How to Converge the US and European Antitrust Approaches Toward Big Tech

Big Tech’s growing market power creates a unique opportunity—and need—for antitrust enforcers in the US and Europe to converge competition policies. Across both sides of the Atlantic, the power of the major tech platforms raises similar dilemmas. Attitudes in the United States toward Big Tech have shifted, and the growing frustration in Europe over challenging Big Tech with traditional competition enforcement tools has increased the appetite for new approaches.

Big Tech presents antitrust enforcers with their greatest modern challenge. We do not yet have answers to all the questions posed by digital platforms, and there is not yet a standardized playbook. Experimentation is necessary but also risks divergence between countries. There is one positive, however: different jurisdictions face the same challenges from digital platforms, creating opportunities for cooperation and convergence.

The European enforcement effort against Big Tech is more than a decade old. For many years, American agencies were skeptical of this effort, but Big Tech’s growing power and influence have caused a shift in US public sentiment. This change has spread to the antitrust agencies, which initiated enforcement proceedings, and accelerated under the Biden Administration. 

In a new paper, we suggest a few immediate steps for competition agencies to take to promote convergence without needing bilateral or multilateral agreements. The measures we propose include creating joint policy and principles for tech-related merger analysis; challenging practices or transactions in a joint and coordinated manner, and allowing agencies to share evidence freely.

The growing consensus that Big-Tech has significant market power creates a window of opportunity for meaningful convergence on both sides of the Atlantic. We should grasp this opportunity.

Advantages and Challenges in Convergence

Converging antitrust policies has many advantages. Jurisdictions working together to solve common problems would create better solutions through dialogue and cooperation. Allowing each country to act against Big Tech alone can leave antitrust agencies vulnerable to political interests and industrial policy concerns. Convergence would subject attempts to diverge to greater scrutiny. Convergence would allow competition enforcers to pool resources. Nobody benefits where enforcers in different jurisdictions repeat the same analyses in similar cases. More coordination between the EU and US would also provide crucial guidance to smaller jurisdictions that have less capacity and clout to develop their own approaches. Finally, Common rules would allow businesses to operate in substantially the same way around the world.

But convergence is hard to achieve. Different jurisdictions have different institutional frameworks and cultural approaches to competition policy. European cultural norms accept a strong regulatory role for the state, and there is more political will for regulation in Europe, whereas cultural norms in the US emphasize commercial freedom and subject regulation to more scrutiny.

Industrial policy concerns could lead US and European interests to diverge. Big Tech platforms are largely American national champions, which means that certain very invasive structural remedies are only politically palatable when taken by American enforcers.

Meaningful convergence is nonetheless possible within the current system. There are clear benefits to addressing competition policy issues within the competition enforcement system rather than within the political system. Competition enforcement involves a careful balancing exercise of the harms and benefits of certain actions. Political solutions involve satisfying interest groups with blunt instruments and issues rise and fall in salience. Evolution, not revolution, is required.

In Europe, agencies and courts are developing clear precedents that challenge the platform economy, and legislators—informed by agencies’ experiences bringing cases—seem willing to move bills forward with resolve. By contrast, it is not clear how American antitrust will change to meet the challenges of Big Tech: while agency leadership is substantially aligned with the Europeans, power in the US antitrust system sits largely with the largely conservative judiciary, and the fate of US legislation is uncertain. As antitrust agencies in Europe, the US, and other jurisdictions are more aligned than other institutions such as legislatures and courts, convergence will most likely be made through agency efforts.

Recommendations

Our recommendations are based on a series of approximately twenty interviews with antitrust enforcers and competition experts. We also talked with several representatives from Big Tech companies to understand if they will welcome international convergence even at the cost of more effective and pro-active approach to Big-Tech’s market power.

The recommendations focus almost entirely on the agencies and can be implemented quickly. Most of them do not require assistance from legislators or the approval of courts. We propose:

1. Create Joint Policy and Principles of Analysis in Mergers for Big Tech

The consensus among antitrust agencies is that merger control must be strengthened when it comes to Big Tech. Convergence on this issue would be most achievable.  

We suggest that the US and EU agencies create joint principles of analysis for Big Tech mergers. These would develop in tandem with the existing initiative of the Department of Justice and the Federal Trade Commission to re-examine existing merger guidelines. Merger guidelines are politically sensitive: unifying formal guidelines may not be possible, but a joint statement of enforcement principles is more feasible and flexible. This could, for example, mirror the DOJ and FTC’s statement of enforcement principles in the healthcare industry.

This is a pressing matter. Mergers have been flowing in.Cases such as the Sabre/Farelogix merger, the Google/Fitbit merger, the Facebook/Giphy merger, and the recent Microsoft/Activision merger bring novel competition challenges. 

Joint guidelines would involve developing a common approach to handle two challenges in particular: killer acquisitions and Big Tech platforms’ use of conglomerate acquisitions to fortify ecosystems. Theories of harm and litigation strategies around these questions are underdeveloped. 

Merger guidelines are a powerful tool. Besides their obvious advantages—such as creating a transparent system that agencies and the business community can rely on—courts rarely challenge merger guidelines and often use them in judicial decisions.

2. Pursue Cases Jointly

For years, Booking.com forbade hotels from offering their rooms more cheaply on other platforms. In April 2015, the French, Italian, and Swedish competition agencies jointly came to an agreement with Booking.com that this limitation would be removed from its contracts with hotels. The three competition agencies cooperated in the investigation and analysis of the case and were able to agree with Booking.com on an identical remedy in each jurisdiction.

Following this accord, Booking.com removed these clauses throughout Europe, and in subsequent years, many other competition agencies reached similar settlements with the company. The Booking.com case demonstrates what agencies can achieve when they work together to solve similar problems, yet agencies don’t join forces in this way enough. It is much more common for one agency to piggyback on another agency’s successful challenge. Joint actions are often better: agencies support each other on novel issues and develop consensus solutions that are harder to challenge.

In the Sabre/Farelogix merger case, the British Competition and Markets Authority (CMA) investigated the merger alongside the US DOJ. Both agencies sought to block the merger, but doing so involved relying on ‘killer acquisition’ arguments that were untested in conservative US courts, which ultimately approved the merger despite the DOJ’s challenge. The CMA blocked it almost contemporaneously with the US court’s decision approving the merger. If the CMA had waited for a US decision to piggyback off, the merger would have been much more challenging to block. The coordinated work of the CMA and the DOJ allowed the British agency to block the merger notwithstanding the US court’s approval of the transaction, achieving the result that the US DOJ wished for.

3. Facilitate sharing of evidence

We recommend that countries allow competition authorities to exchange information freely among themselves, without requiring the consent of the source of the information.

Agencies struggle to conduct joint investigations owing to difficulties sharing data collected from companies. This challenge emerges clearly from our interviews. It is also reflected strongly in a 2021 joint report by the OECD and the International Competition Network (ICN)on cooperation in competition enforcement. Even where legal barriers do not prohibit information sharing, the OECD and ICN’s joint report notes that sharing sensitive information requires a strong relationship of trust between authorities, which develops through habitual cooperation and dialogue.

Requiring that companies consent to transfer information prejudices highly contentious proceedings. Companies are much more likely to consent where they seek rapid approval—eg in merger control. Otherwise, companies can withhold their consent to inhibit or slow down international investigations. The joint 2021 OECD-ICN report suggests that companies will consent to information transfers 67 percent of the time in merger cases, but only 33 percent of the time in unilateral conduct cases.

4. Implement Regular Staff Secondments

Expertise in challenging problems moves best with people. A regular staff exchange program between competition agencies could greatly promote convergence.  For many competition problems that arise in Big Tech cases, there are no manuals or standardized documents, and sharing approaches at annual conferences can only go so far. Seconding staff between agencies will allow agencies to understand how other jurisdictions tackle certain problems in Big Tech.

5. Create Standard Templates for Legislation and Regulation

Regulating digital markets is complex, and there is currently no clear set of best practices. Competition jurisdictions are experimenting with a variety of different approaches, and legislative proposals vary widely. Legislators must take up tools that have proven to be useful in other jurisdictions, prune ineffective or counterproductive regulations, and iterate on how to effectively regulate big tech.

We propose that the OECD or ICN regularly survey and report on regulatory initiatives and consensus recommendations of leading competition jurisdictions. An annual ‘state of digital regulation’ report would capture the points on which there is consensus.

Conclusion

It is in the hands of the competition agencies themselves to promote convergence. Being professional agencies trained to hold off political pressure they are the most equipped to create the theory, the methods, and the tools they need to face the challenges. They should not wait for legislators or courts to hand them the right solutions.

Michal Halperin is a Senior Fellow in the Mossavar-Rahmani Center for Business and Government in the Kennedy School in Harvard University.

Ketan Ahuja is a DPhil candidate at the University of Oxford and a graduate of Harvard Kennedy School.

This post first appeared on Stigler Center's ProMarket blog (here).