Comments by the Business at OECD (BIAC) Competition Committee to the OECD Competition Committee

The United States District Court for the District of Columbia stated as such in the case against Microsoft: “Whether any particular act of a monopolist is exclusionary, rather than being a form of vigorous competition, can be difficult to discern: the means of illicit exclusion, like the means of legitimate competition, are myriad.”23 20. [...] This decision confirmed that the Commission must analyze the foreclosure effect by reference to the extent of the dominant position; the conditions and arrangements for granting the rebates; the shares of the market covered by the practices and their duration; and the possible existence of an exclusionary strategy. [...] In contrast to the application of the concepts of dominance and market power, the DMA’s provisions apply to “gatekeepers,” i.e., “core platform services.”31 As cautioned by Frederic Jenny, the DMA’s ex ante regulations risk allowing the European Commission (EC) to prohibit practices without having to define relevant markets, to assess market dominance, or to bear the burden of establishing that th. [...] The following moats are specifically identified in the complaint:34 • Imposing contractual restrictions, fees and taxes on app creation and distribution.35 • Using APIs and other critical access points in the smartphone ecosystem to control the behavior and innovation of third parties in order to insulate itself from competition.36 28 OECD, Abuse of Dominance and Monopolisation – Background Note b. [...] District Court for the Northern District of California rejected FTC’s request to enjoin the merger.53 While the court agreed that the merged firm would have the ability to foreclose CoD games because it would own the series, it did not find that the firm would have the incentive to foreclose.