Is the old world of competition law overwhelmed by the digital economy? In any case, this is what MEPs Daniel Fasquelle (LR) and Valéria Faure-Muntian (LREM) suggest, co-rapporteurs of an information mission on the major structuring digital platforms.
It is however not for want of trying, since the Competition Authority had itself announced, at the beginning of the year, to strengthen its expertise on the digital economy. However, these efforts seem insufficient in view of the magnitude of the task: “competition law faces intrinsic weaknesses, which currently allow us to act, especially on a case-by-case basis and in an ex post manner”, assured Daniel Fasquelle, last week, before the Economic Affairs Committee of the National Assembly.
Co-rapporteurs of the fact-finding mission deplore the monopoly of the Internet giants, which has only grown stronger for two decades, far from having weakened during the health crisis, noted Valéria Faure-Muntian .
Deploring the successive takeovers made by Gafam, including Google and Facebook, on emerging companies, the co-rapporteurs of the mission consider that the time has come to control these acquisition operations further upstream. “We must act further upstream to prevent damage to the proper functioning of markets,” defends Daniel Fasquelle. “Today in law, concentrations are examined a posteriori. We would like to create a new mechanism which will apply to structuring companies in order to obligatorily notify any wish to acquire ”, details his colleague.
Take into account the specificities of large platforms
MEPs also argue that the traditional analysis tools of the authorities are no longer sufficient in the face of web giants. The sanctions imposed on them seem to them to be “insufficiently dissuasive”. Another weakness of competition law is due to its “legal vacuum” linked to the turnover criterion, which “does not allow all the sensitive operations carried out by the platforms to be controlled”. These limits should therefore encourage the authorities to organize a new, more traditional regulation of complementary competition law, say MEPs.
In order to better adapt to the specificities of structuring digital platforms, this new regulation will, firstly, have to grasp its contours, they suggest.
MEPs also recommend that “the concept of consumer well-being should be redefined beyond the threshold of the price criterion, which is often obsolete in disputes involving two-sided platforms offering free services”, specifies Daniel Fasquelle. For him, “the specifics of the digital economy must lead the authorities to systematize the analysis of the non-tariff effects specific to digital, in particular, the elements relating to the preservation of personal data”.
Act earlier and faster
Procedurally, the co-rapporteurs of the fact-finding mission believe that “levers can be activated to act faster and more effectively”. They support, for example, the possibility of implementing “provisional measures” in order to avoid “irreparable damage” or even “reducing the processing times which are still far too long”.
According to Valéria Faure-Muntian, this new law should be accompanied by a “culture of transparency”, in particular on data portability and the interoperability of services, and advocate the neutrality of terminals. A necessary criterion to “avoid barriers to entry”, justifies the member. To support her remarks, she takes the example of the “opaque” management of application stores and the risks of unfair competition that exist between “home” applications and third-party applications, as revealed by a recent survey of the App Store. ‘Apple.
But who says new right, also says new regulator. For the co-rapporteurs, the administration must imperatively develop digital skills. “If we do not acquire these skills, then we will quickly be overwhelmed with our capacity for understanding and management,” warns Valéria Faure-Muntian. Even if Arcep has already expressed its interest in the subject, MEPs are kicking them off to designate a competent authority, contenting themselves with recommending the opening of a debate with the existing authorities.