Germán Oscar Johannsen

Monographien und andere selbständige Publikationen

Conscious Parallelism and Price Discrimination in the Era of Algorithms: A Case of Collective Abuse of Dominance? (MIPLC Master Thesis Series (2016/17)) 2017, 85 S.

• One of the main concerns for competition in the era of algorithms and big data is the proliferation of oligopolies in the digital economy. However, their emergence will depend on how other characteristics of the e-commerce sector will rise in the future. This paper assumes that new forms of discrimination like personalized pricing will increase exponentially, so in the future any eventual parallel pricing scenario will perhaps, to some extent, be part of a price discrimination scheme. By modelling different hypothetical cases, this report will attempt to demonstrate that it is adequate to analyze both phenomena as one single offense, to determine whether they can fall under the prohibition of Art. 102 TFEU. Thus, while the conscious parallelism may serve to establish collective dominance, the requirement of an abuse to configure the infringement would eventually be satisfied by the discriminatory conduct, in case harm is proved. In addition, the parallel behavior should be taken as a relevant element to determine whether the discrimination is abusive.
• Available at SSRN

Forschungspapiere

Position Statement of the Max Planck Institute for Innovation and Competition of 2 May 2023 on the Implementation of the Digital Markets Act (DMA) (Max Planck Institute for Innovation & Competition Research Paper, No. 23-11), 2023, 33 S. (gemeinsam mit Josef Drexl et al.).

• Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector (Digital Markets Act; DMA) entered into force on 1 November 2022 and applies from 2 May 2023. The DMA is a novel type of regulation laying down harmonised rules for core platform services provided or offered by gatekeepers to business users and end users established or located in the Union. It pursues the objective of achieving fairness and contestability in the digital sector across the Union where gatekeepers are present.
  In its position statement of 2 May 2023, the Institute acknowledges that uniform rules throughout the European Union and centralised enforcement are necessary to prevent internal market fragmentation and welcomes the first Commission Implementing Regulation for the DMA of 14 April 2023. However, it remains concerned by the DMA’s unique institutional design and its interaction with other laws as outlined under Articles 1(5), 1(6) and 1(7).
  In particular, the Institute raises awareness about the possible overly broad blocking effects of the DMA on national rules, which may have the unintended consequences of privileging gatekeepers by jeopardizing future national legislative initiatives. This ultimately obstructs the achievement of contestability and fairness in digital markets. A complementary application of the competition rules and effective enforcement of the DMA is, against this backdrop, crucial. Yet there is uncertainty over administrative enforcement mechanisms, and it is unclear what role private enforcement plays in the current legal design of the DMA. The position statement identifies and examines challenges in the implementation of the DMA, along with recommendations for overcoming them.
• Available at SSRN

EU-Merger Control in Big Data-Related Mergers (Max Planck Institute for Innovation & Competition Research Paper, No. 19-05), 2019, 74 S. (gemeinsam mit Jörg Hoffmann).

• The main focus of the Commission’s last decade decisional practice in big data mergers has been on identifying possible harming effects of the control over exclusive information (absolute foreclosure scenario). Thereby it has centred its analysis on the assessment of the overall availability of data post-merger and thus mostly found no concerns due to the ubiquity and non-rivalrous nature of data. However these considerations were too short-sighted as additional competition concerns may arise when the accumulation of large piles of data from a huge multitude of sources by digital conglomerates leads to such an advantage that competitors will not be able to match anymore, increasing the likelihood of further anti-competitive strategies (relative foreclosure scenario). Accordingly, the paper firstly addresses the need for information centric reference points for the analysis of data induced significant impediments of competition (SIEC). It then analyses the approach taken by the Commission so far, identifies the shortcomings and establishes a theory of harm that takes the efficiency offense doctrine and the financial power and portfolio effect theories of harm as a reference point and relate it to a relative foreclosure strategy of the merged group that is specific to data induced SIEC. The distinction of these two foreclosure scenario levels serves as the basis for further discussion on adequate remedies to tackle the two types of data-induced harming effects. The paper then indulges into the intersection of competition law and data protection law and analyses the potential need for a distinction between personal and non-personal data due to the fact that data protection law might be considered a normative factual remedy that renders personal data specific competition concerns post-merger unnecessary. This is then followed by a parallel analysis related to ex-ante data access regimes being normative factual remedies, e.g. the access to account rule under the Payment Services Directive 2 (PSD2). It then stresses the need for considering formal elements such as conditional remedies that tackle potential issues of a lack of foreseeability due to high market dynamics before examining the efficiency and feasibility of a data sharing commitment for both absolute and relative foreclosure scenarios. As essential facility considerations cannot be analogously applied in relative foreclosure cases we take recourse to criteria that were established for measuring conglomerate power structures. Accordingly in relative foreclosure scenario cases we establish two requirements that need to be fulfilled by the undertaking seeking access to data in order to confine a potential erga omnes right and make data sharing legally obtainable.
• Available at SSRN