Multiplicity of tools for antitrust and consumer protection in digital markets: the Italian experience and the road ahead

Abstract

ABSTRACTThis article discusses the role of national competition authorities in the digital sector in the lights of new legislative initiatives in Europe. It argues that the availability of multiple tools offers new opportunities to balance objectives such as flexibility, harmonization, timeliness and legal certainty, helping to enhance effectiveness. Further, it discusses the recent enforcement experience of the Autorità Garante della Concorrenza e del Mercato (AGCM), which has the dual mandate to enforce competition and consumer protection rules in Italy. The AGCM has used antitrust tools to empower consumers with choice, through a number of landmark digital cases on issues related to access and visibility in online marketplaces, refusal to deal and interoperability, data value and portability, privacy and advertising, and unfair negotiations. The AGCM has used consumer protection tools to guide consumers in the selection process, concluding numerous digital investigations on online architecture, misleading information, dark patterns and choice pressure. AcknowledgementsWe wish to thank Andrea Pezzoli, Luigi Di Gaetano, Francesca Mattonai and Alessandra Catenazzo for their helpful comments. The views expressed in this paper are those of the authors and do not necessarily reflect the views of the Italian Competition Authority.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Cf. Compendium of Approaches to Improving Competition in Digital Markets (G7 Germany 2022) 7–10; Regulation n. 1925/2022 on contestable and fair markets in the digital sector (Digital Markets Act), recitals 2–4. For further discussion, see F Jenny, Competition Law and Digital Ecosystems: Learning to Walk Before We Run (4 April 2021) .2 Cf. OECD, Interactions Between Competition Authorities and Sectoral Regulators – Contribution from the European Union (16 November 2022).3 Stigler Committee on Digital Platform (Final Report 2019) ; see also, e.g. T Tombal, ‘Ensuring Contestability and Fairness in Digital Markets Through Regulation: A Comparative Analysis of the EU, UK and US Approaches’ (2022) 18 European Competition Journal.4 To speed up the process, the first round of gatekeepers will be identified on the basis of quantitative presumptions listed in article 3(2) DMA.5 C Carugati, ‘How the European Union Can Best Apply the Digital Markets Act’ Bruegel Blog (4 October 2022).6 The joint declaration of European competition authorities emphasises that NCAs maintain a crucial role in ex post enforcement and also in the implementation of the DMA, to help determining whether a specific behaviour by a gatekeeper constitutes a violation of one of the provisions of articles 5 and 6 DMA, in complex and dynamic digital markets. The paper also makes the case that, while the European Commission is responsible for the primary application of the DMA, the effectiveness of the DMA would benefit from a complementary possibility of enforcement of the DMA by national competition authorities, on a voluntary basis, either to help DG Comp (e.g. by receiving complaints, conducting dawn raids if necessary or sending RFIs) or to directly enforce the DMA when appropriate, in close coordination the European Commission. Cf. European Competition Network, Joint Paper of the Heads of the National Competition Authorities of the European Union – How National Competition Agencies Can Strengthen the DMA (22 June 2021) ; speech of Commissioner Vestager of 17 March 2021 at the European Internet Forum ([y]ou could think of our work, as a competition authority, as being a bit like clearing out the rubbish that’s been dumped in a river, to keep it flowing smoothly and well. And with the Digital Markets Act, it’s rather as though a sort of filter is being installed, a little way upstream, which removes some of that debris before it gets to us. It won’t change our powers – but its presence does mean that we won’t have the same problems to deal with in the future. It means some kinds of behaviour simply won’t reach us – because the Act will make sure that those things don’t happen. But of course, the issues that remain, in digital markets and elsewhere, will still keep us very busy in the years to come).7 Cf. e.g. article 4 DMA on the revision of gatekeeper status; articles 10 to 19 DMA on the possibility to open a market investigation with the aim to define new services and practices and, on that basis, update obligations for gatekeepers according to Art. 12 DMA; article 53 on the DMA’s evaluation every three years.8 Cf. European Competition Network, Joint Paper of the Heads of the National Competition Authorities of the European Union – How National Competition Agencies Can Strengthen the DMA (22 June 2021) .9 The DSA will be directly applicable across the EU from 17 February 2024, fifteen months after entry into force. By then, Member States need to empower their national authorities to enforce the new rules on smaller platforms and rules concerning non-systemic issues on very large online platforms and very large online search engines.10 Cf. Compendium of Approaches to Improving Competition in Digital Markets (G7 Germany 2022) 7–10; Stigler Committee on Digital Platform (Final Report 2019) .11 Cf. in relation to telecom regulation, judgment of the Court of Justice of the European Union of 11 November 1997, case C-359/95 P and C-379/95 P, Commission and France c. Ladbroke Racing, ECLI:EU:C:1997:531, par. 80.12 D Bergemann, A Bonatti and T Gan, ‘The Economics of Social Data’ RAND Journal of Economics (April 2022), showing that dispersed users do not internalize the impact of their data contribution on service quality for other users as well as market concentration and entry: therefore, a dominant firm may acquire data which allows to reinforce its position in the market where it offers its core services, or to leverage its market power in another market. At the same time, potential entrants may use data to enter more easily into the market, and thereby data would render such markets more contestable.13 A Acquisti, LK John and G Loewenstein, ‘What is Privacy Worth?’ (2013) 42(2) The Journal of Legal Studies 249–74.14 There is growing awareness at the international level on the relevance of merger control in digital markets: cf. e.g. Compendium of Approaches to Improving Competition in Digital Markets (G7 Germany 2022) 28 ss.15 Cf. European Commission, Guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases, C/2021/1959, OJ C113/2021.16 The position of the Italian Authority has been significantly strengthened by a number of amendments to the Italian competition law implemented in the last few months: the Authority will now be able to review mergers falling below the Italian merger control thresholds if (i) at least one of the applicable thresholds is met, or if the worldwide turnover of the undertakings concerned is higher than €5 billion; and, (ii) there is a concrete risk that the concentration would harm competition in the national market (also as regards small innovative undertakings). If these conditions are met, within 6 months from closing the Authority may request any of the undertakings to notify the transaction within 30 days. Failure to do so would amount to gun-jumping and attract fines up to 1% of the overall turnover generated in the previous financial year (cf. art. 16, para. 1-bis, of Italy’s competition law n. 287/1990, as amended in August 2022).17 Cf. AGCM, Notice on the application of art. 16, para. 1-bis, AGCM Bull. n. 46/2022.18 The AGCM can now impose a fine or periodic penalty payments up to 1% of the company’s turnover for supplying incorrect, incomplete or misleading information even before the opening of a formal investigation.19 In the last few months, the Italian Authority has concluded an increasing number of investigations for abuse of economic dependence. Cf. AGCM, commitment decision of 31 January 2023, case A543 – Rapporti contrattuali tra Benetton e i suoi rivenditori, AGCM Bull. n. 8/2023; AGCM, commitment decision of 14 June 2022, case A546 – Franchsing di McDonald’s, AGCM Bull. n. 25/2022.20 Cf. art. 9 of law n. 192/1998 on contractual relationships along supply chains and sub-contracts.21 AGCM, prohibition decision of 11 May 2017, case PS10601 – Whatsapp/Trasferimento dati a Facebook, AGCM Bull. n. 18/2017. AGCM, prohibition decision of 29 November 2018, case PS11112 – Facebook/Condivisione dati con i terzi, AGCM Bull. n. 46/2018. All decisions referred to in this paper are available in Italian on the Italian competition authority’s website: .22 For a summary of the German Facebook case, cf. e.g. M Wasastjerna, Competition, Data and Privacy in the Digital Economy: Towards a Privacy Dimension in Competition Policy? (Kluwer 2020) 146 ss.23 AGCM, prohibition decision of 30 November 2021, in case A528 – FBA Amazon, AGCM Bull. n. 49/2021 (as of 7 November 2023, the appeal of the decision by Amazon is still pending before Italian lower courts).24 European Commission, commitment decision of 20 December 2022, case AT.40703 – Amazon – Buy Box, available on DG Comp's website.25 AGCM, prohibition decision of 16 November 2021, case I842 – Vendita prodotti Apple e Beats su Amazon Marketplace, AGCM Bull. n. 47/2021. The Italian Competition Authority’s decision has been annulled on procedural grounds by Italian lower courts, but the judgment has been appealed by the Authority before upper courts (as of 7 November 2023, the appeal is still pending).26 AGCM, prohibition decision of 27 April 2021, case A529 – Google/Compatibilità App Enel X Italia con Sistema Android Auto, AGCM Bull. n. 20/2021 (the decision has been confirmed by lower courts but, as of 7 November 2023, appeal before upper courts is still pending).27 Cf. art. 20 of EU General Data Protection Regulation n. 679/2016, which grants users the right to data portability, including the right that their personal data is directly transferred from one company to another.28 AGCM, decision to open proceedings of 5 July 2022, in case A552 – Google/Ostacoli alla portabilità dei dati, AGCM Bull. n. 27/2022, para. 41.29 AGCM, commitment decision of 18 July 2023, in case A552 - Google/Ostacoli alla portabilità dei dati, AGCM Bull. n. 29/2023.30 AGCM, decision to open proceedings of 2 May 2023, case A561 (still pending); see press release in English .31 AGCM, decision to open proceedings of 5 April 2023, case A559 (still pending); see press release in English available at the following address: .32 AGCM, decision to adopt interim measures of 20 April 2023, case A559, AGCM Bull. n. 16/2023.33 Stigler Committee on Digital Platform (Final Report 2019) ; CMA, Online Choice Architecture, How digital design can harm competition and consumer, April 2022; Yale Tobin Center for Economic Policy, Digital Regulation Project, Consumer Protection for Online Markets and Large Digital Platforms, Policy Discussion Paper 1/2021.34 AGCM, prohibition decision of 18 January 2022, case PS11523 – Traghettilines-it/Problematiche varie, AGCM Bull. n. 7/2022 (the decision has been annulled by Italian lower courts but, as of 7 November 2023, appeal by the AGCM before upper courts is still pending).35 AGCM, prohibition decision of 11 May 2017, case PS10601 – Whatsapp/Trasferimento dati a Facebook, AGCM Bull. n. 18/2017 (the case has been confirmed by Italian courts).36 AGCM, commitment decision of 17 March 2020, case PS10769 – Booking/servizi turistici on line, AGCM Bull. n. 12/2020; AGCM, commitment decision of 18 September 2019, case PS10770 – Expedia/servizi turistici on line, AGCM Bull. n. 12/2020.37 AGCM, prohibition decision of 20 February 2019, case PS11272 – Wizzair/modifica policy bagagli, AGCM Bull. n, 8/2019; AGCM, prohibition decision of 20 February 2019, case PS11237 – Ryanair/modifica policy bagagli, AGCM Bull. n, 8/2019 (both decisions have been annulled by Italian courts considering that such additional fee could legitimately be requested at a subsequent phase of the purchasing process).38 AGCM, prohibition decision of 25 October 2022, case PS12003 – Vinted-problematiche varie, AGCM Bull. n. 41/2022 (as of 7 November 2023 appeal against the decision is still pending). The Italian Authority has concluded numerous other cases on consumer protection grounds with the aim of securing a safe and informed online shopping experience, for example concerning misleading information on price and product availability or delivery (AGCM, prohibition decision of 11 January 2022, case PS11912 – Gamestop Italy-Problematiche di consegna e altro, AGCM Bull. n. 4/2022, for which appeal is still pending as of 7 November 2023; AGCM, prohibition decision of 3 December 2021, case PS11770 – Unieuro-Monclick vendite online, AGCM Bull. n. 51/2021, for which appeal is still pending as of 7 November 2023; AGCM, prohibition decision of 3 December 2021, case PS11815 – Leroy Merlin vendite online, AGCM Bull. n. 51/2021, which has been confirmed on appeal except on the amount of the fine; AGCM, prohibition decision of 3 December 2021, case PS11839 – Mediaworld vendite online, AGCM Bull. n. 51/2021, which has been confirmed on appeal except on the amount of the fine).39 AGCM, prohibition decision of 29 November 2018, case PS11112 – Facebook/Condivisione dati con i terzi, AGCM Bull. n. 46/2018. The decision by AGCM also considered that Facebook implemented an additional unfair commercial practice, which was considered aggressive, to the extent that the option of granting access to personal data for commercial purposes was pre-selected, and fined such practice for additional 5 million euro. This part of the decision has been annulled by Italian courts, that did not share the Authority’s view that such pre-selection was deemed to be aggressive.40 AGCM, decision of 9 February 2021, case IP330 – Facebook/Raccolta utilizzo dati degli utenti AGCM Bull. n. 8/2021 (the decision has not been appealed).41 AGCM, prohibition decision of 16 November 2021, case PS11147 – Google Drive/Sweep 2017, AGCM Bull. n. 47/2021 (confirmed on appeal by courts of first instance); AGCM, prohibition decision of 9 November 2021, case PS11150 – ICloud, AGCM Bull. n. 47/2021 (the decision has been annulled by Italian lower courts but, as of 7 November 2023, appeal by the AGCM before upper courts is still pending).42 AGCM, prohibition decision of 19 December 2014, case PS9345 – Tripadvisor/false recensioni on line, AGCM Bull. n. 50/2014 (case confirmed on appeal but with fine reduction).43 AGCM, commitment decision of 30 September 2021, case PS12009 – BAT/pubblicità occulta Glo sui social network, AGCM Bull. n. 41/2021; AGCM, commitment decision of 25 February 2020, case PS11435 – Insanity page/pubblicità occulta Barilla, AGCM Bull. n. 11/2020.44 AGCM, commitment decision of 10 November 2020, case PS11716 – Amazon/Vendita online prodotti emergenza sanitaria, AGCM Bull. n. 49/2020; AGCM, commitment decision of 10 November 2020, case PS11717 – eBay/Vendita online prodotti emergenza sanitaria, AGCM Bull. n. 49/2020. To a certain extent, however, such cases have anticipated the idea behind the DSA, and a number of other cases concluded by the Italian competition authority in recent years have actually anticipated solutions subsequently adopted by sectoral regulation: another example is offered by the Authority’s action against planned obsolescence, with two far-reaching decisions alleging that software updates for Samsung and Apple smartphones had the effect of deteriorating the device’s performance, based on evidence from customers’ repair requests which showed an unusual peak following the release of software updates (AGCM, prohibition decision of 25 September 2018, case PS11009 – Samsung/Aggiornamento software, AGCM Bull. n. 40/2018, confirmed by Italian lower courts but as of 7 November 2023 appeal by the AGCM before upper courts is still pending; AGCM, prohibition decision of 25 September 2018, case PS11039 – Apple/Aggiornamento software, AGCM Bull. n. 40/2018, which has been annulled by Italian upper courts for lack of sufficient evidence). The Authority’s cases anticipated the interest of the EU legislator on product durability for achieving more sustainable consumption patterns (cf. European Commission, Proposal for a Directive amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and better information, SEC (2022) 166 final).45 AGCM, commitment decision of 19 July 2022, case PS12177 – Wizzair-Presentazione e costo servizi accessori, AGCM Bull. n. 30/2022; cf. also press releases on informal proceedings (moral suasion) positively concluded against airline companies Volotea, EasyJet and Ryanair (cases PS12174, PS12175 and PS12176, available on the Italian Competition Authority’s website). On dark patterns, cf. also European Commission, Guidance on the interpretation and application of Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market, C/2021/9320, OJ C526/2021.46 AGCM, prohibition decision of 20 December 2022, case PS11852 – Yoox vendite online, AGCM Bull. n. 3/2023 (appeal still pending as of 7 November 2023): in this case, the promotional prices was compared to a previous higher price that was not the product’s usual selling prices, say the price applied in the previous months, and so the message gave a deceptive impression of the price advantage the consumer enjoys by purchasing the product now.47 AGCM, commitment decision of 17 November 2020, case PS11595 – Activision Blizzard/acquisti nei videogiochi, AGCM Bull. n. 48/2020.48 AGCM, decision to open proceedings of 21 March 2021, case PS12543 (still pending); see press release in English available at the following address: .