Florian Wagner-von Papp

Compliance and Individual Sanctions in the Enforcement of Competition Law

This chapter describes the status quo of criminal enforcement in selected Member States of the European Union and discusses the desirability of criminal enforcement of competition law from a policy perspective. It concludes that at least in Germany the introduction of a criminal offence for horizontal hardcore cartels beyond the existing bid-rigging offence would be desirable, provided an automatic criminal immunity provision for immunity recipients under a leniency programme within the European Competition Network is introduced and the Bundeskartellamt is involved in the criminal prosecution. The introduction of effective criminal enforcement would make compliance training both more important and more effective. Criminalisation makes compliance more important because compliance training helps to spread knowledge about the criminal offence—and only a known threat can deter. Criminalisation makes compliance training more effective because the participants of compliance sessions are motivated to pay attention to avoid criminal liability.

Should Google's Secret Sauce Be Organic?

This commentary discusses the European antitrust investigation into Google and the international implications of the case. It focuses on Googles alleged dominance and the allegations concerning Google’s self-preferencing of its Google Shopping results on general web search result pages, which form the subject matter of the Statement of Objections that the Commission sent on 15 April 2015. The EU Commissions international jurisdiction to prescribe is found to be unproblematic. However, the tendency towards overenforcement resulting from the cumulation of national and supranational investigations by competition authorities worldwide counsels caution in borderline cases. And Google is a borderline case. While it seems possible to construct a story of dominance and consumer harm, the paper doubts Googles ability to act to an appreciable extent independently of its competitors and customers. Ultimately, this is an empirical question, and the Commission may have sufficient evidence at its disposal. However, the publicly available evidence does not seem to support a finding of dominance, despite Googles high share of user searches. A finding of abuse would require changing the goalposts: one would have to accept that instead of a constructive refusal to deal, it is already abusive if services are not provided to third parties on identical conditions, or that instead of requiring coercion of consumers to acquire a tied product or service, it is already abusive if consumers are merely nudged to preferring the vertically integrated firms products. These changes would amount to a paradigm change. Traditionally, competition is to force producers to be responsive to consumer preferences. Consumer choices are taken to reveal their preferences unless coercion can be shown. Allowing intervention already below the threshold of coercion, when consumers are merely nudged to make particular choices, risks substituting the competition authoritys assessment for consumer preferences.