Submission to the Australian Treasury Consultation on a New Digital Competition Regime The Australian Treasury’s proposed competition regime for digital platforms is flawed and should not proceed. The policy rationale for an ex ante regime is unjustified. The Competition and Consumer Act 2010 (CCA) already provides a comprehensive framework to address concerns such as market power, unfair contract terms, and self-preferencing. The Australian Competition and Consumer Commission (ACCC) has not demonstrated any compelling reason existing competition laws are insufficient to regulate digital platforms and has not sought to enforce them against digital platforms. The proposed regime is based on a misunderstanding of competition in the digital economy. Digital markets are characterised by dynamic competition, where innovation and technological change are the primary drivers of consumer welfare. The proposed ex ante regime, with its focus on static competition, may dampen innovation incentives and create barriers to technology diffusion, harming Australian consumers and businesses in the long run. Competition policy for digital platforms should be based on a dynamic competition approach that fosters innovation.The proposed regulatory mechanisms are problematic. The reliance on subordinate legislation for crucial policy decisions is inappropriate, reducing parliamentary oversight. This approach lacks transparency and accountability, and may lead to unintended consequences for the digital economy. We urge the Australian Treasury to reconsider its approach to regulating digital platforms. Instead of imposing an ex ante regime, the focus should be on enforcing existing competition laws and fostering a dynamic environment of innovation. This approach would better serve Australia’s long-term economic interests and the continued growth of the digital sector.

On 11 October 2022, João Maia (Federal Deputy, Partido Liberal) proposed Bill 2768/22 on digital market regulation. Bill 2768 is Brazil’s response to global trends toward the ex-ante regulation of digital platforms, and was at least partially inspired by the EU’s Digital Markets Act. In our contribution to the public consultation on Bill 2768. however, we argue that Brazil should be wary of importing untested regulation into its own, unique context. Rather than impulsively replicating the EU’s latest regulatory whim, Brazil should adopt a more methodical, evidence-based approach. Sound regulation requires that new rules be underpinned by a clear vision of the specific market failures they aim to address, as well as an understanding of the costs and potential unintended consequences. Unfortunately, Bill 2768 fails to meet these prerequisites. As we show in our response to the consultation, it is far from clear that competition law in Brazil has failed to address issues in digital markets to the extent that would make sui generis digital regulation necessary. Indeed, it is unlikely that there are any truly “essential facilities” in the Brazilian digital market that would make access regulation necessary, or that “data” represents an unsurmountable barrier to entry. Other aspects of the Bill—such as the designation of Anatel as the relevant enforcer, the extremely low turnover thresholds used to ascertain gatekeeper status, and the lack of consideration given to consumer welfare as a relevant parameter in establishing harm or claiming an exemption—are also misguided. As it stands, Bill 2768 not only risks straining Brazil’s limited public resources, but also harming innovation, consumer prices, and the country’s thriving startup ecosystem.

In recent years, there has been growing interest among economists, lawyers, and policymakers in the concept of monopsony power, particularly in labor markets. This interest has been spurred partially by academic research suggesting that labor-market concentration may be more prevalent than previously thought, as well as policy developments signaling a more aggressive approach by antitrust authorities to labor-monopsony issues. Despite this momentum, however, significant em-pirical and conceptual challenges remain in the use of antitrust law to address labor monopsony.A. Economics ChallengesOn the empirical front, the evidence on the extent and impact of labor monopsony is mixed. While some studies have found evidence of labor-market concentration and its effects on wages, these studies often rely on indirect measures that have limited applicability to antitrust cases. More direct estimates of monopsony power are rare, and often rely on stylized economic models that may not capture the complexities of real-world labor markets. Moreover, the economics literature has not reached a clear consensus on the appropriate framework to assess labor-market power in antitrust contexts.Conceptually, there are important differences between monopoly and monopsony that compli-cate the application of traditional antitrust tools and standards to labor markets. One key differ-ence is that monopsony and monopoly markets do not sit at the same place in the supply chain. This matters because all supply chains end with final consumers, and antitrust policy must grapple with how to balance effects at different levels of the distribution chain. In evaluating monopsony, authorities must consider the "pass through" to final product markets, a complication that does not arise in the mirror-image case of monopoly.Another conceptual challenge is how to handle merger efficiencies in labor-market cases. In input markets, traditional efficiencies and increased buyer power are often two sides of the same coin, presenting difficult tradeoffs for authorities. Additionally, market definition—a cornerstone of modern antitrust policy—becomes more complex in labor markets, where the boundaries between different occupations, industries, and geographic areas can be blurry.B. Policymakers' ResponseDespite these challenges, antitrust authorities have recently signaled a more aggressive approach to labor-monopsony issues. The Federal Trade Commission's (FTC) noncompete ban, challenge to the Kroger/Albertsons merger, and the 2023 Merger Guidelines' discussion of labor-market effects are all prominent examples of this trend. But these enforcement actions and policy statements often gloss over the unsettled state of the economics literature and the legal difficulties of proving labor-market harms under existing antitrust standards.For example, the 2023 Merger Guidelines assert that labor markets have unique features that may exacerbate the competitive effects of mergers, but do not fully grapple with the limitations of the economic models and empirical evidence underlying these claims. Similarly, while the FTC's Krog-er/Albertsons complaint advances a novel "union grocery labor" market definition, it is unclear whether this approach aligns with economic realities or legal precedent.C. Legal DifficultiesMore broadly, it remains uncertain whether demonstrating and remedying monopsony power is feasible under existing legal standards. While harms to workers can theoretically be cognizable un-der the antitrust laws, proving such harms is challenging, especially under the prevailing consumer-welfare standard. Recent criminal cases targeting wage fixing and no-poach agreements have faced difficulties, and civil cases require showing harm to downstream consumers, not just workers.Addressing these issues may require rethinking the goals and methods of antitrust enforcement. The consumer-welfare standard becomes difficult to apply when a merger may harm workers but benefit consumers downstream. Weighing these cross-market effects raises unresolved questions about the proper balance between consumer and producer surplus. While the 2023 Merger Guide-lines assert that harms to upstream competition cannot be offset by benefits to downstream con-sumers, the basis for this stance in case law is questionable.There are also important differences between monopoly and monopsony that complicate the mir-ror-image application of antitrust tools to labor markets. Most fundamentally, authorities must grapple with how to balance effects at different levels of the supply chain—an issue that does not arise in the standard monopoly context.Moreover, the unique features of labor markets—such as the importance of firm-specific invest-ments in human capital—pose challenges for market definition and the assessment of competitive effects. Traditional concentration measures and econometric tools used in product markets may not readily translate to the labor context. And the potential for countervailing effects on workers and consumers creates difficult tradeoffs in merger review.Given these complexities, this paper urges caution and further study before radically expanding labor-antitrust enforcement. Advocates of reform should engage seriously with the empirical and conceptual issues highlighted here, rather than assuming that current law and economics support their policy prescriptions. Courts and enforcers should carefully consider the limitations of exist-ing approaches and develop more robust analytical frameworks suited to the realities of labor mar-kets.D. The Road to Antitrust Enforcement in Labor MarketsThis does not mean that antitrust has no role to play in addressing labor-market power. But it does counsel against a rush to condemn mergers and practices based on simplistic models or tenuous evidence. A more gradual, case-by-case approach focused on building legal precedent and economic consensus may be warranted. In the meantime, further dialogue between labor economists, anti-trust experts, and policymakers is essential to aligning theory, evidence, and doctrine.Such an agenda might include:• Developing more direct, antitrust-relevant measures of labor-market power beyond concen-tration ratios.• Studying the effects of specific mergers and practices on labor-market outcomes, rather than simply correlating concentration with wages.• Refining models of dynamic competition and firm-specific investments in labor markets and considering their implications for antitrust enforcement.• Clarifying the goals of antitrust in labor markets and how to weigh effects on different stakeholders under the consumer-welfare standard (or alternative frameworks).The paper concludes by noting that, while the road ahead is challenging, the growing interest in labor antitrust presents an opportunity for interdisciplinary research and policy innovation. By carefully building on existing knowledge and legal frameworks, academics and practitioners can help craft an antitrust regime that promotes competition and welfare in labor markets without unduly chilling procompetitive conduct. The key is to remain grounded in sound economics and committed to empirical rigor, while adapting to the unique features of labor markets. With such an approach, antitrust can play a valuable role in ensuring that workers share in the benefits of a well-functioning economy.

Executive Summary In recent years, there has been growing interest among economists, lawyers, and policymakers in the concept of monopsony power, particularly in labor markets. This interest has been spurred partially by academic research suggesting that labor-market concentration may be more prevalent than previously thought, as well as policy developments signaling a more aggressive approach by antitrust authorities to labor-monopsony issues. Despite this momentum, however, significant em-pirical and conceptual challenges remain in the use of antitrust law to address labor monopsony. A. Economics Challenges On the empirical front, the evidence on the extent and impact of labor monopsony is mixed. While some studies have found evidence of labor-market concentration and its effects on wages, these studies often rely on indirect measures that have limited applicability to antitrust cases. More direct estimates of monopsony power are rare, and often rely on stylized economic models that may not capture the complexities of real-world labor markets. Moreover, the economics literature has not reached a clear consensus on the appropriate framework to assess labor-market power in antitrust contexts. Conceptually, there are important differences between monopoly and monopsony that compli-cate the application of traditional antitrust tools and standards to labor markets. One key differ-ence is that monopsony and monopoly markets do not sit at the same place in the supply chain. This matters because all supply chains end with final consumers, and antitrust policy must grapple with how to balance effects at different levels of the distribution chain. In evaluating monopsony, authorities must consider the “pass through” to final product markets, a complication that does not arise in the mirror-image case of monopoly. Another conceptual challenge is how to handle merger efficiencies in labor-market cases. In input markets, traditional efficiencies and increased buyer power are often two sides of the same coin, presenting difficult tradeoffs for authorities. Additionally, market definition—a cornerstone of modern antitrust policy—becomes more complex in labor markets, where the boundaries between different occupations, industries, and geographic areas can be blurry. B. Policymakers’ Response Despite these challenges, antitrust authorities have recently signaled a more aggressive approach to labor-monopsony issues. The Federal Trade Commission’s (FTC) noncompete ban, challenge to the Kroger/Albertsons merger, and the 2023 Merger Guidelines’ discussion of labor-market effects are all prominent examples of this trend. But these enforcement actions and policy statements often gloss over the unsettled state of the economics literature and the legal difficulties of proving labor-market harms under existing antitrust standards. For example, the 2023 Merger Guidelines assert that labor markets have unique features that may exacerbate the competitive effects of mergers, but do not fully grapple with the limitations of the economic models and empirical evidence underlying these claims. Similarly, while the FTC’s Krog-er/Albertsons complaint advances a novel “union grocery labor” market definition, it is unclear whether this approach aligns with economic realities or legal precedent. C. Legal Difficulties More broadly, it remains uncertain whether demonstrating and remedying monopsony power is feasible under existing legal standards. While harms to workers can theoretically be cognizable un-der the antitrust laws, proving such harms is challenging, especially under the prevailing consumer-welfare standard. Recent criminal cases targeting wage fixing and no-poach agreements have faced difficulties, and civil cases require showing harm to downstream consumers, not just workers. Addressing these issues may require rethinking the goals and methods of antitrust enforcement. The consumer-welfare standard becomes difficult to apply when a merger may harm workers but benefit consumers downstream. Weighing these cross-market effects raises unresolved questions about the proper balance between consumer and producer surplus. While the 2023 Merger Guide-lines assert that harms to upstream competition cannot be offset by benefits to downstream con-sumers, the basis for this stance in case law is questionable. There are also important differences between monopoly and monopsony that complicate the mir-ror-image application of antitrust tools to labor markets. Most fundamentally, authorities must grapple with how to balance effects at different levels of the supply chain—an issue that does not arise in the standard monopoly context. Moreover, the unique features of labor markets—such as the importance of firm-specific invest-ments in human capital—pose challenges for market definition and the assessment of competitive effects. Traditional concentration measures and econometric tools used in product markets may not readily translate to the labor context. And the potential for countervailing effects on workers and consumers creates difficult tradeoffs in merger review. Given these complexities, this paper urges caution and further study before radically expanding labor-antitrust enforcement. Advocates of reform should engage seriously with the empirical and conceptual issues highlighted here, rather than assuming that current law and economics support their policy prescriptions. Courts and enforcers should carefully consider the limitations of exist-ing approaches and develop more robust analytical frameworks suited to the realities of labor mar-kets. D. The Road to Antitrust Enforcement in Labor Markets This does not mean that antitrust has no role to play in addressing labor-market power. But it does counsel against a rush to condemn mergers and practices based on simplistic models or tenuous evidence. A more gradual, case-by-case approach focused on building legal precedent and economic consensus may be warranted. In the meantime, further dialogue between labor economists, anti-trust experts, and policymakers is essential to aligning theory, evidence, and doctrine. Such an agenda might include: • Developing more direct, antitrust-relevant measures of labor-market power beyond concen-tration ratios. • Studying the effects of specific mergers and practices on labor-market outcomes, rather than simply correlating concentration with wages. • Refining models of dynamic competition and firm-specific investments in labor markets and considering their implications for antitrust enforcement. • Clarifying the goals of antitrust in labor markets and how to weigh effects on different stakeholders under the consumer-welfare standard (or alternative frameworks). The paper concludes by noting that, while the road ahead is challenging, the growing interest in labor antitrust presents an opportunity for interdisciplinary research and policy innovation. By carefully building on existing knowledge and legal frameworks, academics and practitioners can help craft an antitrust regime that promotes competition and welfare in labor markets without unduly chilling procompetitive conduct. The key is to remain grounded in sound economics and committed to empirical rigor, while adapting to the unique features of labor markets. With such an approach, antitrust can play a valuable role in ensuring that workers share in the benefits of a well-functioning economy.

The Digital Markets, Competition, and Consumers Bill (DMCC) grants the UK's Competition and Markets Authority (CMA) expansive authority to address perceived anticompetitive behaviors in digital markets. With broad discretion, the CMA can intervene early and enforce remedies with limited accountability, potentially impacting a wide range of companies through Strategic Market Status (SMS) designations. However, unlike the European Union's Digital Markets Act, the DMCC lacks clear thresholds and defined requirements, raising concerns about regulatory overreach and stifled innovation. Furthermore, the bill's enforcement mechanisms, including the final offer mechanism, pose risks to freedom of contract and may lead to regulatory capture and reduced investment in the UK digital sector.

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In October 2022, Kroger and Albertsons announced their intent to merge the two companies in a deal valued at $24.6 billion. The combined company would be the third largest food and grocery retailer, behind Walmart and Amazon. Based on the Federal Trade Commission’s recently release draft merger guidelines, and comments by FTC chair Lina Khan, it likely the agency will move to block the merger—even if the companies offer to spin off stores to competing chains. The FTC will face an uphill battle. Kroger’s CEO has indicated the company is “committed to litigate” if the agency attempts to block the merger. The agency has already lost several notable uphill battles and economic reality may not be on the regulator’s side. For decades, the FTC has clung to a narrow definition of supermarkets to traditional food and grocery, but excludes warehouse clubs and e-commerce. The world has changed, and so should the FTC’s market definition. An attempt to block the merger on labor market concerns will be doomed to fail. The retail labor market is extremely competitive, and workers have a wide range of alternative employment options—both in and out of the retail sector. At the same time, both Kroger and Albertsons are highly unionized, providing a counterbalance to any potential exercise of monopsony power by the merged firm. The FTC has traditionally seen divestitures as an appropriate and adequate remedy for any competitive concerns in local markets. FTC Chair Lina Khan has signaled her disdain for divestitures. This may be a key area in which the FTC’s desires are rebuffed by the courts.

Competition cases routinely hinge on the fundamental distinction between conduct that anti-competitively serves to exclude competitors, on the one hand, and competition on the merits that may lead firms to exit the market, on the other. 1 Although even first-year law students intuitively understand this critical distinction, it can prove challenging to distinguish between the two in real-world cases. The reason is simple: anticompetitive foreclosure and competition on the merits both ultimately result in the same observable outcome: namely, that rivals exit the market. In order to draw the line, policymakers must infer both the root causes and the effects of firms' market exit. Against this backdrop, it is becoming increasingly clear that the 2017 Intel ruling marked a crucial turning point in the enforcement of Article 102 TFEU. 2 The ruling's powerful legacy notably looms large over other recent court cases, such as the European Court of Justice's ('ECJ') ruling in Servizio Elettrico Nazionale and Others, as well as the General Court's ('GC') Intel Renvoi and Qualcomm judgments. 3 In these Intel-inspired rulings, the European judiciary appears to have settled largely on a workable effects-based standard that sorts the wheat from the chaff in all Article 102 TFEU cases. It does this, notably, by looking at the effect that a firm's behaviour has on 'asefficient competitors', while also creating an administrable standard of proof to govern such proceedings.

A well-placed cadre of progressive scholars and advocates — several of whom have in more recent years come to occupy top positions in America’s antitrust agencies — have long-focused their attention distinctly on high-profile mergers and acquisitions. For more than a decade, hardly a deal could be proposed without these critics claiming that it would create an unassailable monopoly, be the final nail in the coffin of small businesses, and/or cement the political sway of big business. For these so-called “neo-Brandeisian” critics, the repeated pattern has been, first, to entreat authorities to block these deals and then, should they be cleared nonetheless, to cite such approvals as evidence that U.S. antitrust law is in dire need of reform.The bombastic rhetoric employed by these critics stands in sharp contrast with the technocratic and measured approach to enforcement that has traditionally been the norm for U.S. antitrust agencies and courts. Indeed, for better or worse, antitrust case law in the United States generally focuses on tangible and short-term metrics, rather than hypothetical doomsday scenarios that are notoriously hard to predict. Under this measured approach — rooted in the consumer welfare standard — theories of harm are dismissed if they rely on mere conjecture. Unsurprisingly, the critics have routinely lambasted this status quo.But the paradigm has been shifting. With the elevation of progressive critics such as Lina Khan to chair the Federal Trade Commission (FTC), Jonathan Kanter to head the U.S. Justice Department’s (DOJ) Antitrust Division, and Tim Wu to serve as special assistant to President Joe Biden for technology and competition policy, the tide of U.S. antitrust enforcement may be turning. In recent months, the antitrust agencies have brought several high-profile suits that seek to combat what their new leadership believes to be excessive corporate consolidation. This includes the FTC’s failed challenge of the Meta-Within deal, as well as ongoing cases against the Microsoft-Activision Blizzard and Illumina-Grail mergers.The rhetoric accompanying these challenges has departed significantly from traditional antitrust discourse and has instead been more closely aligned with the populist style that these agencies’ leaders employed before their nominations. For instance, in its Meta-Within complaint, the FTC argued that clearing the deal would put Meta “one step closer to its ultimate goal of owning the entire ‘Metaverse.’” In the Illumina-Grail suits, the agency claimed that “after the Acquisition, Illumina will control the fate of every potential rival to Grail for the foreseeable future.”Against this backdrop of increasingly alarmist merger claims, this paper analyzes whether previous doomsday merger scenarios have materialized, or whether the critics’ claims missed the mark. Our retrospective analysis shows that many of the alarmist predictions of the past were completely untethered from prevailing market realities, as well as far removed from the outcomes that emerged after the mergers.

The Federal Trade Commission and U.S. Justice Department’s request for information on whether and how to update the antitrust agencies’ merger-enforcement guidelines is based on several faulty premises and appears to presuppose a preferred outcome: stronger (rather than optimal) merger enforcement. It also telegraphs an attempt by the agencies to pronounce as settled what are actually hotly disputed, sometimes stubbornly unresolved issues among experts.As our comments explain, the RFI misconstrues the role of merger guidelines, which is to reflect the state of the art in a certain area of antitrust. Instead, the RFI seeks information to support a broad invigoration of merger enforcement, regardless of the extent of scholarly or jurisprudential consensus. This not only overreaches the FTC’s and DOJ’s powers, it also risks galvanizing opposition from the courts, thereby undermining the utility of adopting guidelines in the first place. The RFI asks questions regarding a number of significant, substantive issues in merger enforcement. While it is certainly appropriate to ask such questions, it is also crucial to be appropriately circumspect about the answers and their implications. Yet, as we discuss in our comments, the assumptions that underly the agencies' questions, as well as the tenuous nature of knowledge and practice in several of the areas of obvious interest to the agencies, suggest that the resulting guidelines will be deeply problematic. Among the most important of these assumptions and issues are:1. An uncritical acceptance of the contentious narrative that lax antitrust enforcement has caused increased concentration in U.S. markets, when empirical data demonstrates that concentration is decreasing in local markets and that increased national-level concentration has been caused by productivity advances;2. An interpretation that existing merger-control tools, such as the Herfindahl-Hirschman Index (HHI), allow too many anticompetitive mergers to slip through the cracks, without grappling with the role that such tools play in the overall antitrust framework to reduce total error costs and the cost of administration;3. An eagerness to welcome new guidelines for mergers that affect labor markets and “monopsony” markets more broadly, despite little scholarly analysis of the fundamental complexity involved in applying merger-control rules to monopsony markets, where output is the relevant consideration;4. An unwarranted presumption of a negative relationship between market concentration and innovation, or between market concentration and investment, when the opposite is often true;5. A tendency to blur the longstanding demarcation between vertical and horizontal mergers, in ways that are likely to have chilling effects on pro-competitive vertical mergers;6. An inclination to treat firms’ possession of data as a special factor in merger rules, rather than as any other intangible asset; and7. A premature desire to apply the notion of “attention markets” in a merger-control context, despite a lack of scholarship offering objective, let alone quantifiable, criteria to identify firms that are unique competitors for user attention.

The dystopian novel is a powerful literary genre. It has given us such masterpieces as Nineteen Eighty-Four, Brave New World, Fahrenheit 451, and Animal Farm. Though these novels often shed light on some of the risks that contemporary society faces and the zeitgeist of the time when they were written, they almost always systematically overshoot the mark (whether intentionally or not) and severely underestimate the radical improvements commensurate with the technology (or other causes) that they fear. But dystopias are not just a literary phenomenon; they are also a powerful force in policy circles — this is epitomized by influential publications such as The Limits of Growth, whose dire predictions have largely failed to materialize. Antitrust law and policy is no exception. This article argues that contemporary antitrust scholarship and commentary is afflicted by dystopian thinking. In that respect, today’s antitrust pessimists have set their sights predominantly on the digital economy — “big tech” and “big data” — alleging a vast array of potential harms. Scholars have notably argued that the data created and employed by the digital economy produces network effects that inevitably lead to tipping and more concentrated markets. In other words, firms will allegedly accumulate insurmountable data advantages and thus thwart competitors for extended periods of time. Some have gone so far as to argue that this threatens the very fabric of western democracy. We argue that these fears are symptomatic of two different — but complementary — phenomena, which we refer to as “Antitrust Dystopia” and “Antitrust Nostalgia.” Antitrust Dystopia is the pessimistic tendency for competition scholars and enforcers to assert that novel business conduct will cause technological advances to have unprecedented, anticompetitive consequences. This is almost always grounded in the belief that “this time is different” — that, despite the benign or positive consequences of previous, similar technological advances, this time those advances will have dire, adverse consequences absent enforcement to stave off abuse. Antitrust Nostalgia is the biased assumption — often built into antitrust doctrine itself — that change is bad. Antitrust Nostalgia holds that because a business practice has seemingly benefited competition before, changing it will harm competition going forward. Thus, antitrust enforcement is often skeptical of, and triggered by, various deviations from status quo conduct and relationships (i.e., “non-standard” business arrangements) when, to a first approximation (and at the very least in digital marketplaces), change is the hallmark of competition itself. However, as the article explains, these two worldviews are premised on particularly questionable assumptions about the way competition unfolds, in this case, in data-intensive markets.

Recent years have seen the Association of Southeast Asian Nations (ASEAN) members embark upon various initiatives that seek to harmonize their competition regimes. These ongoing efforts to modernize and harmonize ASEAN competition laws take place amid a longstanding effort by both the European Union (EU) and the United States (US) to export their respective competition laws throughout the world. This raises a critical question: Should the ASEAN countries attempt to mimic the competition regimes of other developed nations, notably those that are in force in the EU and the US? And, if so, which one of these regimes should they draw more inspiration from? This paper seeks to dispel the myth that the European model of competition enforcement would necessarily provide a superior blueprint. To the contrary, it shows that the evolutionary, common-law-like regime that has emerged in the US has many strengths that are often overlooked by contemporary competition policy scholarship, and which might provide a particularly good fit for the economic and political realities of the ASEAN member states. The paper proceeds as follows. Section 2 analyzes the high-level differences between the American and European approaches to competition policy. Section 3 shows that the US and Europe also differ substantially in terms of the conduct that may constitute an infringement of competition law — the EU system being significantly more restrictive. Section 4 turns to the thorny problem of digital platforms, in particular, and argues that while the European model might more readily facilitate intervention against digital platforms, the resulting cases may be detrimental to consumers and the economy more broadly. Section 5 posits that reducing economic concentration — sometimes cited as a byproduct of European-style competition enforcement — should not be a self-standing goal of antitrust policy. Finally, Section 6 argues that many of the economic and political characteristics of the ASEAN economy cut in favor of using the US model of competition enforcement as a blueprint for further development and harmonization of ASEAN competition law.

The European Commission’s Google Android decision will surely go down as one of the most important competition proceedings of the past decade. And yet, an in-depth reading of the 328 page decision should leave attentive readers with a bitter taste. The overall problem is simple: while the facts adduced by the Commission are arguably true, the normative implications it draws — and thus the bases for its action — are largely conjecture.This paper argues that the Commission’s decision is undermined by unsubstantiated claims and non sequiturs, the upshot of which is that the Commission did not adequately establish that Google had a “dominant position” in an accurately defined market, or that it infringed competition and harmed consumers. The paper notably analyzes the Commission’s reasoning on interrelated questions of market definition, barriers to entry, dominance, theories of harm, and the economic evidence adduced to support the decision.In short, the Commission failed to adequately prove that Google infringed European competition law. Its decision thus sets a bad precedent for future competition intervention in the digital sphere.

Some say that the competition case-law of the European Court of Justice ('ECJ') is 'slow food' .The point is that consistent antitrust concepts, rules, and theories take a long time to materialise.With this in mind, a series of contemporary rulings make clear that the basic philosophy underlying EU competition law has shi ed.Over the last few years, the EU courts have produced several rulings that envision a symbiotic relation between competition law and economics.The judgment of the General Court ('GC') in CK Telecoms UK Investments v Commission ('CK Telecoms v Commission') is the latest illustration of this judicial trend.The concrete message of CK Telecoms v Commission is simple.The Court stresses that not all market power e ects from mergers come under legal scrutiny.Only mergers leading to substantial market power e ects deserve remediation.In the case at hand, this led the Court to quash a Commission decision that conjectured that a reduction in the number of rms from 4 to 3 would ipso facto produce a signi cant impediment to e ective competition.In so doing, the Court rejected a simplistic antitrust norm based on the protection of rivalry, and drew the correct distinction between the positive and prescriptive value of economic models.CK Telecoms v Commission also sits broadly within the European tradition of competition law.For better or worse, the GC has not suddenly endorsed something akin to the consumer welfare standard applied in the USA.Instead, CK Telecoms v Commission has formulated a structured rule for the assessment of unilateral e ects in merger cases, in line with the usual approach of European case-law.