and agencies have introduced or are considering
legislative reforms to address competition issues in digital markets. Recognising thatthe current tools may, in some jurisdictions, be insufficient, authorities andlegislatures are developing solutions either to bolster enforcement tools, introduce
regulation, or both. Whilst there are good reasons for these reforms to differ acrossjurisdictions given local market conditions and existing national frameworks, it isclear that regulatory coherence, compatible regimes, and enforcement cooperation
will be essential.

9.

The contributions also underscore that governments and authorities are reflecting
on the interaction of different disciplines within their jurisdictions. Competition
issues rarely arise in a vacuum and many of the concerns highlighted are inextricably
linked with other regulatory and policy areas, such as privacy, consumer protection,and media sustainability. To better understand and manage these challenges,
competition authorities are regularly working closely with other government
departments and regulators to tackle these systemic issues in holistic ways.

10. The concerns of the different competition agencies with respect to digital markets
and the approaches to address them are remarkably similar, which seems
unprecedented in the decades of experience with global antitrust enforcement andpolicy. While some degree of similarity in objectives or sectoral concerns has existed
in the past, this is the first time in the history of competition law and policy that somany competition authorities, and in many cases governments, have prioritised
examination and investigation of the same markets and the same or similar conduct.
This consonance is not only a demonstration of the profound international concern
in this area, but also an opportunity for the global competition community: as we
address these challenges individually and collectively, we demonstrate our deep
commitment to support and learn from each other. This view has not wavered evennow, the third year from the first edition in 2021.

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II.

Introduction

11. This section provides an overview of the G7 competition authorities’ work on digitalcompetition, including background, current projects, and expected deliverables.
12. The broad scope and global nature of digital markets as well as their economic andsocial impact led the UK Government to include in its 2021 G7 presidency a new
Digital and Technology Track. In the following year, under the German G7
Presidency, this work was continued in the “Digital and Tech Working Group”.
13. Furthermore, in April 2023, the G7 Digital and Tech Ministers held the G7 Digital andTech Ministers’ Meeting to discuss issues on digital technology, including digitalcompetition, and adopted the G7 Digital and Tech Ministers’ Declaration as theoutcome document.6 The Ministerial Declaration states that G7 members will shareissues and challenges in promoting digital competition in using, implementing, andplanning existing, new and upcoming laws and regulatory tools.7
14. The JFTC will hold a Joint Competition Enforcers & Policy Makers Summit in Tokyo on
8 November 2023. Its purpose is to facilitate international efforts to promote
improvement of competitive market conditions and effective competition law
enforcement. The summit participants will discuss enforcers' priorities, challenges
and approaches in digital markets, recent updates on policy initiatives andframeworks in the digital competition field, common issues and challenges inplanning and implementing laws and regulatory tools in digital competition, and how
we can tackle issues on Big Techs that expand their activities across markets.
15. Direct and continuous exchange between enforcers and policy makers is important
at a time where governments and competition agencies around the globe arecontinuing to reflect on how best to address competition concerns in digital markets.
Informing each other about latest developments and successes but also potential
gaps in enforcement or legislation is crucial in view of the large number of existing
initiatives, but also because digital markets are continuously evolving at a fast pace.
16. Developed through collaboration among the competition authorities, thiscompendium provides an overview of how different authorities are working topromote competition in digital markets, including enforcement and policy work. Itthen identifies commonalities and coherence in these approaches. The intention is6
7

https://g7digital-tech-2023.go.jp/en/topics/topics_20230430.html
The Ministerial Declaration can be found here.

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for this document to be a useful tool providing information on the latest
developments to national governments, policy makers, and industry participants aswell as counterpart competition authorities and regulators grappling with similar
issues.
17. To create this compendium, contributors were asked to update their contributions.
The four topics they were asked to comment on thus followed the same structure:a. Enforcement experience and other tools used to address competition issues indigital markets, including any particularly relevant cases.
b. Institutional changes undertaken to strengthen agency capabilities to addresscompetition issues in digital markets.
c. Enacted or proposed legislative or regulatory reforms.
d. Law enforcement, regulatory, or policy work by agencies concerning digitalcompetition issues that has involved interaction with other areas of public policy,
such as privacy, security, consumer protection, or media sustainability.
18. This compendium is organised as follows: the next section summarises
characteristics of digital markets that present challenges for competition
enforcement and policy; the following section describes the key findings that arise
from an examination across contributions, highlighting areas of commonality; andthe final section is a compilation of the 13 individual agency contributions.
19. This competition workstream builds on a project undertaken by competition
authorities during the 2019 French G7 presidency, where authorities prepared a
Common Understanding on the issues raised by the digital economy for competition
analysis.8
20. The joint work under the 2021 UK G7 Presidency, the 2022 German G7 Presidency,
and the 2023 Japanese G7 Presidency illustrates the commitment of the G7competition agencies to continue the exchange on enforcement and policy
approaches related to competition in digital markets and related topics. The 2023
Compendium, as in the past two years, reflects the most recent developments incompetition enforcement in digital markets. A continuation of the compendium
format by means of regular updates could prove to be useful.

8

The 2019 Common Understanding can be found here.

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III.

Key Challenges

21. This section summarises key challenges digital markets pose for competition policy
and for the authorities responsible for competition law enforcement.
22. Digital markets have brought enormous benefits to businesses, consumers, andsociety: they allow businesses to attract new customers and grow rapidly; they allow
consumers to find new products and services and to connect with each other; andthey drive innovation and economic growth. These benefits came into sharp focus
during the Covid-19 pandemic. And in a world where the pandemic is ending, thatview has not changed.
23. However, the significant resources dedicated to studies, investigation, andenforcement highlighted in the compendium contributions indicate agencies acrossthe globe are concerned about a lack of competition in digital markets, including thepower several large firms are able to exercise over competitors and consumers.
Often it is the characteristics of digital markets that have allowed these firms toachieve this power, and those characteristics pose new challenges for competition
authorities and governments.

Market power and other positions of economic power
24. There are certain common features present in many digital markets which often leadto firms gaining a large and powerful position. These features may tend to increase
market concentration, raise barriers to entry, and strengthen the durability ofmarket power.9 These common features include: (i) network effects; (ii) multi-sided
markets; and (iii) the role of data. This can cause markets to ‘tip’ in favour of one ora small number of large firms.
25. Many digital markets exhibit positive “network effects”, such that the value of aservice, to at least some users, increases with the number or activity of the service’s
other users.10 Network effects may affect competition in a variety of ways. They may

9While these features are often present in digital markets, not all these features are unique to digitalmarkets; likewise, not all these features may be present (or significant) in any individual practice ortransaction involving digital markets.
10“Direct” network effects exist when users place greater value on a business as the number or
usage of similar users increases. For example: users may value a social network more highly as moreusers join. “Indirect” network effects exist when users place greater value on a business as thenumber or usage of users of a different type increases. For example: consumers may value an

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provide significant benefits to users and may encourage platform businesses toinvest and compete aggressively to acquire scale. However, network effects are also
relevant to the assessment of competitive concerns. For example, markets
characterised by strong network effects may exhibit high concentration and allow
firms to exercise market power, i.e. the ability to price11 profitably above thecompetitive level. Network effects may also deter entry by increasing the number ofusers that an entrant must obtain in order to compete. Accordingly, network effects
may make market power further entrenched. This may provide the ability andincentive for incumbents to suppress competitors that may achieve viable scale in
the future.
26. Many digital businesses are “multi-sided,” in that they serve multiple distinct groups
of users, with users in at least one of those groups valuing the platform more highly
as the number or activity of users in at least one other group increases. For example,
an app store may serve both consumers and app developers, with each group valuing
increased participation by members of the other. When a business is multi-sided, theprofit-maximising levels of price and output on one side of the platform may depend,in part, on competitive conditions on the other side. For example, some platformbusinesses may charge a zero or negative price to users on one side of the platform(e.g. consumers), relying on revenue from users on another side (e.g. advertisers) inorder to maximise overall profitability.
27. In an increasing number of contexts, access to data is necessary for firms to compete
and innovate. In digital markets, the competitiveness of firms often depends ontimely access to relevant data as well as AI solutions, and the ability to use that data
to develop innovative applications, products, and services. For example, generativeAI, which becomes a hot topic in the world in 2023, is clearly a service backed bymassive amounts of data and thus it once again highlighted the importance ofaccessibility to data assets. When this important role of data is combined with otherattributes, such as network effects and tipping, lack of access to data can prevent
entry into core and complementary markets. Moreover, there can be further datarelated issues, in particular with respect to personal data and from the consumer
perspective, e.g. concerning users’ choice as regards data processing, data
portability, or interoperability.

operating system more highly as more developers sell applications for it; similarly, advertisers may
value a search engine more highly as more consumers use it.
11
The ability to raise and maintain prices is used as a shorthand for the various ways in which market
power can be exercised.

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28. In addition to these features, another key aspect of the digital economy is thatcertain large companies do not only hold a strong position in one market, but are
active on a number of different markets which are often interlinked in some way or
another. In some cases, these links come in the form of vertically integrated products
or services; in others, connections between them extend beyond a specific value
chain. As a whole, the strong connection and interaction between the different
products and services of a large digital company constitutes a digital ecosystem. For
example, mobile OS and cloud computing can be elements of digital ecosystems,
although the term is not limited to these and there exist many other forms of adigital ecosystem. Such ecosystems often benefit from economies of scope, forexample when data from different sources can be combined for the development of
new products. The strong integration of different products into one ecosystem also
increases the degree of consumer lock-in. In addition to market-specific or platformspecific network effects, network effects can also play out across the ecosystem,
extending beyond individual products and markets. Such ecosystem-specific network
effects further increase the competitive advantage of a company orchestrating awhole ecosystem of different products and services.
29. In summary, it is the very characteristics of digital markets responsible for their
growth that pose unique challenges for competition authorities and governments, as
described below. These characteristics tend to lead to the creation of firms withdurable and entrenched positions of economic power, providing these firms with theability to engage in exploitative and exclusionary conduct. Such conduct can lead tohigher prices, reduced choice, quality, and innovation; limit access to markets forcompetitors; and impede effective consumer decision making. Furthermore,experience indicates that the largest and most profitable digital firms are able totarget acquisitions of challenger firms to strengthen an already powerful position.
The role of these firms as ‘gateways’ or essential trading partners also allows themto dictate the terms which users of the services must follow, generally with little
scope for negotiation, allowing firms to define the nature of competition.

Challenges to existing competition approaches
30. Weaker competition in digital markets can lead to challenges for competition
enforcement and policy, including the following:a. As set out above, market concentration and a lack of competition in digitalmarkets allows firms to engage in practices that harm consumers, businesses, andsociety. The effects may be different from traditional price effects, andchallenging conduct may require new theories of harm and new ways ofCompendium | Page 9

demonstrating effects. Competition authorities have been investigating harms or
potential harms in a range of markets continuously, in particular in digitaladvertising, app stores, and online marketplaces.
b. The business models of firms operating in digital markets can be complex andmulti-sided, and as set out above often involve reliance on data and may include
zero price markets. Features such as the multi-sided nature of online platforms
and the provision of services at zero monetary price can be difficult for courts andagencies to fit within traditional frameworks such as market definition. The scale
and importance of data, the difficulty in understanding the operation ofalgorithms, and other complexities mean authorities may need new tools,
capabilities, and approaches to investigate and understand anti-competitive
behaviour in digital markets.
c. Whilst competition authorities are active in tackling the market power of themost powerful digital firms, many of these investigations and associated remedialchallenges have not sufficiently restored competition. This suggests the need forreforms to existing laws, and in some cases for new complementary regulation, toaddress competition concerns more effectively in digital markets.
d. Finally, given the global nature of the largest digital firms, and the interaction
between competition and wider policy areas like data protection, consumer
protection, and media sustainability, there is an increasing need for regulatorsand policy makers to work together across disciplines and jurisdictions.

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IV.

Key Findings

31. This section provides an overview of key findings from G7 and guest competition
authorities’ experience in addressing competition in digital markets. While eachauthority’s contribution is included in the Appendix and should be considered in its
entirety, this section highlights similarities and common themes across approaches.
The findings are organised into sub-sections:
32. The first highlights the main issues competition authorities have been tackling indigital markets over the past several years through enforcement, studies, andadvocacy, as well as merger control. Authorities have generally prioritised
investigating anticompetitive behaviour in relation to platforms, in particularmarketplaces and app stores, algorithms and data, and digital advertising. Though,given the natural overlap between these areas, some cases could be considered tofall in more than one of these categories. In the area of merger control, many of theenforcement actions involve concerns about nascent competitors or data
aggregation.
33. The second explains how competition authorities are improving their ability toinvestigate, understand, analyse, and remedy anticompetitive behaviour in digitalmarkets such as by creating specialist departments and teams, upskilling staff, andundertaking in-depth market studies to build up knowledge of the markets. These
approaches both improve understanding of the issues whilst also bolstering horizon
scanning abilities to identify nascent harm.
34. The third highlights the plethora of activities related to legislative or regulatory
reform, demonstrating the growing consensus that existing powers may need to bereformed for authorities to address the full scope of anticompetitive concerns indigital markets. And it reveals that in some jurisdictions, the process towards full
enforcement of new or amended laws to tackle anticompetitive practices in digitalmarkets is steadily progressing.
35. Finally, the fourth draws attention to the importance of regulatory cooperation both
among domestic regulators working across disciplines but also internationally inhelping authorities to tackle systemic and global competition concerns.

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Section A: Key issues in digital markets
Digital advertising
36. Digital advertising is an area where competition authorities have been, and remain,
particularly active, investigating and remedying anticompetitive conduct. For
example:a. In 2023, the Autorité de la concurrence (“the French competition authority” or“the Autorité”) made use of Article 102 TFEU and national competition law toorder Meta to define objective, transparent, non-discriminatory andproportionate criteria for accessing and maintaining partnerships in the adverification sector.12 In 2022, the Autorité accepted commitments from Meta withthe aim of addressing competition concerns in the French market for non-search
related online advertising.13 In 2021, the Autorité accepted commitments from
Google, stating Google will implement changes to the way it operates display
advertising. This provided a quick and effective response to businesses harmed by
Google practices.14 In 2019, the Autorité’s Google Gibmedia case saw the agency
impose a fine as well as a series of behavioural remedies to ensure Google clarify
Google Ads’ operating rules and account suspension procedures.15
b. The Autorité also reviewed changes that were upcoming with Apple iOS 14’s
method of collecting users’ consent for their personal data, the so-called App
Tracking Transparency (ATT) framework, following up on a referral from several
associations representing various players in the online advertising sector (media,
internet networks, advertising agencies, technical intermediaries, publishers,
mobile marketing agencies) who contested practices implemented by Apple. In
2021, it did not issue urgent interim measures against Apple but continues to

12

See the Autorité’s Decision 23-MC-01 of 23 June 2023 regarding practices implemented in the
online advertising sector.
13
See the Autorité’s Decision 22-D-12 of 16 June 2022 regarding practices implemented in the
online advertising sector.
14
See the Autorité’s Decision 21-D-11 of 7 June, 2021 regarding practices implemented in the online
advertising sector.
15
See the Autorité’s Decision 19-D-26 of 1 9 December, 2019, regarding practices implemented in
the online search advertising sector. in the sector of mobile applications advertising on iOS. In a
separate context and case, Apple was fined it €1.1 billion for engaging in anticompetitive agreements
within its distribution network and abusing a situation of economic dependency regarding its“premium” independent distributors. A summary can be found here.

Compendium | Page 12investigate the merits of the case.16 In June 2022, the Bundeskartellamt (“Germancompetition authority” or BKartA) also initiated an investigation into ATT because
Apple’s rules have raised the initial suspicion of self-preferencing and/or
impediment of other companies. 17 In May 2023, the AGCM also launched a probe
on Apple’s ATT which appears to be more restrictive for third-party app
developers than the privacy policy applicable to the company itself; moreover,under the new policy, third-party developers and advertisers would allegedly be
penalised in terms of the quality of the data made available by Apple18 foradvertising purposes.
c. In 2019, the European Commission fined Google € 1.49 billion for imposing
restrictive clauses in contracts with third-party websites, which prevented
Google’s rivals from placing their adverts on these websites.19 The European
Commission has also issued Statement of Objections regarding possible abuse of
dominance practices by Google (June 2023) 20 and Meta (December 2022) 21 in
the advertising intermediation and classified ads fields, respectively.
d. In 2020, the US Department of Justice’s Antitrust Division (“US DOJ”) sued
Google, alleging that Google, in an attempt to maintain its monopoly in searchand search advertising, had engaged in a series of anticompetitive conducts
including for example, exclusionary agreements requiring Google as the default
search engine and agreements prohibiting preinstallation of competitors’ searchengines.22 In 2023, the US DOJ also sued Google for monopolising digitaladvertising technologies, alleging that Google has engaged in the course of
anticompetitive and exclusionary conduct, including by neutralising or
eliminating ad tech competitors through acquisitions, forcing publishers andadvertisers to use its products, and preventing them from using competingproducts.23

16

See Autorité’s Decision 21-D-07 of 17 March, 2021 and in July 2023 the General Rapporteur
notified an objection to Apple (the Autorité’s press release can be found here).
17
The press release can be found here.
18
The press release can be found here: https://en.agcm.it/en/media/press-releases/2023/5/A561A561B
19
The European Commission 2019 decision on Google’s practices in online advertising can be foundhere.
20
https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3207
21
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7728
22
The US DOJ’s 2020 decision on Google’s practices search advertising is explained here.
23
https://www.justice.gov/opa/pr/justice-department-sues-google-monopolizing-digital-advertisingtechnologies

Compendium | Page 13

e.

In early 2021, the CMA opened an abuse of dominance case against Google inrelation to its proposals to remove third party cookies and other functionalities
from its Chrome browser, because of concerns the new framework could
undermine the ability of other businesses to deliver adverts and affect the abilityof publishers to earn revenue. In February 2022, the CMA accepted commitmentsfrom Google in relation to its proposals to remove third party cookies (TPCs) on
Chrome and develop its Privacy Sandbox tools, and it has continued to monitor
Google’s compliance with the commitments.24 The CMA has also been
investigating whether Meta abuses its dominant position in the social media oradvertising markets, and has recently consulted on commitments to addressconcerns25.The CMA is also investigating whether Google might have abused adominant position through its conduct in ad tech.26

f.

Canada’s Competition Bureau (“the Canadian competition authority” or “CBC” or“the Bureau”) is currently investigating whether Google has engaged in practices
that harm competition in the online display advertising industry in Canada. In
October 2021, the CBC obtained a court order for Google to produce records andwritten information that are relevant to the CBC’s investigation.27

g. In October 2023, the JFTC announced the opening of the investigation andseeking information and comments from third parties concerning the suspectedviolation of the AMA by Google. The JFTC suspects that Google has restrictedbusiness activities of its competitors or its counterparties by (1) entering into
license agreements with Android mobile device manufactures (hereinafterreferred to as "OEMs") under which Google makes them install its applications,such as a search application named "Google Search", together with its application
store named "Google Play", etc., and (2) entering into agreements with OEMs,
etc. under which Google shares its revenue from its search advertising service
with them on conditions including that they do not pre-install competitors' search
application. 28
37. Competition authorities have also launched in-depth market studies to understandthe structure and dynamics of the complex digital advertising market. For example:

24

Investigation into Google’s ‘Privacy Sandbox’ browser changes - GOV.UK (www.gov.uk)
CMA investigates Facebook’s use of ad data - GOV.UK (www.gov.uk)
26
Investigation into suspected anti-competitive conduct by Google in ad tech - GOV.UK(www.gov.uk)
27
The CBC’s news release can be found here
28
https://www.jftc.go.jp/en/pressreleases/yearly-2023/October/231023.html
25

Compendium | Page 14

a. In 2021, the JFTC published a report on digital advertising29 which led to a Cabinet
decision on including the digital advertising sector within the scope of Japan’s Act
on Improving Transparency and Fairness of Digital Platforms. The Act went intofull operation in October 2022 with the additional designation of “specified digitalplatform providers”.
b. In 2019, the CMA launched an Online Platforms and Digital Advertising market
study, which conducted a detailed assessment of the market position of Google
and Facebook in relation to digital advertising.30
c. In 2021, the Australian Competition and Consumer Commission (“Australiancompetition authority” or “ACCC”) completed an inquiry on the competition
issues in the advertising technology supply chain. 31
d. The Bundeskartellamt published its final report on its sector inquiry into nonsearch online advertising in 2023. It builds on a report for public discussion
published in 2022 and establishes that especially Google has a strong market
position on almost all levels of the value chain, which provides the company with
substantial power to set rules.32
e. The French competition authority conducted a sector-specific inquiry on data
usage in the online advertising sector.33
f.

In 2021, the US FTC released a study of the data collection and use practices ofmajor Internet Service Providers (ISPs), revealing that these firms collect andshare far more data about their customers than many consumers may expect,
including access to all of their Internet traffic and real-time location data.34 The
report found that even though several ISPs promised not to sell consumers’
personal data, they allow it to be used, transferred, and monetised by others andhide disclosures about such practices in the fine print of their privacy policies.

g. While not primarily concerned with digital advertising, the European
Commission’s sector inquiry on the “Internet of Things” (IoT), completed in
January 2022, finds that data monetisation opportunities are expected to benefit
the leading consumer IoT technology platform providers and, in particular, the29

The JFTC’s final report can be found here.
The CMA’s final report can be found here.
31
The ACCC’s Digital Advertising Services Inquiry can be found here.
32
The Bundeskartellamt’s press release can be found here.
33
The sector inquiry regarding data usage in the online advertising sector can be found here34
The FTC’s final report can be found here.
30

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few consumer IoT players that are already present in the digital advertisingmarket.35

Data and algorithms
38. Given the important role that access to data relevant for competition plays in digitalmarkets as a whole, and not only in so far as digital advertising is concerned, G7 andguest competition authorities have brought cases related to how companies use,
process, and share data. For example:
a. In 2019, the Bundeskartellamt ordered Facebook to refrain from using terms andconditions based on which the platform is entitled to gather data from numerous
sources outside the social network facebook.com without users’ freely given
consent to combine them with “on-Facebook” data.36 While this decision is still
being appealed by Meta, after intensive talks with the Bundeskartellamt, in June
2023, Meta announced plans to implement a modified accounts centre which willallow Meta’s customers to make a largely free and informed decision about
whether they want Meta’s services separately or in combined form.37 In July
2023, the ECJ ruled that the Bundeskartellamt may take data protection rules into
consideration when weighing interests in decisions under competition law38.
b. As a result of a proceeding of the Bundeskartellamt concerning Google’s dataprocessing terms, Google’s services and third-party services can no longer becross-used in separate services offered by Google or even be combined without
the users’ free and informed consent. Such an obligation will already result fromthe DMA for Google services which have recently been designated by theEuropean Commission under the DMA. Google’s Commitments provided to the
Bundeskartellamt concern the processing of data across services involving morethan 25 other services (including Gmail, Google News, Assistant, Contacts andGoogle TV).39
c. In 2021, the Italian competition authority made binding the commitments
presented by the Italian Association of Insurers (ANIA) with respect to its
proposed antifraud project which involves the creation of databases and the35

The final report of the sector inquiry on IoT can be found here.
The case summary can be found here.
37
The press release can be found here.
38
The press release can be found here.
39
The press release can be found here.
36

Compendium | Page 16development of common algorithms to define fraud risk indicators that insurancecompanies may use in their activities. The final commitments ensure fair and nondiscriminatory access to the databases for non-ANIA members and prevent thesharing of sensitive data and information.
d. In 2022, the European Commission accepted commitments by Insurance Ireland,an association of Irish insurers, to ensure fair and non-discriminatory access to its
data sharing platform40 and by Amazon in order to address the Commission's
competition concerns over Amazon's use of non-public marketplace seller dataand over a possible bias in granting to sellers access to its Buy Box and its Prime
programme (see below).41
e. In February 2022, the CMA accepted commitments from Google in relation to theplanned development of its Privacy Sandbox tools. These commitments, inter alia,
restrict the sharing of data within its ecosystem to ensure that Google does notgain an advantage over competitors when third-party cookies are removed andcommitments to not self-preference its advertising services.42
f.

In July, 2022, the AGCM opened an investigation against Google for refusing
interoperability in sharing data on its platform with Hoda, a company which hasdeveloped innovative data-based services allowing consumers to monetise theirpersonal data, by exploiting the right to data portability established by Art. 20 of
the GDPR. In July 2023 the AGCM closed the investigation, by accepting Google’scommitments aimed at facilitating the export of data to third-party operators byusers and enabling other digital services operators to access personal data users
generate through their activity on Google’s services like YouTube and Search43.

g. In 2022, the German competition authority also examined Catena-X, acooperation within the automotive industry which aims to create a data network
for collaboration. The competitive assessment as to how Catena-X intends topromote the development of uniform standards for data transfer and cooperation
regarding R&D raised no objections.44
39. As there often is a certain link between access to data and the possibilities how suchdata can be put to productive use, G7 and guest competition authorities are working

40

The press release can be found here.
The press release can be found here.
42
Investigation into Google’s ‘Privacy Sandbox’ browser changes - GOV.UK (www.gov.uk)
43
See press release: https://en.agcm.it/en/media/press-releases/2023/7/A552
44
Bundeskartellamt, press release of 24 May 2022.
41

Compendium | Page 17

to better understand the mechanics of algorithms and their potential adverse effects
on competition. Approaches include:a. Producing internal research like the Australian competition authority’s work on
the impacts of pricing algorithms on competition (used to inform the report into
general online retail marketplaces);45b. Producing reports such as the joint report by the German competition authority
and the French competition authority in 2019 on algorithms and competition,46
which was preceded by a joint conceptual study by these two authorities in 2016
into data and its implications for competition law47, and the CMA’s report onalgorithms in 2021.48 The CMA also contributed to the UK Digital Regulation
Cooperation Forum’s49 papers that explored the benefits and harms ofalgorithms50, the role of regulators in auditing algorithms51 and transparency inthe procurement of algorithmic systems52;
c. Convening study groups like the Autorità Garante del la Concorrenza e delMercato (“Italian competition authority” or “AGCM”) and the JFTC; ord. Holding hearings like the US Federal Trade Commission (“US FTC”).
40. Through this work, competition authorities are increasing their understanding of
how algorithms can affect competition and harm consumers. Many of these
initiatives have involved the specialist knowledge of in-house data scientists orcontributions from external experts.
41. In addition to this research and knowledge building, some authorities have taken
enforcement action in relation to cases involving algorithms.

45

ACCC, Digital Platform Services Inquiry, March 2022 interim report on general online retailmarketplaces, 28 April 2022.
46
The joint report is published here.
47
The joint report is published here
48
The CMA’s report can be found here.
49
The Digital Regulation Cooperation Forum - GOV.UK (www.gov.uk).
50
The benefits and harms of algorithms: a shared perspective from the four digital regulators(publishing.service.gov.uk).
51
Auditing algorithms: the existing landscape, role of regulators and future outlook(publishing.service.gov.uk).
52
Transparency in the procurement of algorithmic systems: Findings from our workshops - GOV.UK(www.gov.uk)

Compendium | Page 18

a. In 2015, the US DOJ charged two executives of an e-commerce retailer with using
specific pricing algorithms to fix the price of certain goods sold on Amazon’sMarketplace.53
b. The CMA took action in a similar case in relation to a price-fixing agreement
where two Amazon marketplace sellers had agreed not to undercut each other’s
prices and used automated pricing software to effect their agreement.54
c. More recently, the KFTC imposed corrective measures as well as a fine against the
search engine Naver for self-preferencing their own services at the search results
page by manipulating the search algorithm.

Marketplaces and app stores
42. G7 and guest competition authorities are also increasingly active in addressing a
range of potential anticompetitive conduct in relation to online marketplaces andapp stores. This includes self-preferencing, price parity clauses, and restrictive termsof business between sellers and platforms. For example:
a. The AGCM completed two investigations against Amazon. In one, Amazon was
fined € 1.13 billion for leveraging its dominant position in the Italian market forintermediation services on marketplaces in order to favour the adoption of its
own logistics service. The AGCM also imposed behavioural measures regarding
sales benefits for and visibility of sellers on the Amazon Marketplace.55 In theother, it ruled that a brand-gating agreement between Amazon and Apple which
restricted certain resellers of Apple products was anti-competitive.56
b. The European Commission accepted commitments in its two ongoinginvestigations against the Amazon Marketplace, which addressed its concerns.
The first investigation related to the use non-public business data of third party
sellers by Amazon’s own retail business. The second ‘Buy Box’ investigation
addresses concerned around the preferential treatment of Amazon’s retailbusiness and sellers using Amazon’s logistics services, in the selection

53

The press releases can be found here and here. One defendant pleaded guilty (see press releasehere).
54
Further detail can be found on the CMA’s case page here.
55
See Case no A528 press release of 9 December 2021, https://en.agcm.it/en/media/pressreleases/2021/12/A528
56
See Case n. I842, press release of 17 December 2021, https://en.agcm.it/en/media/pressreleases/2021/12/I842

Compendium | Page 19

mechanisms for the ‘Featured Offer’ and the in the Amazon Prime programme. In
July 2022, Amazon offered commitments aimed at addressing the preliminary
concerns in both investigations - The Commission made the final commitments
binding on 20 December 2022.57
c. The CMA opened an investigation into Amazon over concerns that practices
affecting sellers on its UK Marketplace may be anti-competitive.58 The CMA
consulted on commitments to address these concerns and is currently
considering representations in response to this consultation.59
d. The JFTC approved a commitment plan submitted by Amazon Japan to address avariety of practices conducted by Amazon Japan that negatively affected sellers
on its platform.60 It also investigated Rakuten's conduct regarding the operationof its online retail platform “Rakuten Ichiba”. It announced the closing of theinvestigation on the case in December 2021 after Rakuten had proposed to takevoluntary measures to eliminate the suspicion of violation of the Japanese
Antimonopoly Act. 61
e. The Canadian competition authority has an ongoing civil investigation into
Amazon’s potential restrictive trade practices.62
f.

In Germany, action from the Bundeskartellamt led to Amazon amending its termsof business for sellers on marketplaces worldwide after the agency deemed them
to be abusive.63 In two ongoing proceedings, the Bundeskartellamt is examining
whether Amazon exercises influence on the pricing of sellers on Amazon
Marketplace by means of price control mechanisms and the extent to which
agreements between Amazon and brand manufacturers (inter alia Apple), which
exclude third-party sellers from selling brand products on Amazon Marketplace,
constitute a competition law violation.64

g. In 2012, the US DOJ sued Apple for colluding with other publishers to end e-bookretailers’ freedom to compete on price.65

57

The press release can be found here.
Investigation into Amazon’s Marketplace - GOV.UK (www.gov.uk).
59
Investigation into Amazon’s Marketplace - GOV.UK (www.gov.uk)
60
The press release relating to the approval of the commitment plan can be found here.
61
The JFTC filed a petition for an urgent injunction to the Tokyo District Court to temporarily stop
Rakuten’s conducts on February 28, 2020 and it withdrew that on March 10, 2020. Afterwards, the
JFTC continued its investigation on Rakuten’s conducts. The press release can be found here.
62
The CBC sought information from market participants in August 2020, see here.
63
The case summary is published here.
64
The press release can be found here.
65
The settlement is published here.
58

Compendium | Page 20

h. In 2023, the US FTC sued Amazon.com, Inc. alleging that the online retail andtechnology company is a monopolist that uses a set of interlocking
anticompetitive and unfair strategies to illegally maintain its monopoly power.
The complaint alleges that Amazon engages in a course of exclusionary conductthat prevents competitors from growing and new competitors from emerging in
two markets—the online superstore market that serves shoppers and the market
for online marketplace services purchased by sellers. Amazon’s conduct includes
anti-discounting measures that punish sellers and deter other online retailers
from offering prices lower than Amazon, and conditioning sellers’ ability to obtain“Prime” eligibility for their products on sellers using Amazon’s costly fulfilment
service.
i.

The Competition Commission of India (“Indian competition authority” or “CCI”) isinvestigating whether Amazon and Flipkart’s vertical arrangements with theirrespective ‘preferred sellers’ may have foreclosed other non-preferred traders or
sellers from accessing these online marketplaces.

43. Mobile app stores have also been subject to a continuing high level of attention. For
example:a. In February 2023, the European Commission held the preliminary view that thecontractual restrictions that Apple imposed on app developers, which prevent
them from informing iPhone and iPad users of alternative (and often cheaper)music subscription options outside of the app and to effectively choose those("anti-steering rules") amount to unfair trading conditions in breach of Article 102
TFEU.66
b. In June 2022, the CMA published the final report of its year-long market study
into mobile ecosystems, which investigated whether Apple’s and Google’s
powerful position in relation to the supply of operating systems, app stores andweb browsers on mobile devices is resulting in harm to consumers. The CMA
concluded that Apple and Google have an effective duopoly on mobile
ecosystems that allows them to exercise a stranglehold over these markets.67
Following on from the study, the CMA has investigated Google’s rules governing
app access to listings on its Play Store and recently consulted on potentialcommitments .68 The CMA has a separate competition law investigation underway

66

The Commission’s investigation is summarised here.
Mobile ecosystems market study - GOV.UK (www.gov.uk).
68
Investigation into suspected anti-competitive conduct by Google - GOV.UK (www.gov.uk).
67

Compendium | Page 21

in relation to Apple’s App Store terms and conditions, which opened in March
2021.69
c. In May 2021, the Italian competition authority imposed a fine of over € 100
million to Google for refusing to include a rival app in its Android Auto systemthat provides services related to the recharging of electric vehicles.70
d. The Australian competition authority states that it is proactively monitoring andinvestigating allegations of potentially anticompetitive conduct.71
e. The JFTC has investigated Apple’s conduct regarding the operation of App Storeand announced the closing of the investigation on the case in September 2021.
Following the process of the investigation, Apple proposed to take measures toallow external links to be displayed on reader apps such as music streaming, ebook distribution, and video streaming etc.72 Apple took these measures globallyin March 2022. In addition, the JFTC released a market study report on mobile OS
and mobile app distribution in February 2023 and proposed developing a new
regulatory framework including the introduction of ex-ante regulation.73
f.

In December 2021, the Indian competition authority initiated an investigation
against Apple in relation to the alleged mandatory use of Apple's proprietary inapp purchase system (IAP) for the distribution of paid digital content by app
developers, the discriminatory application of its App Store guidelines and theaccess to data collected from users of Apple’s downstream competitors.

g. Pursuant to a recent Executive Order in the US, the US Department of Commerce,in consultation with the US DOJ and the US FTC, issued a report on mobile app
ecosystems.74
h. App stores also play an increasing role for infotainment systems in vehicles. In
this context, the German Bundeskartellamt, in June 2023, issued a statement ofobjections against Google regarding Google Automotive Services (GAS), a bundle
comprised of Google Maps, Google Play and Google Assistant, in which it comesto the preliminary conclusion that, inter alia, the bundling of different services

69

Investigation into Apple AppStore - GOV.UK (www.gov.uk).
The press release can be found here.
71
See Digital platforms services inquiry - Discussion Paper for September 2022 interim report, 18
February 2022, pp 60-61 which can be accessed here.
72
Press release relating to closing the investigation against Apple can be found here.
73
The press release can be found here.
74
The Executive Order, published in 2021, can be found here. The US Department of Commerce
report can be found here.
70

Compendium | Page 22

within GAS and advertising revenue share agreements with vehicle manufacturers
may pose significant risks to competition.

Mergers
44. Merger activity plays an important role in the growth of digital markets. The removalof potential competitors or the acquisition of existing competitors or suppliers canlead to a reduction in competition and innovation, and fewer choices or higher prices
for consumers, and acquisitions can be used by digital firms to reinforce an existingstrong position or extend that position into other markets.
45. There are widely held concerns about historic underenforcement against digitalmergers. In recent years, competition authorities have become more active inchallenging, blocking, and remedying proposed mergers that are likely to reduce
competition in digital markets. Although the majority of mergers in digital markets
are still unconditionally cleared, competition authorities today have a better
understanding of how some of these mergers can be harmful to competition.
46. Many authorities have challenged transactions in relation to concerns regarding theacquisition of nascent or potential competitors, including acquisitions of emerging
digital competitors by traditional bricks and mortar firms. For example, the US FTCchallenged Nielsen/Arbitron, CDK/AutoMate, and Meta/Within. In April 2023, the
CMA published its final report in Microsoft / Activision Blizzard, concluding that themerger may be expected to result in a substantial lessening of competition in cloud
gaming services in the UK. 75Microsoft appealed the CMA’s decision before theCompetition Appeal Tribunal (CAT).76 On 22 August 2023, the CMA confirmed its
decision as set out in the Final Report and issued a Final Order prohibiting thetransaction. On the same date, the CMA opened an investigation into a restructured
proposed acquisition by Microsoft of Activision, which excludes Activision’s cloudstreaming rights outside of the European Economic Area (EEA). As part of the new
proposed acquisition, Activision’s global cloud streaming rights (excluding the EEA)
for all current and future Activision PC and console games released during the next
15 years will be divested to Ubisoft Entertainment SA (Ubisoft). On 13 October 2023,
the CMA decided to grant consent to Microsoft to complete this restructured
acquisition. Although the CMA identified limited residual concerns with the newdeal, it accepted undertakings from Microsoft to ensure that the terms of the sale of75
76

Microsoft / Activision Blizzard merger inquiry - GOV.UK (www.gov.uk)
Microsoft / Activision Blizzard merger inquiry - GOV.UK (www.gov.uk)

Compendium | Page 23

Activision’s rights to Ubisoft are enforceable by the CMA. In May 2023, following an
in-depth investigation, the European Commission approved the acquisition of
Activision Blizzard by Microsoft subject to remedies in relation to cloud gamestreaming services.77 The CMA reviewed completed acquisition of Meta/Giphy andconcluded the merger has resulted or may be expected to result in a substantial
lessening of competition in the supply of social media services etc. and made a finalorder of Meta’s divestment of Giphy.78
47. Another common theme is mergers involving data aggregation that risks entrenchingmarket power. The European Commission reviewed and required interoperability
remedies in Microsoft/LinkedIn and Google/Fitbit to address concerns that themerged entity would be able to use data to prohibit entry or otherwise entrenchmarket power,79 and the US FTC challenged Verisk/Eagleview on a similar theory.80
The JFTC also reviewed Google/Fitbit, clearing it based on the parties’ commitment
to behavioural remedies that maintain interoperability and data separation.81 The
European Commission cleared the Meta/Kustomer merger only subject to conditions
that guarantee non-discriminatory access to its publicly available APIs.82 The
Bundeskartellamt also reviewed and cleared the merger taking into account thesecommitments.83 After a detailed Phase 1 investigation, the CMA cleared the merger.
84
The US FTC’s litigation against Facebook (doing business as Meta) continues. The
lawsuit, in addition to other forms of relief, seeks the divestment of Instagram andWhatsApp.
48. Lastly, there have been a number of vertical or horizontal mergers involving
software, including in important consumer facing industries. For example, the US
DOJ challenged H&R Block/TaxACT (tax preparation software),85 the US FTCchallenged CoStar/RentPath86and Intercontinental Exchange/Black Knight (top77

The decision can be found under:
https://ec.europa.eu/competition/mergers/cases1/202330/M_10646_9311516_7443_3.pdf
78

Facebook, Inc (now Meta Platforms, Inc) / Giphy, Inc merger inquiry - GOV.UK (www.gov.uk)

79

The Commission Decisions can be found here: Microsoft/LinkedIn and Google/Fitbit. In
Google/Fitbit, the Commission also required a data silo commitment to ensure that Fitbit’s user data
will be separate from any other Google data that is used for advertising.
80
The US FTC’s case summary is here.
81
The findings from the JFTC’s review can be found here.
82
The press release can be found here.
83
The case summary can be found here.
84
Facebook, Inc./ Kustomer, Inc. - GOV.UK (www.gov.uk)
85
The US DOJ case page can be found here86
The US FTC’s case summary is accessible here.

Compendium | Page 24

mortgage technology loan providers).87 The CMA recently reviewed Norton/Avast88,
which concerned antivirus and privacy software and Microsoft/Nuance89, which
concerned voice recognition and transcription software. The JFTC also reviewed
Salesforce/Slack90, which concerned CRM (Customer Relationship Management)
software and business chat services.

Section B: Strengthening competition authorities
Strengthening institutional capacity
49. The complexity of technologies powering digital markets and the large amounts ofdata this produces has meant G7 and guest competition authorities have sought tomodernise the tools and approaches needed to understand and investigate anticompetitive behaviour in digital markets.
50. With the important role data plays in the business models of digital firms, authorities
are now having to analyse significant amounts of complex information. As
highlighted by the responses, many competition authorities have taken significant
steps to increase their capacity and ability to analyse new and complex information,
investing resources into a wide range of areas, from establishing dedicated units andupskilling inhouse, to creating internal working groups and working with external
experts.
51. Given the technical complexities of the issues, several competition authorities haveestablished new units, teams or departments comprising of technical specialists suchas data engineers, data scientists, digital forensics experts and behavioural scientists.
These specialists work collaboratively with economists, lawyers and policy
professionals either within the new units or across authorities, providing analyticaland data management expertise to help deliver complex cases more effectively. For
example:a. In 2019, the German competition authority restructured its General Policy
Division to create a dedicated Digital Economy Unit to further support theagency’s work e.g. on platforms and data-related issues, while specialist data

87

The US FTC’s case summary is accessible here. The case settlement is available here.
NortonLifeLock Inc. / Avast plc merger inquiry - GOV.UK (www.gov.uk)
89
Microsoft Corporation / Nuance Communications, Inc. merger inquiry - GOV.UK (www.gov.uk)
90
The findings from the JFTC’s review can be found here.
88

Compendium | Page 25

analysis also remains in particular in the Chief Economist Team and the IT
Forensic Unit.
b. In January 2020, the French competition authority established a dedicated Digital
Economy Unit tasked with developing in-depth expertise on all digital subjects,
collaborate on investigations into anticompetitive practices and mergers in thedigital economy and contribute to studies on new issues related to developments
in digital technology.
c. The UK competition authority established its Data, Technology and Analytics(DaTA) unit in 2019. The DaTA unit provides expert data and technology advice,data acquisition and data science capabilities, data-driven tool development,
behavioural science capabilities, and research, horizon scanning, and casepipeline development.
d. The Australian competition authority established the Strategic Data Analysis Unit
(SDAU), and more recently a Data and Intelligence branch which includes SDAU
and also incorporates intelligence analysts and legal technologists.
e. The Indian competition authority is in the process of setting up a Digital Markets
and Data Unit (DMDU) which will act as a specialised interdisciplinary centre ofexpertise for digital markets.
f.

The US FTC recently added a Chief Technologist and other technology specialists
to advise the Chair and Commission on technology matters while the US DOJ
hired a noted technology economist as its new Chief Economist. The US FTC also
created a new Office of Technology to support the agency across its enforcement
and policy work with the skills needed to better understand evolving technologies
and market trends.91

g. The Canadian competition authority continued to grow its newest branch, called
the Digital Enforcement and Intelligence Branch (DEIB). DEIB is continuing to growand is becoming more involved in the Bureau’s enforcement and advocacy work.
h. The JFTC hired new staff members with tech background as “Digital Analysts”,
who provide advice on JFTC’s various initiatives related to the digital field, such as
market studies.
i.

The Korean competition authority improved the organization, staffing, andequipment to strengthen capabilities for investigating digital evidence and has
established a digital forensic center at Director for General Investigation. Digital

91

https://www.ftc.gov/news-events/news/press-releases/2023/02/ftc-launches-new-officetechnology-bolster-agencys-workCompendium | Page 26

forensic experts conduct on-site investigations and train KFTC employees,
contributing to enhancing digital evidence acquisition and analysis capabilities.
j.

In January 2023, the AGCM introduced a new organizational structure, by
establishing a Directorate focusing on antitrust investigations concerning digitalplatforms and one on market studies, in order to strengthen its capacity building
activities in the digital economy. Moreover, the AGCM envisages to recruit
additional digital experts in 2023-2024.

52. Not only have specialised staff or departments played an important role in theanalysis of data on ongoing cases, but they have also increased the ability ofauthorities to proactively monitor and detect competition issues in digital markets.
For example, the Australian competition authority’s SDAU has conducted research
into the effects of pricing algorithms on competition, developed in-house webscraping capabilities and is working on a tool to detect potential bid-rigging inprocurement data. The French competition authority’s Digital Economy Unit has set
up an automatic Terms of Services tracking tool that lists the Terms of Services andsimilar documents of various digital services available online and allows users to
track their modifications. It is also implementing a tool aimed at detecting collusionin public procurements and is involved in the second phase of a project which aims
to improve the prototype tool assessing corruption risk factors in firms’ ownership
structure (risks of collusion, corruption and money laundering in the European single
market).92 Similar tools have been developed by the Canadian competition
authority’s new DEIB team, the South African competition authority and the US DOJ
as part of a Data Analytics Project which it initiated. The CMA’s DaTA unit is helping
its Digital Markets Unit, currently operating in shadow form, to horizon-scan andidentify the potential impact of new technologies and business practices on
dynamics in digital markets.

Building institutional knowledge
53. Digital markets are constantly evolving and in some cases the issues presented arenovel, meaning there is a lack of case law and precedent to follow. These novel
issues require new methods of analysis, ways of approaching them and an increase
in institutional knowledge. Competition authorities are responding to these needs invarious ways by conducting market studies and fact-finding surveys to better
understand the markets, upskilling staff, accessing specialist advice from external
experts and building in-house knowledge through internal development

92

https://www.transcrime.it/en/datacros-ii-kick-off-meeting/Compendium | Page 27

programmes. Seen as a whole, these approaches help ensure that competition
authorities are equipped to understand and address issues as they arise.
54. The past several years have seen authorities conduct investigations of whole markets
to better understand the complex business models involved and their effects oncompetition, taking advantage of market studies and fact-finding tools. For example:
a. The JFTC has conducted a series of market studies and published reports on
business-to-business transactions in online retail platforms and app stores93, on
digital advertising94, on public procurement of IT systems, on fintech-based
services, on subcontracting transactions in software services, on mobile OS andmobile app distribution95, and on news content distribution96. It has also begun amarket study on smart TVs and OTT platforms.97
b. The French competition authority published a market study on the competitive
functioning of the cloud sector in June 202398, In 2023, the US FTC launched an
inquiry into business practices by cloud computing providers. The request forcomment asked for information about the competitive dynamics of cloudcomputing, the extent to which certain segments of the economy are reliant on
cloud service providers, and security risks. Similarly, in 2022, the Korean
competition authority completed a survey on the cloud market. Also, the JFTC
already published a report on cloud services.99
c. In 2020, the European Commission launched a sector inquiry into the Internet ofThings (“IoT”) for consumer-related products and services in the European Union.
A final report on the findings was published in January 2022.100
d. At the end of 2022, the Canadian competition authority completed a two-year
market study into Canada’s digital health care sector. This report makes
recommendations to Canadian governments and policymakers on ways to

93

Link to report on Business-to-Business transactions on online retail platform and app store can befound here.
94
Final report regarding digital advertising can be found here.
95
Market Study Report on Mobile OS and Mobile App Distribution can be found here.
96
The press release can be found here.
97
In June 2022, the JFTC made a policy statement that it would use the latest knowledge and analysis
on digital markets obtained through such fact-finding surveys for enforcement of the AMA.
98
See the Autorité’s Opinion 23-A-08 of 29 June 2023 on competition in the cloud sector.
99
Final report regarding cloud services is available here.
100
The European Commission’s preliminary report can be found here.

Compendium | Page 28

improve how health care providers work within Canada’s public health system.101
By increasing the use of digital technologies, health care providers can leverage
the benefits of competition. This will accelerate innovation and create greater
choice for patients.
e. The South African competition authority launched its online intermediation
platforms market inquiry in May 2021 and final report was launched on 31 July
2023. The inquiry focused on digital platforms in the areas of e-Commercemarketplaces, online classifieds, software application stores, travel andaccommodation aggregators, insurance comparator sites, and food delivery
services platforms. As a route to these digital platforms, the Inquiry also focusedon google search.102
f.

In addition to its market study into mobile ecosystems discussed above, inJanuary 2022, the CMA also launched a market study into music and streaming
services and published the final report in January 2023.103 The CMA also recently
published an Initial Review into AI Foundation Models.104

55. In addition to improving institutional understanding of market dynamics, market
wide studies and inquiries have often led to concrete recommendations on how to
improve monitoring and regulatory control of digital markets. For example:
a. In 2019, the Australian competition authority concluded an 18-month Digital
Platforms Inquiry,105 which considered the market power and the impact ofsearch engines, social media and news aggregators on media, advertisers andconsumers. The inquiry made 23 recommendations, which included theestablishment of a permanent Digital Platforms Branch at the ACCC to continue
providing close scrutiny of digital markets. In 2020, the Australian Government
directed the ACCC to undertake a 5 year Digital Platform Services Inquiry (DPSI),
and provide 6-monthly reports to the Australian Government.106 As of August
2023, the ACCC has published 6 reports under the DPSI which have examined101

The first report was released in June 2022 and can be found here. The second report was releasedin October 2022 and can be found here. The third report was released in November 2022 and can befound here.
102
A provisional report released in July 2022 can be found here. Final report was released on 31 July
2023 can be found here (Online Intermediation Platforms Market Inquiry Final Report Launch – The
Competition Commission (compcom.co.za).
103
Music and streaming market study - GOV.UK (www.gov.uk)
104
AI Foundation Models: initial review - GOV.UK (www.gov.uk)
105
The Digital Platform Inquiry is published here.
106
See background on the DPSI here.

Compendium | Page 29

digital platform services including online private messaging services, appmarketplaces, general online retail marketplaces and social media.107 In the fifth
report of the DPSI, the ACCC recommended a new regulatory regime to addresscompetition and consumer issues in digital platform markets,108 which is currently
being considered by the Australian Government.
b. Similarly, a key output of the CMA’s online platform and digital advertising market
study was the recommendation to the UK Government that a new pro-competition
ex-ante regulatory regime to proactively shape the behaviour of the most powerful
digital firms and to prevent harms arising in the first place. In May 2022, the UK
government set out in detail its intentions for the pro-competition regime.109 The
UK government introduced the Digital Markets Competition and Consumers Bill in
the UK Parliament in April 2023.110 The Bill also contains reforms to the UK’s wider
competition and consumer laws.
56. Competition authorities are investing in the upskilling of current staff to help
develop their understanding of the issues and how the use of new technologies
could affect competition. In 2020, the US DOJ launched an initiative to allow
attorneys and economists to take advantage of online academic coursework offeredby the MIT Sloan School of Management in blockchain, AI, and machine learning. The
Competition Commission South Africa (“South African competition authority” or“CCSA”) has created a programme focusing on internal skills development specificallyfocused on enforcement. The ACCC also recently launched Digital and Data Learning
Pathways for its employees, aimed at upskilling all employees in the use of data anddigital tools and techniques.
57. Competition authorities are also focused on building institutional knowledge byengaging with external and technical experts:
a. The US DOJ routinely invites public speakers and academics to present their workon competition law and has hosted public workshops; one in 2019 which focusedon the dynamics of media advertising and the implications for antitrust107

The 7th DPSI interim report examining the expanding ecosystems of digital platform providers will
be provided to the Australian Government by the end of September and is expected to be publishedsoon after.
108
ACCC, Digital platform services inquiry, Interim report No. 5 – Regulatory reform, 2022.
109
A new pro-competition regime for digital markets - government response to consultation GOV.UK (www.gov.uk).
110
Digital Markets, Competition and Consumers Bill - Parliamentary Bills - UK Parliament

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enforcement, and another in 2020 which focused on venture capital, highlighting
what antitrust enforcers can learn about how to identify nascent competitors.
b. The JFTC has been actively collaborating with external experts in the digital field,
whilst the Korean competition authority has signed an MoU with research
institutions and universities.
c. The CCSA is considering the establishment of an external panel of advisors to be
drawn from tech companies, venture capitalists and business school academics toprovide the CCSA with specialist knowledge and support on cases.
d. In 2019, the European Commission commissioned three external special advisers
to prepare a report on Competition Policy for the Digital Era.111
e. In June 2022, the CMA held its inaugural Data, Technology and Analytics
Conference,112 which brought together world-renowned experts on competition
policy, digital technologies, and data and analytics. The conference covered topics
including interoperability, privacy, key technologies and digital trends, and thedigital transformation of competition authorities. In addition, the CMA has
appointed nine Digital Experts as independent advisors to provide expert advice
to the CMA on its growing programme of digital work.113
58. These initiatives will help guarantee that authorities have a solid and evolving
understanding of digital markets, ensuring the continuation of quality interventions
and enforcement decisions. Additionally, in the long-term, these changes contributeto strengthening the monitoring and evaluation of remedies and measures
implemented by competition authorities.

Section C: Reforms to existing powers and approaches
59. The updated contributions to the new edition of the compendium highlight thatreforms to address competition concerns in digital markets were enacted, pursued
further or new proposals initiated in particular jurisdictions. Despite the considerable
enforcement and policy work of competition authorities described above and in theindividual contributions, there is growing consensus that additional mechanisms,
powers, or safeguards are necessary and existing approaches should be modernised
or strengthened to address the specific attributes of digital markets. While the111

Published in April 2019, the EU Special Adviser’s Report on Competition Policy for the Digital Era
can be found here.
112
The conference website can be found here.
113
Biographies of the CMA's independent digital experts - GOV.UK (www.gov.uk)

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reforms and reform proposals vary in content and scope, most facilitate easier or
faster agency intervention or contemplate new regulatory regimes.
60. These proposals have been informed by key government and academic reports
which have helped to build the evidence base and to further the global debate onthese issues. Notable reports include: the Report of the Digital Competition Expert
Panel in the UK,114 the Stigler Committee on Digital Platforms and the Judiciary
Antitrust Subcommittee’s Investigation of Competition in Digital Markets in the
US,115,116 the Consultation on the Digital Services Act package117 and the report by theGerman Commission ‘Competition Law 4.0’,118 as well as the European Commission’s
Staff Working Document on the Evaluation of procedural and jurisdictional aspects of
EU merger control119, in addition to significant analysis in competition authorities’
market studies.

Reforms to antitrust and new regulatory regimes
61. Whilst many of the reforms are more recent and ongoing, some jurisdictions havebeen engaged in legislative and policy reforms for years. The German legislator, forexample, brought in changes to the national competition law in 2017 with the 9th
amendment which added provisions pertaining to the digital economy. This
experience helped demonstrate the benefits of new approaches in addressing issues
in digital markets and supported the case for further amendments to competitionlaw.
62. Nearly all contributions indicated that timely intervention and the ability to address
harm in its incipiency are required to make markets more competitive and to drive
innovation, whether that be through regulation, legislation, or wider reforms.
Selected reforms which have been adopted recently include:

114

Published in March 2019, the Report of the Digital Competition Expert Panel can be found here.
Published in September 2019, the Stigler Committee on Digital Platforms report can be foundhere can be found here.
116
Published in October 2020, the US Subcommittee on Antitrust’s Investigation of Competition in
Digital Markets can be found here.
117
Consultation on the Digital Services Act package conducted from June to September 2020 can befound here:
118
Published in September 2019, the Report by the Commission ‘Competition Law 4.0‘ can be found
here.
119
Published on 26 March 2021, the European Commission’s Staff Working Document can be found
here.
115

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a. The European Commission’s Digital Markets Act which entered into force on 1
November 2022 seeks to prevent negative consequences arising from platforms
acting as digital “gatekeepers”. This ex ante regulation includes both prohibitions
against unfair conduct and affirmative obligations to promote well-functioning
markets.120 Together with the Digital Services Act121 which came into force on 16
November 2022 – the Digital Markets Act sets the regulatory framework
applicable to digital giants and the broader digital ecosystem throughout the 27
countries of the European Union. Moreover, in June 2022 the European
Commission adopted a new Vertical Block Exemption Regulation and Vertical
Guidelines, dealing, inter alia, with online distribution.122
b. The 10th Amendment to the German Act against Restraints of Competition(German Competition Act, GWB) entered into force in early 2021 and allows the
Bundeskartellamt to intervene at an early stage, faster, and more effectively, incases of certain conduct by companies which are of paramount significance forcompetition across markets.123 As of September 2023, Google, Meta, Amazon andApple have been declared by the Bundeskartellamt to be of paramountsignificance for competition across markets while a proceeding against Microsoft
is ongoing.124
c. In Japan, the enactment of the Act on Improving Transparency and Fairness ofDigital Platforms allows certain powerful digital platforms to be designated as“specified digital platform providers” and become subject to specific regulations
aimed at increasing transparency and fairness in markets such as online retailmarketplaces, app stores, and digital advertising.125
d. In Italy, a new law passed by Parliament in August 2022 introduced new tools totackle the bargaining power of digital platforms. The existing provisions
concerning the abuse of economic dependence are amended to account for the120

The Digital Markets Act can be found here and the accompanying press release can be found
here.
121
The Digital Service Act can be found here. On 25 April 2023, the Commission designated 17 Very
Large Online Platforms and 2 Very Large Online Search Engines. The designated entities are having 4
months to comply with the obligations under the DSA, which includes carrying out and providing thefirst annual risk assessment exercise.
122
The accompanying press release can be found here.
123
The amendments can be found here.
124
The press releases can be found here (Google), here (Meta), here (Amazon), here (Apple) andhere (Microsoft).
125
Further detail is available here.

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intermediation power of digital platforms.126 In particular, the law introduced arebuttable presumption of economic dependence for those operators dealing
with digital platforms offering intermediation services when the latter represents
a key gateway in reaching end users and/or suppliers. The AGCM applied this newprovision for the first time in the media sector against Meta Platforms Inc. in April
2023 (see subsection “Impact on media” of Section D below).
e. In France, the ordinance transposing Directive (EU) 2019/1 (the ECN+ Directive)
was published in May 2021.127 This new legal framework has provided theAutorité with powerful new tools adapted to new enforcement challenges,
particularly those raised by the development of large platforms. The Autorité has
now the possibility, inter alia, to set its own priorities, to file an action on its own
initiative to impose interim measures and to issue structural injunctions. In
addition, the “DDADUE Law” of December 2020 modernized the Autorité’sinternal procedures.
f.

In Canada, important amendments to the Competition Act became law in 2022.
These amendments are strengthening the Bureau’s ability to protect Canadian
consumers, businesses and workers from anti-competitive conduct.128 For
example, new considerations regarding digital commerce may be taken into
account by the Competition Tribunal. These include network effects, non-pricecompetition, and privacy. Also, drip pricing has been added as a deceptive
marketing practice.

63. In addition, in a number of jurisdictions reform proposals regarding competition indigital markets are being discussed:a. In March 2023, the Canadian Competition Authority presented its submission to
the Government of Canada’s ongoing consultation on the future of competition
policy in Canada. The submission included over 50 recommendations and focusedon areas where the Competition Authority believes that reform is required,including digital competition issues.
b. In May 2022, the UK government set out its intentions for an ex-ante procompetition regime, which would be enforced by the Digital Markets Unit within126

See section 1.3 of the AGCM annual report for the OECD, available here
(https://one.oecd.org/document/DAF/COMP/AR(2023)19/en/pdf).
127
This text is the result of the authorisation to implement the directive granted by the Law of 3
December 2020 on various provisions for adapting to European Union law in economic and financial
matters ("DDADUE Law").
128
The amendments can be found here.

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the CMA. This regime would apply to firms that are designated as having strategic
market status. These firms would be required to comply with enforceable
conduct requirements to prevent them from taking advantage of their powerful
position and may be subject to pro-competitive interventions such as data accessor interoperability requirements. In addition, the government has announced itwill take forward broader reforms to the CMA’s existing competition andconsumer powers, to ensure they are better adapted for the digital age.129 The
Digital Markets Competition and Consumers Bill was introduced in the UK
Parliament in April 2023 which will put these reforms into law.130
c. The committees in the US legislature have proposed bills to address competition
concerns in digital markets. For example, the House Judiciary Committee (HJC)
has proposed four bills in response to their recently concluded multi-year
investigation into competition in digital markets. The United States Congress iscurrently considering these and other bills which range from broad-based
antitrust reforms to narrowly targeted bills that would create exemptions or
obligations for a small number of firms.131 In March 2022, the United States
Department of Justice issued a letter in support of one of the bills, the American
Innovation and Choice Online Act, which would prohibit discriminatory conduct
by dominant platforms.132 Also, in July 2021, President Biden issued an Executive
Order on Promoting Competition in the American Economy, emphasising thepriority to promote fair, open, and competitive markets, with a focus on digitalmarkets.133
d. The European Commission has launched an evaluation of Regulation 1/2003, i.e.
its antitrust procedural regulation, to ensure that it is fit for purpose as regards
enforcement in the digital age.134
e. In 2020, the French competition authority published a position paper oncompetition policy and digital challenges proposing ways to tackle thechallenges, including supplementing competition law at national or European

129

Reforming competition and consumer policy: government response - GOV.UK (www.gov.uk).
Digital Markets, Competition and Consumers Bill - Parliamentary Bills - UK Parliament
131
The Bills can be found here; American Choice and Innovation Online Act, ACCESS Act of 2021,
Platform Competition and Opportunity Act of 2021, Open App Markets Act.
132
The letter can be found here.
133
The Executive Order, published in 2021, can be found here.
134
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_4194
130Compendium | Page 35

level with a mechanism that would allow quick intervention when harmful
conduct occurs by ‘structuring’ operators i.e. identified platforms.135
f.

In Korea, the National Assembly is discussing to legislate the 'Act on Fairness in
Online Platform Intermediary Transaction (OPA)'. The OPA focuses on promoting
transparency and fairness of transactions in online platforms as well as mutually
beneficial cooperation between platforms and online stores.

g. In Japan, the Digital Market Competition Council is engaged in discussions on theCompetition Assessment of the Mobile Ecosystem and the development of rulesin the digital field136. The JFTC contributes to the discussions by making policy
proposals based on the market study report on mobile OS and mobile app
distribution137.
h. The report of the South African competition authority on the inquiry mentioned
above has provisionally identified the potential need for proactive regulation or
guidelines. The proposal, for example, includes the prohibition of certain conduct
which has an adverse effect on intermediation platform competition.
i.

The ACCC’s fifth report in its ongoing Digital Platforms Service Inquiry
recommended a range of new measures to address harms from digital platforms
to Australian consumers, small businesses and competition.138 In addition torecommending new consumer and competition measures for digital platforms,
the report also reiterates the ACCC’s support for economy-wide reforms to
consumer law such as a prohibition on unfair trading practices. The AustralianGovernment has concluded its consultation on the ACCC’s recommendations, and
the ACCC is awaiting the Government’s response.

64. In addition to these wide sweeping reform proposals, many agencies haveintroduced plans to change procedures and institutional arrangements to allow theauthority to act faster. This includes using interim measures to prevent further harm(for instance the use by the European Commission of interim measures in October
2019 against Broadcom), and improving the authority’s ability to access information
to better understand and analyse issues. Some jurisdictions that have not proposed
reforms have identified that they are also facing similar challenges and will reflect on

135

The Autorité’s Contribution to the Debate on Competition Policy and Digital Challenges can befound here.
136
Final Report Summary of Competition Assessment of the Mobile Ecosystem, published on June
16, 2023, can be found here.
137
Market Study Report on Mobile OS and Mobile App Distribution can be found here.
138
ACCC, Digital platform services inquiry, Interim report No. 5 – Regulatory reform, 2022.

Compendium | Page 36

the experiences and learnings in other jurisdictions to determine whether similarreforms would be appropriate.

New approaches in merger control and reforms
65. Reforms are also being taken forward in relation to merger control. In many
jurisdictions, governments and agencies have proposed or introduced reforms toenhance jurisdiction over mergers in digital markets. Many competition agencies
have notification thresholds that are coterminous with jurisdiction and based on theturnover of at least two parties to a transaction. In digital markets, often one party
has low or no turnover, and thus agencies may lack jurisdiction to review andaddress these mergers. Reforms include:a. Germany introduced new legislation to review transactions based on transaction
value back in 2017. In 2022, the Federal Ministry for Economic Affairs and Climate
Action published a competition policy agenda which indicated that, among otherobjectives, the Ministry is in favour of strengthening the Bundeskartellamt in thefield of merger control.139
b. The European Commission announced in its guidance on Article 22 of the EU
Merger Regulation that it will no longer discourage referrals from EU Members
States for transactions falling outside the referring Member State’s national
merger control thresholds.140 141 142 In 2022, the General Court of the EU
confirmed this approach.143
c. The JFTC declared its intention to actively review non-notifiable transactions in its
revised Policies Concerning Procedures of Review of Business Combination,although it is generally possible for the JFTC to review transactions that do notmeet the notification thresholds. In June 2022, the JFTC made a policy statementthat it would strengthen enforcement on transactions especially in the digital

139

The competition policy agenda of the Federal Ministry for Economic Affairs and Climate Action up
to 2025 is available here.
140
Commission Guidance on the application of the referralmechanism set out in Article 22 of the Merger Regulation to certain categories of cases, here.
141
In addition, the proposed Digital Markets Act would require designated gatekeepers to inform theEuropean Commission of planned acquisitions or mergers.
142
France, having advocated for the use of Article 22, were the first authority to refer an acquisition
that fell below national transaction thresholds to the European Commission which led to a phase 2
examination of the transaction.
143
Judgment of 13.07.2022, Case T-227/21, Illumina v. Commission, can be found here.

Compendium | Page 37

market in several ways. These include requesting firms to submit their internal
documents from the early stage of a review and seeking information andcomments from third parties related to a review.
d. In Italy, the amendments to the Italian competition law also introduced a regime
for reviewing transactions falling below the applicable thresholds in order tocapture acquisitions of nascent competitors. In January 2023, the AGCM adopted
a notice addressing the procedural aspects of the new regime, clarifying thesubstantial rules and allowing for voluntary notifications144; moreover, the AGCM
is in the process of establishing a monitoring system for merger transactions.
e. In South Africa, the recent amendments to the Competition Act provide scope for
the CCSA to request the notification of mergers that lie below the standard
threshold.
f.

The US FTC published a study of 616 non-notified acquisitions by six large techfirms, analysing the terms, scope, structure and purpose of the acquisitions that
did not receive pre-merger review.145

g. In July 2023, the US FTC and the US DOJ released new draft U.S. merger
guidelines146 following a comprehensive review. The review evaluated how toaccount for certain features of digital markets such as zero-price dynamics, thecompetitive significance of data, network externalities, and platform merger
analysis.
h. Reforms to facilitate competition authorities’ ability to prevent anticompetitive
mergers, which would apply economy-wide, are under consideration inAustralia.147i.

In the UK, the Bill to introduce a new ex ante pro-competition regime for digitalmarkets include reforms in relation to merger control. The pro-competition
regime will apply to firms that the CMA’s Digital Markets Unit designates as
having strategic market status. Firms designated as having strategic market statuswill have to report their most significant transactions prior to completion.148

144

For an in-depth description of the new regime and the AGCM notice, see section 1.1 of the AGCM
annual report 2022 for OECD, available here:
https://one.oecd.org/document/DAF/COMP/AR(2023)19/en/pdf
145
The US FTC’s report can be found here.
146
The draft merger guidelines can be found here.
147
Protecting and promoting competition in Australia – Speech transcript.
148
A new pro-competition regime for digital markets - government response to consultation GOV.UK (www.gov.uk)

Compendium | Page 38

66. These ongoing changes and proposals highlight the importance of policy makers
engaging with competition authorities to ensure their tools remain fit-for-purpose,enabling them to continue to take action such that digital markets work for
consumers, businesses, and benefit society.

Section D: The importance of regulatory cooperation
67. Competition issues rarely occur in a vacuum and many of the issues highlighted are
inextricably linked with other policy areas. This crossover consistently appears in thework of G7 and guest competition agencies in areas such as data privacy andprotection, consumer protection, and media sustainability where agencies areworking closely with other government departments and regulators to tackle
complex issues involving competition in holistic ways.

The links between data protection, privacy, consumers, and competition
68. The use of data is core to many digital platform business models, whose services areoften offered ‘for free’ in exchange for consumer’s data. Access to large datasets cancontribute to a platform’s strong market position which can be leveraged to collect
more data to better target consumers and develop products and services. This cycle
can make it difficult for new entrants and innovative challengers to compete.
Competition agencies are therefore regularly considering how the ways in which
platforms collect consumer data affect markets. This increasingly involves working
closely with data protection and consumer enforcement authorities.
69. A number of competition and consumer agencies have used consumer protection
tools to address harmful behaviour relating to the gathering of consumer data. For
example:a. In 2019, in Australia the ACCC took action against Google for alleging it misledconsumers about the personal location data it collects and uses from Android
mobile devices.149 In August 2022, the Australian Federal Court ordered Google to
pay $ 60 million in penalties for making misleading representations to consumers.
150

149
150

A summary is published here.
The ACCC’s media release is here.

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b. In Italy, the AGCM fined WhatsApp in 2017 and Facebook in 2018, using its
consumer protection powers, for aggressive practices related to the collection
and use of consumers’ data.151 In November 2021, the AGCM fined Apple and
Google for some unfair and aggressive commercial practices related to theutilization of user data, such as the omission of information about the collection
and use of personal data and the set-up of an opt-in as default option for data
sharing consent152.
c. The CBC reached a settlement with Facebook that included a CA$9 million
fine regarding the false or misleading claims about the privacy of Canadians’
personal information online.153
d. In India, the CCI directed an investigation in relation to the updated privacy policy
and terms of service by WhatsApp whereby the users have to accept theunilaterally dictated terms and conditions in order to retain their WhatsApp
account information.
e. In Germany, the Bundeskartellamt imposed extensive restrictions on Facebook
regarding the processing of user data.154 The Bundeskartellamt found that
Facebook’s terms of service and the manner and extent to which it collects anduses data amount to an exploitative abuse of dominance. The Bundeskartellamt
worked closely with data protection authorities to clarify the data protection
issues involved when assessing Facebook’s behaviour under its national
competition law.
f.

The US FTC has an ongoing rulemaking proceeding on digital commercial
surveillance, the business of collecting, analyzing, and profiting from information
about people. The 2022 notice invited public comment and seeks to explore theharm stemming from digital commercial surveillance and whether new rules areneeded to protect people’s privacy and information.155 In 2023, the US FTC took
action against Amazon for duping consumers into its Prime subscription
program156 without their consent and making it difficult to cancel theirsubscription. The US FTC alleges that Amazon violated the US FTC Act and the151

A summary is published here.
See cases nos. PS11147-PS11150, press release of 26 November 2021,
https://en.agcm.it/en/media/press-releases/2021/11/PS11147-PS11150
153
A summary is published here
154
The BKartA’s summary can be found here.
155
https://www.ftc.gov/news-events/news/press-releases/2022/08/ftc-explores-rules-crackingdown-commercial-surveillance-lax-data-security-practices.
156
https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-takes-action-againstamazon-enrolling-consumers-amazon-prime-without-consent-sabotaging-their152

Compendium | Page 40

Restore Online Shoppers’ Confidence Act by using “dark patterns” to trick
consumers into enrolling in auto-renew Prime subscriptions.
70. Outside of enforcement, several agencies have taken an in-depth look at thesynergies and tensions that arise when competition intersects with data protection,
privacy, and consumer protection through studies, reports, and collaborative work.
This includes:a. The JFTC published Guidelines concerning abuse of superior bargaining position
to increase transparency around data collection and the transactions between
platforms and consumers providing personal information.157
b. Similarly, in Italy, the AGCM worked with Italy’s Communication Regulator andthe Data Protection Authority to publish a report in 2020 which included
recommendations to government and parliament outlining a frameworkaddressing the issues raised by big data.158 The three authorities advocated forthe establishment of a coherent and consistent framework on data collection andutilisation, which enhances transparency by reducing information asymmetries
and facilitates data portability through the adoption of open and interoperable
standards.
c. The Korean government has launched an inter-ministerial consultative body,
including different ministries and enforcement agencies, to deal with issues
related to digital platforms. This body enables agencies to increase synergies
between policies across government agencies.
d. In the UK, the CMA recently published a joint statement with Ofcom, thecommunications regulator, setting out the authorities’ shared views on therelationship between competition and online safety in digital markets and how
the two authorities will take account of this as they continue to collaborate anddeliver coherent regulation in digital markets.159 The CMA has also published ajoint statement with the Information Commissioner’s Office (ICO), the UK’s dataprotection authority, underlining the strong synergies that exist between the aimsof competition and data protection and how the regulators can work
collaboratively to overcome any perceived tensions in their objectives.160

157

Further detail is available here
A summary of the report is available here
159
Online safety and competition in digital markets: a joint statement between the CMA and Ofcom(publishing.service.gov.uk).
160
The statement is published here.
158

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e. In France, the Autorité, within the context of the investigation of practices
implemented by Apple in relation with its iOS 14 operating system, solicited in2020 the observations of the data protection agency (CNIL) on the issues likely to
be raised by the practices reported in the complaint in terms of personal dataprotection, in order to be able to appropriately assess the practices at stake. Bothagencies have maintained a very close and fruitful dialogue in 2022, and thesecontinuous exchanges have also translated into cross-agency trainings (which
focused on the functioning of each institution and their respective legal
framework) as well as workshops on topics of common interest.
f.

The US FTC recently adopted a policy statement on enforcement related to gig
work that recognises both consumer protection and competition issues facing gig
workers.161 The statement notes that an integrated approach to investigating
unfair, deceptive, and anticompetitive conduct is especially appropriate for thegig economy, where law violations often have cross-cutting causes and effects.
The statement also points out that markets populated by gig companies are often
concentrated, resulting in reduced choice for workers, customers, and businesses.

71. The links between data protection, privacy, consumer protection and competition
also become increasingly evident in some of the recent legislative reforms. For
example, the Digital Markets Act makes explicit references to the General Data
Protection Regulation (GDPR) in some of its obligations for gatekeepers.

Impact on media
72. More recently there have also been examples of competition concerns having an
impact on the sustainability of the media. Some agencies have taken action toaddress the competition concerns. These include:a. In Australia, the News Media Bargaining Code was passed into legislation in
February 2021.162 The code is designed to address the significant bargaining
power imbalance between major digital platforms and Australian news
businesses. Although compliance with the code is not yet mandatory for digitalplatforms, numerous voluntary negotiations have already resulted in commercial
agreements between the platforms and publishers.

161

The statement can be found here.
Parliament of Australia, Treasury Laws Amendment (News media and digital platforms mandatory
bargaining code) Bill 2021, 25 February 2021
162

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b. Similarly, in France, in the course of the investigation into the merits of the“related rights” case, the Autorité accepted in 2022 Google's commitments tocreate a framework for negotiating and sharing the information necessary for atransparent assessment of the remuneration for the reuse of publishers and press
agencies’ protected content.163 Prior to this decision, in the same case, theAutorité imposed in 2021 a € 500 million fine164 on Google for non-compliancewith several injunctions issued in the context of its interim measures decision of
2020, which ordered Google to negotiate with publishers and press agencies
regarding the remuneration due to them and their related rights, pending thedecision on the merits.165
c. In Italy, the AGCM opened an investigation against Meta Platforms Inc. for alleged
breach of the new provision on abuse of economic dependence in digital markets,by interrupting negotiations with SIAE, the largest collecting society for licensing
musical rights, for the use of SIAE artists’ music and subsequently removing theirmusical content from its platforms. The AGCM adopted interim measures, by
forcing Meta Platforms Inc. to resume negotiations with SIAE and reinsert theartists’ work back on Meta’s platforms166.
d. The JFTC also made clear that platforms need to be more transparent withpublishers about their renumeration. It also clarified, in its Compilation ofConsultation Cases on the Antimonopoly Act (FY2021) published in June 2022,
some cases where Japan’s competition law allows newspaper publishers tocollectively demand online news portal platforms, including a case where they ask
to disclose data necessary to examine remuneration for their news articles. It also
published a market study report on news content distribution in September
2023167.
e. In January 2022, the Indian competition authority initiated an investigation
against Google in relation to alleged unilateral and non-transparent
determination and sharing of online advertisement revenues with news

163

See the Autorité’s Decision 22-D-13 of 21 June 2022 regarding practices implemented by Google
in the press sector.
164
See the Autorité’s Decision 21-D-17 of 12 July 2021 regarding the compliance with injunctions
issued against Google in decision 20-MC-01 of 9 April 2020.
165
See the Autorité’s Décision 20-MC-01 of 09 April 2021 on requests for interim measures by the
Syndicat des éditeurs de la presse magazine, the Alliance de la presse d'information générale andothers and Agence France-Presse.
166
See press release here: https://en.agcm.it/en/media/press-releases/2023/4/A559167
The press release is available here.

Compendium | Page 43

publishers. It was also alleged that Google unilaterally decided not to pay the
publishers for the snippets used by Google in its search engine results.
f.

In the UK, the CMA and Ofcom, the communications regulator, published joint
advice to government in May 2022 on how a code of conduct could work inpractice to govern the relationship between digital platforms and content
providers such as news publishers, to ensure they are fair and reasonable.168

g. Finally, highlighting the pace of change in digital markets, the Germancompetition authority in December 2022 completed a proceeding concerning theGoogle News Showcase service.169 During the course of the proceeding, Google
changed its contractual practices, addressing concerns of the authority that thecontractual terms offered are to the detriment of publishers. Google also
abandoned plans to integrate Showcase into the general Google search service
and is working towards providing non-discriminatory access to the platform. 170

Domestic and international collaboration with non-competition authorities
Domestic collaboration
73. G7 and guest competition authorities are engaging regularly with other domestic
regulators and policy makers to address issues in digital markets in a holistic way. For
example, the French commercial code ensures that the Autorité must communicate
to every independent regulatory authority all proceedings that are initiated which
relate to sectors that fall within their area of expertise. In a referral from several
associations representing the online advertising sector that contested practices
implemented by Apple (the introduction of App Tracking Transparency (ATT) for
applications on iOS), the Autorité solicited and received an opinion from the dataprotection agency (CNIL) on the measures implemented by Apple that offered users
a reinforced framework of consent for the use of their personal data.171
74. The Canadian competition authority highlights that it cooperates with domestic law
enforcement partners in its case work. They also provide competition-related input
to regulators and policy makers at all levels of government in the context of its

168

Advice to DCMS on how a code of conduct could apply to platforms and content providers GOV.UK (www.gov.uk).
169
The press release is available here.
170
A case summary is available here.
171
See the Autorité’s Decision 21-D-07 of 17 March, 2021 in the sector of mobile applications
advertising on iOS.

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advocacy work. In Australia, the ACCC regularly engages with other government
agencies through formal Memorandums of Understanding (MoUs) allowing improved
information sharing. In Italy, an intergovernmental group on Fintech was establishedin 2018 by the Economic Ministry in order to favour the development of innovative
business models and services based on digital technologies; it includes several
agencies such as the AGCM, the financial and data protection regulators. In
Germany, the Bundeskartellamt cooperates with the Federal Office for Information
Security (BSI), the federal cyber security authority which ensures secure
digitalisation, with a particular focus in the area of digital consumer protection.172
One example of the collaboration of the two authorities is the sector inquiry intomessenger and video services by the Bundeskartellamt that consulted with the BSI
during the process of compiling a checklist outlining the essential criteria which
ensure data security and compliance with the law.173
75. Competition authorities are also building new structures to ensure ongoingcollaboration and cooperation. For example, in 2020 the CMA launched the Digital
Regulation Cooperation Forum (DRCF), alongside Ofcom, the communications
regulator responsible for the UK’s new regime for online harms, the Information
Commissioner's Office (ICO) and the Financial Conduct Authority (FCA), to improvecoordination and cooperation between regulators in digital markets.174 In 2022-2023,
the DRCF’s focus is on protecting children online, promoting competition and privacy
in online advertising, supporting improvements in algorithmic transparency, andenabling innovation.175 In Australia, the Digital Platforms Regulators Forum (DP-REG)
was launched in March 2022 to provide more formal engagement between the
ACCC, the Australian Communications and Media Authority (ACMA), the Office of theAustralian Information Commissioner, and the Office of the eSafety Commissioner.
176
In June 2023, the Competition Bureau, the Canadian Radio Television andTelecommunications Commission and the Office of the Privacy Commissioner formed
the Canadian Digital Regulators Forum.177 The forum will support the exchange bestpractices, conduct research, and collaborate on matters of common interest likeartificial intelligence and data portability. This partnership will strengthen the workof all three agencies as they keep pace with rapid changes in the digital economy.
Furthermore, the CMA recently established International Network for Digital

172

A related press release is available here.
A press release on the completion of the sector inquiry into messenger and video services isavailable here.
174
Further information is available on the DRCF’s webpage here.
175
Digital Regulation Cooperation Forum workplan 2022 to 2023 – GOV.UK (www.gov.uk).
176
See the ACCC’s media release here.
177
The CBC’s news release can be found here
173

Compendium | Page 45

Regulation Cooperation (INDRC) along with Australia, Ireland and The Netherlands.
The KFTC is cooperating with relevant ministries to develop a comprehensive, pangovernmental measure to address issues related to data and AI. The recent US
Executive Order specifically directs the US DOJ and US FTC to work with other federal
agencies to adopt a whole-of-government approach to address overconcentration,
monopolisation, and unfair competition in the American economy, including indigital markets. The CCSA is also currently exploring its working arrangements with
the newly formed Information Regulator of South Africa to determine where eachregulator can be most effective, in particular concerning the monitoring of the new
Protection of Personal Information Act (POPIA).
76. Another area where authorities are also cooperating closely is fintech. With thegrowth of the sector and the increasing involvement of digital firms in financial
markets there has been a clear effort by authorities and governments to better
understand these markets and build closer relationships. For example, the CCSA
forms part of the Open Finance Inter-governmental Fintech Working Group (IFWG)
comprising of other regulators and departments. Established in 2016, the aim is tounderstand the growing role of fintech firms and innovation in the South African
financial sector and explore how regulators can proactively assess emerging risks andopportunities. Elsewhere, the CBC is building on their market study on fintech bycontinuing to support work to implement open banking in Canada. Similarly, theFrench competition authority conducted a sector-specific inquiry on the level ofcompetition in new technologies applied to financial activities.

International collaboration
77. As well as the increasing collaboration domestically, international collaboration
between competition authorities is now more important than ever. Competition
authorities deal with global digital firms who operate in ‘borderless markets’ andtherefore face similar challenges. Furthermore, there is a need to understand thedifferent approaches being taken to avoid creating a fragmented regulatory
landscape. Collaboration provides a powerful opportunity to share learning andexperiences in addressing similar issues.
78. At EU level, the national competition authorities of all EU member states together
with the European Commission form the European Competition Network (ECN).178
Through the ECN, the competition authorities inform each other of proposed

178

For more information on the ECN, see here.

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decisions and take on board comments from other competition authorities. In thisway, the ECN allows the competition authorities to pool their experience and identify
best practices. In addition, the Digital Markets Act establishes a high level group for
digital markets expanding cooperation to the European regulators for electronic
communications, data protection, consumer protection, and audiovisual media.
79. G7 and guest authorities continue to work together directly, sharing information,case theories, best practice and in some cases even producing joint outputs. The
JFTC and US DOJ highlight the importance of regular discussions with otherregulators to solicit different opinions and help formulate and inform domestic views
on competition matters. In February 2023, the AGCM and the ACCC signed a
Memorandum of Understanding, paving the way for new opportunities to cooperate
on investigations and share experiences and best practices, particularly with respect
to the digital economy179. In terms of joint work, in 2019, the German and Frenchcompetition authorities produced a report on algorithms, described above.
80. The CCSA together with the competition authorities of Egypt, Kenya, Nigeria andMauritius, launched a digital markets enforcement initiative, given the greater
shared challenges that digital markets pose for African countries. The goal is a closer
co-operation in order to share knowledge, develop effective strategies in digitalmarkets and provide a stronger united front in dealing with global tech companies.180
81. Authorities also continue to work together through existing international
competition and consumer networks such as the International Competition Network(ICN), the Organisation for Economic Co-operation and Development (OECD)
Committees on Competition and Consumer Policy, the UN Trade and Development
Competition and Consumer Policy Branch, and the International Consumer
Protection and Enforcement Network (ICPEN).
a. The ICN, a global network of 143 competition agencies dedicated to competition
policy, recognized the challenges posed by digitalization early. The ICN addressed
key digital issues including developing normative guidance on assessing
dominance in digital markets, and has also focused resources on multi-disciplinary
issues such as its multiyear project on the intersection between competition,
consumer protection, and privacy which is coordinated by the competition
authorities of Australia, Canada, US (FTC) and Italy. It has also increased its

179

See press release here: https://www.accc.gov.au/about-us/media/media-updates/accc-anditalys-competition-authority-strengthen-cooperation-with-new-mou
180
The accompanying press release can be found here.

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coordination and focus on digital matters through the creation of the role of an
ICN Vice Chair for digital co-ordination (Rod Sims, ACCC) and later a Vice Chair on
digital economy issues (represented by US FTC Chair Lina Khan) and theestablishment of a new ICN forum for agency technologists and digital experts.
b. The OECD’s Competition Committee has held best practice roundtables on a hostof digital topics such as competition economics of digital ecosystems and abuse of
dominance in digital markets. It has also addressed interdisciplinary issues such ascompetition enforcement and regulatory alternatives, which included discussionsof the interplay with other regulations, and topics such as digital advertising,which necessarily includes considerations of consumer and privacy issues. The
OECD has also developed consensus prescriptive documents (“Council
Recommendations”) that inform competition authority approaches, including indigital markets work, and enhancing agency cooperation, this also includes
considering legal models that could support enforcement cooperation in thedigital era. The OECD is continuing its work in this area.
c. Several of the G7 and guest authorities are also active in ICPEN, working
collaboratively with other members on joint projects to remedy harms
experienced by consumers globally. Whilst the network considers issues in all
markets, over the past few years ICPEN work has increasingly considered harm toconsumers in digital markets, focusing on online reviews and endorsements,
reducing harm to children due to marketing in online games and improving thetransparency of business’ terms and conditions online.
82. Collaboration and cooperation between competition authorities, regulators,
international networks, law makers, governments, and industry experts will better
allow authorities to keep up with the pace of change, understand new businessmodels and emerging issues, and work towards coherence that spurs innovation andbenefits society.

Compendium | Page 48

V.

Conclusions and next steps

83. As this update to the compendium shows, competition authorities continue todedicate a vast amount of activity to digital markets, and there is a high level ofcommonality in the approaches that authorities are taking to address competition
concerns. Many agencies have opened additional investigations, completed or
conducted new studies and brought new enforcement actions to address concerns
about the exercise of market power of platforms.
84. In grappling with these complex issues authorities are actively looking to strengthen
institutional capability and build knowledge to ensure they are equipped to address
the specific challenges of digital markets, developing skills and building teams withbackgrounds in areas such as engineering and data science. Furthermore, newrelationships are being cultivated with other regulators, and with technical experts,
to understand a range of complex issues.
85. These efforts are also important for competition authorities to understand emerging
technologies, such as artificial intelligence, blockchain and metaverse. While this typeof technologies can set the stage for a fresh stream of competition, the rapid
development and proliferation of them may present risks and harms to competition.
The competition authorities are using their enhanced skillsets to scan the horizon forearly warning signs of conduct that might tip markets or reduce contestability andidentify key technologies and issues that may raise competition concerns in the future.
86. Also, a number of legislators of the G7 and guest countries have already recently
introduced different reforms to address competition issues in digital markets andmany other jurisdictions concrete reform proposals are being discussed. Recognisingthat the current tools may, in some jurisdictions, be insufficient, authorities andlegislatures are developing solutions either to bolster enforcement tools, merger
assessments, or to introduce regulation. Whether the tools at the disposal ofcompetition authorities are adequate, however, is a question which will remain
acute. On the one hand, it is important that new tools are future-proof and that theyremain up to the task also in light of new challenges.181 On the other hand, if theapplication of the promising new regulatory and competition law approaches should181

In this regard, it is noteworthy that at the EU level Art. 12 of the Digital Markets Act allows forobligations for gatekeepers to be updated to a certain degree, “in order to address practices that
limit the contestability of core platform services or that are unfair in the same way as the practices
addressed by the [current] obligations”. Moreover, Art. 53 stipulates a regular review of the DMA.

Compendium | Page 49

still prove to have only a limited effect on the competitive process in certain areas,
the option to allow for more comprehensive interventions is likely to remain part ofthe discussion.182
87. These approaches are being driven by global challenges, with global firms operating
across borders and jurisdictions in digital markets. This underlines the importance ofcollaboration between competition agencies, as well as other regulators andgovernments in addressing the challenges posed. The development of thecompendium is an example of the valuable output of collaborative work andhighlights competition authorities’ commitment to continue strengthening the ways
we work together directly, sharing information, case theories, best practice and insome cases even producing joint outputs.
88. The following section includes the submissions from each of the competition
authorities that contributed to the compendium.

182

The Bundeskartellamt’s sector inquiry into online advertising contains some discussions along
these lines, see p. 9 f. of the executive summary which can be accessed here.

Compendium | Page 50

VI.

Submissions

Canada - Competition Bureau Canada
Whether you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
Enforcement
The Competition Bureau (Bureau) has active investigations against large digital platforms
related to conduct in the digital economy. For example, the Bureau is investigating if
Google engaged in practices that harm competition in the online display advertisingindustry in Canada.
Additionally, on June 29, 2023, the Bureau received a Federal Court order requiring Meta
Platforms to provide information relevant to the Bureau’s ongoing investigation into
Amazon. The Bureau is investigating claims made by Amazon about product reviews andstar ratings on Amazon.ca and Amazon’s mobile application to determine if Amazon’s
marketing practices raise concerns under the deceptive marketing provisions of theCompetition Act.
The Bureau also has other investigations in digital markets outside of large techplatforms. For example, the Bureau is investigating data sharing practices of a real estateagent trade association.
Many of the Bureau’s investigations involve e-commerce. In May 2023, the Bureau took
legal action against Cineplex for “drip-pricing”. On its website and mobile app, Cineplex
advertises movie tickets at a lower price than what many consumers have to pay. This isbecause Cineplex adds an additional $1.50 CAD online booking fee. The Bureau allegesthat Cineplex made nearly $17 million CAD in revenues in the nine months since the fee
was added.
The Bureau also has an active investigation against the Dufresne Group, Inc. and its
affiliates for using urgency claims online about the date sales would end. These claims
may be false or misleading.

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Promotion and Advocacy
In addition to enforcement, the Bureau supports public education efforts. The Bureau
publishes the “Deceptive Marketing Practices Digest” series and other materials to help
businesses comply with the law. The most recent issue covers common marketing practices
used in the online marketplace. This includes scarcity cues and drip pricing. Past issues havefocused on:online disclosures

influencer marketing

online reviews, andthe collection of consumer data in exchange for “free” online products andservices.

At the end of 2022, the Bureau completed a two-year market study into Canada’s digital
health care sector. The study aims to understand barriers to innovation and choice.
The first report focuses on health data and information. Along with otherrecommendations to improve competition, we recommended making it easier tosecurely access and share personal health information.



The second report focuses on public procurement processes that provinces andterritories use to buy health care products and services to treat patients. We
identified important barriers that prevent innovative suppliers from competing for
public contracts and made recommendations so that public procurement policy
helps foster greater competition and innovation.



The third and final report examines how pro-competitive policies can foster
innovation and bring greater choice and access to digital health care services for
Canadians. To improve competition, we recommended helping health careproviders use the best available digital technologies. This will lead to lower costs,
better health care services, and improved patient outcomes.

Data Portability
The Bureau is championing the benefits of data portability for competition and consumers.
This includes conducting experimental research to better understand and quantify thevalue that data portability can bring to Canadians.

Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting

Compendium | Page 52

more data specialists, building new investigative tools, or gathering new/different
evidence).
Digital Enforcement and Intelligence Branch
In 2023, the Bureau continued to grow the new Digital Enforcement and Intelligence
Branch (DEIB). DEIB is a centre of expertise on digital business practices and technologies.
It also provides specialized functions such as centralized intelligence. It aims to be an
early warning system for potential competition issues at all stages, from providing early
intelligence to monitoring remedies after investigations.
DEIB provides strategic advice to teams working on civil and criminal files. It provides
information on how businesses use data and technology, proactive intelligence, and theeffectiveness of remedies. DEIB’s work helps the Bureau better understand how
businesses may exploit consumers. The team is increasing staff numbers and becoming
more and more involved in the Bureau’s enforcement and advocacy work.
DEIB comprises six areas of expertise:
1. Data and Analytics: uses advanced analytics and data science to build tools to
make the Bureau more efficient and add new capabilities to investigations andpromotion work.
2. Technology and Tool Insights: focuses on understanding evolving businesspractices, tools and technologies. Helps the Bureau identify emerging
technologies and their impact on competition.
3. Innovation Solutions: fosters collaboration between employees from across the
Bureau to creatively solve problems.
4. Intelligence: uses established principles and techniques to support complex
investigations. Finds emerging threats to competition, and identifies trends andpatterns.
5. Remedies: provides advice on designing, implementing and monitoring remedies,
as well as evaluating remedy performance.
6. Behavioural Insights: focuses on matters where consumer behaviour plays a key
role. Understanding how people think, behave and make decisions in everyday
life assists both enforcement and promotion work.
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant

Compendium | Page 53

proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
Important amendments to the Competition Act come into effectImportant amendments to the Competition Act became law on June 23, 2022,
strengthening the Bureau’s ability to protect Canadian consumers, businesses andworkers from anti-competitive conduct. The Bureau has published a Guide to the 2022
Amendments to the Competition Act.
These amendments:

increase maximum fines and penalties for those who break the law;

prohibit wage-fixing and no-poach agreements between employers;ochanges to the criminal conspiracy provision, which increased potential
fines and prohibits wage-fixing and no-poach agreements, came into
effect on June 23, 2023. This allowed businesses time to ensure they arecomplying with the law.



clarify that incomplete price disclosure - drip pricing - is a deceptive marketing
practice;

allow private access to the Competition Tribunal for those impacted by abuse of
dominance; andclarify the abuse of dominance framework by:

odefining an anti-competitive act as one that is intended to have anegative effect on competitors or an adverse effect on competition.

oexpanding the non-exhaustive list of abuse of dominance examples toinclude a response by a dominant player to make it more difficult for acompetitor to enter a market or grow, or to remove a competitor from amarket.

expand the non-exhaustive list of factors used to determine the competitive
impact of mergers and monopolistic practices, including:ofor mergers and competitor collaborations: network effects as an
example of barrier to entry, possible entrenchment of a leading
incumbent’s market position, price and non-price effects such as quality,
choice or consumer privacy; andCompendium | Page 54

ofor abuse of dominance: effects on barriers to entry – including network
effects, change and innovation in the market, price and non-price effects
such as quality, choice or consumer privacy, and any other factor relevant
to competition.

The Future of Competition Policy in Canada
On March 15, 2023, the Bureau presented its submission to the Government of Canada’s
ongoing consultation on the future of competition policy in Canada. The submission
included over 50 recommendations and focused on the areas where the Bureau believes
that reform is required, including digital competition issues.
Some of the recommendations that focus on improving competition in digital markets are
as follows:Structural presumptions should be enacted to simplify merger cases. This would
shift the burden onto the merging parties to prove why a merger that significantly
increases concentration would not substantially lessen or prevent competition.
The Act’s current standards may not work well for markets that can change
quickly and significantly.

Standards for evaluating a substantial lessening or prevention of competition
should focus on harm to the competitive process. The current standards impose ahigh burden for the Commissioner when they are applied to acquisitions ofemerging competitive threats or so-called “killer acquisitions” in the digital
economy.



The Act should be amended to allow courts to temporarily prohibit deceptive
conduct from re-occurring in situations where it has stopped, and prohibit
substantially similar conduct from occurring. Conduct in digital markets can be
stopped and re-started quickly. Courts should therefore be authorized to makeorders in circumstances where the conduct has stopped.

Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or other

Compendium | Page 55

laws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled.
Competition Policy in Canada
The Bureau works with the Strategy and Innovation Policy Sector in the Department of
Innovation, Science and Economic Development Canada (ISED). This team is responsible
for a number of marketplace framework policies, including competition policy.
Interaction with Non-Competition Agencies, Laws, and Policy Areas
The Bureau works with a number of federal departments and agencies as well as
municipal, provincial and territorial governments. We also work with regulators andpolicymakers to assess the impacts of new and existing policies and regulations oncompetition.
The Bureau sits on a number of interdepartmental working groups on topics like digitaltrade, international cooperation, and privacy. Bureau employees also work closely oncompetition issues in digital markets with colleagues from:

the Office of the Privacy Commissioner of Canada (OPC)

the Canadian Radio Television and Telecommunications Commission (CRTC)



Justice Canada

Global Affairs Canada

Finance Canadathe Privy Council Office, and

the Treasury Board Secretariat.

Creation of the Canadian Digital Regulators ForumIn June 2023, the Bureau, the CRTC and the OPC formed the Canadian Digital Regulators
Forum (the Forum). The Forum will strengthen information sharing and collaboration
among its members on common interests relating to digital markets or platforms. The
goal is to better understand each participant’s mandate around the digital economy orplatforms, and to develop a holistic understanding of emerging digital issues.
Consumer Protection
The Bureau’s annual Fraud Prevention Month campaign in 2023 educated Canadians
about the “fraudster’s toolbox” in the digital economy – the most common tricks, tools

Compendium | Page 56

and tactics used by scammers to deceive victims and perpetrate fraud. Under this topic,
the Bureau focused on two sub-themes:

cryptocurrency investment fraud, anddark patterns.

The Bureau also released a Consumer Alert about cryptocurrency investment fraud
entitled “Quick easy money? Sometimes it’s a quick easy LIE”.
The Bureau is an active member of several international and domestic partnerships andworking groups. On the international front, they include:

the International Consumer Protection and Enforcement Network (ICPEN)the Global Anti-Fraud Enforcement Network

the International Competition Network, and

the Organisation for Economic Co-operation and Development.

In these partnerships and working groups, members share intelligence, trends and bestpractices about digital markets and investigations. This enhances the Bureau’s knowledge
and ability to address the issues in digital markets. For example, in 2023, ICPEN held
workshops on emerging digital market issues such as dark patterns. This working group isalso in the process of developing an enforcement manual to assist members.

Compendium | Page 57

France - Autorité de la Concurrence
The digital sector has consistently been set as one of the enforcement priorities of theAutorité de la concurrence (the “Autorité”) during the last years, and, as such, we havebeen devoting our full attention to tackling the competitive issues arising in the digitalmarkets.
Whether you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
The Autorité has been particularly active in its enforcement effort in the digital sector, andseveral important decisions have been issued recently, underlining our determination touse all available tools to tackle harmful practices of major digital players.
In this respect, the Autorité has dealt with a number of abuse cases having national
competition law and article 102 as a legal basis. We were able to:a. intervene at the interim measures stage: In May 2023, the Autorité made use ofthis instrument to order Meta to define objective, transparent, non-discriminatory
and proportionate criteria for accessing and maintaining partnerships in the adverification sector183. Previous instances of interim measures include the decisionof April 2020 in which the Autorité required Google to negotiate with publishers
and press agencies the remuneration due to them regarding related rights.184
b. settle and accept commitments: In June 2022, in the course of the investigation
into the merits of the above mentioned “related rights” case, the Autorité accepted
Google's commitments to create a framework for negotiating and sharing theinformation necessary for a transparent assessment of the remuneration for thereuse of publishers and press agencies’ protected content185. The same year, theAutorité was also the first competition authority to accept commitments from
Meta in antitrust proceedings, with the aim of addressing competition concerns in

183

See the Autorité’s Decision 23-MC-01 of 4 May 2023 on a request for interim measures by thecompany Adloox
184
See the Autorité’s Decision 20-MC-01 of 09 April 2020 on requests for interim measures by the
Syndicat des éditeurs de la presse magazine, the Alliance de la presse d'information générale andothers and Agence France-Presse185
See the Autorité’s Decision 22-D-13 of 21 June 2022 regarding practices implemented by Google in
the press sector

Compendium | Page 58

the French market for non-search related online advertising186. Regarding digitaladvertising, the Autorité, in the Google News Corp 187 decision of June 2021,
provided quick and effective responses to businesses and publishers harmed by
Google’s preferential treatment to its proprietary advertisement technologies, by
accepting the commitments offered by Google to implement effective changes on
the way it operates display advertising, in the context of a settlement procedure
where Google did not challenge the facts of the case.
c. impose behavioral remedies: In a Google Gibmedia case, dealing with an
exploitative abuse from Google on the digital advertising market, the Autorité
ordered, on top of a € 150 million fine, a series of behavioral remedies which
intended to clarify Google Ads’ operating rules and account suspending procedures,
thus allowing several business users and advertisers to develop their activity in afairer and more secure environment.188
d. impose financial penalties: The Autorité has imposed hefty fines sanctioning
practices of major digital players, notably Google (€ 220 million in the Google News
Corp case and € 150 million in the Google Gibmedia case mentioned above; seealso a € 500 million fine upon Google for non-compliance with the interim
measures decision mentioned above).189
We also remain particularly vigilant regarding merger operations involving actors of thedigital sector. In 2018, the Autorité reviewed for the first time the merger of two online
platforms (acquisition of Concept Multimédia (Logic-Immo.com) by the Axel Springer
Group (SeLoger.com). 190 While the transaction was cleared following an in depth
investigation, the Autorité had to take into account network cross-effects, the importanceof data and the potential competition of Facebook, Amazon and Google.

186

See the Autorité’s Decision 22-D-12 of 16 June 2022 regarding practices implemented in the
online advertising sector.
187
See the Autorité’s Decision 21-D-11 of 7 June 2021 regarding practices implemented in the online
advertising sector.
188
See the Autorité’s Decision 19-D-26 of 19 December 2019 regarding practices implemented in
the sector of online search advertising sector.
189
See the Autorité’s Decision 21-D-17 of 12 July 2021 regarding the compliance with injunctions
issued against Google in decision 20-MC-01 of 9 April 2020.
190
See the Autorité’s Decision n°18-DCC-18 of 1 February 2018 relating to the acquisition of solecontrol of the company ConceptMultimedia by the Axel Springer Group debate on competition
policy and digital challenges, February 2020; joint paper with the Bundeskartellamt on data and its
implications for Competition Law, May 2016).

Compendium | Page 59

Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
The Autorité has been consistently strengthening its skills and expertise in the digital field,
in order to be able to adapt its approach and tools in time to meet the challenges
encountered in this field.
First, through the creation of a dedicated Digital Economy Unit, in September 2020, which
includes a wide range of profiles, such as engineers, lawyers, economists and datascientists.
The Unit is tasked with developing in-depth expertise on all digital subjects, collaborate on
investigations into anticompetitive practices in the digital economy or involving digitalmatters and contribute to studies on new issues related to developments in digitaltechnology (including, for example, the Autorité’s inquiry on the cloud sector published inJune 2023, see below).
The Digital Economy Unit has already added a strong value to current investigations andcontributes to several projects.
In collaboration with CodeX Computational Antitrust, it has published the first interactive
network graph tool191 capable of identifying within the Autorité's publications (meaning
the decisions, opinions and interim measures published between 2009 and 2021) thereferences to its other publications and to represent these interconnections in a graph.
Designed for the antitrust community (case handlers, scholars, lawyers, etc.), it takes theform of a network graph in which the Autorité’s publications are represented andconnected with each other by their citations. It allows the identification of theinterconnections between different publications at first glance and gives an overview of
the Autorité's antitrust cases192.
The Unit is also still involved in the second phase of the DATACROS project193 which aims
to improve the prototype tool for assessing corruption risk factors in the ownership
structure of companies (risks of collusion, corruption and money laundering in theEuropean single market). In parallel, the Autorité has also begun working on its own

191

https://sen-codex.dev/
The article entitled “Deploying Network Analysis in Antitrust Law” (January 2023) explains thewhole process and the visualisation tool developed by the Autorité along with all the data areaccessible to all as open data on the Autorité's GitHub(
https://github.com/AutoriteDeLaConcurrence/publication_sen-codex_networkgraph).
193
https://www.transcrime.it/en/datacros-ii-kick-off-meeting/
192

Compendium | Page 60

detection tool of collusion in public procurements based on the open-access databases
available (DECP, BOAMP, INPI, etc.) combined with future in-house indicators.
Finally, the Digital Economy Unit is currently developing a variety of automated tools foron-going cases investigated by the competition units within the Autorité.
Additionally, an horizontal working group (involving different services of the Autorité) on
the digital sector was set-up in December 2020. This ad-hoc group has completed several
projects, inter alia providing with suggestions for sector-specific inquiries andstudies/reports in the digital sector (one of which leading to the launch of the study on
cloud computing, see below), and issuing internal documentation aimed at assistingrapporteurs faced with cases in the digital sector. Following these achievements, theworking group was transformed in 2022 into an in-house digital network which carries out
its missions on a lasting basis, including the monitoring of digital matters (with the aim oflaunching new enquiries and studies), the amendment of the existing “analysis grid” andthe on-going development of an internal digital toolbox.
Finally, we are constantly improving our knowledge of the specificities of the digitalmarkets by carrying out targeted studies and papers: joint studies with the
Bundeskartellamt on algorithms and competition194 and on Big data195, Autorité’s study oncompetition and e-commerce196, and its contribution to the debate on competition policy
and digital challenges197.
Through its advisory role, the Autorité can also inspire new reforms or provide guidance tostakeholders in the digital sector. The Autorité’s opinions can drive the definition of public
policies and, in some cases, highlight unexplored or under-exploited growth opportunities.
The Autorité has conducted sector-specific inquiries in the sector of new technologies
applied to financial activities, and more specifically, to payment activities198 and on data
usage in the online advertising sector199.

194

See the joint study of November 2019.
See the joint study of May 2016.
196
See the study of May 2020.
197
See the contribution of February 2020.
198
See the Autorité’s Opinion 21-A-05 of 29 April 2021 on the sector of new technologies applied to
payment activities.
199
See the Autorité’s Opinion 18-A-03 of 6 March 2018 regarding data usage in the online advertising
sector.
195

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In June 2023, the Autorité issued a market study on the competitive functioning of thecloud sector200. In particular, the inquiry considers possible relevant markets and examines
the competitive risks raised by tariff barriers, obstacles to interoperability or mergers
between players in the sector. The Autorité also identifies market failures likely to beaddressed by the regulations under discussion such as the EU Data Act or the draft nationallaw aimed at securing and regulating the digital space. Also in relation to the cloud sector,
the Autorité issued in April 2023 an opinion on certain provisions of the above mentioned
draft law to secure and regulate the digital space, with the aim of ensuring consistency withthe future EU Data Act201.

Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
The Autorité has engaged in a global process of modernizing competition law and the tools
available, which are key in addressing competition law issues in the digital sector:
a. The renewed approach to Article 22 of regulation 139/2004 announced by theCommission (possibility of merger control of "below the threshold" transactions).
The Autorité was the first national competition authority to refer the proposed
acquisition of Grail by the Illumina Group to the Commission 202 on the basis of
Article 22, which led the European Commission to prohibit the transaction in
September 2022, following an in-depth examination. In August 2023, following thereferral request made by the Autorité and other European competition
authorities 203 , the European Commission has decided to initiate proceedings to
examine Qualcomm's takeover of Autotalks in the sector of communication
technologies used in the automotive and road infrastructure industries.
b. The recent adoption of the EU Digital Markets Act, aiming at ensuring contestableand fair markets in the digital sector by regulating practices implemented by large
digital platforms. The Autorité has strongly advocated an ambitious and effective
DMA and has actively promoted an active role for national competition authorities

200

See the Autorité’s Opinion 23-A-08 of 29 June 2023 on competition in the cloud sector.
See the Autorité’s Opinion 23-A-05 of 20 April 2023 on the draft law to secure and regulate thedigital space.
202
The Autorité was subsequently joined by Belgium, Greece, Iceland, the Netherlands and Norway.
203
Belgium, Italy, Netherlands, Poland, Spain and Sweden, which were subsequently joined by
Denmark, Finland, Luxembourg, Ireland, Czech Republic, Romania, Slovakia and Portugal.
201

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in the implementation of the text in order to ensure an optimal coordination withcompetition law. Following the entry into force of the DMA in May 2023, a draft
bill empowering the Autorité to conduct investigations under the DMA is underdiscussion before the Parliament.
In France, the ordinance transposing Directive (EU) 2019/1 (the ECN+ Directive) has been
published in May 2021 204 . This new legal framework has provided the Autorité withpowerful new tools adapted to new enforcement challenges, particularly those raised by
the development of large platforms. The Autorité has now the possibility, inter alia, to set
its own priorities, to file an action on its own initiative to impose interim measures and toissue structural injunctions.
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or otherlaws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled.
The Autorité is committed to ensuring that its work to promote competition in digitalmarkets is consistent with other regulatory regimes in digital markets. The Frenchframework provides for a comprehensive and efficient set of measures allowing theAutorité and sectoral regulators to consult each other205.
The authorities concerned include, inter alia, the data protection agency (CNIL), thetelecom regulator (ARCEP) and the media and broadcasting regulator (ARCOM).
Data protection and digital competition issues are, in particular, intrinsically linked. As an
example, in October 2020, the Autorité received a referral from several associations
representing various players of the online advertising sector, contesting practices
implemented by Apple on the occasion of upcoming changes to its iOS 14 operating system(in particular the mandatory introduction of the App Tracking Transparency (ATT)204

This text is the result of the authorisation to implement the directive granted by the Law of 3
December 2020 on various provisions for adapting to European Union law in economic andfinancial matters ("DDADUE Law").

205

Article R. 463-9 of the French commercial code provides that the Autorité must notify eachindependent regulatory authority of all proceedings that are initiated in sectors falling within its
competence. Conversely, under sectoral legislation, regulators have the possibility of referringcases to the Autorité if they identify a competition law problem in their field of activity.

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framework). Within the context of its investigations, the Autorité solicited the observationsof the data protection agency (CNIL) on the issues likely to be raised by the practices
reported in the complaint in terms of personal data protection, in order to be able toappropriately assess the practices at stake. In May 2021, following a preliminary
investigation, the Autorité rejected the request for interim measures made by thecomplainants, specifying that it would continue the investigation into the merits of thecase206. In July 2023, the General Rapporteur notified an objection to Apple207.
The two authorities have maintained a very close and fruitful dialogue in 2022, as
demonstrated by the speeches given by the President of the Autorité’s and the CNIL’s totheir respective Boards. This ongoing exchange has also led to inter-agency training(focusing on the functioning of each institution and their respective legal frameworks) as
well as workshops on topics of common interest.

206

See the Autorité’s decision of 17 March 2021 in the sector of mobile applications advertising on
iOS.
207
See the Autorité’s press release.

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Germany - Bundeskartellamt
Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
The Bundeskartellamt has been very active in the field of the digital economy for over a
decade and has already successfully concluded several landmark proceedings against
large undertakings in this sector. It has therefore gained significant experience in thisarea in recent years.
In January 2021 the 10th amendment to the German Competition Act (Gesetz gegen
Wettbewerbsbeschränkungen; hereinafter “GWB”) came into force, establishing, interalia, a new concept of “paramount significance for competition across markets” (Section
19a). The new Section 19a seeks to afford the Bundeskartellamt enhanced control overthe market activities of large digital companies. It is designed around a two-stepmechanism that differs from traditional abuse control in that it enables earlier and more
effective intervention. In a first step and irrespective of the existence of abusive
practices, the Bundeskartellamt may issue a decision declaring that an undertaking whichis active to a significant extent on multi-sided or network markets is of paramountsignificance for competition across markets. The Bundeskartellamt may then, in a second
step, prohibit the addressee from engaging in certain behaviour.
As at September 2023, designation decisions according to Section 19a(1) GWB have been
rendered against Google, Meta, Amazon and Apple, declaring these undertakings to be ofparamount significance for competition across markets.208 In all four cases, theBundeskartellamt took a holistic, cross-market perspective when assessing the economic
power of these large digital companies and found that they have a position of economic
power across markets that allows for a scope of action across markets that is not
sufficiently controlled by competition. A designation proceeding against Microsoft has
been initiated in March 2023 and is still ongoing.209
The authority is already conducting a number of cases under Section 19a(2) GWB which
examine specific practices of the aforementioned undertakings. With respect to Google,
as a result of a proceeding concerning its data processing terms, Google’s services and208

Bundeskartellamt, press release of 5 January 2022, case summary (Google); Bundeskartellamt,press release of 4 May 2022, case summary (Meta); Bundeskartellamt, press release of 6 July 2022,
case summary (Amazon); Bundeskartellamt, press release of 5 April 2023, case summary (Apple).
209
Bundeskartellamt, press release of 28 March 2023.

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third-party services can no longer be cross-used in separate services offered by Google oreven be combined without the users’ free and informed consent. Such an obligation will
already result from the DMA for Google services which have recently been designated by
the European Commission under the DMA. Google’s Commitments provided to the
Bundeskartellamt concern the processing of data across services involving more than 25
other services (including Gmail, Google News, Assistant, Contacts and Google TV).210 The
Bundeskartellamt also completed a case concerned with the Google News Showcase
service (more on this case in the answer to question 4 below) and investigates practices
in connection with Google Maps Platform and Google Automotive Services (GAS). In thelatter case, in June 2023, it issued a statement of objections regarding GAS, a bundle ofservices comprised of Google Maps, Google Play and Google Assistant in which it comesto the preliminary conclusion that, inter alia, the bundling of different services within GAS
and advertising revenue share agreements with vehicle manufacturers may posesignificant risks to competition. Furthermore, the Bundeskartellamt continues its
investigation into Google’s restrictions on combining its own Google Maps Platform map
services with third-party map services.211
In the ongoing proceeding against Meta, also based on Sec. 19a(2) GWB, regarding thelink between its Oculus (now Meta Quest) virtual reality (VR) products and the social
network Facebook, Meta has responded to the Bundeskartellamt’s concerns and now
offers users the possibility to use the VR headsets with a separate Meta account insteadof a Facebook or Instagram account. 212 Further ongoing proceedings based on Sec. 19a(2)GWB concern Apple’s App Tracking Transparency Framework and two cases against
Amazon, the first of which examines price control mechanisms on the Amazon
marketplace while the second deals with issues of brandgating, e.g. agreements ofAmazon with (brand) manufacturers.213
Notable cases relating to the digital economy based on traditional abuse control include
the Bundeskartellamt’s landmark decision against Facebook. The decision requires
Facebook to refrain from using terms and conditions based on which the platform isentitled to gather data from numerous sources outside the social network facebook.com

210

Bundeskartellamt, press release and decision of 5 October 2023.
Bundeskartellamt, press release of 21 June 2022 and press release of 21 June 2023.
212
Bundeskartellamt, press release of 23 November 2022 and case summary. Note that theproceeding as a whole is not yet concluded as the Bundeskartellamt continues to investigate
whether and how data processed in the context of different Meta services are combined.
213
Bundeskartellamt, press release of 21 June 2022 (Apple’s App Tracking Transparency Framework);
Bundeskartellamt press release of 14 November 2022 (Amazon cases).
211

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without users’ freely given consent to combine them with “on-Facebook” data.214 While
this decision is still being appealed by Meta, after intensive talks with the
Bundeskartellamt, in June 2023, Meta announced plans to implement a modified
accounts center which will allow Meta’s customers to make a largely free and informed
decision about whether they want Meta’s services separately or in combined form.215 In
July 2023, the ECJ ruled that the Bundeskartellamt may take data protection rules into
consideration when weighing interests in decisions under competition law.
In May 2023, the Bundeskartellamt published the final report on its sector inquiry into
non-search online advertising.216 The report highlights that non-search advertising isbased on a highly complex system of automated trading in the online advertising spacethat is not sufficiently transparent. The final report complements an earlier report,
published for public discussion in August 2022 which already described in detail that
Alphabet holds an extraordinarily strong market position with regard to practically all
relevant services.217 As Google also has a significant position in the online searchadvertising market, it holds a prominent position in the online advertising sector as awhole.
Digitalisation affects almost all sectors of the economy. In 2022 the Bundeskartellamt, forexample, also examined Catena-X, a cooperation within the automotive industry whichaims to create a data network for collaboration and which is a major component of the
GAIA-X initiative to create a competitive data infrastructure in Germany. The competitive
assessment as to how Catena-X intends to promote the development of uniform
standards for data transfer and cooperation regarding R&D raised no objections.218 In
another proceeding the Bundeskartellamt assessed mobility platforms, i.e. service
providers which mainly offer online solutions for integrated route planning. The authority
imposed various measures, including, inter alia, that these mobility platforms can accesstrain traffic data, such as information on delays or cancellations, from Deutsche Bahn, thedominant rail transport company in Germany, in particular in a non-discriminatory way.219
In January 2023, the Bundeskartellamt initiated a proceeding against PayPal, one of theleading online payment schemes in Germany. The proceeding investigates whether
PayPal’s terms and conditions which, inter alia, forbid merchants to offer goods and214

Bundeskartellamt, press release of 7 February 2019, case summary.

216

Bundeskartellamt, press release of 31 May 2023.
Bundeskartellamt, executive summary of the report for public discussion.
218
Bundeskartellamt, press release of 24 May 2022.
219
Bundeskartellamt, press release of 28 June 2023.
217

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services at lower prices if customers choose a payment method cheaper than PayPalmight possibly foreclose competitors and restrict price competition.220
Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
The Bundeskartellamt continues to expand its focus and expertise on the digital economy
as well as its capabilities in the field of data science. Investigation methods arecontinuously modernised and adapted to meet the latest standards. Over the course of2023, the Bundeskartellamt has recruited additional data scientists and IT experts.
The already well-established Digital Economy Unit within the General Policy Division
supports the work of the decision divisions in the digital area and carries out its work incollaboration with other internal support units and in consultation with other authorities.
Since many different proceedings require the analysis of data, the Bundeskartellamt has
several specialist units which deal with data analytics. The Chief Economist Team provides
advanced data analyses for highly complex antitrust proceedings, such as phase II
mergers. The IT Forensics Unit provides the infrastructure for hardcore cartel
proceedings. In addition, data science is also used within the General IT Division, which
reinforces the Bundeskartellamt’s capabilities in this area. Data analysis is applied in dayto-day work across the different units of the Bundeskartellamt. Our data analysts anddata scientists within those units work particularly closely with our decision divisions. In
addition to our case work, dealing with large amounts of data is particularly important for
the two market transparency units for fuels and for electricity/gas. Both units havedeveloped IT standards and highly automated processes for reviewing, reporting andforwarding data from a multitude of sources.
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
The Bundeskartellamt’s toolkit has developed considerably over the years. With the 10th
amendment to the GWB in 2021, the provision under Section 19a (see already answer toquestion 1 above) was introduced. This novel form of abuse control is based on therationale that digital markets might require more effective antitrust intervention. This

220

Bundeskartellamt, press release of 23 January 2023.

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reflects the widespread phenomenon in the digital economy that some individualcompanies hold key strategic positions of economic power across markets which result ina multitude of dependencies for the other market participants, and that these companies
have created ecosystems characterised by heavily integrated products and services.
Conduct that can be prohibited by the Bundeskartellamt includes, for example, the selfpreferencing of a group’s own services or envelopment strategies. Due to, inter alia, thecodification of specific theories of harm, a shifted burden of proof, and a concentrated
judicial review, the Bundeskartellamt is now able at a much earlier stage to prohibit
companies of paramount significance for competition across markets from engaging incertain types of conduct. It can take measures that are, in a certain sense, preventive andthat can contribute decisively to curbing the power of large digital ecosystems that
extend across various markets.
Important changes related to digital markets introduced with the 10th amendment also
affect traditional abuse control. In respect of the assessment of market power, the GWB
now explicitly clarifies that the intermediation power of a platform can constitute a
relevant factor in the assessment and that access to data can also be relevant in cases
outside multi-sided markets and networks. Another new provision allows the
Bundeskartellamt under certain preconditions to order in favour of dependent
undertakings that access to data must be granted in return for adequate compensation.
The GWB also affords the Bundeskartellamt special powers to intervene in cases wherean undertaking with superior market power on a platform or network market impedes
the independent attainment of network effects by competitors, which might create theserious risk of a market ‘tipping’ towards a larger supplier.
In February 2022, the Federal Ministry for Economic Affairs and Climate Action publishedits competition policy agenda up to the year 2025, which contains 10 points forsustainable competition as a pillar of the socio-ecological market economy.221 As at
October 2023, the 11th amendment to the GWB is about to enter into force.222 Whilemost of the issues that this amendment addresses are not directly related to digitalmarkets, it contains provisions that allow the Bundeskartellamt to support the European
Commission with the enforcement of the Digital Markets Act (DMA) as well as provisions
facilitating private enforcement of the DMA. In addition, there are also ongoing

221

The Federal Ministry for Economic Affairs and Climate Action: The competition policy agenda up
to 2025.
222
See announcement on the website of the German Parliament (in German only).

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discussions on whether it is necessary to modify the merger control regime in order tobetter account for the specificities of digital markets.223
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or otherlaws or policy areas – such as privacy, consumer protection, or media sustainability – andhow it was or is being handled.
When examining whether a merger would significantly impede effective competition orwhen determining whether a company holds and abuses a dominant position, theBundeskartellamt examines all relevant factors in a holistic approach. Privacy
considerations can be a potential factor within those assessments, for example, anundertaking’s access to (personal) data that are not easily replicable and could contributeto its strong market position.
The aforementioned Facebook case is a prominent example in which privacy
considerations were relevant for the Bundeskartellamt’s finding of an abusive practice.
Among other conditions, the use of the social network for private purposes is subject toFacebook being able to collect an almost unlimited amount of any type of user data from
off-site sources, allocate these to the users’ Facebook accounts and use them fornumerous data processing purposes. Third-party sources include Facebook-owned
services such as Instagram or WhatsApp, but also third-party websites which include
interfaces such as the “like” or “share” buttons. The Bundeskartellamt found that
Facebook’s terms of service and the manner in and extent to which it collects and uses
data amount to an exploitative abuse of dominance. In assessing the appropriateness ofFacebook’s behaviour under competition law, the Bundeskartellamt focused on theviolation of the European data protection rules to the detriment of users. In the course of
the investigation concerning Facebook, the Bundeskartellamt closely cooperated withdata protection authorities in clarifying the data protection issues involved.
In December 2022, the Bundeskartellamt concluded its proceeding concerned with theGoogle News Showcase service.224 Among other things, the authority was concerned thatthe relevant contractual terms might include unreasonable conditions to the detriment of
the participating publishers. During the course of the proceedings, Google changed its
contractual practices in such a way that press publishers will not face difficulties inasserting their general ancillary copyright [Leistungsschutzrecht der Presseverleger].

223

This topic was also discussed at a meeting of the Working Group on Competition Law on 29
September 2022, see press release.
224
Bundeskartellamt, press release of 21 December 2022.

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Google also abandoned plans to integrate Showcase into the general Google searchservice and is working towards providing non-discriminatory access to the platform.225
Since 2017 the Bundeskartellamt has also exercised competences in the area of economic
consumer protection by conducting sector inquiries if there is a reasonable suspicion that
consumer law provisions have been severely violated. In this context, theBundeskartellamt has already conducted sector inquiries into comparison websites, smart
TVs and online user reviews. The latest sector inquiry into video and messenger services
has been completed in May 2023.226 In its final report, the Bundeskartellamt focuses on
the issues of data protection and data security and finds that some services are likely toviolate consumer law provisions. In consultation with the Federal Office for Information
Security (BSI), the Bundeskartellamt has compiled a checklist outlining the essential
criteria which ensure data security and compliance with the law. The cooperation with
the BSI, the federal cyber security authority, in the area of digital consumer protection
has been institutionalised since early 2021 when the two authorities signed a declarationof intent for a continuous cooperation. A sector inquiry into scoring in the online retailsector has been initiated in March 2022 and deals with retailers’ practices to checkconsumers’ credit standing, i.e. their ability to pay when shopping online.227
The Bundeskartellamt’s emphasis on consumer protection and privacy issues is not onlyreflected in its case work and its cooperation with other relevant authorities, but also
extends to the Bundeskartellamt’s engagement in international fora such as the OECD or
the International Competition Network (ICN). For example, the Bundeskartellamt wasinvolved in an ICN Steering Group project focussing on competition law enforcement at
the intersection between competition, consumer protection and privacy.

225

See also the case summary of the decision.
Bundeskartellamt, press release of 17 May 2023 and English summary of the report.
227
Bundeskartellamt, press release of 31 March 2022.
226

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Italy - Autoritá Garante della Concorrenza e del Mercato
Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
The Autorità Garante della Concorrenza e del Mercato (hereafter, the Authority or theAGCM) has been very active in the enforcement of competition law and other related
provisions in digital markets. While acknowledging the positive contribution of digitalplatforms to our economies, the AGCM has intervened to ensure that these markets remaincompetitive and dynamic, by favouring access to digital ecosystems and interoperability.
In May 2023, the Authority opened an investigation against Apple for an alleged abuse ofits dominance in the applications (apps) market consisting in the imposition of a restrictive
privacy policy on third-party app developers and limitations to their access to device users’
advertising data228. Namely, as a result of its privacy policy adopted in 2021, Apple
introduced pop-up prompts requiring users of its devices to give consent to the app to track
their data for targeting advertisement purposes. However, according to the AGCM, suchprompts were more prominent for rival apps that for Apple own apps, and they wereaccompanied by a deterrent language about the tracking activity, which could dissuade
users to give consent.
Moreover, the Authority is investigating whether Apple abuses its dominant position by
restricting third-party app developers’ access to Apple’s data used to measure theeffectiveness of advertising campaigns on their applications. The technical characteristics ofthe programming interface made available by Apple to third-part developers andadvertisers is deemed to be much less effective than the interface Apple has adopted for its
own operations. Since both the availability of data on user profiling and the measurementof advertising campaign effectiveness are essential elements for the attractiveness ofadvertising space sold by app developers and purchased by advertisers, Apple's alleged
discriminatory conduct is likely to decrease third-party advertisers' revenues to the benefitof Apple’s marketing division, as well as to reduce the entry or prevent competitors fromentering and/or staying in the market for app development and distribution, to the benefitof Apple’s own apps and, in turn, its mobile devices and iOS operating system.
In April 2023, the Authority applied for the first time a new provision on the abuse of
economic dependence by digital platforms (see last paragraph of the response to question3), by opening an investigation to ascertain whether Meta abused the economic dependence

228

See AGCM Case no A561, press release of 11 May 2023, https://en.agcm.it/en/media/pressreleases/2023/5/A561-A561B

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of the Italian Society for Authors and Publishers (SIAE) by (i) interrupting licensing
negotiations for the use of artists’ music and subsequently removing their musical content
from its platforms and (ii) forcing the SIAE to accept offers for its artists' work without
providing the collecting society with the relevant data to assess the validity of those
proposals. At the same time, the AGCM imposed interim measures on Meta, ordering torestart negotiations and reinsert the artists’ work back on its platforms.
The SIAE is Italy’s largest collecting society that licenses and manages copyrighted works onbehalf of copyright owners. According to the Authority, Meta’s conduct could significantly
hamper SIAE’s competitiveness and prevent affiliated artists from reaching consumers
through social media platforms. Moreover, the Authority observed that the removal of SIAE’smusical content from Meta’s platforms could negatively affect artists’ remuneration and limit
consumer choice.
In July 2022, the Authority opened an investigation against Google for an alleged breach ofArt. 102 TFEU, consisting in the refusal to grant interoperability to other platforms and, inparticular, with the Weople App, managed by Hoda229. The latter has developed new services
through its innovative data investment bank: by signing up to its Weople app, users authorize
Hoda, pursuant to article 20 of the GDPR, to collect, process and sell personal data on theirbehalf to businesses requesting them for client targeting, data collection and other purposes.
Hoda receives a fee for this service. In the Authority's view, Google's conduct could compress
the right to portability of personal data, established by Article 20 of the GDPR, and could
reduce the economic benefits that consumers can derive from their data. At the same time,
the alleged abuse could restrict competition insofar as it limits the ability of operators todevelop innovative data-based services.
To address the above concerns, Google submitted commitments, which underwent a market
test in March 2023230. The package test included a commitment to help users better navigate
Google’s Takeout tool, which allows data to be downloaded across Google’s platforms foruse on other services. Moreover, Google committed to make available to third-party
operators detailed documentation and information regarding the data included inconnection to users’ searches and their browsing histories in order to facilitate their
extraction and importation. Finally, the company proposed establishing a programme thatwould allow authorised third-parties to directly access the data that consumers have agreed

229

See Case no A552, press release of 14 July 2022, https://en.agcm.it/en/media/pressreleases/2022/7/A552
230
See AGCM case n. A552 – GOOGLE-OBSTACLES TO DATA PORTABILITY, market test commitment
decision no. 30508, published on the AGCM Bulletin no 12/2023.

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to export without having to go through an intermediary. The investigation was closed in July
2023, by accepting Google’s commitments, as a result of the market test231.
The Authority’s intervention in the digital economy was not limited to big tech companies. In
October 2022, the AGCM closed with commitments an investigation against Mastercard
Europe SA, for an alleged anticompetitive conduct consisting in the imposition of the socalled “double-tap” procedure, that is, the obligation to place the card twice at the POS forcontactless debit card payments using the co-badged cards (i.e., cards bearing two circuits,
typically an international circuit like Mastercard and a domestic one). According to the
Authority’s preliminary assessment, this procedure prevented co-badged cards from making
single-tap payments, including contactless transactions through digital wallets. As aconsequence, the imposition of this procedure would result in an entry barrier for
Mastercard’s competing payment schemes, by hampering the enrolling of their co-badgedcards on smartphones’ digital wallets.
More generally, Mastercard’s conduct could discourage the use of co-badged debit cards by
consumers, as it would make payments more complex. Ultimately, it could disincentivize theissuance of co-badged debit cards, in favour of Mastercard’s single-brand cards. The AGCM
also noted that Mastercard’s conduct occurred at a crucial stage of technologicaldevelopment of digital wallets, as well as of significant growth in its use by consumers. During
the investigation, Mastercard first suspended the imposition of the double-tap procedureand then proposed commitments, aimed at eliminating its binding nature and the related
penalties for failure to migrate to double-tap. In addition, the commitment package included
a provision to compensate operators who had migrated to single-tap mode in the meantime.
In 2021, the Authority’s enforcement records in the digital economy were also impressive232.
It completed two investigations against Amazon. In one, Amazon was fined € 1.13 billion
leveraging its dominant position in the Italian market for intermediation services onmarketplaces in order to favour the adoption of its own logistics service. The AGCM also
imposed behavioural measures regarding sales benefits for and visibility of sellers on the
Amazon Marketplace233. In the other, it ruled that a brand-gating agreement between

231

See press release here (https://en.agcm.it/en/media/press-releases/2023/7/A552).
See Italy’s submission to the 2021 Compendium and 2022 Compendium.
233
See Case no A528 press release of 9 December 2021, https://en.agcm.it/en/media/pressreleases/2021/12/A528. An English summary of the case is available in Section 3 of the AGCM
contribution to the June 2023 roundtable on algorithms (see Algorithmic competition – Note by
Italy). In December 2022, the European Commission concluded its own investigation, which resulted
in Amazon adopting, for all other EU countries, the same commitments imposed by our Authority as
behavioural measures.
232

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Amazon and Apple which restricted certain resellers of Apple products was anticompetitive234.
Another infringement decision concerned Google. The AGCM imposed a fine of over € 100
million to Google for refusing to include a rival app in its Android Auto system that provides
services related to the recharging of electric vehicles235.
Finally, the Authority made binding the commitments submitted by the Italian Association of
Insurers (ANIA) with respect to its proposed antifraud project which involves the creation of
databases and the development of common algorithms to define fraud risk indicators that
insurance companies may use in their activities. The final commitments ensure fair and nondiscriminatory access to the databases for non-ANIA members and prevent the sharing ofsensitive data and information236.
Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
Following a re-organization introduced in January 2023, the AGCM created a dedicateddirectorate to investigate anticompetitive conducts by digital platforms and, more generally,
address challenges in the digital economy. Moreover, the AGCM is in the process ofstrengthening its IT / data science capabilities by hiring additional staff.
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
A law passed by the Parliament in August 2022 brought new changes in merger control andnew tools to tackle the bargaining power of digital platforms237.
As for merger control, the law introduces a harmonisation with the EU law in particular withrespect to the substantive test (replacing the dominance test with the SIEC), the notion of234

See Case n. I842, press release of 17 December 2021, https://en.agcm.it/en/media/pressreleases/2021/12/I842
235
See Case no A529 press release of 13 may 2021, https://en.agcm.it/en/media/pressreleases/2021/5/A529
236
See the AGCM case no I844 - PROGETTO ANTIFRODE ANIA, commitment decision no 29826,
published on the AGCM Bulletin no 39/2021.
237
These changes are described in greater details in Section 1 of the Annual Report on Competition
Policy Developments in Italy -- 2022.

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joint venture (eliminating the notion of cooperative JV) and the role of efficiencies (including
an explicit reference to them in the weighing with the anti-competitive effects). Thesechanges would also allow to deal with the digital sector more effectively by tacklingtransactions that do not necessarily involve the creation or strengthening of a dominantposition but are still capable of significantly impeding effective competition.
The law also introduces a regime for reviewing transactions falling below the applicable
thresholds in order to capture acquisitions of nascent competitors. Under this newframework, the Authority may require the notification of a transaction when: i) there is prima
facie risk that the concentration would harm competition on the Italian market (or on arelevant part of it), also taking into account the detrimental effects for the development anddiffusion of small enterprises characterized by innovative strategies; ii) the transaction has
occurred at most 6 months before the notification order; iii) the transaction meets one of
the two existing applicable filing thresholds or when the worldwide overall turnover of theundertakings concerned is higher than EUR 5 billion238.
With respect to bargaining power of digital platforms, the law updates the national
legislation on abuse of economic dependence (Art. 9 of Italian law no. 192/1998) which the
AGCM has the power to enforce since 2001, provided that the abuse is “relevant” forcompetition in the markets concerned. The existing provisions are amended to account for
the intermediation power of digital platforms: more specifically, the law introduces arebuttable presumption of economic dependence for those operators dealing with digitalplatforms offering intermediation services when the latter represent a key gateway inreaching end-users and/or suppliers. Furthermore, the reform indicates a non-exhaustive“black list” of conducts which builds upon the prohibitions stemming from Article 102 TFEU.
The AGCM has used this new provision for the first time in April 2023 against Meta (seeresponse to question 1 above).
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or other238

Following a consultation process, in January 2023 the AGCM issued a notice to provide moreguidance in the application of this new regime. See “Comunicazione relativa all’applicazione
dell’articolo 16, comma 1-bis, della legge 10 ottobre 1990, n. 287”.

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laws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled.
In 2020, the Authority published the findings of an inquiry on big data, carried out jointlywith the Communications Regulator and the Data Protection Authority239. The inquiry wasa first attempt to explore the different dimensions of consumer data and its implication
for competition, consumer protection and data protection, in a multi-disciplinary
perspective.
The AGCM dual role enforcement experience confirms that competition and consumer
policies often reinforce one another and that the virtuous outcomes of such coordination
can be particularly effective when enforcement responsibilities are located within thesame agency.
In November 2021, the AGCM fined Apple and Google for some unfair and aggressivecommercial practices related to the utilization of user data, such as the omission of
information about the collection and use of personal data and the set-up of an opt-in as
default option for data sharing consent240. Moreover, the AGCM fined WhatsApp in 2017
and Facebook in 2018 for some unfair and aggressive commercial practices related to theutilization of user data such as the omission of information, deception in the collection
and use of personal data, opt-in as default option for data sharing consent241.
Finally, the Authority has sought to strengthen its relationships with some foreign dual
competition authorities with a view to mutually expanding knowledge and capabilities toaddress the challenges of the digital economy. In February 2023, the AGCM signed a
Memorandum of Understanding with the Australian Competition and Consumer
Commission (ACCC), providing for new opportunities to cooperate on investigations andshare experiences and best practices in areas of common interests, in particular withrespect to the digital economy. In this area, the two agencies are constantly informing
each other of their respective advocacy and enforcement initiatives.

239

See Italy’s submission to the 2021 Compendium. The final report of the inquiry n. IC53 - BIG
DATA, decision n. 28051 published on the AGCM Bulletin n. 9/2020 of March 2, 2020. See the AGCM
contribution (section 3) to the OECD Roundtable on Consumer Data Rights which contains asummary of the main findings and the policy recommendations.
240
See Cases no. PS11147-PS11150, press release of 26 November 2021,
https://en.agcm.it/en/media/press-releases/2021/11/PS11147-PS11150
241
See Case no PS10601, press release of 12 May 2017, Case no PS11112, press release of 7
December 2018 and press release of 17 February 2021. For an overview of these two consumer
protection cases, see the AGCM contribution (section 4) to the 2020 OECD Roundtable Consumer
Data Rights and Competition.

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Compendium | Page 78

Japan - Japan Fair Trade Commission
Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
The Japan Fair Trade Commission (hereinafter referred to as the “JFTC”) has beenaddressing various issues in the digital markets through enforcement of the
Antimonopoly Act (hereinafter referred to as the “AMA”), establishment and amendmentof guidelines, review of mergers and acquisitions, and fact-finding surveys.
In relation to enforcement, the JFTC investigated Amazon Japan G.K. (hereinafter referred
to as “Amazon Japan”) and suspected that activities of Amazon Japan violated the Article
19 (Abuse of Superior Bargaining Position)242 of the AMA. The JFTC approved acommitment plan submitted by Amazon Japan to address antitrust concerns.243
The JFTC moreover investigated Booking.com B.V. and Expedia Lodging Partner Services
Sàrl (hereinafter referred to as the “ELPS”) and suspected that activities of Booking.com
B.V. and the ELPS (requiring trading accommodation facilities to comply with so-called
parity clauses for room rates and availability (except for narrow parity clauses for room
rates244)) violated the Article 19 (Trading on Restrictive Terms)245 of the AMA. The JFTC
approved commitment plans submitted by Booking.com B.V. and by the ELPS to address
antitrust concerns.246 247
The JFTC had also investigated Apple's conducts regarding the operation of App Store andannounced the closing of the investigation on the case in September 2021. During theprocess of the investigation, Apple proposed to take measures to allow external links to
be displayed on reader apps such as music streaming, e-book distribution, and video
streaming, etc. Apple took these measures globally in March 2022.
Additionally, the JFTC had investigated Rakuten's conducts regarding the operation of
Rakuten’s online retail platform “Rakuten Ichiba”. It announced the closing of the242

Unfair Trade Practices stipulated in the Article 2, Paragraph (9), Item (v) [Abuse of Superior
Bargaining Position] of the AMA.
243
https://www.jftc.go.jp/en/pressreleases/yearly-2020/September/200910.html
244
In these Commitment Procedures, the JFTC did not cover narrow parity clauses for room rates,
based on the present situation where the accommodation operators do not necessarily abide by theclauses.
245
Unfair Trade Practices stipulated in the Article 2, Paragraph (9), Item (vi) [Trading on Restrictive
Terms] of the AMA.
246
https://www.jftc.go.jp/en/pressreleases/yearly-2022/March/220316.html
247
https://www.jftc.go.jp/en/pressreleases/yearly-2022/June/220602.html

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investigation on the case in December 2021 after Rakuten had proposed to takevoluntary measures to eliminate the suspicion of violation of the AMA.
As the latest case, in October 2023, the JFTC announced the opening of the investigationand seeking information and comments from third parties concerning the suspectedviolation of the AMA by Google. The JFTC suspects that Google has excluded businessactivities of its competitors or restrict business activities of its counterparties by; (1)entering into license agreements with Android mobile device manufactures (hereinafterreferred to as "OEMs") under which Google makes them install its applications, such as asearch application named "Google Search" and a web browser application named"Google Chrome", together with its application store named "Google Play", anddesignates where to place icons, etc. of such applications on screens of the devices, and(2) entering into agreements with OEMs, etc. under which Google shares its revenue fromits search advertising service with them on conditions including that they do not preinstall competitors' search application. 248 This initiative is following an policy statement,
released in June 2022, that the JFTC would actively seek information and comments fromthird parties, concerning cases mainly in digital markets even in the early stages of thecase investigation.
Regarding merger review, due to the increased necessity of properly dealing withmergers in the digital market in recent years and other reasons, based on Action Plan of
the Growth Strategy (June 21, 2019 Cabinet Decision), etc, the JFTC amended the
Guidelines to Application of the AMA Concerning Review of Business Combination(hereinafter referred to as the “Business Combination Guidelines”) and the Policies
Concerning Procedures of Review of Business Combination (hereinafter referred to as the“Business Combination Procedures Policies”) and published them in December 17,
2019.249 In the Business Combination Guidelines the JFTC stipulated its views on adefinition of relevant market and competition analysis, etc. based on characteristics ofdigital service (multi-sided market, network effect, switching cost, etc.). Additionally, the
JFTC has the authority to review mergers that do not meet notification standards. Basedon existence of such cases in the digital sector and others, in the Business Combination
Procedures Policies, the JFTC stipulated as follows: Among merger plans that only theamount related to domestic sales, etc. of the acquired company does not meet
notification standards, when the total consideration for the acquisition is large and themerger plan is expected to affect domestic consumers, the JFTC requests the parties tosubmit relevant documents, etc. and reviews the merger plans.

248
249

https://www.jftc.go.jp/en/pressreleases/yearly-2023/October/231023.html
https://www.jftc.go.jp/en/pressreleases/yearly-2019/December/191217.html

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Based on the above-mentioned guidelines, the JFTC reviewed the proposed acquisition of
Fitbit, Inc. by Google LLC. The acquisition did not meet the notification criteria of the
AMA and therefore was not required to notify to the JFTC in advance, but the total
consideration for that the acquisition was large and domestic consumers were expected
to be affected. Thus, the JFTC reviewed the acquisition.
An example of viewpoints of the review is whether any issue of closure or exclusivity ofthe market would arise from a viewpoint of the vertical merger (business of providing
operating systems (OSs) for wrist-worn wearable devices (Google Group’s business) andbusiness of manufacturing and distributing wrist-worn wearable devices (Fitbit Group’sbusiness)).
As a result of review, based on the premise that Google Group and Fitbit Group would
implement their proposed remedies, the JFTC concluded that the acquisition would not
substantially restrain competition in any relevant markets.250
Furthermore, in June 2022, the JFTC made the policy statement that it would actively
seek information and comments from third parties, concerning cases mainly in digitalmarkets, regardless of whether or not the Phase II review begins. Following thestatement, the JFTC sought information and comments from third parties concerning the
proposed acquisition of Mandiant, Inc. by Google LLC and the proposed acquisition of
Activision Blizzard, Inc. by Microsoft Corporation in June 2022, and the proposed
acquisition of Figma, Inc. by Adobe Inc. in April 2023.
In addition to enforcement and merger review, the JFTC has conducted a series of market
studies and published reports in order to clarify the actual status of transactions and thestate of competition in digital markets and to present the issues and the views as to the
AMA and competition policy. Specifically, the JFTC published reports on (1) Business-toBusiness transactions on online retail platform and app store (published on October 31,2019) 251, (2) digital advertising (published on February 17, 2021), (3) public procurementof IT system (published on February 8, 2022), (4) trade practices in cloud services sector(published on June 28, 2022)252 , (5) subcontracting transactions in software services(published on June 29, 2022), (6) mobile OS and mobile app distribution (published on
February 9, 2023)253, (7) the follow-up survey on fintech-based services (published on

250

https://www.jftc.go.jp/en/pressreleases/yearly-2021/January/210114.html
https://www.jftc.go.jp/en/pressreleases/yearly-2019/October/191031.html
252
https://www.jftc.go.jp/en/pressreleases/yearly-2021/February/210217.html
253
https://www.jftc.go.jp/en/pressreleases/yearly-2023/February/230209.html
251

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March 1, 2023) 254, and (8) news content distribution (published on September 21,2023)255. Furthermore, the JFTC started new market study on smart TVs and OTT
platforms.
In June 2022, the JFTC made a statement to strengthen competition policy responding torapid socioeconomic changes such as digitization. In the statement, it is announced that
the JFTC will strengthen the effectiveness of its advocacy function through active dialogue
and strategic cooperation with relevant ministries and agencies, persuasive
recommendations, effective public communication, and timely and appropriate followup. Moreover, it clarifies the policy of seamlessly linking market studies to individual
enforcement, such as by proactively utilizing information provided through market
studies.
Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
The JFTC established new units to address issues in the digital market and has been
actively collaborating with external experts in the digital field to strengthen our
institutional capabilities.
In April 2020, the JFTC established the “Office of Policy Planning and Research for DigitalMarkets”, which conducts activities such as widely collecting information on the digitalmarket through market studies and other means, and the “Senior Investigator” whospecializes in investigating cases of suspected AMA violations by digital platform
companies.
In addition, as a measure of the whole government, the Digital Market CompetitionCouncil is held under the Headquarters for Digital Market Competition (HDMC)
established in the Cabinet in order to conduct research and deliberations on importantmatters concerning the digital market. The Chairman of the JFTC is a member of theCouncil.
Also, the JFTC believes it important to liaise with external experts in order to deal withcompetition issues regarding digital markets, which are rapidly changing due to rapid
development of technologies. Based on the idea, the JFTC has held the “Study Group on

254
255

https://www.jftc.go.jp/en/pressreleases/yearly-2023/March/230301.html
https://www.jftc.go.jp/en/pressreleases/yearly-2023/September/230921.html

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Competition Policy in Digital Markets” consisting of nine external experts since July 2020,
in order to study issues and challenges on the AMA and competition policy in digitalmarkets. The study group has discussed the theme of algorithms/AI and competition
policy, and released the report “Algorithms/AI and Competition Policy” (published on
March 31, 2021).256 Furthermore, the JFTC appointed four external experts in digitalmarkets as “Digital Special Advisors” in July 2021, who provide the JFTC with theirexpertise related to digital markets, and hired new staff members with tech backgroundas “Digital Analysts” in April 2022, who provide advice on the JFTC’s various initiatives
related to the digital field, such as market studies.
The JFTC’s Competition Policy Research Center (“CPRC”) has been continuously organizing
public events focused on digital competition. In December 2022, the CPRC 5th Osaka
Symposium “Ecosystems by Digital Platforms” was held257. Speakers discussed businessmodels of major digital platforms and impacts on competition. In March 2023, the CPRC
21st International Symposium “Metaverse and Antitrust Law/Competition Policy” took
place258. Panelists shared their views on the current state of metaverse and explored how
metaverse would affect competition law and policy. Most recently, the CPRC focused on“Intersection of Competition Policy, Consumer Protection Policy, and Personal Data
Protection Policy in the Use of Personal Data” in June 2023. Besides these conferences,
the CPRC has held a variety of Open Seminars259 and Symposiums260 which lead to better
understanding of competition issues in digital markets.
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
The JFTC published “Report regarding trade practices on digital platforms (Business-toBusiness transactions on online retail platform and app store)” on October 31, 2019. This
report contributed to the planning process by the HDMC and the enactment of “the Act
on Improving Transparency and Fairness of Digital Platforms”, which designates digitalplatform providers whose transparency and fairness must be significantly improved inparticular compared to other digital platforms as “specified digital platform providers”
and it makes such providers subject to specific regulations.

256

https://www.jftc.go.jp/en/pressreleases/yearly-2021/March/210331.html
https://www.jftc.go.jp/en/cprc/events/symposium/221202.html
258
https://www.jftc.go.jp/en/cprc/events/symposium/230217.html
259
https://www.jftc.go.jp/en/cprc/events/openseminars/index_1.html
260
https://www.jftc.go.jp/en/cprc/events/symposium/index_1.html
257

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The JFTC also published “Final Report Regarding Digital Advertising” on February 17,2021. Based on this report, the HDMC has been engaged in discussions on thedevelopment of rules in the field of digital advertising. In July 2022, Cabinet made adecision on including digital advertising sector within the scope of the Act on Improving
Transparency and Fairness of Digital Platforms.
The JFTC also published “Market Study Report on Mobile OS and Mobile App
Distribution” on February 9, 2023, which proposed that it would be effective to develop a
law to create a healthy competitive environment in the mobile OS market and the app
distribution service market and to complement the enforcement of the AMA. Based on
this report, the HDMC has been engaged in discussions on the development of new rulesin the mobile ecosystem. In June 2023, the HDMC published “Competition Assessment of
the Mobile Ecosystem Final Report”, which decided to develop a legal system by mixing
co-regulation and ex-ante regulation.
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or otherlaws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled.
The JFTC has published guidelines, reports on a fact-finding survey, and study groupreports which have involved interaction with other policy areas. Appearing below is a
short summary of them.
First, in December 2019, the JFTC published the “Guidelines Concerning Abuse of aSuperior Bargaining Position under the Antimonopoly Act on the Transactions between
Digital Platform Operators and Consumers that Provide Personal Information, etc.” toensure the transparency and the predictability for digital platform operators by clarifying
the concepts of the regulation on abuse of a superior bargaining position about acquiring
or using personal information, etc. between digital platform operators and consumers
that provide it.261 It is related to personal information protection.
Second, in the above-mentioned Final Report Regarding Digital Advertising (published on
February 17, 2021), the JFTC clarified it could be problematic under the AMA for a digitalplatform operator to obtain personal information without informing consumers of the
purpose of use, for example, in the situation where the privacy policy is unclear, or to use
personal information against the consumer’s will and beyond the scope required forachieving the purpose of use, even after the user has opted out. And with regard to themedia sustainability, the JFTC clarified the desirable conducts of digital platform

261

https://www.jftc.go.jp/en/pressreleases/yearly-2019/December/191217_DP.html

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operators from the viewpoint of the AMA and competition policy. For example, thereport states that it is desirable for digital platform operators to disclose necessary
information to publishers, such as in the process of calculating the amount paid topublishers and to fulfil sufficient accountability.
Lastly, the JFTC has held the “Study Group on Competition Policy for Data Markets” under
the CPRC, which discussed various issues and challenges of competition policy in data
markets. Following the discussion in the study group, the CPRC published the “Report of
the Study Group on Competition Policy for Data Markets” in June 2021262. The reportstates that, when discussing the data market, it is important to discuss competition, dataprotection and consumer protection as a whole rather than discussing separately,
considering the balance of each policy area. The report presents 6 points for addressing
issues and challenges of competition policy in data market to relevant ministries,
including privacy authorities, and businesses. The 6 points include privacy concerns,
which, for example, point out that it is important to provide users with sufficient
explanation on their use of personal data and to obtain adequate approvals from users.

262

https://www.jftc.go.jp/en/pressreleases/yearly-2021/June/210625.html

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UK - Competition and Markets Authority
Whether you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevantcases.
The CMA continues to be very active in its work to promote greater competition in digitalmarkets and has a live portfolio of digital cases.
The CMA has a number of enforcement cases in relation to competition in digitalmarkets. These include investigations into Amazon over concerns that practices affecting
sellers on its UK Marketplace may be anti-competitive,263 Apple’s conduct in relation to
the distribution of apps on iOS and iPadOS devices in the UK,264 and whether Google hasabused a dominant position through its conduct in ad tech.265 The CMA’s investigation
into Google and Meta’s ‘Jedi Blue’ agreement in relation to Meta’s use of Google's header
bidding product has been combined with the CMA’s investigation into Google’s conduct
in ad tech.266 The CMA has recently published a Notice of Intention to Accept
Commitments (NIAC) in relation to into Meta's (formerly Facebook) use of data,267 as well
as Google’s conduct in relation to its distribution of apps on Android devices in the UK.268
In February 2022, the CMA accepted commitments from Google in relation to its
proposals to remove third party cookies (TPCs) on Chrome and develop its Privacy
Sandbox tools.269 A Monitoring Trustee, supported by a Technical Expert, has been
appointed to monitor certain elements of the commitments. They are required to reportto the CMA on a quarterly basis. The CMA also has a role in supervising Google to ensurethat the Privacy Sandbox is developed in a way that benefits consumers.
The CMA has reviewed a number of mergers in digital markets. The CMA has recently
completed an investigation into Amazon’s takeover of iRobot, clearing it at phase 1.270
On 26 April, the CMA published its final report in Microsoft / Activision, concluding thatthe merger may be expected to result in a substantial lessening of competition in cloud263

Investigation into Amazon’s Marketplace - GOV.UK (www.gov.uk)
Investigation into Apple AppStore - GOV.UK (www.gov.uk)
265
Investigation into Apple AppStore - GOV.UK (www.gov.uk)
266
Investigation into suspected anti-competitive agreement between Google and Meta andbehaviour by Google in relation to header bidding - GOV.UK (www.gov.uk)
267
Meta offers to limit use of other businesses’ ad data to address CMA concerns - GOV.UK(www.gov.uk)
268
Investigation into suspected anti-competitive conduct by Google - GOV.UK (www.gov.uk)
269
Investigation into Google’s ‘Privacy Sandbox’ browser changes - GOV.UK (www.gov.uk)
270
Amazon / iRobot merger inquiry - GOV.UK (www.gov.uk)
264

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gaming services in the UK. Microsoft has appealed the CMA’s decision before theCompetition Appeal Tribunal (CAT).271 On 22 August 2023, the CMA opened aninvestigation into a restructured proposed acquisition by Microsoft of Activision, which
excludes Activision’s cloud streaming rights outside of the European Economic Area
(EEA). On 13 October 2023, the CMA decided to grant consent to Microsoft to complete
this restructured acquisition, subject to commitments that will allow the CMA to enforce
the terms of the sale of Activision’s rights to Ubisoft.
Previously, the CMA blocked the merger of Meta (Facebook) / Giphy in November
2021.272 Meta appealed the CMA’s decision to the CAT and in July 2022 the CAT upheld
the CMA’s decision on all substantive grounds of appeal, endorsing the CMA’s framework
for analysis of dynamic competition. The CAT found in Meta’s favour only on a procedural
ground relating to the sharing of third-party confidential information, which resulted in
the case being remitted to the CMA for re-assessment. The CMA announced its remittal
decision in November 2022, finding a substantial lessening of competition (SLC) in
relation to both the dynamic competition and foreclosure theories of harm andconcluding that Giphy would need to be sold off in its entirety to an approved buyer.
Giphy was sold to the approved purchaser, Shutterstock, in May 2023.273
The CMA has also previously investigated and cleared Booking/eTraveli,274 in relation toonline travel agent (OTA) businesses in the UK and worldwide. It also cleared
Facebook/Kustomer,275 which concerned online display advertising, customer relationshipmanagement software, and business to consumer messaging, and Microsoft/Nuance,
which concerned voice recognition and transcription software. In recent years, the CMA
has conducted detailed reviews of mergers in a number of other digital markets including
Uber/Autocab,276 Google/Looker,277 Salesforce/Tableau,278 and Amazon/Deliveroo.279

271

Microsoft / Activision Blizzard merger inquiry - GOV.UK (www.gov.uk)
Facebook, Inc (now Meta Platforms, Inc) / Giphy, Inc merger inquiry - GOV.UK (www.gov.uk)
273
Facebook, Inc (now Meta Platforms, Inc) / Giphy, Inc merger inquiry - GOV.UK (www.gov.uk)
274
Booking Holdings Inc / eTraveli Group AB merger inquiry - GOV.UK (www.gov.uk)
275
Facebook, Inc./ Kustomer, Inc. - GOV.UK (www.gov.uk)
276
Uber Technologies, Inc. / GPC Software Limited (Autocab) merger inquiry - GOV.UK (www.gov.uk)
277
Google LLC / Looker Data Sciences, Inc merger inquiry - GOV.UK (www.gov.uk)
278
Salesforce.com, Inc. / Tableau Software Inc merger inquiry - GOV.UK (www.gov.uk)
279
Amazon / Deliveroo merger inquiry - GOV.UK (www.gov.uk)
272

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As highlighted in the updated Merger Assessment Guidelines and in the CMA’s recent
practice, innovation competition, future competition, and dynamic competition can beparticularly relevant considerations when assessing mergers in digital markets.280
In May this year, the CMA launched an initial review into AI Foundation Models281 to help
create an early understanding of the market for foundation models and how their use
could evolve; what opportunities and risks these scenarios could bring for competitionand consumer protection; and what competition and consumer protection principles will
therefore best guide the development of these markets going forward. The goal of theinitial review was to help this emergent and rapidly scaling technology develop in waysthat result in open, competitive markets that will continue to bring benefits for people,
businesses and the economy in the UK. The review was focused on three themes: 1)
competition and barriers to entry in the development of foundation models; 2) the
impact foundation models may have on competition in other markets; and 3) consumer
protection. The report was published on 18 September 2023 including proposed guiding
principles to help ensure competition and consumer protection remain a driving force inthe development and deployment of foundation models.282
The CMA has previously undertaken year-long market study into mobile ecosystems,
which investigated whether Apple and Google’s powerful position in relation to the
supply of operating systems, app stores, and web browsers on mobile devices is resulting
in harm to consumers. The final report was published in June 2022 concluding that Appleand Google have an effective duopoly on mobile ecosystems that allows them to exercise
a stranglehold over these markets.283
In January 2023, the CMA completed its market study into music and streaming services,which considers the supply of music, from the creators of music through to the consumer,in particular via music streaming services.284
Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more dataspecialists, building new investigative tools, or gathering new/different
evidence).
One of the key initiatives the CMA has taken to strengthen its ability to tackle
competition issues in digital markets is the establishment of its Data, Technology and280

Merger Assessment Guidelines (CMA129) - GOV.UK (www.gov.uk)
AI Foundation Models: initial review - GOV.UK (www.gov.uk)
282
AI Foundation Models: Initial report - GOV.UK (www.gov.uk)
283
Mobile ecosystems market study - GOV.UK (www.gov.uk)
284
Music and streaming market study: final report - GOV.UK (www.gov.uk)
281

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Analytics (DaTA) unit. Today, it comprises nearly 60 data engineers, data scientists, data
and technology insight advisors, digital forensics and eDiscovery specialists, andbehavioural scientists, and is continuing to grow. The DaTA unit provides expert data andtechnology advice, data acquisition and data science capabilities, data-driven tool
development, behavioural science capabilities, and research, horizon scanning, and casepipeline development.
The DaTA unit is embedded in teams working on complex merger investigations, market
studies, antitrust, and consumer cases. For example, the DaTA unit assisted the CMA’s
consumer cases against Amazon and Google in relation to fake online reviews. The unit
played a key role in requesting large amounts of data, analysing it and reviewing theapproach that these companies used to identify this type of content using machinelearning. In relation to mergers, the DaTA unit has developed specific data or technology
focused theories of harm, helped case teams understand technical digital markets, andassessed technical remedies. The DaTA unit has also enabled case teams to efficiently
gather and review very large volumes of parties’ internal documents, by developing the
CMA’s in-house Evidence Submission Portal, and supporting case teams to design
effective document review strategies. The DaTA unit is also co-leading the initial review
into AI Foundation Models.
The DaTA unit’s Behavioural hub published a paper in April 2023 discussing how andwhen the CMA uses field and online experiments and held a webinar on the topic in June
2023. In addition, the unit contributed to the Digital Regulation Cooperation Forum’s
workshops on transparency in the procurement of algorithmic systems and production of
the findings paper,285 and the insights papers on web3286 and quantum technologies.287
With its unique technical expertise, the DaTA unit is helping the Digital Markets Unit,
currently operating in shadow form, to horizon-scan and identify the potential impact of
new technologies and business practices on market dynamics.
The CMA has appointed nine Digital Experts as independent advisors to support ourongoing work in digital markets, as well as preparations for the new regime. Collectively,
these specialists have expertise and experience working at the forefront of technologicalinnovation, online competition and tackling the dominance of some of the world’s most

285

Transparency in the procurement of algorithmic systems: Findings from our workshops - GOV.UK(www.gov.uk)
286
Insight Paper on Web3 - GOV.UK (www.gov.uk)
287
Quantum Technologies Insights Paper | DRCF

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powerful firms.288 The experts bring independent insight, complementing the CMA’s
internal expertise and will support the CMA in maintaining a detailed understanding of
the dynamics and operation of digital markets.289
The CMA is also piloting a Digital Markets Summer Diversity Internship aimed at
individuals from groups currently underrepresented at the CMA, to help build a diverse
talent pipeline in the long-term and better represent the consumers it serves.
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
addressdigital competition issues.
In the UK, there are two key areas of reform being pursued to better tackle competition
issues in digital markets: first, reforms to the CMA’s existing competition and consumer
powers, to ensure they are better adapted for the digital age and second, theintroduction of a new ex ante pro-competition regime for digital markets. These reforms
are being taken forward by the Digital Markets Competition and Consumers Bill, which
was introduced in the UK Parliament in April 2023.290
In relation to the first area, these include improving and strengthening the CMA’s powers
in relation to the market investigation process, merger reviews, and investigations into
anticompetitive conduct. The reforms would also involve updating the UK’s consumer
protection framework more effectively to tackle the changes in consumer markets,particularly the rapid increase in online commerce. This includes introducing specificreforms on online reviews and subscription traps, empowering the CMA to enforce
consumer law directly (as opposed to through the courts), and introducing fining powers
for breaches of consumer law.
In relation to the ex-ante pro-competition regime for digital markets, this will beoverseen by the Digital Markets Unit (DMU) within the CMA. It will apply to firms that the
CMA designate as having Strategic Market Status. Firms will be designated with Strategic
Market Status if they are found to have substantial and entrenched market power in atleast one digital activity, which provides them with a strategic position. These designatedfirms will be subject to enforceable conduct requirements, which will set out how firms
are expected to behave in respect of the activities in which they have been designated. In
addition to enforcing conduct requirements, the DMU will have the power to impose pro-

288

Biographies of the CMA's independent digital experts - GOV.UK (www.gov.uk)
Experts appointed as UK looks to level digital playing field for consumers - GOV.UK (www.gov.uk)
290
Digital Markets, Competition and Consumers Bill - Parliamentary Bills - UK Parliament
289

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competitive interventions on designated firms. Examples of pro-competitive
interventions include requiring, for instance, designated firms to provide fair access todata and the ability to enforce interoperability between platforms or services. Lastly, the
CMA will have increased visibility over mergers involving designated firms as they will
have to report their most significant transactions prior to completion. The DMU willcontinue to support the UK Government as the legislation progresses.
In parallel, the DMU is undertaking a range of activities as part of preparing to implement
the new regime. This includes evidence-gathering on digital markets, recruitment ofadditional staff and engaging with stakeholders across industry, academia, otherregulators, and government.
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetitionissues that has involved interaction with non-competition agencies or otherlaws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled
Alongside its competition remit, the CMA is also responsible for enforcing consumer
protection laws in the UK and has an active portfolio of work focused on increasing
consumer trust in online markets. This includes investigating fake and misleading reviews
on Google and Amazon and investigating the disclosure of paid for endorsements onsocial media platforms. In 2022, the CMA’s consumer law investigation into auto-renewalpractices in the online gaming sector led to the CMA securing undertakings fromMicrosoft and Sony, and Nintendo adequately changing its business practices. In 2022,
the CMA also launched a programme of work to tackle potentially harmful online selling
practices291 and launched enforcement cases investigating the use of online selling
practices based on ‘urgency claims’ (such as countdown clocks) by the Emma Group292
and the Wowcher Group.293 The CMA also issued compliance advice for online businesses
covering the use of urgency and price reduction claims and launched a consumer
campaign to raise consumer awareness of misleading online sales practices.
The CMA is committed to ensuring its work to promote competition in digital markets iscoherent with wider regulatory regimes in the UK. The CMA is a founding member of theDigital Regulation Cooperation Forum (DRCF), which was established in 2020 to ensure
coordination and cooperation between regulators in digital markets.

291

Online choice architecture work - GOV.UK (www.gov.uk)
Emma Group: consumer protection case - GOV.UK (www.gov.uk)
293
Wowcher Group: consumer protection case - GOV.UK (www.gov.uk)
292

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The CMA, alongside the other DRCF member regulators, the Office of Communications,the Information Commissioner’s Office, and the Financial Conduct Authority, work
together to ensure coherence between their respective regimes, collaborate on projects,
and build capacity across regulators to deliver effective digital regulation. In 2023-2024,
the DRCF’s focus is on encouraging best practice around the regulation and audit ofalgorithms and artificial intelligence, including supporting government as it develops its
new AI regulation framework, horizon scanning to predict and prepare for emerging
technological trends, and enabling innovation by jointly researching and piloting a multiagency advice service for digital innovators.294 The DRCF engages with a wide range ofstakeholders and has recently held events on topics such as Web3295, metaverses296,
algorithmic processing297, and quantum computing.298
As part of the CMA’s work through the DRCF, the CMA has published a joint statementwith Ofcom setting out our shared views on the relationship between competition andonline safety in digital markets.299 The CMA has also published a joint statement with theInformation Commissioner’s Office on the relationship between competition and data.300
In addition, the CMA is engaging with international agencies with a similar crossregulatory focus to the DRCF through the recently established International Network for
Digital Regulation Cooperation (INDRC), which includes Australia, Ireland and The
Netherlands as founding members.

294

The DRCF publishes its 2023/24 Workplan | DRCF
Web 3.0 and distributed ledger technologies – A regulatory perspective - Competition andMarkets Authority (blog.gov.uk)
296
The Metaverse and immersive technologies – A regulatory perspective - Competition and Markets
Authority (blog.gov.uk)
297
Findings from the DRCF Algorithmic Processing workstream - Spring 2022 - GOV.UK (www.gov.uk)
298
A closer look at quantum technologies | DRCF
299
CMA-Ofcom joint statement on online safety and competition - GOV.UK (www.gov.uk)
300
CMA-ICO joint statement on competition and data protection law - GOV.UK (www.gov.uk)
295

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US - Federal Trade Commission
Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
Enforcement
Merger enforcement is the first-line defense against unlawful consolidation and theprimary enforcement tool to prevent market structures that give rise to monopolizationand tacit coordination. The FTC devotes significant enforcement resources to checking
unlawful deals that threaten long-term harm in emerging and nascent digital markets.
The FTC’s most prominent recent digital merger challenge was the August 2022 challengeof Meta’s proposed acquisition of Within Unlimited, Inc., a virtual reality development
studio. The FTC alleged that Meta, by virtue of being a key player at each level of the VR
sector, was a potential entrant in the VR dedicated fitness app market where Within’s
Supernatural is the top seller. While the US federal judge ruled that the FTC had met its
burden in showing that the virtual reality fitness app market is highly concentrated, hefound that the FTC did not prove there was a reasonable probability that Meta would
enter the market independently. As a result, the judge did not grant a preliminary
injunction to stop the acquisition and the FTC decided to not pursue an appeal or further
litigation. Despite the loss, the case advances the law for future cases involving emerging
digital markets, specifically surrounding the standards required to succeed in a potential
competition case. Importantly, the court rejected Meta’s argument that there could be
no competition concern in new, fast-growing markets, finding that competition law has
an important role to play in new markets with recent entry. Moreover, the FTC’s market
definition was validated in ways that can be helpful in future digital merger cases, withthe court relying on traditional qualitative factors to find a relevant market for VR
dedicated fitness apps.
Aspects of digital and tech markets increasingly impact the competition analysis in anarray of industries, as seen in other recent FTC merger challenges. For example, the FTC
took action to block the proposed merger between Intercontinental Exchange and its
main rival, Black Knight, the two top mortgage technology loan providers. The two
provide home mortgage loan origination systems, software that is used to manage thedocuments and workflow required to generate and service mortgages. The FTC argued
that the merger would increase costs, hinder innovation, and limit lenders’ options forthe necessary software tools to facilitate mortgage generation and servicing, leading tohigher costs for lenders and homebuyers. The FTC secured a settlement that resolved theantitrust concerns. The FTC is also seeking to block technology giant Microsoft Corp. fromacquiring leading video game developer Activision Blizzard, Inc. alleging that the deal

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would enable Microsoft to suppress competitors to its gaming consoles and its rapidly
growing subscription content and cloud-gaming business.
In the conduct area, the FTC continues to scrutinize digital markets, recognizing that
distinct features of digital technologies have ushered in new market dynamics andbusiness strategies that require us to update the agency’s enforcement approach andensure the law is keeping pace. The FTC’s investigations in digital markets recognize thecritical role of data, network externalities, moat-building strategies, and other key factors
to make sure the FTC’s enforcement is reflecting commercial realities.
In 2023, the FTC and 17 state attorneys general sued Amazon.com, Inc. alleging that theonline retail and technology company is a monopolist that uses a set of interlocking
anticompetitive and unfair strategies to illegally maintain its monopoly power. The complaint
alleges that Amazon engages in a course of exclusionary conduct that prevents competitorsfrom growing and new competitors from emerging. The complaint alleges Amazon’s
anticompetitive conduct occurs in two markets—the online superstore market that serves
shoppers and the market for online marketplace services purchased by sellers. Amazon’s
tactics include anti-discounting measures that punish sellers and deter other online retailers
from offering prices lower than Amazon, and conditioning sellers’ ability to obtain “Prime”
eligibility for their products on sellers using Amazon’s costly fulfilment service. Amazon’s
exclusionary conduct makes it impossible for competitors to gain a foothold and its amassed
power enables it to degrade the customer experience, bias search results to preference
Amazon’s own products, and charge costly fees on sellers.
Notably, the FTC’s litigation against Facebook (d/b/a/ Meta) also continues. The lawsuit,in addition to other forms of relief, seeks the divestment of Instagram and WhatsApp.
The amended complaint placed greater emphasis on the competitive importance of dataand noted privacy degradation constitutes an antitrust harm (which the court had also
acknowledged) and survived a motion to dismiss in US federal court.
The FTC also continues its litigation against Surescripts, an e-prescription giant. Filed in
2019, the FTC alleges that Surescripts intentionally set out to keep e-prescription
customers from using additional platforms (a practice known as multihoming) using
anticompetitive exclusivity agreements, threats, and other exclusionary tactics, and thatthe result has been the total exclusion of all meaningful competition in routing andeligibility, higher prices, reduced innovation, lower output, and no customer choice. In
2023, the US District Court granted the FTC’s request for summary judgment, finding
Surescripts has monopoly power in two markets, e-prescription routing and eligibility.
The FTC won approval to move forward with the case. Despite the company removing
certain provisions at issue in its contracts, the judge determined that Surescripts’ newcontracts could still be anticompetitive.

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In December 2022, relying on a US law that specifically prohibits debit card networks
from establishing exclusivity, the FTC ordered Mastercard to stop blocking the use ofcompeting debit payment networks and end its illegal business tactics to force merchants
to route debit card payments through its payment network. The FTC alleged that
Mastercard illegally set policies that blocked merchants from routing ecommercetransactions using Mastercard-branded digital debit cards saved in ewallets to competing
payment card networks. This was achieved through Mastercard’s power over a process
called “tokenization,” which involves replacing a cardholder’s primary account number
with a different number to safeguard the information during certain stages of a debit
transaction. This illegal tactic impeded merchants from routing debit transactions
through competing payment card networks.
Other Tools
In addition to individual enforcement actions, a significant portion of FTC’s efforts are
devoted to providing guidance to companies about what the law requires to deter
unlawful deals and anticompetitive conduct. Among other initiatives, this includes
launching a revision of the merger guidelines and issuing a policy statement on the FTC’s
unique Section 5 authority, as well other projects focused on a specific technology,
conduct, or industry.
In July 2023, the FTC and DOJ released new draft U.S. merger guidelines following acomprehensive review . A goal in preparing the new guidelines is ensuring that theframeworks accurately reflect the realities of the modern economy. The review evaluated
how to account for certain features of digital markets such as zero-price dynamics andthe competitive significance of data. The new guidelines also recognize and address
issues unique to platform merger analysis and their likelihood to involve issues of scaleand network effects, gatekeeping, leveraging, consumer lock-in and market tipping. The
FTC and DOJ also recently proposed changes to the U.S. premerger notification form andassociated instructions. Some of the changes to better identify horizontal overlaps andvertical relationships address the challenge of investigating mergers that involve
technology and digital platforms. These dynamic markets often rely on acquisition
strategies for success and market growth. Merger activity in these sectors increasingly
involves firms in related business lines where agencies must closely examine the potential
for direct competition in the future.
The FTC is also reinvigorating its unique authority under Section 5 of the Federal Trade
Commission Act that allows the agency to prohibit unfair methods of competition that
may fall outside the purview of other antitrust laws. Last year, the FTC issued a policy
statement on Section 5 that reflects the legislative text, structure, the history of thestatute, and the case law. The statement puts businesses on notice about how toCompendium | Page 95

compete fairly and legally in the market, taking unfairness seriously as a normative
framework and aiming to minimize the open-ended balancing of the rule of reason infavor of clear defensible bright line rules whenever possible. Because the statute seeks tostop unfair conduct in its incipiency, prior to the existence of monopoly power,
depending on the facts of the case, it is well suited to address harms in digital markets.
An example from the FTC’s research and market study agenda is the 2023 launch of an
inquiry into business practices by cloud computing providers, seeking comments on thepotential impact on competition and data security. Cloud computing is used for ondemand access to data storage, servers, networks, and much more. As large sectors
across the economy continue to heavily rely on cloud computing services, the FTC wants
to better understand the impact of this reliance, the competitive dynamics in cloudcomputing, and the potential for security risks while using cloud services.
Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
Alongside enforcement, the FTC is making long-term investments to maximize the impact
of its work. To tackle the pressing issues of today and tomorrow, the agency is
broadening its institutional skillsets to ensure the agency is fully grasping market realities,
especially as the economy becomes increasingly digitized. The Office of Technology wasrecently created to support the FTC’s mission in promoting competition and protecting
consumers by expanding its in-house technical expertise. The Office supports the agency
with the skills needed to better understand evolving technologies and market trends. Its
staff of technologists and computer/data scientists support law enforcement
investigations and actions, advise and engage on policy and research initiatives, andhighlight market trends and emerging technologies that affect the FTC’s mission in areas
such as: advertising technology, artificial intelligence, augmented and virtual reality,
cloud computing, data science and data analysis, digital platforms and ecosystems,
human computer interaction design, investigative research, privacy, security, productmanagement, prototyping, social science research or fieldwork, software engineering,user experience design and user research.
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant

Compendium | Page 96

proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
As noted in previous G7 Compendiums, U.S. President Biden issued an Executive Order on
Promoting Competition in the American Economy that recognizes a whole-of-government
approach needed to urgently tackle unhealthy concentration and unfair methods ofcompetition across the economy. Consistent with the goals of the Order, the FTC hasentered into cooperation agreements with key agencies, such as the National Labor
Relations Board, and consulted with several executive branch agencies to issue reports on
the competitiveness of certain sectors of the economy including a U.S. Treasury report on
the state of labor market competition in the United States and a Department ofCommerce study of the mobile app ecosystem.
The United States Congress continues to consider several proposed laws related to digitalcompetition, ranging from broad-based antitrust reforms to narrowly targeted bills that
address topics such as platform discrimination, interoperability, and self-preferencing. To
become law, bills need to be voted out of the House of Representatives and the Senate,reconciled, and then signed into law by the President, a process of evaluation, discussion,and possible amendments that could span many months. While these bills may change as
they move through the legislative process, they represent the prospect for significant
change to competition policy and enforcement in digital markets.
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or otherlaws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled.
With legal authority over competition and consumer protection, the FTC seeks to improvecoordination across competition, consumer protection, and privacy activities and apply
an integrated approach to the agency’s cases, rules, research, and other policy tools. Thismay help identify interconnections between the conditions that give rise to competitionand consumer protection violations. This is an area of ongoing work. Examples ofintersection issues over the past year, across the digital-related work of the FTC, include: Competition. As mentioned above, the FTC’s amended complaint against Facebook
alleges that increased concentration in a market may lead to lower levels of service
quality in areas such as privacy and data protection.
 Consumer protection and privacy. The FTC recently took action against Amazon for

duping consumers into its Prime subscription program without their consent andmaking it difficult to cancel their subscription. The FTC alleges that Amazon violated theFTC Act and the Restore Online Shoppers’ Confidence Act by specifically using “darkCompendium | Page 97

patterns” to trick millions of consumers into enrolling in auto-renew Prime
subscriptions. In early 2023, upon Amazon’s acquisition of One Medical, the FTC issued
a statement about the representations that the parties made to the public about
privacy and the use of consumers’ personal health information. The statement asserted
that the representations constitute promises to consumers about the collection and useof their data by the post-acquisition entity and failure to abide by the representations
can violate the law.
 Policy Statements. In September, the FTC adopted a policy statement that outlines its
authority to combat consumer protection and competition issues facing gig workers,
including deception about pay and hours, unfair contract terms, and anticompetitive
wage fixing and coordination between gig economy companies. The statement notesthat an “integrated approach to investigating unfair, deceptive, and anticompetitive
conduct is especially appropriate for the gig economy, where law violations often havecross-cutting causes and effects.”
 Rulemaking. In August, the FTC took its first step in initiating a rulemaking proceedingon commercial surveillance, inviting public comments and announcing that the agency
is exploring rules to address the harms stemming from commercial surveillance and lax
data security. Commercial surveillance is the business of collecting, analyzing, andprofiting from information about people. Mass surveillance has heightened the risks
and stakes of data breaches, deception, manipulation, and other abuses.
 Market inquiry. As mentioned above, the FTC launched an inquiry into businesspractices by cloud computing providers and invited public comment on their potential
impact on both competition and data security. The inquiry aims to help the FTC tobetter understand the competitive dynamics in cloud computing as well as its thepotential for security risks, including single points of failure, in the use of cloud.

Compendium | Page 98

US - Department of Justice
Whether you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address competition concerns in digital markets. You
may wish to highlight any particularly relevant cases.
Enforcement Actions
The Antitrust Division’s lawsuit against Google for monopolizing search and searchadvertising, filed in October 2020, continues.301 Trial began in September 2023 and it
expected to conclude in November 2023, with the District Court’s decision expected atsome point after that.
In January 2023, the Antitrust Division sued Google for monopolizing digital advertisingtechnologies.302 The complaint alleges that over the past 15 years Google has engaged ina course of anticompetitive and exclusionary conduct that consisted of neutralizing or
eliminating ad tech competitors through acquisitions; wielding its dominance acrossdigital advertising markets to force more publishers and advertisers to use its products;
and thwarting the ability to use competing products. In doing so, Google cemented its
dominance in tools relied on by website publishers and online advertisers, as well as thedigital advertising exchange that runs ad auctions.
In April 2023, the Division filed a civil antitrust lawsuit against Activision Blizzard, Inc.
(Activision), one of the world’s largest video game developers and publishers, forimposing rules that limited competition for players in Activision’s Overwatch and Call of
Duty professional esports leagues and suppressed the wages of esports players in these
leagues in violation of the Sherman Act.303 The District Court entered a consent decree toaddress the Division’s competition concerns.
The Antitrust Division continues to pursue criminal charges for price fixing in online
markets. In February 2023, two Amazon marketplace sellers and four of their companies
pleaded guilty to price fixing DVDs and Blue Ray Discs.304 In January 2022, three sellers

301

https://www.justice.gov/atr/case/us-and-plaintiff-states-v-google-llc.
https://www.justice.gov/opa/pr/justice-department-sues-google-monopolizing-digitaladvertising-technologies.
303
https://www.justice.gov/opa/pr/justice-department-files-lawsuit-and-proposed-consent-decreeprohibit-activision-blizzard.
304
https://www.justice.gov/opa/pr/two-amazon-marketplace-sellers-and-four-companies-pleadguilty-price-fixing-dvds-and-blu-ray.
302

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pleaded guilty to fixing prices of DVDs and Blu-Ray Discs sold on Amazon Marketplace.305
In July 2021, another seller pleaded guilty to similar charges.306
Merger Guidelines Review
In July 2023, the FTC and DOJ released new draft U.S. merger guidelines following acomprehensive review.307 A goal in preparing the new guidelines is ensuring that theframeworks accurately reflect the realities of the modern economy. The review evaluated
how to account for certain features of digital markets such as zero-price dynamics andthe competitive significance of data. The new guidelines also recognize and address
issues unique to platform merger analysis and their likelihood to involve issues of scaleand network effects, gatekeeping, leveraging, consumer lock-in and market tipping.
In June 2023, the FTC and DOJ proposed changes to the U.S. premerger notification form
and associated instructions.308 Some of the changes to better identify horizontal overlaps
and vertical relationships address the challenge of investigating mergers that involve
technology and digital platforms. These dynamic markets often rely on acquisition
strategies for success and market growth. Merger activity in these sectors increasingly
involves firms in related business lines where agencies must closely examine the potential
for direct competition in the future.
Amicus Program
The Antitrust Division has provided expert input to courts on matters involving large
digital platforms via our amicus program. In State of New York, et al. v. Facebook, Inc., forexample, we filed an amicus brief concerning the improper extension and misapplicationof refusal-to-deal standards.309 In Epic Games, Inc. v. Apple, Inc., we filed an amicus brief
concerning concerted action, balancing anticompetitive and procompetitive effects, themeasurement of monopoly power, and market definition.310 And in District of Columbia v.

305

https://www.justice.gov/opa/pr/three-amazon-marketplace-sellers-plead-guilty-price-fixing-dvdsand-blu-ray-discs-ongoing.
306
https://www.justice.gov/opa/pr/amazon-marketplace-seller-pleads-guilty-price-fixing-dvds-andblu-ray-discs.
307
https://www.justice.gov/opa/pr/justice-department-and-ftc-seek-comment-draft-mergerguidelines
308
https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-doj-propose-changes-hsrform-more-effective-efficient-merger-review
309
https://www.justice.gov/media/1188646/dl?inline.
310
https://www.justice.gov/media/1187806/dl?inline.

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Amazon.com, Inc., we filed a statement of interest regarding concerted action and how toevaluate the reasonableness of contractual restraints.311

Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
US-EC TPCDIn December 2021, the Division and the U.S. Federal Trade Commission initiated aTechnology Policy Competition Dialogue with the European Commission to discuss
competition issues in digital markets.312 In October 2022, the EC, U.S. Federal Trade
Commission, and the DOJ held a second dialogue during which they discussed theimportance of horizon scanning, remedies in digital cases, and the U.S. merger guidelines
review.313 In March 2023, the EC, U.S. Federal Trade Commission, and the Division held athird dialogue during which they discussed mergers between digital players, abuse of
dominance and monopolization in digital markets, and recent digital markets policy
initiatives. They also discussed the evolving business strategies of tech firms and theirimplications for enforcement.314
Data Analytics Project
The Division’s Procurement Collusion Strike Force (PCSF) has undertaken a Data Analytics
Project, which seeks to facilitate collaboration across the U.S. law enforcement
community in developing and using data analytics to identify potential criminal
anticompetitive collusion in government procurement data. The PCSF advises
government agencies on how to use data to build analytical tools to detect collusion. It

311

https://www.justice.gov/atr/case-document/file/1497791/download.
https://www.justice.gov/opa/pr/justice-department-federal-trade-commission-and-europeancommission-issue-joint-statement; https://www.justice.gov/opa/pressrelease/file/1453916/download.
313
https://www.justice.gov/opa/pr/justice-department-federal-trade-commission-and-europeancommission-hold-second-us-eu-joint.
314
https://www.justice.gov/opa/pr/justice-department-federal-trade-commission-and-europeancommission-hold-third-us-eu-joint-0.
312

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also trains data scientists, analysts, auditors, and investigators on detecting patterns andred flags indicating collusion.315
Staff Hiring
The Division continues to build out its digital markets expertise by assembling a diverse
community of experts with a wide range of complementary skills related to digitalmarkets. Dr. Susan Athey, a noted technology economist at Stanford University andformer Chief Economist at Microsoft, joined the Division in 2021 as its Chief Economist,
leading our Expert Analysis Group (EAG).316 In 2022, the Division hired Ph.D. data scientist
Laura Edelson as its Chief Technologist serving within EAG.317
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
Legislation
The United States Congress continues to consider several proposed laws related to digitalcompetition, ranging from broad-based antitrust reforms to narrowly targeted bills that
address topics such as platform non-discrimination, interoperability, self-preferencing,
structural separation, and compensation for news content. To become law, bills need to
be voted out of the House of Representatives and the Senate, reconciled, and then signed
into law by the President, a process of evaluation, discussion, and possible amendmentsthat could span many months. In March 2022, the Department issued a letter in supportof the American Innovation and Choice Online Act, which would prohibit discriminatory
conduct by dominant platforms.318
Executive Order on Competition
In July 2021, President Biden issued an Executive Order on Promoting Competition in theAmerican Economy, emphasizing the government’s policy to promote fair, open, andcompetitive markets. The Order includes 72 initiatives by more than a dozen federal315

https://www.justice.gov/atr/division-operations/division-update-spring-2021/pcsf-expansionand-early-success.
316
https://hai.stanford.edu/news/technology-economist-susan-athey-adds-doj-role-hermultidimensional-career.
317
https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-antitrustdivision-delivers-keynote-fordham.
318
Department Views Letters on S.2992, the American Innovation and Choice Online Act, and
H.R.3816, the American Innovation and Choice Online Act (justice.gov).

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agencies intended to address pressing competition problems in the US economy,
including “a small number of dominant Internet platforms [that] use their power to
exclude market entrants, to extract monopoly profits, and to gather intimate personal
information that they can exploit for their own advantage.” The Order proclaims that it is
the policy of the Administration to enforce the antitrust laws to meet the challenges
posed by new industries and technologies, including the rise of dominant Internet
platforms, especially as they stem from serial mergers, the acquisition of nascentcompetitors, the aggregation of data, unfair competition in attention markets, thesurveillance of users, and the presence of network effects.319 The Department
participates in regular meetings with the other agencies identified in the Executive Orderto share updates regarding the execution of this mandate.
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or otherlaws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled.
The Division consults with non-competition law enforcers and regulatory agencies tobetter understand the ways in which the non-competition law or regulations may affectcompetition in digital markets. In addition, the Division often provides input to regulatory
agencies whose responsibilities may touch on digital markets competition. It is not
unusual for the Division to consult with law enforcers and regulators with responsibilities
for consumer protection, privacy, or other issues that may bear on digital markets
competition.
Comments to NTIA.
In March 2023, the Division submitted comments to the National Telecommunications
and Information Administration (NTIA) in response to its Request for Comment
addressing issues at the intersection of privacy, equity, and civil rights.320 The Division’scomments focused on the role that competition can play in ensuring privacy in digitalmarkets.

319
320

Executive Order on Promoting Competition in the American Economy | The White House.
https://www.justice.gov/atr/page/file/1573126/download.

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European Commission – Directorate-General for Competition
Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
The European Commission (“the Commission”) has taken an active role to ensure that
digital markets remain competitive using all the relevant competition law tools available
to it including merger control, antitrust and sector inquiries.
The Commission uses merger control to ensure that digital markets remain competitive.
The EU Merger Regulation321 (EUMR) is sector neutral and applies equally to the digital
sector as it does to other industries. That said, the EUMR is sufficiently flexible to allow
the assessment of the specific issues which arise in the digital sector, including themultisided nature of platforms and data as an important input.
The Commission has undertaken investigations of a number of mergers in the digital
sector including Facebook’s acquisition of WhatsApp (2014)322, Microsoft’s acquisition of
LinkedIn (2016)323, Apple’s acquisition of Shazam (2018)324, Google’s acquisition of Fitbit(2020)325, Meta’s acquisition of Kustomer (2022)326, Amazon’s acquisition of MGM(2022),327 Google’s acquisition of Photomath (2023)328, Microsoft’s acquisition of
Activision Blizzard (2023)329 Broadcom’s acquisition of VMware330 and Booking’s
acquisition of eTraveli.331 In the latter case the Commission prohibited the transaction,
whereas in other cases where the Commission has found that a transaction would harmcompetition in the EU internal market, remedies have been required in order to secure
clearance. These remedies have included (i) interoperability requirements, thus ensuringthat competing products are not impeded from functioning with the merged entity’s
platform, (ii) data silo obligations, that form technical separations to ensure that large
digital companies do not use certain data to obtain non-replicable advantages in related
markets, (iii) access remedies, for example to APIs, thus ensuring access to inputs

321

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32004R0139
https://ec.europa.eu/commission/presscorner/detail/en/IP_14_1088323
https://ec.europa.eu/commission/presscorner/detail/en/IP_16_4284
324
https://ec.europa.eu/commission/presscorner/detail/en/IP_18_5662
325
https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2484
326
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_652
327
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1762
328
https://ec.europa.eu/commission/presscorner/detail/en/ip_23_1927329
https://ec.europa.eu/commission/presscorner/detail/en/ip_23_2705
330
https://ec.europa.eu/commission/presscorner/detail/en/IP_23_3777
331
https://ec.europa.eu/commission/presscorner/detail/en/ip_23_4573
322

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necessary to the continued provision of competing products of services or licensing
remedies, providing for the licensing of technology to ensure that technology essential
for third parties does not remain concentrated in the hands of the merged entity, andinstead markets remain competitive.
The Commission has also adopted a high number of antitrust decisions in the digital
sector, including on Microsoft Internet Explorer332 and more recently, on Google
Shopping,333 Qualcomm334, Android335 and AdSense.336 While the Qualcomm fine wasannulled by the General Court of the European Union,337 on 10 November 2021 theGeneral Court of the European Union confirmed the Commission's June 2017 decisionthat Google abused its market dominance in general search by treating its own
comparison shopping service more favourably than competing comparison shopping
services.338 On 14 September 2022 the General Court of the European Union also largely
confirmed the Commission's decision of July 2018 according to which Google imposed
unlawful restrictions on manufacturers of Android mobile devices and mobile network
operators in order to consolidate the dominant position of its search engine.339
The Commission is also still investigating several cases in the sector, notably Apple’s App
Store340 and Apple Pay341. The European Commission has also issued Statement of
Objections regarding possible abuse of dominance practices by Google (June 2023)342 andMeta (December 2022)343 in the advertising intermediation and classified ads field,
respectively. The Commission also opened an investigation to assess Microsoft’s tying of
its communication and collaboration product Teams to its business suites.344
In December 2022, the Commission closed its Amazon Marketplace and Amazon Buy Box
investigations345 following the acceptance of commitments by Amazon.346 In the332

https://ec.europa.eu/commission/presscorner/detail/en/IP_09_1941
https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1784334
https://ec.europa.eu/commission/presscorner/detail/en/IP_18_421
335
https://ec.europa.eu/commission/presscorner/detail/en/IP_18_4581
336
https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1770337
https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-06/cp220099en.pdf
338
https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-11/cp210197en.pdf
339
https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-09/cp220147en.pdf andhttps://ec.europa.eu/commission/presscorner/detail/en/ip_23_1217
340
https://ec.europa.eu/commission/presscorner/detail/en/ip_23_1217341
https://ec.europa.eu/commission/presscorner/detail/es/ip_22_2764
342
https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3207
343
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7728
344
https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3991
345
https://ec.europa.eu/commission/presscorner/detail/fr/ip_20_2077 andhttps://ec.europa.eu/commission/presscorner/detail/en/ip_20_2077.
346
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7777
333

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Marketplace case, the Commission found that that Amazon's reliance on marketplacesellers' non-public business data to calibrate its retail decisions, distorted fair competition
on its platform and prevented effective competition. In the Buy Box case, the Commission
preliminarily concluded that Amazon's rules and criteria for the Buy Box and Prime unduly
favour its own retail business, as well as marketplace sellers that use Amazon's logistics
and delivery services. Among others, Amazon commits to refrain from using non-public
seller data to the benefit of its retail operations when competing with third-party sellers
and to apply non-discriminatory conditions and criteria when ranking sellers’ offers andselecting the winner of the Buy Box. The offered commitments cover all Amazon's current
and future marketplaces in the European Economic Area. They exclude Italy for thecommitments relating to the Buy Box and Prime in view of the decision of 30 November
2021 of the Italian competition authority imposing remedies on Amazon with regard to
the Italian market. The final commitments will remain in force for seven years in relation
to Prime and the display of the second competing Buy Box offer, and five years for theremaining parts of the commitments. The commitments entered into force on 21 June
2023, following a 6-months implementation period.
Finally, in 2020, the Commission launched a sector inquiry into the Internet of Things(“IoT”) for consumer-related products and services in the European Union. The sector
inquiry concluded on 20 January 2022 with the publication of a final report identifying
potential competition concerns in the market.347 Among the main findings, the report
identified concerns by stakeholders concerning exclusivity and tying practices,intermediation practices, access to data and lack of interoperability issues.
A revision of the Commission’s Market Definition Notice348 is also underway. The draft
revised Notice (published for public consultation during Autumn 2022) contains a numberof references to the specificities to be taken into account when defining markets in thedigital economy.349
The Commission also recently adopted the new Vertical Block Exemption Regulation andVertical Guidelines,350 and the new Horizontal Block Exemption Regulations andHorizontal Guidelines,351 in May 2022 and June 2023 respectively. These new regulations347

https://ec.europa.eu/commission/presscorner/detail/en/ip_22_402
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A31997Y1209%2801%29
349
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13308-EUcompetition-law-updating-the-market-definition-notice-revision-_en
350
https://ec.europa.eu/commission/presscorner/detail/en/IP_22_2844
351
https://ec.europa.eu/commission/presscorner/detail/en/IP_23_2990
348

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and guidelines have been updated to also cater for market developments and realties inthe digital sector.
Importantly, on 1 November 2022, the Digital Markets Act (DMA) entered into force andis applicable as of 2 May 2023. More information on this piece of legislation is presented
below.
Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
When it comes to the challenges posed by digital competition, the updating andstrengthening of capabilities of competition authorities is one of the keys to ensure
effective regulation. In that framework, the Commission has dedicated some funding in
its last Multiannual Financial Framework352 to support competition enforcement in a fastmoving, increasingly digital and globalised environment. The Commission will use thesefunds to support its digital transformation and deploy technology to help boost the speed
and effectiveness of its investigations and proceedings.
In particular, DG Competition is using, and further improving, digital solutions (i) to
extract and prepare documents and data quickly, and (ii) to search and review large
amounts of documents efficiently. Moreover, DG Competition will invest (iii) into
technology-assisted review as part of its eDiscovery digital solution to prioritize relevant
information for review, and (iv) into complementing tools that visualize large amounts of
information.
DG Competition has also contracted services of data scientists to support particularlycomplex investigations by devising tailor-made technological solutions to integrate theminto its suite of digital solutions.
Additionally, with its eRFI digital solution, DG Competition has redesigned the entire
process supporting its market investigations. The aim is to boost efficiency both forexternal respondents to reply to requests for information, and for case teams to design
questionnaires and process the replies.
To move towards a digital enforcement, DG Competition has set up a special investigation
Unit. Since 16 January 2023, the Unit – denominated Data Analysis and Technology –352

https://ec.europa.eu/info/strategy/eu-budget/long-term-eu-budget/2021-2027/documents_enCompendium | Page 107

reports to the recently established Chief Technology Officer (CTO).353 The Unit pools
professional enforcers specialised in data and computer science, intelligence analysis,
economic and financial investigations and IT security working in synergy in a
multidisciplinary environment as well as forensic IT specialist. These digital skills enhance
DG COMP’s detection and prosecution capabilities to better tackle the companies’ use of
new technologies, AI solutions and data practices that may infringe competition law or
not be in line with regulations such as the DMA. The mission of the Unit is to perform
advanced digital investigation activities, gather intelligence and provide Forensic IT
support to the Directorate General. Overall, the Unit is responsible for ensuring DG
Competition’s ever-increasing needs for state-of-the-art digital solutions/methodologies
to support enforcement activities across various instruments. The CTO Unit works in close
collaboration with many other departments in DG Competition, as well as other
Directorates-General in the European Commission, other European Institutions andMember States. The Chief Technology Officer, who reports directly to the DirectorGeneral, advises the Commissioner responsible for Competition and the Director-Generalon DG Competition’s digital strategy. The CTO also guides and oversees all data-related
and other digital projects, initiatives and work streams for DG Competition.
Moreover, the Commission, both DG COMP and the DG for Communications Networks,
Content and Technology (DG CNECT), have put into place the relevant structures toensure that the enforcement of the Digital Markets Act is fully operational from day one
to prepare, inter alia, enforcement decisions, implementing/delegated acts,354 guidelines
and reports. In addition, the DMA also allows the Commission to draw on the expertiseand assistance of Member States authorities and to appoint external experts. To this end,
the Commission has already set up new bodies envisaged in the DMA, including theDigital Markets Advisory Committee with Member State representation which will assist
the Commission for the enforcement of DMA and the High-Level Group for enforcement
established by Article 40 of the Digital Markets, composed of competition, telecom,
media, consumer and data protection bodies/networks (for additional information about
this Group see also below at page 101).
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant

353

The Commission is in the process of selecting a CTO.
For example, on 14 April 2023, the Commission adopted an Implementing Regulation for the DMA
which lays down procedural rules, including notifications and submissions of information, theprotection of confidential information, access to file and time limits.
354

Compendium | Page 108

proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
At the level of the European Union, on 1 1 November 2022, Regulation (EU) 2022/1925 of
the European Parliament and of the Council of 14 September 2022 on contestable and fairmarkets in the digital sector and amending Directives (EU) 2019/1937 and (EU)2020/1828,355 better known as the Digital Markets Act (DMA), entered into force and isapplicable as of 2 May 2023. The DMA aims to protect openness and innovation in digitalmarkets. It does so by prohibiting certain unfair practices by large gatekeeper platforms
that have proven harmful and by enhancing the contestability of digital markets.
The DMA defines when a large online platform qualifies as a “gatekeeper”. These aredigital platforms that provide an important gateway between business users andconsumers – whose position can grant them the power to act as a private rule maker, andthus creating a bottleneck in the digital economy.
Companies operating one or more of the so-called “core platform services” (“CPS”) listed
in the DMA356 qualify as a gatekeeper if they meet three (cumulative) quantitative criteria
for designation which are proxies for gatekeeper’s characteristics, namely, (a) significant
impact on the internal market357, (b) service is an important gateway358, (c) the
gatekeeper has an entrenched and durable position359).
If such quantitative thresholds are met, the company concerned is presumed to be agatekeeper, unless it submits sufficiently substantiated arguments to demonstrate thecontrary. 360 Conversely, if not all of the above-mentioned quantitative thresholds are

355

OJ L 265, 12.10.2022, p. 1, available at https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=uriserv%3AOJ.L_.2022.265.01.0001.01.ENG&toc=OJ%3AL%3A2022%3A265%3
ATOC
356
These services are: online intermediation services such as app stores, online search engines, social
networking services, certain messaging services, video sharing platform services, virtual assistants,
web browsers, cloud computing services, operating systems, online marketplaces, and advertising
services.
357
Where it achieves an annual Union turnover equal to or above EUR 7.5 billion in each of the last
three financial years, or where its average market capitalisation or its equivalent fair market value
amounted to at least EUR 75 billion in the last financial year, and it provides the same core platform
service in at least three Member States.
358
Where it provides a core platform service that in the last financial year has at least 45 million
monthly active end users established or located in the Union and at least 10 000 yearly active business
users established in the Union.
359
Where the gateway’s thresholds were met in each of the last three financial years.
360
On 6 September 2023, the Commission designated six gatekeepers for 22 core platform services
and opened four market investigations to further assess arguments trying to rebut the quantitative
presumption as well as one qualitative market investigation, see https://digital-marketsact.ec.europa.eu/commission-designates-six-gatekeepers-under-digital-markets-act-2023-09-06_en

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met, the Commission may still designate a company as a gatekeeper on the basis of aqualitative assessment following a market investigation. This mechanism also allows theCommission to designate as a gatekeeper a company which can be expected to enjoy
such a position in the near future.
Designated gatekeepers have to ensure compliance with the do’s and don’ts of the DMA
within six months after one or more of the core platform services they provide have been
identified as fulfilling the thresholds of the Regulation. These do’s and don’ts include
obligations about data-related practices, neutrality provisions, provisions to encourage
multi-homing and advertising-related practices. They are directly applicable to provide
the speed and legal certainty needed in these markets. These obligations will help to
open up possibilities for companies to contest markets and challenge gatekeepers basedon the merits of their products and services, while giving them more space to innovate.
The Commission can decide to engage in a regulatory dialogue to specify certain
obligations, where necessary. Gatekeepers also have the obligation to provide
information about acquisitions, which will be shared with national competition
authorities and will considerably improve the ability to track acquisitions that may beproblematic. Similarly, gatekeepers must provide an independent audited description oftechniques for profiling consumers, which will be shared with the European Data
Protection Board to inform about the compliance with EU data protection rules. To
ensure that the DMA stays ahead of the curve and can remain future-proof in light of the
dynamism of digital markets, the Commission can carry out a market investigation todetermine whether other services or new practices need to be included.
The DMA is the result of a long reflection process taking place across Europe andelsewhere in the world. It builds, inter alia, on the enforcement of competition law indigital markets over many years. The DMA puts in place ex ante regulation that aims to
improve the conditions of these digital markets, so that both business and end users ofcore platform services may benefit from increased innovation, improved quality ofservices and fairer terms of use. The DMA provides legal certainty upfront – about
impermissible practices – hence aiming to prevent such practices from occurring in thefirst place. It complements competition law enforcement and does not prevent theeffective application of ex post EU and national competition rules.
Under the DMA, the Commission will be able to impose penalties and fines of up to 10% of
a company's worldwide turnover, and up to 20% in case of repeated infringements. In thecase of systematic infringements, the Commission will also be able to impose behaviouralor structural remedies necessary to ensure the effectiveness of the obligations, including aban on further acquisitions or the divestiture of (parts of) a business.

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On 10 May 2022, the Commission adopted a new Vertical Block Exemption Regulationaccompanied by the new Vertical Guidelines which inter alia included clarifications as tothe assessment of vertical agreements in the platform economy and of online sales
restrictions.361
In June 2022 the Commission has also launched an evaluation of Regulation 1/2003, its
antitrust procedural regulation, to ensure that it is fit for purpose as regards enforcementin the digital age.362 The evaluation started with a call for evidence explaining theprocedure to be followed as well as with a public consultation to gather the views on thefunctioning of the regulation.363 The evaluation covers the Commission’s procedural
regulation in its entirety, while also focusing on the Commission’s investigative andenforcement powers, the procedural rights of parties to investigations and of third
parties and the Commission’s cooperation with national competition authorities andcourts.
In March 2023, the Commission has also announced the launch of an initiative aiming at
adopting Guidelines on exclusionary abuses of dominance.364 The Guidelines are aimed attaking stock of the state of the case law on exclusionary conduct and the Commission’s
enforcement practice based on such case law. The initiative started with a Call for
Evidence seeking feedback on the adoption of such guidelines from stakeholders. At thesame time, the Commission adopted an Amending Communication to its Guidance on
Enforcement priorities to Article 102365, to bring it in line with our current enforcement
practice, which has evolved in light of developments in the case law of the EU Courts andmarket dynamics.
Moreover, in 2020 the Commission announced its intention to reappraise its approach toreferrals under Article 22 of the EUMR.366 The Commission published specific guidance on361

https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2844
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_4194
363
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13431-EU-antitrustprocedural-rules-evaluation_en364
https://ec.europa.eu/commission/presscorner/detail/en/IP_23_1911
365
See https://competition-policy.ec.europa.eu/antitrust/legislation/application-article-102-tfeu_en366
https://ec.europa.eu/commission/presscorner/detail/fr/ip_21_1384. In 2022, the General Courtof the EU confirmed that “in particular taking account of the literal, historical, contextual, andteleological interpretations of Article 22 [EUMR], it must be held that the Member States may [...]
make a referral request under that provision irrespective of the scope of their national merger control
rules” (Judgment of 13.07.2022, Case T-227/21, Illumina v. Commission, paragraph 183).
https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-07/cp220123en.pdf
362

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its recalibrated approach in March 2021367 and it provided further practical guidance on
the assessment of Article 22 EUMR candidate case in a Q&A document which was
published in December 2022.368 This changed approach allows the Commission to
encourage and accept referrals in cases where the referring Member State does not haveinitial jurisdiction over the case (but where the criteria of Article 22 are met). In so doing,
the Commission would be able to review transactions that, despite involving targets withno or low turnover, could have a significant impact on competition in the internal market.
While the approach is not sector-specific, it should help capturing transactions also in thedigital sector, including those involving nascent competitors and innovative companies.
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or otherlaws or policy areas — such as privacy, consumer protection, or media sustainability —and how it was or is being handled.
Under the EUMR, the Commission solely assesses the impact of a transaction oncompetition. As a general principle, public interests other than competition do not form
part of the Commission’s merger control assessment. As a result, the assessment of
impact of certain transactions on for example, media plurality, is distinct from thecompetition review carried out by DG Competition and its assessment is conducted on
different legal grounds by the national authorities of the EU Member States.
However, to the extent that issues such as privacy or consumer protection influencecompetition in digital markets, they are taken into account in the competitive
assessment. For example, during the Commission’s investigation of Microsoft’s 2016acquisition of LinkedIn, it was found that data privacy was an important parameter ofcompetition between professional social networks. The transaction was therefore
approved subject to commitments aimed at addressing the risk that competing
professional networks be foreclosed, thus preserving consumer choice, in particular in
relation to different levels of data protection. In comparison, during its investigation of
Google’s acquisition of Fitbit, the Commission did not identify evidence showing that themerging parties were competing with each other to provide the best privacy settings andtherefore found that the transaction would not impact competition on privacy. During367

ahttps://ec.europa.eu/competition/consultations/2021_merger_control/guidance_article_22_referrals.pdf
368
https://competition-policy.ec.europa.eu/system/files/202212/article22_recalibrated_approach_QandA.pdf

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this investigation, the Commission worked in close cooperation with the European Data
Protection Board.
Moreover, under the High-Level Group established by Article 40 of the Digital Markets
Act, the European Commission will keep in close contact with a number of sectorial
bodies or groups of national bodies including not only the European Competition
Network, but also the Body of the European Regulators for Electronic Communications,
the European Data Protection Supervisor and European Data Protection Board, theConsumer Protection Cooperation Network, and the European Regulatory Group of
Audiovisual Media Regulators.

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Australia – Australian Competition and Consumer Commission
The Australian Competition & Consumer Commission (ACCC) is an independent
Commonwealth statutory agency that promotes competition, fair trading and productsafety for the benefit of consumers, businesses and the Australian community. The
primary responsibilities of the ACCC are to enforce compliance with the competition,
consumer protection, fair trading and product safety provisions of the Competition andConsumer Act 2010 (Cth) (the Act), regulate national infrastructure and undertake market
studies.
Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
The ACCC has a range of tools to encourage compliance and prevent breaches of the Act,
including using a range of enforcement remedies to address contraventions. Examining
competition and consumer issues relating to digital platforms continues to be a priority
area for the ACCC for 2023-2024.369
The ACCC has instituted a number of enforcement proceedings under the AustralianConsumer Law due to concerns about Australian consumers being misled by digitalplatforms. This has included action to address alleged false or misleading conduct inrelation to certain digital platforms’ collection and use of personal data for theircommercial benefit. In August 2022, the Australian Federal Court ordered Google LLC to
pay $60 million in penalties for making misleading representations to consumers about
the collection and use of their personal location data on Android phones between
January 2017 and December 2018, following court action by the ACCC.370 Further, in July
2023, the Australian Federal Court ordered two of Meta’s subsidiaries, Facebook Israel
and Onavo Inc, to each pay $10 million in penalties for engaging in conduct liable tomislead when promoting its Onavo Protect mobile app, following proceedings institutedby the ACCC.371
The ACCC is proactively monitoring and investigating allegations of potentiallyanticompetitive conduct that may substantially lessen competition in digital platform
markets. The ACCC has publicly noted that this includes restrictions on third-party access,369

ACCC, Compliance & enforcement policy & priorities 2023-2024.
ACCC, Google LLC to pay $60 million for misleading representations, 12 August 2022
371
ACCC, $20m penalty for Meta companies for conduct liable to mislead consumers about use of
their data, 26 July 2023.
370

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pre-installation and defaults, self-preferencing in relation to app marketplaces andallegations in relation to the advertising technology supply chain. 372 Where appropriate
the ACCC may take enforcement action.
While the ACCC has used enforcement tools available under current legislation to address
specific harms, these tools are not always well-suited to prevent potentially harmful
conduct arising from the strong market positions of leading digital platforms, and the rolethese platforms can play as gatekeepers between businesses and customers. As a result,the ACCC has recommended a new regulatory regime for digital platforms,373 which iscurrently being considered by the Australian Government.
Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
From 2017-2019, the ACCC conducted an inquiry into the market power and the impactof search engines, social media and news aggregators on media, advertisers andconsumers.374 The ACCC published its final report for that inquiry in July 2019.375
Subsequent to that, the Australian government accepted a recommendation in thatreport to establish a Digital Platforms Branch at the ACCC.
The Digital Platforms Branch monitors and reports on the state of competition andconsumer protection in digital platform markets, supports relevant ACCC enforcement
action and undertakes inquiries as directed by the Australian Government. Specifically,
the Digital Platforms Branch is conducting the Digital Platforms Service Inquiry (20202025) under which it provides 6-monthly interim reports to the Australian Government.
Digital platform services subject to this inquiry include search engines, social media,
online private messaging, digital content aggregation platforms, media referral services
and electronic marketplaces. The terms of reference of the inquiry also cover digital

372

ACCC, Digital platforms services inquiry - Discussion Paper for September 2022 interim report, 18
February 2022, pp 60-61.
373

ACCC, Digital platform services inquiry, Interim report No. 5 – Regulatory reform, 2022.
ACCC, Digital platforms inquiry terms of reference, 4 December 2017.
375
ACCC, Digital platforms inquiry - final report, 26 July 2019.
374

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advertising and the data practices of digital platform service providers and data
brokers.376 Published reports of this inquiry have focussed on:
a. online private messaging services in Australia (September 2020)377;
b. online app marketplaces (March 2021)378;
c. the provision of web browsers and general search services and choice screens(September 2021)379;
d. general online retail marketplaces (March 2022)380;
e. the need for regulatory reform in Australia to address the competition andconsumer concerns identified in digital platform services (September 2022)381;
andf.

social media services in Australia (March 2023)382.

The seventh report of this inquiry was submitted to the Australian Government in
September 2023, and examines the expanding ecosystems of digital platform providers inAustralia.383 The eighth report of the inquiry will examine competition and consumer
issues in the supply of data broker services in Australia and will be provided to theAustralian Government by 31 March 2024.384
The ACCC’s Strategic Data Analysis Unit (SDAU) and Data and Intelligence Branch
The ACCC’s institutional capabilities are also strengthened by the SDAU, a specialist teamoffering expert analysis across the work of the ACCC, including competition and consumer
issues in data markets. This unit comprises approximately 18 data professionals with skills
in data analysis, data engineering and data science.
In 2021, the ACCC established a Data and Intelligence branch which combines theexpertise of the SDAU with its Intelligence team, Legal Technology Services team and the
Infocentre (a key source of data and intelligence that informs the agency’s compliance

376

ACCC, Digital platform services inquiry 2020-2025, 10 February 2020.
ACCC, Digital platform services inquiry – September 2020 interim report, 23 October 2020.
378
ACCC, Digital platform services inquiry – March 2021 interim report, 28 April 2021.
379
ACCC, Digital platform services inquiry – September 2021 interim report, 28 October 2021.
380
ACCC, Digital platform services inquiry – March 2022 interim report, 28 April 2022.
381
ACCC, Digital platform services inquiry - September 2022 interim report, 11 November 2022.
382
ACCC, Digital platform services inquiry - March 2023 interim report, 28 April 2023.
383
ACCC, Digital platform services inquiry - September 2023 interim report issues paper, 8 March
2023.
384
ACCC, ACCC invites views on data broker industry, 10 July 2023.
377

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and enforcement work). Bringing together these teams of specialists is enabling the ACCC
to combine their skills to build new tools and techniques to better understand digitalcompetition issues.
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
The ACCC’s fifth report in its ongoing Digital Platforms Service Inquiry recommended a
range of new measures to address harms from digital platforms to Australian consumers,
small businesses and competition.385 In addition to consumer and competition specificrecommendations for digital platforms, the report also reiterates the ACCC’s support foreconomy-wide reforms to consumer law such as a prohibition on unfair trading practices.
The Australian Government has concluded its consultation on these recommendations,and the ACCC is awaiting the Government’s response.
Past reforms include the Consumer Data Right (which gives consumers greater access toand control over their data in order to improve their ability to compare and switch
between products and services)386 and the News Media Bargaining Code (designed toaddress the significant bargaining power imbalance between major digital platforms andAustralian news businesses, providing a negotiation, mediation, and arbitration
framework).
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or otherlaws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled.
Given the growing intersection of digital competition and consumer issues with otherpolicy areas such as privacy, online safety and sustainability of public interest journalism,
the ACCC regularly engages with a range of other Australian regulators and government
departments. This has included working with other agencies to assist implementation ofrecommendations in the DPI final report,387 including with the Australian Media andCommunications Authority (ACMA) and the Communications Department on an industry

385

ACCC, Digital platform services inquiry, Interim report No. 5 – Regulatory reform, 2022.
ACCC, Consumer Data Right (CDR), 9 May 2018.
387
ACCC, Digital platforms inquiry – final report pages 30-38, June 2019.
386

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code of practice to counter disinformation online and improve news quality388 andworking with other agencies on the design and implementation of the News MediaBargaining Code. The ACCC also cooperates with the Office of the Australian Information
Commissioner (OAIC) to perform a monitoring function under the Consumer Data
Right.389
More recently, we have recently moved to strengthen our engagement with other
Australian regulators on digital platforms issues. In March 2022, the ACCC, together with
the ACMA, OAIC, and Office of the eSafety Commissioner formed the Digital Platform
Regulators Forum (DP-REG). 390
The purpose of DP-REG is for Australian regulators to share information about, andcollaborate on, cross-cutting issues and activities relating to the regulation of digitalplatforms. The forum seeks to increase cooperation and information sharing between
digital platform regulators on broad areas of intersection, including new and novel
regulatory approaches.
In June 2023, agency heads of the four DP-REG members met to review the forum’s
progress and to discuss DP-REG’s strategic priorities for 2023-24, which include:

understanding and assessing the benefits, risks and harms of generative AI andhow the technology intersects with the regulatory remits of each DP-REG
member

assessing the impact of algorithms



improving digital transparency, and

increased collaboration and capacity building between the 4 members.391

Recent work undertaken by DP-REG includes a draft working paper examining algorithms,
joint submissions to various Government processes, engaging with industry stakeholders,
academic experts and international counterparts, and ongoing collaboration, information
sharing and coordination on matters relating to digital platforms regulation.

388

DIGI, Australian code of practice on disinformation and misinformation, 22 February 2021.
ACCC, Consumer Data Right (CDR), 9 May 2018.
390
See the ACCC’s media release here.
391
ACCC, ACMA, OAIC and eSafety, Communique – Digital Platform Regulators Forum puts
generative AI on agenda, June 2023.
389

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India – Competition Commission of India
Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
During the past few years, the Competition Commission of India (“CCI”/ the Commission)
has dealt with many cases in the digital space across sectors such as online hotel booking,food delivery, search engines, online retail, online cab booking, operating systems, online
payment systems etc. Most of the cases in the digital sector were related to imposition ofvertical restraints and abuse of dominant position. In all the cases, the CCI has adopted anuanced and calibrated approach with the objective of promoting innovation andcompetition on merits. The Commission apart from acting on cases filed by Informants
has also ordered investigations suo motu.
While in some cases final orders have been passed, other cases are at different stages ofproceedings.
The Commission initiated an investigation against Google in April 2019 on allegations
pertaining to abuse of dominant position in various markets with respect to the Android
ecosystem. The Commission, after considering the investigation report and conducting an
inquiry, passed its final order in the matter on 20.10.2022 wherein Google was found to beabusing its dominant position in multiple markets in the Android Mobile device ecosystem
by way of certain agreements entered into with mobile manufacturers. The Commission
noted that Google operates the Android OS as well as licences its other proprietary
applications and the mobile manufacturers use this OS & Google’s apps in their smart mobile
devices. Accordingly, they enter into multiple agreements to govern their rights andobligations viz. Mobile Application Distribution Agreement (“MADA”), Anti-fragmentation
Agreement (“AFA”), Android Compatibility Commitment Agreement (“ACC”), Revenue
Sharing Agreement (“RSA”), etc. It was found that MADA assured that the most prominent
search entry points i.e., search app, widget and chrome browser are pre-installed andprominently placed on Android devices, which accorded significant competitive edge toGoogle’s search services over its competitors. AFA/ ACC guaranteed that distribution
channels for competing search services is altogether eliminated by prohibiting OEMs fromoffering devices based on Android forks. Simultaneously, RSAs helped Google to secure
exclusivity for its search services to the total exclusion of competitors. The combined resultsof these agreements guaranteed a continuous access to search queries of mobile users which
helped not only in protecting the advertisement revenue but also to reap the network effects
through continuous improvement of services, to the exclusion of competitors. The
Commission issued a cease and desist order, imposed a monetary penalty of INR 1337.76/Crores and directed Google to comply with certain remedial measures.

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CCI also initiated an investigation against Google in November 2020 primarily in relation to
its Play Store policies. The Commission, after considering the investigation report andconducting an inquiry, passed its final order in the matter on 25.10.2022 wherein Google wasfound to be abusing its dominant position with respect to its Play Store policies. It was foundthat Google’s Play Store policies required App developers to exclusively and mandatorily use
Google Play's Billing System (GPBS) for paid apps as well as in-app purchases i.e., purchases
made by users of Apps after they have downloaded/ purchased the App from the Play Store.
Further, app developers were restricted from providing users with a direct link to a webpage
containing an alternative payment method or use language that encourages a user topurchase the digital item outside of the app (anti-steering provisions). If the app developers
do not comply with Google’s policy of using GPBS, they are not permitted to list their appson the Play Store and thus, would lose out the vast pool of potential customers in the formof Android users. The Commission issued a cease and desist order, imposed a monetary
penalty of INR 936.44 crores and directed Google to comply with certain remedial measures.
CCI initiated an investigation against MakeMyTrip and GoIbibo (collectively referred to as
MMT-Go) in October 2019 on allegations that it is abusing its dominant position by
imposing certain restrictions on its hotel partners and has entered into an anticompetitive arrangement with Oravel Stays Limited (OYO) under which MMT-Go delisted
the competitors of OYO from its online portals. Upon consideration of investigation
report and conducting an in-depth inquiry, the Commission passed its final order on
19.10.2022 finding MMT-Go to be inter alia imposing wide parity clauses (including priceparity and room availability parity) and exclusivity conditions on its hotel partners alongwith employing deep discounts which created an ecosystem that impacted competition in
the market for online intermediation services for booking of hotels in India, besides
affecting hotels. In addition, it was also found that the arrangement between MMT-Goand OYO had adversely affected competition in the market by denying access to an
important channel of distribution through foreclosure. A monetary penalty of INR
223.48/- crores and 168.88 /- crores on MMT-Go and OYO respectively was imposed by
the Commission. In addition, certain broad behavioral remedies were also directed to be
carried out by MMT-Go.
The Commission directed an investigation in 2020 against online e-commerce platforms
viz. Amazon and Flipkart based on an information alleging that these marketplaces,
through vertical arrangements with their respective ‘preferred sellers’, are foreclosing
other non-preferred traders or sellers from accessing these online marketplaces inrespect of online sale of mobile phones. The factual matrix before the Commission
showed that the exclusive launches, coupled with the issue of preferential sellers anddeep discounting, was creating an ecosystem which can potentially lead to anticompetitive outcomes.

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Further, taking note of various media reports, CCI, in January 2021, took suo motu
cognizance of the privacy policy update and terms of service by WhatsApp and directed aninvestigation. It was inter alia also reported that the new policy makes it mandatory for theusers to accept the terms and conditions in order to retain their WhatsApp accountinformation and provides as to how it will share personalised user information with Facebook
and its other subsidiaries. The Commission further noted that the conduct of WhatsApp in
sharing of users’ personalised data with Facebook, in a manner that is neither fullytransparent nor based on voluntary and specific user consent, appears prima facie unfair tousers. Further, such conduct apparently amounts to degradation of non-price parameters ofcompetition viz. quality which result in objective detriment to consumers, without any
acceptable justification. Besides, CCI also noted that the impugned data sharing provision
by WhatsApp with Facebook may have exclusionary effects also in the display advertisingmarket which has the potential to undermine the competitive process and create further
barriers to market entry besides leveraging.
In December 2021, CCI directed an investigation against Apple in relation to the alleged
mandatory use of Apple's proprietary in-app purchase system (IAP) for distribution of
paid digital content by app developers especially when it charges a commission of up to
30% for app and in-app purchases, discriminatory application of its App Store guidelines,
access to data collected from users of Apple’s downstream competitors which would
enable it to improve its own services, etc.
Further, in January 2022, the CCI directed another investigation against Google in relation
to alleged unilateral and non-transparent determination and sharing of online
advertisement revenues with news publishers. It was also alleged that Google has
unilaterally decided not to pay the publishers for the snippets used by Google in searchengine results. In this regard, the Commission in its order directing investigation inter alia
observed that it needs to be examined whether the use of snippets by Google is a result of
bargaining power imbalance between Google on the one hand and news publishers on theother, and whether it affects the referral traffic to news publisher websites, and thus, theirmonetization abilities.
In April 2022, the CCI directed an investigation against two food ordering and delivery
platforms, namely Zomato and Swiggy, for their alleged vertical arrangements which has
affected their working as neutral platforms. Both Swiggy and Zomato were found to be
operating as major intermediary platforms in the food delivery space, underscoring theirmarket power and ability to adversely as well as appreciably affect the level playing field.
Besides, the allegation regarding price parity imposition has also been directed to beinvestigated.

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On the non-enforcement side, market studies are another tool through which theCommission conducts its market monitoring exercise. Market Studies help in identifying
anti-competitive activities of enterprises or structural conditions in markets that may be
conducive to anti-competitive conduct, thereby helping the Commission in ascertaining
its enforcement and advocacy priorities in different sectors.
The Commission also conducted a survey-based market study to understand market
trends, distribution methods and strategies in e-commerce space. The aim of the study
was to understand business practices and contractual provisions in e-commerce and theirunderlying rationale and implications for competition. The study surveyed three verticals
in the e-commerce space namely online retail shopping, online hotel booking and online
food delivery. The competition concerns identified in the study included the following:a. Platform neutrality: Business users have raised concerns about the neutrality ofthe platform when platforms also act as a competitor on the marketplace andwhen the platforms engage in manipulation of search results, sellers’/service
providers’ data and user review/rating mechanisms.
b. Platform to Business Contract Terms: Bargaining power imbalance andinformation asymmetry between platforms and their business users may lead tounilateral revision in contract terms and imposition of ‘unfair’ terms by major
platformsc. Existence of platform parity clauses and exclusive agreements between platform
and certain business users
d. Deep discounting: Deep discounting by platforms is found to be a concern when
discounts are discriminatory and when they push prices to below-cost levels incertain product categories and affect both offline and online retailer’s ability tocompete.
On the basis of the study findings, the Commission issued certain self-regulatory
measures to the platforms with regards to transparency in search ranking parameters,
clear and transparent policy on the actual and potential use of data collected by
platforms; adequate transparency over user review and rating mechanisms; notification
to business users regarding proposed revision in contract terms; and clear andtransparent policies on discounts including discount rate and participation in discountschemes.
Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting

Compendium | Page 122more data specialists, building new investigative tools, or gathering new/different
evidence).
Since, both markets and the policy landscape in the digital economy in India are evolving,
and the Commission would require expert views/inputs in understanding markets,
technologies and the policy-antitrust interface on a continuing basis, the Commission has
set up a Digital Markets and Data Unit (DMDU) which would serve as an interdisciplinary
centre of expertise for digital markets to address the emerging complexities in the digitalworld. The DMDU will inter-alia connect with experts; engage with industry; academia,
international agencies and provide policy inputs for competition issues in digital markets.
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
The Government of India constituted a Competition Law Review Committee (CLRC) on
01.10.2018 to review the existing Competition law framework and makerecommendations to further strengthen the framework to meet new challenges. The
Committee submitted its recommendations in 2019.
The Committee majorly held that the present antitrust framework in India is robust andflexible enough to deal with issues in the digital economy. However, certain
recommendations were made by the Committee to make the Act more equipped.
With a view to further facilitate compliance, provide greater certainty, reduce litigation
and bring about faster market correction, the Competition (Amendment) Bill, 2023 waspassed by the Parliament in April 2023. These amendments, inter alia, include
introduction of deal value thresholds for those mergers and acquisitions in India that do
not get notified but may inhibit competition; covering hubs in the assessment of hub andspoke cartels and widening the scope of anti-competitive agreements to cover all kind ofagreements in addition to the introduction of settlement and commitment mechanisms.
The Government of India is also in the process of introducing a number of regulatory
reforms to address issues in the digital space. The Government has constituted a
Committee on Digital Competition Law, which is examining the need for ex-ante
regulatory mechanism for digital markets.
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or other

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laws or policy areas—such as privacy, consumer protection, or media sustainability— andhow it was or is being handled.
Being an overarching market regulator, CCI has a constant interface with sectoral
regulators. In this inter-regulatory consultative mechanism, CCI engages with suchsectoral regulators on the enforcement as well as policy side. The Competition Act 2002
also provides a consultative mechanism between CCI and other statutory authorities. CCI
has been regularly giving its inputs to Government when any sector specific law or
regulation has a competition interface.
In such areas, the approach of the Commission is essentially that of public policy
advocacy for maintaining comity among regulators to ensure a harmonious and symbiotic
relationship, with robust coordination and mutual learnings from each other for ensuring
fair competition in the market.

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South Africa – Competition Commission South Africa
Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
Recent cases
The Competition Commission South Africa’s (CCSA) approach in resolving anti-competitive
issues in the digital space has been to use various competition approaches, such as,
unilateral conduct enforcement (conduct), merger regulation (M&A), cartel investigations(Cartel), market inquiries (MI) and advocacy.
Conduct 1: Whatsapp/Govchat
In respect of unilateral conduct enforcement, the CCSA has referred the case against
WhatsApp/Facebook (now Meta Platforms Inc) in November 2021. The CCSA alleged that
WhatsApp is restricting Govchat, a supplier of citizen engagement services for government,from operating on the WhatsApp platform through unduly restrictive terms and conditions,in order to remove a potential threat to Facebook’s own social networking position andWhatsApp monetisation strategies. GovChat is a start-up that has developed andintegrated government communications to provide online real-time escalation andreporting services, creating a platform which allows government and citizens to connect
and engage, with a view to improving service delivery and active citizenry.
WhatsApp threatened to off-board GovChat from its platform for failure to comply withthe unduly restrictive terms and conditions. The CCSA alleged that WhatsApp’s conduct isfelt not only by GovChat and its customers and/or similar firms like GovChat, but also by
ordinary citizens who utilise WhatsApp to engage with government services. The removalof GovChat from the WhatsApp platform will negatively impact the proper functioning of
the South African government communication to its citizens, public service delivery queries,
as well as the health and well-being of the citizens of South Africa who utilise the WhatsApp
platform as a primary means of interacting with government services. A hearing for the
merits of the case is yet to be confirmed.
Conduct 2: Uber-Bolt/E-hailing Partners Council
The CCSA has also received a complaint against Uber and Bolt in relation to their e-hailingservices. In this complaint, which was filed in February 2023, the E-Hailing Partners

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Council392 alleges that Uber and Bolt abuse their dominance in the provision of e-hailingservices in South Africa by charging excessively high commission fees to driver-partners
that utilize their apps to connect with passengers. The E-Hailing Partners Council also
alleges that the two firms engage in predatory pricing when they set fares paid bypassenger using e-hailing services. Previously, the CCSA investigated predatory pricing
allegations against Uber and decided not to pursue the case as the complaint was lodged
with the CCSA within one year of Uber commencing operations in South Africa. Given the
short duration, the CCSA was of the view that it was unlikely to establish ant-competitiveeffects. Investigations into the new complaint are ongoing.
MI 1: Online Intermediation Platforms Market Inquiry (OIPMI)
With regards to market inquiries , the CCSA launched an Online Intermediation Platforms
Market Inquiry (OIPMI) in May 2021, focused on digital platforms in areas of e-Commercemarketplaces, online classifieds, software application stores, travel and accommodation
aggregators, and food delivery services platforms. The inquiry has focused on three areasof competition and public interest, namely (a) market features that may hinder
competition amongst the platforms themselves, (b) market features that may give rise todiscriminatory or exploitative treatment of business users, and (c) market features that
may negatively impact on the participation of SMEs and/or historically disadvantaged firms.
The Inquiry released its provisional report in July 2022 and final report on 31 July 2023.
MI 2: Media and Digital Platforms Market Inquiry (“MDPMI”)
On 17 March 2023, the Competition Commission (Commission) has published the draft
Terms of Reference (ToRs) for a market inquiry into the distribution of media content on
digital platforms, the Media and Digital Platforms Market Inquiry (“MDPMI”). 393 The
Commission has invited members of the public and interested stakeholders to makewritten submissions on the proposed ToRs.
The MDPMI has been established in terms of section 43B(1)(a) of the Competition Act No.
89 of 1998 (as amended) and is based on the Commission’s view that there may exist
market features in digital platforms that distribute news media content that impede,
distort, or restrict competition and which may have adverse implications for the news

392

E-Hailing Partners Council is an association that represents the interests of e-hailing drivers inSouth Africa.
393
The draft ToRs for the MDPMI is available on the Commission’s website athttps://www.compcom.co.za/wp-content/uploads/2023/03/Media-and-Digital-Platforms-MarketInquiry-DraftTerms-of-Reference-17-March-2023.docx.

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media sector of South Africa. This imbalance can have implications on fair payment forcontent and the sustainability of independent journalism.
M&A 1: Google/Fitbit merger
This was a merger between Google LLC (USA (Google) and Fitbit Inc. (USA) (Fitbit). Google
is active in a wide range of areas, including online search, online advertising, other online
services such as YouTube, Google Maps and Gmail as well as cloud computing services. In
addition, Google maintains and develops the Android ecosystem which includes an opensource mobile Operating System (OS) and a suite of mobile apps and services. The main
products and services relevant to this transaction are Wear OS, Google Fit, The Play Store,
Google Search and Google Ads.
Fitbit develops, manufactures and distributes wrist-worn wearable devices as well as smart
scales, software and services, designed to give its users tools to help them reach theirhealth and fitness goals. The main products available in South Africa are fitness trackers,
smartwatches and the Fitbit mobile app.
The Commission was concerned that as a direct result of the proposed merger, Google will
be able to exclude Fitbit’s competitors in the market for wrist worn wearable devices. The
Commission approved the transaction subject to several remedies which were proposedby Google. The conditions are for a period of 10 years and are in line with what is offeredin order jurisdictions. The conditions will be monitored by an independent Trustee who will
have the necessary skills, competencies, and technical abilities.
M&A 2: MIH eCommerce and WeBuyCars
The merger was between MIH eCommerce Holdings (Pty) Ltd (MIH eCommerce) andWeBuyCars (Pty) Ltd (WeBuyCars). MIH eCommerce is mainly an investment holding
company and does not itself supply any products or services in South Africa. MIH
eCommerce has investments in OLX and the Naspers’ subsidiary, Car Trader, which
operates as AutoTrader. Although the Commission found that the proposed transaction
does not present any horizontal overlap in South Africa as the Naspers Group is not activein the buying and selling of cars, it, however, found that there was an intention by Naspers
Group to enter the market through another transaction in competition with WeBuyCars.
This is because Naspers Group had acquired a stake in Frontier Car Group Inc (FCG) andthrough this acquisition, the Naspers Group intended to enter the South African market forwholesale and online buying of cars from the public and selling to dealers in directcompetition with WeBuyCars. Naspers Group, through FCG has been anticipating entering
the South African market for the wholesale and online buying of used cars in competition

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with WeBuyCars. The Commission prohibited the transaction and Tribunal upheld thedecision to prohibit.
M&A 3: Shoprite/ODD transaction
Shoprite Checkers (Pty) Ltd (“Shoprite”) acquired control in Main Street 1883 (Pty) Ltd(“Target Firm”). Shoprite retails and distributes a wide range of fast-moving consumer
goods (“FMCGs”), through its various stores and supermarkets located across South Africa.
Of relevance to the merger assessment was Shoprite’s Checkers Sixty60 (“Sixty60”)
activities. Sixty60 is the Shoprite’s online store platform, which enables customers to ordergroceries from Checkers stores by downloading the Sixty60 application onto theirsmartphone. Sixty60 is available across South Africa and customers can order a minimum
value of R100 worth of groceries and up to 35 items, which will be delivered to thecustomer within 60 minutes or less.
The Target Firm provides on-demand delivery (“ODD”) services (i.e., last mile logistic
services) to online shopping platforms such as Shoprite’s Sixty60 platform and othermerchants such as KFC, Checkers and EvolutionVape. The Commission assessed a vertical
overlap as Shoprite operates an online shopping platform, and the Target Firm provides
ODD services. ODD services are an input for retailers or merchants’ online shopping
platforms. Shoprite solely procured ODD services for its Sixty60 platform from the Target
Firm pre-merger. However, the Commission found that transaction did not raise any
foreclosure concerns. The Commission approved the transaction without conditions.
M&A 4: Anchorage Merger Sub Inc. (“Anchorage”)/ Activision Blizzard, Inc. (“Activision”)
The primary acquiring firm is Anchorage, a company registered in accordance with the
General Corporation Law of the State of Delaware. Anchorage is a wholly owned subsidiaryof Microsoft. In South Africa, Microsoft controls Microsoft (S.A.) Proprietary Limited(“Microsoft South Africa”) and Microsoft 1968 South Africa Proprietary Limited (“Microsoft
1968”). The Acquiring Group, through Microsoft, is a global technology company active inthe provision of several IT-related services. Relevant to the proposed transaction are its
gaming activities, which involve the development, publishing, and distribution of games forPCs, consoles, and mobile devices through Xbox Game Studios. Microsoft also publishes
games that are developed by other game developers. Microsoft offers Xbox gaming
consoles and the Surface series of personal computers.
The primary target firm is Activision, a company registered in accordance with the General
Corporation Law of the State of Delaware. Globally, Activision develops games for PCs,consoles, and mobile devices and publishes them in most countries around the world.
Activision does not own any console (such as PlayStation or Xbox) but its games can be

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played on both of these consoles. One of the popular games developed and published by
Activision is Call of Duty.
The primary competition concern in this transaction arose from the (vertical) concern that
Microsoft may, post-merger, restrict the distribution of Call of Duty to the Microsoft
console, Xbox, or make Call of Duty available on terms that exclude or undermine the abilityof other console manufacturers to compete. The Commission found that the proposedtransaction is unlikely to result in significant foreclosure concerns as the parties do nothave the ability and incentive to foreclose competing game distributors, particularly Sony
(Playstation) and Nintendo (Switch). Furthermore, the merging parties have madeundertakings to continue supplying Call of Duty games to other console manufacturers. The
Commission has recommended that the Competition Tribunal (Tribunal) approve theproposed transaction whereby Anchorage intends to acquire Activision, without conditions.
M&A 5: Travelstart Online Travel Operations (Pty) Ltd (Travelstart) / Club Travel SA (Pty)Ltd (Club Travel SA) and Flightsite (Pty) Ltd (Flightsite)
Travelstart is an online travel agency (OTA) that provides customers with an online booking
platform for travel. Travelstart’s focus is on the leisure travel market, allowing end
customers to compare prices across suppliers for local and international flights,
accommodation and car hire and make reservations directly through its website.
The primary target firms are Club Travel SA and Flightsite. Club Travel controls Travellinck.
Club Travel SA is a travel agency operating across South Africa. Club Travel SA mainly
provides corporate travel services through Club Corporate. However, it also offers leisuretravel services to a very limited extent although these services are not offered online andtherefore are not comparable to the service offerings of OTAs such as Travelstart.
The Commission found that there is a horizontal overlap in the activities of the merging
parties in relation to the sale of online leisure travel services. Specifically, the horizontal
overlap arises in the sale of online flight tickets for leisure travel. In addition, the merging
parties’ activities overlap horizontally for the sale of tour packages offline. The Commission
found that the proposed transaction is unlikely to result in a substantial lessening ofcompetition and therefore approved the proposed transaction unconditionally.
Cartel 1: Babybug and Medmart
Medmart and BabyBug entered into an agreement and/or concerted practice to fix prices
and divide markets by allocating suppliers in contravention of sections 4(1)(b)(i) and (ii) of
the Act.

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Babybug and Medmart agreed to manipulate their respective prices in such a manner thatthey would be able to make profit selling 3PLYL2 disposable face masks and 3PLYL3
disposable face masks (“3-ply face masks”) on the Takealot platform. They would achieve
this by allocating to each other days on which each would adjust their respective prices andstock availability accordingly, in order to limit competition between themselves. They also
agreed that they alternate on the days each would price higher than the other on the
Takealot platform. The investigation team has referred the case to the Tribunal and theparties are also engaging with the Commission for a consent agreement.

Advocacy interventions
The CCSA has continued its work with the Intergovernmental Fintech Working Group(“IFWG”), which includes financial services regulators as well as the information regulator.
The IFWG has produced several position papers. These include Regulating Open FinanceConsultation and Research Paper, FinTech platform activity in South Africa and its
regulatory implications; and the position paper on crypto assets. These papers seek tounderstand the growing role of FinTech’s and innovation in the South African financial
sector and explore how regulators can more proactively assess emerging risks andopportunities in the market.
On 04 November 2020 the Commission issued a Strategy Report entitled “Competition in
the Digital Economy,” which provides a review of the emerging competition issues in ecommerce, consumer empowerment and provides guidance to businesses on theCommission’s approach to enforce its mandate in digital markets.
The Competition Commission hosted stakeholders from the public and private sector in aseminar on Fourth Industrial Revolution (4IR) on 24 June 2019. The seminar was conductedby way of two panel discussions, which included representatives from Microsoft SA, Rain,
RecoMed, Bolt SA (formerly Taxify SA), the Technology Innovation Agency (TIA), theIndependent Communications Authority of South Africa (ICASA), the Council for Scientificand Industrial Research (CSIR), the Centre for Competition Regulation and Economic
Development (CCRED), the Competition Tribunal and Falcon & Hume Inc (law firm). The
purpose of the seminar was to discuss what digital markets, digitisation and newtechnologies mean for the South African economy.
On 17 July 2020 the Commission hosted external stakeholders in a webinar on the “Buyer
Power Enforcement Guidelines: How does it affect doing business?” One hundred andforty-two (142) attendees from small business, big business, government departments,
other government agencies, the legal fraternity, research organisations, entrepreneurs,
media, the Commission and Competition Tribunal employees participated. The purpose ofCompendium | Page 130

the seminar was to (a) inform market participants in the designated sectors of online
services, food and agro-processing and grocery retail, especially the smaller businesses, ofthe new buyer power provisions; and (b) simplify the message in a practical way on how
the Guidelines apply to them.
On 19 August 2021, the Commission held a workshop with the Information Regulator ofSouth Africa (IRSA). The purpose of the engagement was to discuss issues related to data
regulation in the country and in particular, the concurrent jurisdiction shared by the tworegulators on these issues.
The Commission provided a paper titled “Competition in the Digital Economy” as input tothe Masterplan. The paper aims to inform government and corporate stakeholders of its
approach to regulating competition in the digital economy and to facilitate coordinatedregulatory and advocacy efforts in this area.
In 2021 the Commission provided a policy response related to the Draft National Policy on
Data and Cloud (the Policy), more specifically to the chapter titled ‘Policy Issues inCompetition’. The policy seeks to establish a High-Performance Computing and Data
Processing Centre (HPCDPC) for public data processing and storage and provide cloudservices to state entities. The objective is to create a single integrated data processing
centre to store data that state entities can use.
On 27 August 2019 the Commission provided input to the BRICS Digital Market Report to
the Administrative Council for Economic Defense (CADE), Brazil’s competition authority.
The purpose of the Report was to outline international approaches to the regulation ofdigital markets.

Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
The CCSA published a Digital Strategy that outlines its plans to address aspects of digitalmarkets. The strategy covers a range of issues including digital platforms in South Africawith a discussion on big data and fintech; competition law in digital markets, covering
merger controls, cartels and market conduct and abuse of dominance; regulatory issues inthe digital economy, including promotion of access and connectivity, digitising government
services and the role for regional coordination; and the impact of Covid-19 on the digital
economy.

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The CCSA intends to establish a cartel forensics lab to deal with new challenges in thedetection and investigation of collusion and assist generally on digital market cases. The
cartel forensics lab team will be made up of experts such as software engineers and data
scientists who can deal with unique issues such as algorithms and how they can be used in
the market to facilitate anticompetitive agreements on price and other trading conditions.
The CCSA had initiated a project to use digital tools in the detection and investigation ofcollusion and assist generally on digital market cases. The CCSA has partnered withacademic institutions to bring in their artificial intelligence expertise rather than seeking tohire and build internal capacity. Following engagements with National Treasury andprovincial treasuries to understand the extent and format of tender information, theCommission has begun a process of designing the algorithmic programmes. This has been
greatly aided by engagements with agencies globally to discuss their experience as to what
has worked and what has not.
Similarly, for data specialists the CCSA has not sought to hire in those skills yet but rather
to put together a panel of local experts that may be drawn on in enforcement or research.
This approach was adopted as the best means to establish what the use case is for suchskills, what specific skills are most valuable and the frequency of data specialist
requirements. It is only if there is an ongoing demand in investigation across different
enforcement areas and the ability to sustainable source the right skillsets that the CCSA
will invest in hiring. The panel approach is also a means to interest data scientists incompetition law enforcement and potentially establish career paths in this area.
The CCSA has also proactively sought engagement with other jurisdictions such as theEuropean Union (EU) to provide an opportunity for mutual learning. The CCSA in 2021
utilised the SA/EU dialogue facility to host a series of workshops in partnership with the
Directorate-General of Competition in the European Commission (DG Comp). The threeday workshop held between 29th – 31st March 2021 covered three broad themes (i)Competition Policy Strategy in Digital Markets (ii) Enforcement and Toolkits Needed for
Digital Markets Cases and (iii) Cooperation and Coordination between Competition
Regulators on Digital Markets Cases. The collaboration will be on-going to ensure that SA
continues to draw from EU experience on digital competition issues.
CCSA has signed MOU with some authorities on the continent, such as Kenya, Mauritius
and Namibia. Through MOU countries may have a platform to engage on digital markets
challenges faced by member countries; (ii) The region also has a number of co-operation
blocs, such as, SADC, COMESA and ECOWAS. These regional bodies and their associatedcompetition enforcement committees can be leveraged as a platform to collaborate in thedigital platform space; and (iii) Other platforms that can also be used include the African

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Continental Free Trade Agreement and the African Competition Forum (currently chaired
by South Africa).
In February 2022, heads of the competition authorities of Egypt, Kenya, Mauritius, Nigeria
and South Africa (the “Authorities”) upon the conclusion of the digital markets workshop
held in Johannesburg, South Africa, reflected the need to convene a digital markets
dialogue to initiate the development of an African competition law enforcement and policy
response to digital markets. The joint statement of the authorities proposed the researchand scoping aspects of the African Digital Markets Initiative to be operationalised by eachparticipating authority’s technical teams. These technical teams will work collaboratively
towards an agreed work programme.
The CCSA and Competition Commission of Singapore (CCS) have signed an MOU, throughwhich CCS has agreed to provide algorithms / codes to CCSA team that is working on the
project, ‘Cartel Detection in Public Tenders’.

Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
The CCSA is of the view that the current legislation, including the recent amendments,
provides sufficient scope to address digital market issues. Within merger control there is
scope for the CCSA to request the notification of small mergers that lie below ourthresholds, which is one means to address killer acquisitions and global mergers with local
impact but limited direct revenues to a South African registered entity. The CCSA has also
published a practice note for the notification of digital mergers that lie below thethresholds based on the valuation of the target company.
South Africa has always had a public interest element in the legislation which enables thelaw to address the impact on SMEs, historically disadvantaged persons, employment andeconomic development. The amendments to the Act strengthen these and provide a basis
for addressing buyer power and price discrimination against SMEs and historicallydisadvantaged firms. This enables the CCSA to address the treatment of such firms by
online platforms.
The Market Inquiry provision has been strengthened to provide scope for the
implementation of remedies through a court order and these inquires provide scope toaddress any factor hindering competition or affecting participation in markets.

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The OIPMI Provisional Report sets out numerous proposed remedial actions for specificplatforms to implement based on the provisional findings. The Inquiry is also of the viewthat Commission Guidelines can complement the section 78 regulations through providing
guidance on best practice by online intermediation platforms such that they remaincompliant with the Act. Guidelines are useful in providing business certainty as to theenforcement approach of the Commission, and best practice guidance gives even greatercertainty as it informs business that specific business practices will be considered to be incompliance with the Act.
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or otherlaws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled.
Given the interface between competition and privacy laws, the CCSA is exploring working
arrangements with the Information Regulator of South Africa. The Information Regulator
was only recently formed, and the South African Protection of Personal Information Act(POPIA) has only come into effect on 1 July 2021. The POPIA is based on the EU GDPR law.
The CCSA is also seeking to engage with the Information Regulator around specific
enforcement in the digital market space, determining where each regulator can best be
effective.
The CCSA has a relationship with the National Consumer Council (NCC) which oversees theConsumer Protection Act (CPA). The CCSA has worked with the NCC on enforcement in thecontext of Covid and will continue to explore avenues to work together. The CCSA is also
active in intra-governmental initiatives on digital markets such as the Presidential 4IR
Initiative and the providing input into legislative initiatives such as the Department ofCommunications and Digital Technologies (DCDT) Big Data policy.

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South Korea – Korea Fair Trade Commission
Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.
Enforcement
The Korea Fair Trade Commission (hereinafter the “KFTC”) is closely monitoring the abuseof dominance and interference with business activities by competitors in digital industries
and the platform sector and is strictly enforcing laws against antitrust violations. In thesecond half of 2022, the KFTC launched an investigation into Apple for excessively charging
App Store fees solely to Korean developers compared to overseas app developers. As aresult, Apple voluntarily submitted remedies to revise unfair terms in eight countries,
including Korea. In early 2023, the KFTC conducted an investigation and imposed remedies
on Google for blocking mobile game makers from releasing mobile games on a rival
platform and requiring them to exclusively release their titles on Google Play. In addition,
the KFTC sanctioned Kakao Mobility, a leading platform company in Korea, for assigning
calls more favorably to its franchise taxis by manipulating its algorithms. The KFTC is
currently investigating tying by domestic and overseas platforms, selfpreferencing by
manipulating search algorithms, and interference with business activities by competitors.
Furthermore, the KFTC is striving to prevent consumer harm in the online platform sector
by imposing remedies on five domestic and overseas OTAs to remove MFN clauses in 2021
and sanctioning two OTAs for misleading consumers in 2022.
Non-Enforcement
In addition to handling individual cases, the KFTC is laying the institutional foundation to
swiftly respond to anti-competitive conduct and infringement of consumer interests inonline platform markets. As part of its efforts, the KFTC completed regulatory inspections ofmajor cloud service providers and stakeholders in 2022. In addition to handling individual
cases, the KFTC is laying the institutional foundation to swiftly respond to anti-competitive
conduct and infringement of consumer interests in online platform markets. As part of its
efforts, the KFTC completed regulatory inspections of major cloud service providers andstakeholders in 2022. According to the inspections, a handful of global Big Tech companies
dominate the Korean cloud services market, and based on the inspection results, the KFTC
will seek ways to increase competitive pressure in the cloud services market. In addition, the
KFTC conducted regulatory inspections of ten domestic and overseas OTT service providers
in 2023. The domestic OTT market size has been growing since COVID-19, significantly
affecting related industries, including content and broadcasting. Accordingly, thecompetitive environment is constantly changing with mergers and acquisitions. The KFTC will

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examine the market structure, competitive environment, transaction practices, and anticompetitive factors through regulatory inspections and review the need to makeinstitutional improvements. In terms of competition advocacy, the KFTC conducted a market
analysis on the IoT in 2022 and is having close discussions with relevant agencies after
creating plans for regulatory improvements to facilitate competition. This year, the KFTC willconduct a market analysis on the bio health sector to promote innovative growth in new
industries.
Moreover, the KFTC is carrying out self-regulation schemes led by the private sector toaddress disputes and conflicts between market participants, such as platforms, online
stores, and consumers. Self-regulation allows market participants in the private sector to
discuss ways to improve unfair trade practices arising from power imbalances between
platforms and online stores and address new types of consumer harm caused by online
platforms while the government provides legislative backing. In August 2022, the KFTC
formed and launched an “Online Platform Self-regulatory Body” and established selfregulatory measures through discussions between the government and market
participants, such as platform operators, online stores, and consumers. Specifically, the
KFTC announced self-regulatory measures for delivery platforms and open markets in
March and May 2023, respectively, and will take a step-by-step approach to promote selfregulation in other sectors.
Any steps your agency has taken to strengthen its institutional capabilities to better equip
it to deal with digital competition issues (for example, by forming a special unit, recruiting
more data specialists, building new investigative tools, or gathering new/different
evidence).
The KFTC established an “Online Platform Policy Division” in December 2022 tosystematically and swiftly respond to online platform policy issues. The Online Platform
Policy Division supports the private sector’s discussions on self-regulation to address gapeul issues and is responsible for shaping policy to resolve market monopoly issues andpromote competition.
The KFTC is building big data analysis systems to collect and use fair trade data
scientifically in line with the trends of the digital era. We expect to enhance the efficiency
of internal casehandling work by integrating the KFTC’s case-handling data, relevant
agencies’ conflict resolution data, and civil complaints data.
In addition, the KFTC improved the organization, staffing, and equipment to strengthen
capabilities for investigating digital evidence and has a digital forensic center at Director
for General Investigation. Digital forensic experts conduct on-site investigations and train

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KFTC employees, contributing to enhancing digital evidence acquisition and analysis
capabilities.
Whether, in your jurisdiction, (a) there have been any national reforms or new laws or
regulations to better address digital competition issues, or (b) there are any significant
proposed reforms pending before national legislative or regulatory bodies to better
address digital competition issues.
The KFTC is implementing different policies for gap-eul issues between platforms andonline stores and monopoly issues in platform markets to effectively respond to eachproblem. In the case of gap-eul issues, the KFTC is carrying out self-regulation schemes topromote win-win cooperation through close discussions since they need to be addressedby mediating the interests of different parties and improving transaction practices. By
contrast, the KFTC is taking stern action against monopoly issues as they can severely
restrict overall market competition. To this end, the KFTC established the “Online
Platform Monopoly Review Guidelines” in January 2023 to enforce the ”Monopoly
Regulation and Fair Trade Act (hereinafter the “MRFTA”)” more closely againstmonopolistic behavior of platforms. Based on the accumulated law enforcement cases
regarding online platforms, the Guidelines specify criteria to review the abuse ofmonopoly power prescribed under the MRFTA. In particular, the Guidelines describe thatonline platforms are characterized by cross-network effects, economies of scale, and dataand explain how to reflect these characteristics when defining markets and assessing
dominance. In addition, the Guidelines define restricting multi-homing, imposing MFN
clauses, and engaging in self-preferencing and tying as major types of conduct that raisecompetitive concerns and present applicable provisions of the MRFTA and factors toconsider when determining the illegality of each conduct. In January 2023, the KFTC
formed a task force* to improve anti-monopoly regulation of platforms. The task force
focuses on reviewing whether the MRFTA can effectively respond to platform monopoly
issues or whether there is room for improvement.
* The task force consists of 17 external experts, including professors and lawyers (ViceChairperson Su-hyun Yoon of the KFTC and Professor Hwang Lee of Korea University serveas cocommissioners)
Any law enforcement, regulatory, or policy work by your agency concerning digitalcompetition issues that has involved interaction with non-competition agencies or otherlaws or policy areas—such as privacy, consumer protection, or media sustainability—and
how it was or is being handled.
There is a growing need for interagency collaboration and coordination as agencies havemore platform-related work with the transition to the digital economy. So along with theCompendium | Page 137

KFTC, relevant agencies, including the Ministry of Economy and Finance, Ministry of
Science and ICT, Ministry of Employment and Labor, Ministry of SMEs and Startups, Korea
Communications Commission, and Personal Information Protection Commission, formed
and launched the “Pan-governmental Platform Policy Council (vice-minister level)” in July
2022. Through the Council, the KFTC is closely discussing platform issues with otheragencies and minimizing overlapping work to increase synergies between policies. Basedon the discussions in the Council, the Online Platform Selfregulatory Body was launched
and the government and market participants, including digital platforms, online stores,
and consumers, create self-regulatory measures through close discussions. The Body
announced self-regulatory measures for delivery platforms and open markets in Marchand May 2023, respectively, and will take a step-by-step approach to promote selfregulation in other sectors.
* (Delivery platform) ▴Improve contract practices between delivery platforms andbusiness users, ▴improve a dispute resolution process between delivery platforms andbusiness users, ▴create plans to promote win-win cooperation between delivery
platforms and business users and reduce the burden of business users(Open market), ▴Improve transaction practices between open markets and online stores,▴improve a dispute resolution process between open markets and online stores,▴create plans to promote win-win cooperation with online stores and reduce the burdenof online stores

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