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Purpose This study aims to analyze the development of digital market characteristics particularly focusing on how the strategic choices of platforms are not fully reflected in pricing. In addition, the implications for the development of theories of harm are investigated to explore the necessity of a relevant market definition in assessing infringement and evaluating the adequacy of Indonesian competition law. Design/methodology/approach This study is a legal analysis that uses statutory approaches, cases, comparative law and the development of theories of harm in digital mergers. The case approach is conducted by analyzing three cases decided by the Indonesia Business Competition Supervisory Commission. This approach provides insight into the response of Komisi Pengawas Persaingan Usaha concerning the merger and acquisition cases in the digital era as well as the provision of different analyses in conventional markets. However, competition can be potentially damaged in digital markets and a comparative law approach is taken by analyzing digital merger cases decided by authorities in other countries. Findings Results reveal that the digital market has created a “relevant market” that is challenging and blurred due to multi-sided network effects and consumer data usage characteristics. Platform-based enterprises’ prices fluctuate due to the digital market’s network effect and consumer data statistics. Smartphone prices depend on the number of apps and consumer data. Neoclassical theory focusing on product markets and location applied in Indonesia must be revised to establish a relevant digital economy market. To evaluate digital mergers, new harm theories are needed. The merger should also protect consumer data. Law Number 27 of 2022 on Personal Data Protection and Government Regulation on the Implementation of Electronic Systems and Transactions protects online consumers, a basic step in due diligence for digital mergers. The Indonesian Government should promptly strengthen the notion of “relevant markets” in the digital economy, which could lead to fair business competition violations like big data control. Notify partners or digital merger participants of the accessibility of sensitive data like transaction history and user location. Originality/value The development of digital market characteristics has implications for developing theories of harm in digital markets. Indonesian competition law needs to develop such theories of harm to analyze the potential for anticompetitive digital mergers in the digital economy era.

The advent of big data analytics has favoured the emergence of forms of price discrimination based on consumers’ profiles and their online behaviour (i.e. personalised pricing). The paper analyses this practice as a possible exploitative abuse by dominant online platforms. The paper argues that, in view of its “mixed” effect on consumers’ welfare, personalised pricing requires a case-by-case assessment under EU competition law and thus it should not be banned a priori. However, in view of the recent case law of the European Court of Justice on price discrimination, the National Competition Authorities (NCAs) and the European Commission would face a high burden of proof to sanction this conduct under Art. 102(c) TFEU. Finally, the paper argues that, due to its case-by-case approach, competition law seems more suitable than omnibus regulation to tackle the negative effects that personalised pricing could have on consumers’ welfare. In particular, an NCA/the European Commission could negotiate with online platforms different kinds of behavioural commitments: transparency requirements, limits on data collection/user profiling, rights to opt out of personalised pricing and the obligation to share customers’ data with competitors could significantly tame the risks of personalised pricing.

Innovation plays a crucial role in defining competitive dynamics. Given this fact, one might expect ‘innovation’ to play a consistent role in antitrust law. The present article conducts a systematic content analysis of the case law of the Court of Justice of the European Union to test this hypothesis. The findings suggest that EU courts treat innovation inconsistently in competition law cases, often assigning different weight to innovation in similar contexts and neglecting central parameters agreed upon in the literature. To address this inconsistency, the article proposes measures to maintain the predictability of competition law analysis while giving innovation a more central role in the definition of relevant markets, evaluation of market power, and assessment of practices.

In seiner zweiten Entscheidung über das „Crailsheimer Stadtblatt“ fügt der BGH die Rechtsprechung zur Staatsferne der Presse, zur Wettbewerbsteilnahme der Kommunen und zur staatlichen Öffentlichkeitsarbeit zu einem Gesamtbild. Markus Winkler (JZ 2019, 367) sieht dabei zusammenwachsen, was nicht zusammengehört, und hält das Urteil für unvereinbar mit der Garantie der kommunalen Selbstverwaltung.

The 2023 Merger Guidelines (MGs) change the Agencies’ narrative regarding non-horizontal mergers. They follow a four-pronged approach: (1) They blend horizontal and non-horizontal mergers. (2) They simplify the narrative about non-horizontal mergers. (3) They consolidate and broaden the theories of harm in non-horizontal mergers. (4) They blend economics and law analysis. In this article, we elaborate on these points. We discuss how the MGs’ anticompetitive presumptions apply to non-horizontal mergers, relate them to the economics literature, and provide examples. We finish discussing the economic rationale of the structural presumption involving rivals’ exit concerns due to the exercise of market power and propose a path forward.

This article is designed to explicate the somewhat misunderstood analysis in the 2023 Merger Guidelines (MGs) and situate the MGs in the context of the legal as well as economic environment in which they operate. The MGs refine economic analyses in previous MGs, renew emphasis on certain competitive concerns and approaches, and add several emerging new competitive issues. They also integrate certain goals of post-Chicago and Neo-Brandeisian approaches to merger analysis. The MGs integrate the economic analysis into the traditional legal structure of the “prima facie” and “rebuttal” evidentiary stages and place greater weight on avoiding false negatives over false positives in various places, which is a principal element in both post-Chicago and Neo-Brandeisian approaches. An important theme that runs through the 2023 MGs is that competitive effects analysis should not be limited to static competitive effects analysis of the immediate unilateral or coordinated price effects of a merger. They stress that the analysis should also account for the dynamic effects that result from the change in market structure that follows from the merger as well as the changes in the incentives of the firms. As in the seminal Spence-Dixit models, the entrant would rationally anticipate that the lower marginal costs of the merged firm could produce more intense post-entry price competition and a higher likelihood that the entry would be unprofitable. Thus, higher barriers to entry or expansion may result, which means that the merged firm’s rebuttal burden of production under the sliding scale should be increased accordingly under the decision theory risk analysis that places greater weight on avoiding false negatives.

We review the evidence that artificial intelligence (AI) is having a large effect on the economy. Across a variety of statistics—including robotics shipments, AI start-ups, and patent counts—there is evidence of a large increase in AI-related activity. We also review recent research in this area that suggests that AI and robotics have the potential to increase productivity growth but may have mixed effects on labor, particularly in the short run. In particular, some occupations and industries may do well while others experience labor market upheaval. We then consider current and potential policies around AI that may help to boost productivity growth while also mitigating any labor market downsides, including evaluating the pros and cons of an AI specific regulator, expanded antitrust enforcement, and alternative strategies for dealing with the labor market impacts of AI, including universal basic income and guaranteed employment.

The 2023 Merger Guidelines make some notable improvements over the 2010 Horizontal Merger Guidelines. They give greater emphasis to the idea that predicting the competitive effects of a proposed merger is inherently difficult and that to block a merger the government need only show a risk that the merger may substantially lessen competition – not that it will do so. They also give greater emphasis to dynamic competition and innovation – especially with regard to acquisitions of potential entrants – and they add useful material on multi-sided platforms. However, the treatment of market definition in the 2023 Merger Guidelines may weaken horizontal merger enforcement by demoting the role of the “hypothetical monopolist test,” which is used to define markets for the purpose of measuring market shares, and by removing extensive material from prior guidelines that explained why market shares measured in narrower markets tend to be more informative than market shares measured in broader markets. The 2023 Merger Guidelines lower the market concentration thresholds that trigger a presumption by the antitrust enforcement agencies that a merger may substantially lessen competition, but the enforcement data suggest that change will have little effect in practice. The 2023 Merger Guidelines also may lead to less effective deterrence of harmful mergers because they are not well targeted at the mergers that are most likely to substantially lessen competition. One cannot prioritize everything.

Disputes about market definition are often regarded to be dispositive of litigated merger cases. Yet the market definition process is illogical—circular at best but actually far worse because it distorts or discards much of the available information on a proposed merger’s effects. Against this background, the 2023 Merger Guidelines present a paradox. On one hand, they double down on market definition through what may be their most important change: tightening and augmenting the so-called structural presumption, under which high market shares are sufficient to presumptively block a merger. The importance of market definition is thereby elevated because one cannot know what market shares to use unless a market is defined. On the other hand, the 2023 Merger Guidelines’ longest segment—on market definition and market shares—demotes the familiar methods (including the hypothetical monopolist test) and expresses a clear preference for the use of direct evidence on a proposed merger’s effects. But direct evidence, as is well known, is a substitute for market definition, not a way to define a market in which market shares can then be calculated. This change thus disables the structural presumption. The analysis here identifies and deepens the resulting conundrum by elaborating the disconnect between the proper economic analysis of mergers and the market definition paradigm.

Can competition law consider effects on privacy, or should privacy concerns of data-collecting behaviour only be dealt with by data protection law? In this paper, we analyse the German Facebook case, in which the requirement of giving consent to the combination of personal data from different sources was prohibited as exploitative abuse by a dominant firm. We show, from an economic perspective, that due to the simultaneous existence of two market failures (market dominance, information and behavioural problems) and complex interaction effects between both market failures and both policies in digital markets, a new, much more complex relationship emerges. Since the traditional approach of a strict separation of both policies is no longer feasible, a more integrative and collaborative policy approach for competition law and data protection law might be necessary. With respect to the substantive issue in the Facebook case, i.e. protecting a minimum standard of choice for consumers regarding their personal data vis-a-vis dominant digital platform firms, the recent decision by the German Federal Court of Justice in this case and the proposed Digital Markets Act have led to new perspectives for dealing with privacy concerns in competition law and new forms of ex-ante regulation.