Here.
Tuesday, May 20, 2014
Monday, May 19, 2014
Friday, May 16, 2014
Most-Favored-Nation Clauses Revisited: Legal and Economic Analysis and Proposal for a Guideline
G. Gürkaynak, A. Güner, J. Filson, S. Diniz, here (Word file).
Thursday, May 15, 2014
Old friends in new frocks? MFN clauses in the online hotel booking sector/14
(Previous installments here)
In conclusion, and based on the above reflections, some
tentative answers to the central question of this serial: What is really new about retail MFN clauses?
For years already, competition/antitrust circles have discussed
whether anticompetitive motives and efficiency justifications underlying the
adoption of vertical restraints in the off-line world equally applied to
on-line sales. Thus, for instance, most participants in an OECD roundtable on vertical
restraints for on-line sales agreed that “a new economic and regulatory
framework was not needed to assess the competitive implications of vertical
restraints” in the Internet economy. After all, as recently argued by Alexander
Italiener, the EC Director-General for Competition, some of the actual issues emerging
from e-commerce, such as how to deal with on-line resellers accused of
free-riding on others’ promotional efforts, are hardly a novelty. Differences
in scale and speed notwithstanding, mail order companies in the pre-Internet
time were accused of doing broadly the same.
With regard specifically to retail MFN clauses as used by multi-sided platforms, before asking questions
about the suitability of our current economic and regulatory framework in order
assess them, it should be noted that this type of vertical restraint might raise some "original" competition concerns.
(To be continued)
Wednesday, May 14, 2014
Old friends in new frocks? MFN clauses in the online hotel booking sector/13
(Previous installments here)
Notwithstanding, the Competition Commission validly argues that narrow MFNs are much less a cause for concern than wide MFNs. Generally, under narrow MFNs, competition between PCWs is not critically restricted, since PMI providers can quote different premiums on different PCWs. Nor is entry to the PCW market substantially hampered, since insurers can pass through to lower prices the smaller CPA fees required by new entrants. Moreover, an innovative PCW can still be “rewarded” by the insurer by quoting a lower price on the PCW’s platform.
The Commission also recognizes that, under specific circumstances, there might still be some tangible anticompetitive effects. However, as seen above, the Commission maintains that, at present, narrow MFNs impose significant network effects only in very few instances, and, therefore, their overall impact on the market is much limited. The Commission’s reasoning is not totally convincing, though. In particular, the widespread use of retail MFN clauses in the MPI industry could have hampered the development of the insurer’s direct sales channel. This means that it cannot be excluded that, once any type of MFN clause banned, the insurer will have more incentives to invest in making her own direct online channel grow.
At any rate, when a narrow MFN clause produces anticompetitive effects, it might still be possible to demonstrate the occurrence of specific efficiencies outweighing the harm to competition. Thus, it could be alleged that narrow MFNs prevent the insurer from free-riding on PCW’s investments. However, there might be alternative, less restrictive mechanisms than a narrow MFN clause to prevent this from occurring. For instance, consumers that use the PCW’s facilities for search and then purchase on the insurer’s website are rather easily identifiable by way of cookies or other means, and the contract between the insurer and the PCW can require that also in this case a fee must be paid to the latter.
Notwithstanding, the Competition Commission validly argues that narrow MFNs are much less a cause for concern than wide MFNs. Generally, under narrow MFNs, competition between PCWs is not critically restricted, since PMI providers can quote different premiums on different PCWs. Nor is entry to the PCW market substantially hampered, since insurers can pass through to lower prices the smaller CPA fees required by new entrants. Moreover, an innovative PCW can still be “rewarded” by the insurer by quoting a lower price on the PCW’s platform.
The Commission also recognizes that, under specific circumstances, there might still be some tangible anticompetitive effects. However, as seen above, the Commission maintains that, at present, narrow MFNs impose significant network effects only in very few instances, and, therefore, their overall impact on the market is much limited. The Commission’s reasoning is not totally convincing, though. In particular, the widespread use of retail MFN clauses in the MPI industry could have hampered the development of the insurer’s direct sales channel. This means that it cannot be excluded that, once any type of MFN clause banned, the insurer will have more incentives to invest in making her own direct online channel grow.
At any rate, when a narrow MFN clause produces anticompetitive effects, it might still be possible to demonstrate the occurrence of specific efficiencies outweighing the harm to competition. Thus, it could be alleged that narrow MFNs prevent the insurer from free-riding on PCW’s investments. However, there might be alternative, less restrictive mechanisms than a narrow MFN clause to prevent this from occurring. For instance, consumers that use the PCW’s facilities for search and then purchase on the insurer’s website are rather easily identifiable by way of cookies or other means, and the contract between the insurer and the PCW can require that also in this case a fee must be paid to the latter.
(To be continued)
FAZ: Ausgewogener Journalismus oder persönliche Kampagne gegen Google?
14. Mai 2014
Europäischer Gerichtshof bekräftigt "Recht auf Vergessenwerden" , S. 1:
Die Welt ist keine Google, S. 1;
Im Netz verweht, S. 2;
Strassburger Applaus, S. 2;
Ehrverletzende Vorschläge, S. 2;
Leben, um es auch wieder vergessen zu können, S. 9;
Internetnutzer können persönliche Daten löschen lassen, S. 15;
Daten wie Wasser, S. 15.
Europäischer Gerichtshof bekräftigt "Recht auf Vergessenwerden" , S. 1:
Die Welt ist keine Google, S. 1;
Im Netz verweht, S. 2;
Strassburger Applaus, S. 2;
Ehrverletzende Vorschläge, S. 2;
Leben, um es auch wieder vergessen zu können, S. 9;
Internetnutzer können persönliche Daten löschen lassen, S. 15;
Daten wie Wasser, S. 15.
Tuesday, May 13, 2014
A New Privacy Paradox: Young people and privacy on social network sites
G. Blank, G. Bolsover, E. Dubois, here.
Monday, May 12, 2014
Old friends in new frocks? MFN clauses in the online hotel booking sector/12
(Previous installments here)
Third, shifting the focus from the price to other elements of the offer could actually be in the interest of consumers. Economists have long recognized that boundedly rational consumers facing decisions on complex products and services might find it so difficult to compare the different offers available to them that they tend to inertia. The suppliers of products and services can reinforce consumers’ behavioural biases through the strategic adoption of over-complexity in pricing and/or qualitative characteristics of their offers, and may even try to hamper the development of new business models designed to overcome consumer inertia. However, there are products and services that are inherently difficult to compare, such as, possibly, insurance products. If the comparison website focuses on price, the offer at the top of the list, i.e. the cheapest insurance product, could well turn out to be of lower value to the consumer when the whole deal is taken into account.
It can be argued, however, whether the Competition
Commission’s strong concern with PCWs’ survival in the interest of consumers,
and supporting the defense of narrow MFN clauses, is really warranted. First, and contrary to the Commission’s
allegation, it would seem that PCWs can thrive also without narrow MFNs, as the
experience in other industries shows.
Thus, for instance, PCWs in the air travel sector exist and prosper despite the
fact that the prices of flight tickets advertised on the airlines’ own websites
are often lower than the rates displayed on some PCWs.
Furthermore, investing in PCWs despite potential “consumer
leakage” to the insurers' websites could still be worthwhile because of the economic value of personal
data. Typically, a consumer visiting a
PCW in search of a PMI policy has to answer a long list of rather detailed questions
which in particular aim at identifying the consumer’s risk profile. Thus, in
the process of searching and comparing the most suitable offers, even if consumers do not
“click through” to the insurers’ websites to finalize the purchase, PCWs gather
information, also in aggregated form, that can be of substantial economic value to
insurers and other market participants.
(To be continued)
Saturday, May 10, 2014
Friday, May 09, 2014
DRAFT UK COPYRIGHT REGULATIONS 2014
Secondary Legislation Scrutiny Committee, Report and Transcript.
Old friends in new frocks? MFN clauses in the online hotel booking sector/11
(Previous installments here)
Because of convincing evidence that interbrand competition, here
competition between insurance brands measured by the rate of consumers’ price-based
switching, is very effective when exercised on PCWs, the Competition Commission
can be legitimately concerned not to hamper the attractiveness of these
platforms’ business model. However, while the direct anticompetitive effects of
narrow MFN clauses may appear limited, their cumulative, or “network”
effect could still have momentous consequences for competition in the PMI
market.
Once wide MFNs are prohibited, an insurer is able to agree
different PMI premiums with different PCWs. If a PCW retains, or introduces, a
narrow MFN, the insurer will be constrained not to offer on its own website a
premium lower than the price agreed with that PCW. When the same insurer agrees
on a narrow MFN clause with a number of PCWs, the cumulative effect is that the
insurer's directly offered price cannot be lower than the price it offers on
any of its partner PCWs’ websites. The end result is that the price displayed
by the insurer on its own website would be the same as the least competitive partner PCW.
Therefore, one unintended consequence of the cumulative
effect of narrow MFNs could be that the PMI providers with significant and
high-profit direct sales would still prefer charging the same price through all
PCWs in order to maintain the attractiveness of their own channel, so that the
narrow MFN clause becomes a de facto
wide MFN clause. Of course, this in turn will depend on a number of factors,
such as the strength of the PMI’s brand and the presence of alternative channels
to efficiently market PMI policies, which make direct sales less attractive to
the PMI.
(To be continued)
Thursday, May 08, 2014
Old friends in new frocks? MFN clauses in the online hotel booking sector/10
(Previous installments here)
(To be continued)
The Competition Commission, as part of its investigation
into the PMI industry, found that retail MFN provisions were present in the
contracts between platforms and PMI providers covering the vast majority of
policies sold in 2012 via the four largest PCWs in the UK. In this sector, a retail
MFN clause aims at avoiding that, based on an identical consumer proposition
and risk profile, either an insurer can provide a lower price on any other online sales
channel than it is advertised on the PCW’s website, so called wide (or online-sales) MFNs, or the
insurer can provide a lower price on its own website than it is advertised on
the PCW’s website, so called narrow (or
own website) MFNs.
While narrow MFNs are slightly more widespread than wide
MFNs in the PMI sector, the Competition Commission maintained that wide MFN
clauses have a very significant impact because of what the Commission called a “network
effect:” when a PMI policy sold through PCWs is covered by at least one wide MFN clause with one PCW, this stops any other PCW offering cheaper premiums for that policy. In other words, a wide retail
MFN clause with a single PCW constrains the pricing of the insurance policy at
issue on all PCWs. Significantly, the Competition Commission also noted that most
of the policies sold through PCWs are covered by at least one wide MFN clause
with one PCW.
Much in line with the Bundeskartellamt’s competition
assessment of retail MFN clauses in the hotel online booking case briefly
outlined above, the Competition Commission, in the provisional findings
published last December, found that wide MFN clauses reduce competition and
lead to higher premiums. Among
the possible remedies, the Commission envisaged a prohibition on wide MFN
clauses on price comparison websites. Narrow MFN clauses, however, according to the Competition Commission should not
be banned, because their anticompetitive effects are much limited. Apparently,
the Competition Commission took in some consideration the main argument put
forth by platforms in defense of narrow MFN clauses. Without some form of MFN, the
PCWs maintained that the end consumer would go to a price comparison site for
search, but then switch to the insurer in order to make the actual purchase, on the
premise that the insurer would be willing to pass on to the end consumer at
least part of the CPA fee. In the short term, the end consumer is better off
because she saves a small amount on her insurance policy premium. Longer term, however, the tangible benefits brought to consumers by PCWs would likely evaporate.
(To be continued)
Wednesday, May 07, 2014
Old friends in new frocks? MFN clauses in the online hotel booking sector/9
(Previous installments here).
It is not difficult to predict a growing attention by
competition enforcers towards vertical restraints involving online platforms active in other industries. In the UK, the Competition Commission found that retail
MFNs are very common also in the motor insurance sector, where buying policies
online through price comparison websites (PCWs) is increasingly popular. The first
PCWs gathered prices visiting private motor insurance (PMI) providers’ websites and extracting
information from those pages algorithmically (so called screen-scraping), also
despite insurers’ widespread opposition to the practice. With time, PCWs were able to
develop stable commercial relationships with PMI providers, who now make
available directly to the PCWs detailed information concerning actual premiums
and policies.
In order to be survive, PCWs must be attractive to both customers and insurers. To consumers, PCWs offer tools to compare premiums and
policies; to insurers,
also to niche ones, PCWs offer an appealing shop window where to present their
products. In order to attract customers to their platforms, PCWs spend
substantial amounts of money in TV advertising, in adverts to Google,
etc. When a customer finds a PMI policy which she wishes to buy, she clicks
through to the insurer’s website and purchases the desired product. Typically,
the PMI provider pays the PCW a fee for every policy purchased (so called cost
per acquisition – CPA - fee), which is not based on the actual premium paid by the consumer.
(To be continued)
Tuesday, May 06, 2014
Case C-74/14, Eturas – computerised cartels and limits on price discounts for travel package tours
Eulawradar.com, here.
Official English version now available.
1. Should Article 101(1) of the Treaty on the Functioning of the European Union be interpreted as meaning that, in a situation in which economic operators participate in a common computerised information system of the type described in this case and the Competition Council has proved that a system notice on the restriction of discounts and a technical restriction on discount rate entry were introduced into that system, it can be assumed that those economic operators were aware, or must have been aware, of the system notice introduced into the computerised information system and, by failing to oppose the application of such a discount restriction, expressed their tacit approval of the price discount restriction and for that reason may be held liable for engaging in concerted practices under Article 101(1) TFEU?
2. If the first question is answered in the negative, what factors should be taken into account in the determination as to whether economic operators participating in a common computerised information system, in circumstances such as those in the main proceedings, have engaged in concerted practices within the meaning of Article 101(1) TFEU?
Official English version now available.
1. Should Article 101(1) of the Treaty on the Functioning of the European Union be interpreted as meaning that, in a situation in which economic operators participate in a common computerised information system of the type described in this case and the Competition Council has proved that a system notice on the restriction of discounts and a technical restriction on discount rate entry were introduced into that system, it can be assumed that those economic operators were aware, or must have been aware, of the system notice introduced into the computerised information system and, by failing to oppose the application of such a discount restriction, expressed their tacit approval of the price discount restriction and for that reason may be held liable for engaging in concerted practices under Article 101(1) TFEU?
2. If the first question is answered in the negative, what factors should be taken into account in the determination as to whether economic operators participating in a common computerised information system, in circumstances such as those in the main proceedings, have engaged in concerted practices within the meaning of Article 101(1) TFEU?
Old friends in new frocks? MFN clauses in the online hotel booking sector/8
(Previous installments here)
The German competition authority also
noted that there are alternative ways to achieve some of the benefits HRS
ascribes to the retail MFN clause which do not carry the same serious anti-competitive
consequences, such as, by way of example, monthly listing fees, or cookie-based
marketing fees, paid directly by the hotels to the OTAs. These alternative
business models would ensure HRS a direct financial reward for the services it
provides to hotels, irrespective of the actual sales it generates. Another
possibility would be combine a fixed rate, such as a listing fee, with a
variable look-to-book conversion rate.
At any rate, the Bundeskartellamt expects that, once the conditions
for healthy competition in the industry are redressed, business models will develop
that are attuned to the modified market conditions and demands. Interestingly,
the “natural experiment” conducted since April 2012, when HRS pledged not to
enforce the retail MFN clause in its contracts with hotels, would seem to demonstrate
that OTAs are not doomed to develop into financially unsustainable “hotel
search engines.” In fact, despite the demise of the retail MFN provision, HRS
was able to safeguard its position as a leading OTA in the German market. However,
this can also depend on the consumers’ tendency not to switch between OTAs (“singlehoming”),
an attitude reinforced by the best price guarantee still dominant in the hotel
industry.
Possibly, given the German competition authority’s focus on the
retail MFN clause, it was not deemed
necessary to assess whether the vertical price fixing provision contained in
the “agency” agreement was by itself anticompetitive, or whether it could be justified
due to the efficiency benefits ascribed to it. While European competition law generally permits
a hotel to harmonize its distribution networks to avoid “free-riding” and to stimulate
interbrand competition, even if this might tend to eliminate intrabrand price competition,
in the on-line travel case investigated by the German competition authority there is clear evidence that the retail price MFN was actually requested by HRS, thus dictating to the hotels an essential element of their pricing policy.
(To be continued)
Monday, May 05, 2014
Old friends in new frocks? MFN clauses in the online hotel booking sector/7
(Previous episodes here)
Still,
the protection of sunk and fixed cost investments, a generally accepted benefit
of many vertical restrictions, could potentially apply also to retail MFN clauses. In
the hotel online booking decision, the German competition authority discussed
at length whether the MFN clause employed by HRS, the investigated OTA, aimed
at protecting the investments required for a high-quality online booking offering,
such as a fruitful search experience, and the provision of extensive, and reliable,
information sources, by that promoting quality competition among OTAs. HRS made
the case that it invested heavily in producing a good-quality service in
order to attract customers, and that the employed retail-price MFN limited the diversion
of consumers from HRS’ platform to the hotels’ own websites and to other OTAs. If
consumers discovered that they could find cheaper hotel rates elsewhere, they
might still use the hotel search and other facilities developed by HRS but not
book the room through the HRS platform, by that undermining HRS’ and other OTAs incentives to
invest in quality competition among platforms.
Following detailed analysis, the
Bundeskartellamt was unconvinced by HRS' argument about the seriousness of the free-rider problem. First, the German competition authority noted
that only a very small amount of HRS’ investments goes into the promotion of single
hotels offerings; the largest part of HRS’ investments is devoted to the
promotion and the enhancement of the platform itself. In case consumers booked
hotel rooms directly via the hotels’ websites, the platform-specific investments
would not be significantly discouraged. The prohibition of retail MFN clauses
notwithstanding, the OTAs would continue investing in the quality of their services.
Moreover, the so-called billboard effect
(i.e. the additional reservations made through the hotel’s website after
inclusion in the OTA’s listing) is limited, especially due to the structure of
the hotel industry in Germany, where there are many small and medium
operators whose websites normally do not offer the same booking functionalities
and comfort available to consumers without charge on the HRS' platform (e.g. immediate booking). The
billboard effect in favour of the major hotel chains in the German market is also
bound to be relatively insignificant, in particular because consumers already tend
to seek out brand hotel chains’ websites directly.
Friday, May 02, 2014
Old friends in new frocks? MFN clauses in the online hotel booking sector/6
(Previous installments here)
Tentatively, one of reasons explaining the OFT’s focus on the vertical price fixing element of the investigated practices could be that retail-price MFN clauses stand for largely uncharted terrain, both in economic and legal terms. Another, more consequential reason could be that the effective operation of a retail-price MFN under certain circumstances is predicated on the ability of the supplier, here the hotel, to control prices. If an OTA imposes a retail-price MFN clause on a hotel, the latter has to make sure that the “favoured” OTA is not undercut by the latter's competitors, or otherwise match the lower retail-price. The hotel may then be willing to resort to minimum resale prices with a view to ensuring that nobody offers lower room-only rates than the ones displayed on the website of the OTA imposing the retail-price MFN clause. In this case, it would be the retail-price MFN that leads to RPM.
An important consequence of the “MFN explanation” for the operation of RPM is that it might become even more difficult to rationalize (and exempt) the latter by pointing to commonly alleged efficiency reasons, such as safeguarding retailers (here, OTAs) against free-riding. Moreover, this would mean that only when the possibility of “transmission” between the retail-price MFN clause and RPM is explicitly ruled out, it would perhaps make sense to focus exclusively on the latter. Conversely, when it can be demonstrated that, in the context of a specific case, RPM provides a mechanism to ensure the effective operation of a retail-price MFN clause, the question arises whether efficiency benefits exempting the latter could also redeem RPM’s “own” anticompetitive effects.
Admittedly, this and a number of equally important questions are difficult to answer, at least for the time being. For once, the potential efficiency explanations for retail-price MFNs are still to be thoroughly analysed. Recently, economists writing in support of Apple’s appeal against a US District Court’s ruling finding that Apple and some book publishers had conspired to raise the prices of e-books, maintained that the MFN clause, a crucial element of the alleged conspiracy, under certain circumstances can facilitate entry.
Thursday, May 01, 2014
Wednesday, April 30, 2014
Resale Price Maintenance: A Review and Call for Research
AAI Working Paper (Authors: G. Grundlach, K. Manning, J. Cannon), here.
I couldn't agree more: we still know comparatively little about the economic effects of RPM, and additional research beyond orthodox economics is needed (the evolutionary economics research paper written together with Wolfgang Kerber in 2004, and quoted by the AAI Working Paper, hinted exactly at this; BTW, I authored also a rather voluminous piece on vertical restraints from an evolutionary perspective - much shorter here).
I couldn't agree more: we still know comparatively little about the economic effects of RPM, and additional research beyond orthodox economics is needed (the evolutionary economics research paper written together with Wolfgang Kerber in 2004, and quoted by the AAI Working Paper, hinted exactly at this; BTW, I authored also a rather voluminous piece on vertical restraints from an evolutionary perspective - much shorter here).
Tuesday, April 29, 2014
SCOTUS on the legal standard for shifting attorney's fees in patent litigation
Octane Fitness v. Icon Health and Fitness, here.
"We crafted the Noerr-Pennington doctrine—and carved out only a narrow exception for “sham” litigation—to avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances...But to the extent that patent suits are similarly protected as acts of petitioning, it is not clear why the shifting of fees in an “exceptional” case would diminish that right. The threat of antitrust liability (and the attendant treble damages, 15 U. S. C. §15) far more significantly chills the exercise of the right to petition than does the mere shifting of attorney’s fees. In the Noerr-Pennington context, defendants seek immunity from a judicial declaration that their filing of a lawsuit was actually unlawful; here, they seek immunity from a far less onerous declaration that they should bear the costs of that lawsuit in exceptional cases."
Comparative Analysis of National Approaches on Voluntary Copyright Relinquishment
WIPO Study, prepared by A. Guadamuz, here.
Monday, April 28, 2014
Un taxi pour l'avenir, des emplois pour la France
T. Thévenoud, Mission de concertation Taxis - VTC, ici.
Thursday, April 17, 2014
Wednesday, April 16, 2014
Tuesday, April 15, 2014
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Public Knowledge, here .
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On 24 March 2004 the European Commission fined Microsoft for abuse of dominant position (H/T Lewis Crofts). 18 years (age of maturity) l... -
Centre for a Digital Society , Video here . These are my very rough talking points on pay or okay in full length (more than I actually had...
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A. Blankertz, hier .
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Frankfurter Allgemeine Zeitung, 01.07.2013, Nr. 149, S. 22 Für ein Stück vom Software-Kuchen Usedsoft AG kämpft immer noch gegen Widerständ...
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Report to the California Law Review Commission Antitrust Law: Study B-750, here .
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InternetLab, here .
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CMA, here .
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Panel, Programme here , Video here .
