If Europe were capable of providing any competition, this wouldn’t be an issue for you.
Well you should check what enterprise software everyone in fortune500 uses (not American). But as it tends to be, American companies are good at consumer packaging and EU is good with the technology and industry.
Your opinion that Apple is unjustified to differentiate between digital services and physical services undercuts an argument you like to make, namely, that there is a different between a digital market place and a physical market place. Sounds a lot like special pleading.
Who have argued that there a difference between physical and digital market places? A sale is a sale and transfer of ownership.
We are saying they are the same, and have drawn the parallel that if physical market places was limited in the same way it would never be accepted in eu.
Heck just compare the Refusal to Deal and Essential Facilities Doctrine and how it’s interpreted
They are both important concepts in competition law, but their application differs significantly between the European Union (EU) and the United States (U.S.). Below is a comparison of how these practices are treated in each jurisdiction.
1. Legal Framework
• EU:
• The EU addresses Refusal to Deal primarily under Article 102 of the Treaty on the Functioning of the European Union (TFEU), which prohibits the abuse of a dominant market position.
• The Essential Facilities Doctrine is more readily applied in the EU, where regulators may compel a dominant company to provide access to critical infrastructure or resources if refusing access would harm competition.
• U.S.:
• In the U.S., Refusal to Deal is assessed under Section 2 of the Sherman Antitrust Act, which deals with monopolization and attempts to monopolize.
• The Essential Facilities Doctrine is less favored in the U.S., with courts being more reluctant to compel companies to deal with competitors. U.S. antitrust law generally emphasizes the right of a company to choose with whom it does business.
2. Threshold for Intervention
• EU:
• The EU has a lower threshold for intervention in Refusal to Deal cases. If a dominant firm’s refusal to supply or deal harms competition and cannot be objectively justified, the EU is more likely to intervene.
• The Bronner case (1998) set a high bar for applying the Essential Facilities Doctrine, requiring that the facility be indispensable for competitors, that refusing access would eliminate competition, and that there is no objective justification for the refusal.
• U.S.:
• The U.S. applies a higher threshold for finding a refusal to deal unlawful. The Supreme Court in the Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP (2004) case significantly narrowed the scope for applying the Essential Facilities Doctrine, emphasizing that firms generally have no obligation to assist competitors.
• The U.S. courts often require that the refusal be part of a broader, anti-competitive strategy that harms consumer welfare, making it more difficult to prove than in the EU.
3. Examples of Application
• EU:
• IMS Health (2004): The EU required IMS Health to license a copyrighted data format to competitors, recognizing the format as essential for competition in the pharmaceutical sales data market.
• Microsoft (2007): The EU found Microsoft guilty of abusing its dominance by refusing to provide competitors with interoperability information, which was essential for them to compete in the server software market.
• U.S.:
• Aspen Skiing Co. v. Aspen Highlands Skiing Corp. (1985): One of the few U.S. cases where a refusal to deal was found unlawful, the Supreme Court ruled against Aspen Skiing Co. for refusing to continue a joint lift ticket arrangement, which was seen as anti-competitive.
• Verizon v. Trinko (2004): The U.S. Supreme Court ruled that Verizon’s refusal to provide access to its network did not violate antitrust laws, narrowing the application of the Essential Facilities Doctrine and emphasizing the company’s right to refuse to deal.
4. Approach to Essential Facilities Doctrine
• EU:
• The EU is more proactive in applying the Essential Facilities Doctrine, especially when a dominant company’s control over an infrastructure or resource could harm competition. The EU focuses on maintaining competitive market structures and often steps in to prevent market foreclosure.
• U.S.:
• The U.S. is more reluctant to apply the Essential Facilities Doctrine. U.S. antitrust law tends to prioritize the protection of business incentives and innovation over forced access, reflecting a belief that compelled sharing could reduce the incentive for companies to invest in and develop new facilities.
5. Objective Justification and Efficiency
• EU:
• The EU may allow a refusal to deal if the dominant company can provide a compelling objective justification (e.g., capacity constraints, quality concerns). However, the burden is on the company to prove that the refusal is not aimed at harming competition.
• U.S.:
• In the U.S., if a refusal to deal can be shown to have legitimate business justifications or efficiencies (such as maintaining product quality or ensuring safety), it is more likely to be upheld by the courts, even if it has some negative impact on competition.
6. Impact on Innovation
• EU:
• The EU tends to emphasize the protection of competition over the preservation of business autonomy, which can lead to more interventions that compel firms to share their innovations or infrastructures.
• U.S.:
• U.S. courts and regulators are more concerned about maintaining incentives for innovation. They argue that compelling firms to deal with competitors could discourage investment in new technologies or infrastructure, potentially harming long-term consumer welfare.
Conclusion:
The EU is generally more interventionist in dealing with Refusal to Deal and the Essential Facilities Doctrine, often prioritizing the maintenance of competitive markets and preventing the foreclosure of competitors. In contrast, the U.S. takes a more laissez-faire approach, emphasizing the rights of businesses to control their resources and deal with others as they see fit, unless there is clear evidence of harm to consumer welfare and competition. This difference reflects broader contrasts in how competition law is enforced in the two jurisdictions, with the EU being more focused on market structure and the U.S. on consumer outcomes
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