Geradin Partners sets up Platform Law Practice

Geradin Partners sets up Platform Law Practice

Brussels, 12 May 2020

Digital platforms like search engines, social networks, online marketplaces or app stores have dramatically changed our lives and brought considerable benefits. Their role is likely to grow in importance as we move deeper in the digital era. At the same time, there are growing concerns that digital markets are dominated by a handful of platforms. There is currently a lively debate in the EU and abroad as to how to tackle the challenges raised by digital platforms and ensure the best outcomes for consumers and society.

To address these challenges, Geradin Partners, a leading boutique law firm based in Brussels, has set up a unique Platform Law Practice dedicated to providing clients top-notch independent advice on the legal and public policy issues raised by digital platforms with a focus on competition law, ex ante regulation and privacy. What distinguishes Geradin Partners from the offering of other law firms includes:

• We are the first law firm with a dedicated Platform Law Practice drawing on our vast experience advising platforms, as well as businesses relying on platforms;

• We are highly specialized, drawing not only on our practical experience, but also on the considerable research we have done in the area;

• We work together on a task-force basis on all of our matters, in small teams bringing to bear the requisite mix of people and expertise. We welcome collaboration with other law firms to deliver the best advice to clients;

• Because we are small and focused, we are cost-efficient. We use the latest technologies, but operate in a streamlined manner. We do not see the need for palatial offices to impress clients;

• We act both for complainants and defendants, and we have significant expertise representing clients in competition investigations, as well as in litigation before EU and national courts;

• We are active on the policy front and regularly engage with regulators by responding to calls for evidence, submitting comments on legislative proposals; and

• We are extremely strict on conflicts as we do not think we can advise clients on several sides of the same issue. We act for a range of clients, large and small, but we do not advise any of the “GAFAs”.

Our team is composed of lawyers educated in the world’s top universities, most of whom trained in leading international law firms before joining our team.

Key Contact: Prof. Damien Geradin: dgeradin@localhost

The antitrust case against the Apple App Store

The Apple App Store is the only channel through which app developers may distribute their apps on iOS. First launched in 2008, the App Store has evolved into a highly profitable marketplace, with overall consumer spend exceeding $ 50 billion in 2019. However, concerns are increasingly expressed on both sides of the Atlantic that various practices of Apple with regard to the App Store may breach competition law. The purpose of this paper is to examine whether this is indeed the case and, if so, how these concerns can be addressed. With these aims in mind, the paper first introduces the reader to the app ecosystem and the Apple App Store, with a focus on the controversial 30% commission charged for in-app purchases. After engaging critically with various public statements of Apple discussing the services that the 30% commission aims to cover, the paper concludes that the 30% commission is charged for payment processing and related services and not, as Apple asserts, for distribution, since in that case it would be charged on all apps distributed on the App Store and not only on apps delivering “digital goods and services”.

The paper then critically reviews several practices of Apple that appear to be at odds with competition law and in particular Article 102 TFEU. We first discuss the issue of market definition and dominance with regard to the App Store. We find that Apple is a monopolist in the market for app distribution on iOS, as it is not subject to any meaningful competitive constraint from alternative distribution channels, such as Android app stores or the web. The result is that Apple is the gateway through which app developers have to go in order to reach the valuable audience of iOS users. This bottleneck position affords Apple the power to engage in several prima facie anti-competitive practices. First, Apple exploits app developers by charging excessive fees for the services it provides, applying its guidelines in a capricious and discriminatory manner, and depriving them of the user data they need to improve the quality of their services and user experience. Second, based on four case studies, the paper illustrates how Apple may use its control of the App Store or iOS to engage in exclusionary behaviour to the detriment of rival apps. Third, the paper shows that Apple may have also engaged in discriminatory practices by treating some app developers more favourably. These practices should be investigated by competition authorities, as they are likely to result in considerable consumer harm, be it in the form of higher app prices, worse user experience or reduced consumer choice. The paper finally proposes a combination of concrete remedies that would address the competition concerns identified.

Read the full paper here.

Online platforms and digital advertising market study: Observations on CMA’s Interim Report

Prof. Damien Geradin and Dimitrios Katsifis submitted their personal observations on the CMA’s Interim Report on its online platforms and digital advertising market study.

Part II contains some general observations on the Interim Report’s analysis of open display advertising. Part III discusses certain aspects of Google’s recent switch to a single unified first-price auction (the “Unified Auction”), which in the authors’ view warrant further investigation. Part IV provides some preliminary thoughts on Chrome phasing out third-party cookies. Part V concludes.

Read the full paper here.

Taking a dive into Google’s Chrome cookie ban

Thought Paper Series

14 January 2020: After months of speculation, Google finally announced its plan to phase out third-party cookies on Chrome within the next two years. As Chrome boasts a worldwide market share in excess of 64%, the news sent shockwaves in the online advertising industry, whose foundations are largely built on web cookies. Concerns have been expressed that the banning of third-party cookies from Chrome could further strengthen Google and Facebook because of their large addressable first-party audience at scale. As to Google’s proposed “Privacy Sandbox” initiative, which it claims will “fundamentally enhance privacy on the web”, no one really knows how it will be implemented in practice and the industry seems to be confused. This uncertainty could hurt investment in an area that has already lost its attractiveness to investors.

Against this background, this short paper examines Chrome’s policy change and its wider implications on the online advertising industry. Yet in order to appreciate the importance of the announced change we need first to get back to the basics and understand what cookies are and how they are used in online advertising. This is all the more the case considering that, while many people talk about “cookies”, few seem to have a solid understanding of what they are, how they are created, and for which purpose.

Read the full paper here.

Vestager considers shifting burden of proof for big tech

Damien Geradin has been quoted in this GCR article, observing that it is “a core legal principle” that enforcers or plaintiffs have the burden of proof and that rather than shifting the burden of proof “more important issues to be considered, such as the need to make the investigative process faster and the need to adopt remedies that restore competition ” .

More info on https://globalcompetitionreview.com/article/1210348/vestager-considers-shifting-burden-of-proof-for-big-tech

‘Trust Me, I’m Fair’: Analysing Google’s Latest Practices in Ad Tech From the Perspective of EU Competition Law

In a first paper released in January 2019, we explained the mechanics of online display advertising and real-time bidding with a focus on the tools and technologies comprising the ad tech market. We identified Google as the leading, and most likely dominant player across the ad tech value chain and expressed the concern that it engages in prima facie anticompetitive conduct, in that it uses its leading ad server to favor its ad intermediation business and exclude competitors. We also explained how the lack of competition across the ad tech value chain enables Google to exploit advertisers and publishers by charging hidden fees for ad intermediation on top of its disclosed commissions. In March 2019, Google announced that it would switch to a first-price unified auction by the end of 2019, arguing that its move would help create a fair and transparent market for everyone. Meanwhile, online advertising has attracted significant regulatory interest in the EU, the USA and Australia.

Read the full paper here.

Google’s (Forgotten) Monopoly – Ad Technology Services on the Open Web

This paper focuses on online display advertising, whereby publishers display advertisements on their website against remuneration. This form of advertising represents a critically important source of revenues for publishers, from large news organisations to online game producers to blogs, offering valuable content to Internet users. Given the importance of online display advertising to publishers, it is no wonder that this area has been the subject of intense discussion among stakeholders and has raised the attention of competition authorities. In particular, concerns have expressed that publishers do not receive their fair share of advertising revenues due to the large fees that are captured by the “ad tech” companies intermediating between advertisers and publishers. This paper provides an overview of the online display advertising landscape, and explores whether Google, the leading ad tech providers, has engaged in potential exclusionary and exploitative conduct.

Read the full paper here.