This document discusses the role of intent in antitrust law under Article 102 of the Treaty on the Functioning of the European Union. It examines how the case law has expanded the role of intent from requiring subjective intent to also considering objective intent inferred from business decisions. The document also proposes a "qualified intent" test that would require the anticompetitive outcome to be foreseeable and immediate from the dominant company's actions. Finally, it discusses the prospects and challenges of intent in the digital economy and proposes a negligence-based safe harbor for algorithmic conduct.

1. Antitrust Intent in an Age of Algorithmic
Nudging, Post-Google Shopping
Scientific Seminar “COMPETITION, REGULATION AND
PLURALISM IN THE ONLINE WORLD”
Florence, 22-23 March 2018

2. The role of intent in art. 102
• Not in the text of art. 102
• Subjective intent : the defendant’s actual state of mind
• Objective intent : the defendant’s presumed state of mind, by way of inference from the
business decisions it made
• Intent to what?
- Commit an act
- Obtain an effect
• Role: attribution and disambiguation
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3. Early cases: definition of abuse
• “linked with the existence of behaviour on the part of an undertaking which is ‘objectively’
illicit in relation to the purposes of the Treaty […] It does not therefore imply that there is
also a fault in the sense of a failure in propriety or morality” (Continental Can, 1973)
• “an objective concept relating to the behavior of a dominant undertaking which is such as
to influence the structure of a market where, as a result of the very presence of that
undertaking, the degree of competition is weakened and which, through recourse to
methods different from those which condition normal competition in products and services
on the basis of transactions of commercial operators , has the effect of hindering the
maintenance of the degree of remaining competition or the growth of that competition”
(Hoffman La Roche, 1969)
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4. Expanding role for intent
• AKZO (1991): intent derived from directive to charge prices “well below” those charged by
competitor, + prior threats to undercut
• Tetra Pak II (1994): intent derived from incitement to sacrifice + selective price cuts
• Irish sugar (1997): cumulative efforts to hinder the growth of competition on the retail
market in Ireland had the “purpose or effect” of precipitating the removal of competitors
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5. France Telecom (Wannadoo): we know
it when we see it (2007)
• FT:
- Commission relied on subjective factors to prove a plan to eliminate competitors,
contrary to the requirements of the case-law to use objective indications such as
threats to competitors or selective price cuts in respect of competitors’ customers
• ECJ:
- Not subjective, but objective factors, such as the undertaking’s internal documents (!)
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6. Astra Zeneca: expanding prohibited
conduct, dispensing with intent (2010)
• AZ claims:
- no bad faith in those misrepresentations, as it legitimately relied on the
theory of “effective marketing authorization” date
- insufficiently founded allegations, selective references to documentary
evidence, tenuous inferences and insinuations which do not amount, even
taken together, to clear and convincing proof (subjective factors?)
• ECJ response:
- AZ’s failure to disclose dates and theory of interpretation amounts a
manifest lack of transparency, contrary to special responsibility
- Therefore, no need to find intent
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7. Preferential treatment: a special refusal
to deal? Google (2017)
More favourable positioning
and display than competing
comparison shopping sites
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8. Evidence of “bad” objective intent
• “Signals” for triggering the appearance of Product Universal, and/or its
appearance in the middle to top position of the results in the first page:
the number of stores and the number of shopping comparison engine in
the top-3 generic search results
• Exclusion from the application of certain criteria that adversely affect the
position of competing price comparison services
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9. Evidence of “bad” subjective intent
• Google's Engineering Director responsible for Froogle:
- “Froogle stinks” (!)
- “(1) [t]he [Froogle] pages may not get crawled without special treatment;
without enough pagerank or other quality signals, the content may not get
crawled.
- (2) If it gets crawled, the same reasons are likely to keep it from being
indexed.
- (3) If it gets indexed, the same reasons are likely to keep it from showing up
(high) in search results […] We’d probably have to provide a lot of special
treatment to this content in order to have it be crawled, indexed, and rank
well.
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10. Problem with the Decision
• Definition of preferential treatment, no materiality threshold
• Order to bring the conduct to an end + refrain from repeating it or
engaging in any act or conduct with the same or equivalent
object or effect, on all elements that have an impact on the
visibility, triggering, ranking or graphical format of a search result
in Google’s general search result pages”
• Order to bring the conduct to an end, and refrain from repeating
it, or engaging in any act or conduct with the same or an
equivalent object or effect and to :
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11. Searching for a limiting principle in an
era of algorithmic nudging
(A) Implicit effect test?
(B) Transparency & discretion?
v. Consumers (cf. India)
+ v competitors/websites
(C) Active v. passive conduct?
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12. Prospects and challenges for intent
• Prospects:
- Greater role for subjective standards of liability, facilitated by
data-driven economy and increased availability of records
- ECHR issues: presumption of innocence, principle of legality
• Challenges:
- Clarifying evidential rules
- Mind the overlap of civil and criminal
- Do not abstract from effects!
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13. Modest proposal: a “qualified intent”
test
1. anticompetitive outcome is foreseeable for the dominant
company, based on its knowledge or reckless disregard of the
consequences of the action;
2. that outcome is an immediate consequence of the actions
undertaken by the dominant company, meaning that its
materialization does not require actions by competitors or
consumers that depart from the status quo;
3. it is substantial, in the sense that the intent is grounded upon
a set of facts that make the achievement of the anticompetitive
outcome more likely than not
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14. Negligence-based safe harbor
• Algorithmic due diligence:
• Article 14 of the E-commerce Directive:
• (a) no actual knowledge of illegal activity/ information and, as
regards claims for damages, no awareness of
facts/circumstances from which illegal activity/information is
apparent;
• (b) upon obtaining such knowledge or awareness, acts
expeditiously to remove or to disable access to the information
•
• -à Notice and explanation (or adjustment)
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15. EC proposal on fairness in Platform to
Business relations
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16. Thank you
N.Zingales@sussex.ac.uk
@Justechne
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