Antitrust in the United States and the European Union – A Comparative Analysis



Morten C. Skroejer | icarus | American Bar Association Section of Antitrust Law Media and Technology Committee

I. Introduction

Technological innovation has had a profound impact on the way we live, communicate, and work. The dawn of the Fourth Industrial Revolution has opened immense opportunities but also created significant challenges. Questions about cybersecurity, disinformation, and privacy, for example, vex businesses, governments, and private citizens alike. A different set of issues are related to the sheer size, reach, and power of the companies that comprise Big Tech and how to deal with them.

Being a large corporation, and being in the vanguard of a far-reaching and ever-expanding industry, is, by itself, neither good nor bad, but it will often lead to increased scrutiny. In some instances, this might result in attempts to either block certain companies from entering a market, or, alternatively, make it more difficult for them to operate in it. In 2015, for example, President Obama alluded to this when he accused the European Union of digital protectionism in its investigations of American tech companies— “[i]n defense of Google and Facebook, sometimes the European response … is more commercially driven than anything else.” But to chalk scrutiny of large tech companies and their business practices up to mere protectionism would miss the mark. The many benefits of modern technology notwithstanding, there are powerful economic factors within digital markets that limit competition and stifle innovation, and as a result can hurt consumers.

Concerns about Big Tech are also not confined to Europe. In fact, there seems to be a growing consensus in both the United States and the European Union of the need to, at a minimum, explore ways to check certain actions and the broader influence of the largest tech companies.

To be sure, there are differences in how Big Tech is viewed in the United States and Europe. At a basic level, many Europeans are viscerally suspicious of the market and the power of big corporations. This clearly also applies to the tech sector, as evidenced by a poll conducted in the run-up to the European Parliament elections last year. Fully 64 percent of voters thought that the European Union had been too lax in its regulation of U.S. tech giants. By contrast, most Americans believe in the power of the market to self-correct and are warier of government overreach. Whether consciously or not, it is hardly a stretch to assume that these different attitudes inform thinking about competition policy and enforcement decisions on both sides of the Atlantic.

The focus of this article is on single-firm conduct, and the transatlantic divide over how best to use antitrust and competition policy to navigate this new and exciting world. Section 2 looks at what makes Big Tech unique from an antitrust perspective. Section 3 provides an overview of U.S. and EU competition law as it relates to single-firm conduct, as well as their respective institutional structures. Section 4 assumes a more prospective posture, looking at possible future trends and what steps Big Tech can take to protect its own interests in this environment.

To read the full article please click here.

Icarus article

©2020 by the American Bar Association.  Reprinted with permission.  All rights reserved.  This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Use of the Requested Material is limited to the one-time use as described above, and does not include the right to license this Requested Material, individually or as it appears in your publication, or to grant others permission to photocopy or otherwise reproduce this material.  Permission is granted to make versions for use by blind or physically handicapped persons, provided that no fees are charged.

Use of the Requested Material is granted on a non-exclusive basis and is valid throughout the world in the English language only.

If any material in the Requested Material credits another source, then you must obtain authorization from that original source.

Permission is limited solely to the text portion of the Requested Material. If any photographs, illustrations, cartoons, advertisements, etc. appear in conjunction with the Requested Material, those portions should be blocked out before reproduction, as well as text from other articles.

The reproduction of the ABA logo and/or section logos is strictly prohibited, as is the reproduction of covers and mastheads of ABA publications