Minor Digital IP and Law

The digitalization of society raises new concerns related to the protection of the competition process and of the consumers. .

This course covers three Law and Economics topics related to competition law, consumer law, and digitalization:

• Competition law applied to digital markets

​Modern antitrust law was born in the United States in 1890 with the adoption of the Sherman Antitrust Act. Its goal was to promote economic fairness and competitiveness. To ensure such fairness, Section 1 prohibited cartels and Section 2, monopolization. Further texts were then adopted such as the Clayton Act in 1914 to reinforce these prohibitions and giving new powers to antitrust authorities such as the control of mergers.  
​The European Union, which first was built on an economic purpose – building a common market – thus provided itself with equally strong antitrust laws, article 101 of the TFUE (Treaty on the Functioning of the European Union) prohibiting cartels and article 102, the abuse of dominance (which could be seen as the European version of “monopolization”). Additional regulation such as the Council Regulation (EC) No 139/2004 of 20 January 2004, gives the European Commission and competition law authorities the power to control concentration between undertakings.  
​Nevertheless, in the words of the Crémer Report: “the specific characteristics of platforms, digital ecosystems, and the data economy require established concepts, doctrines and methodologies, as well as competition enforcement more generally, to be adapted and refined” (Crémer J., de Montjoye Y.-A. & Schweitzer H., « Competition Policy for the Digital Era », Final Report, 2019, p. 3). 
​This module will thus firstly focus on the anticompetitive practices and their legal prohibition (their criterion, the sanctions…) and secondly explore the difficulties that have arisen regarding digital platforms and their characteristics that make public enforcement extremely more complex. A few notable cases, such as Google Shopping or Microsoft will be studied, as well as ongoing investigations.  
​Finally, as the European Union has recently adopted the Digital Markets Act, a regulation aimed at digital “gatekeepers” providing “core platform services” to ensure fair and contestable markets, this change of paradigm from an ex post sanction to an ex ante regulation will enclose this module.

• ​Coordinated algorithmic anticompetitive practices (collusions and mergers control)

​This section deals first with coordinated anticompetitive practices implemented in digital markets in a competition law and economics perspective rooted in examples from EU and US case laws. We consider the case of collusions between competitors both the ones supported by the use of algorithms and the ones potentially initiated by reinforcement learning based ones.  Second it will deal with the issue of the protection of the market structures and the potential competition through the mergers control performed by competition authorities. It will put the accent on the difficulties related to the acquisition strategies of Big Techs. 

• Consumer protection and digital manipulations 

​The online consumer, like all consumers, suffers from biases in his decision-making process. While consumer manipulation is nothing new, it can take on unprecedented proportions with the digitisation of the economy. 
​This session is divided into three sections.  
​First, we focus on difficulties consumers face when making decisions, consumers’ awareness in digital markets and the value of personal data.  
​Secondly, we will differentiate the risks and types of manipulation of the following four types of platforms: social networks, marketplaces, payment systems, and app stores. We will pay particular attention to dark patterns, online choice architecture, reviews and endorsement, algorithms tools for unfair and deceptive commercial practices. 
​The last section is dedicated to the regulations aimed to protect consumers. Ex-ante consumer protection with conformity by design obligations versus ex-post-consumer protection with a power of judicial action granted to a public authority or to consumers to introduce damages actions. Which solutions have been chosen by the European regulator? This section will discuss the interplay of the General Data Protection Regulation with the Unfair commercial practices Directive and Competition law enforcement. It will also be an opportunity to discuss the role of consumer protection in the frame of the new regulations for digital markets, including the Digital Market Act, the Digital Service Act and the Artificial Intelligence Act.  

Frédéric Marty (Université Côte d'Azur, GREDEG)

Frédéric Marty is a CNRS senior research fellow. Since 2003, he has been a member of the Group of Research in Law, Economics and Management (GREDEG) a join research unit of the CNRS and of the Université Côte d’Azur. He is also affiliate researcher of the French Economic Observatory (OFCE - Sciences Po. Paris), Researcher at the CIRANO (Montréal), and member of the EPPP Research Group of the Sorbonne Graduate Business School (IAE Paris Panthéon-Sorbonne).
He graduated in economics and management and holds a Ph.D. in economics from the Ecole Normale Supérieure of Paris-Saclay. His publications mainly deal with competition law and economics. His research fields encompass unilateral abuses of dominance, collusions, mergers control, State aids regulation and the history of competition policies. Frederic advises PhD students on competition law and economics mainly in digital and transport sectors.
Since 2019, Frédéric Marty is a member of the French Competition Authority for deliberations on matters relating to regulated legal professions.
frederic.marty@gredeg.cnrs.fr

Jeanne Mouton (PhD candidate)

Jeanne Mouton is a PhD candidate in economics at Université Côte d’Azur under the supervision of Frédéric Marty. She is also an academic assistant for the European Economics Department, European Legal and Economics Analysis track, at the College of Europe in Brugge. Her research field covers industrial organization, competition law and economics, digital economics, economics of privacy, with a focus on damages actions following abuse of dominance infringements in digital markets. 
jeanne.mouton@coleurope.eu

Nathalie Nielson (PhD candidate)

Nathalie Nielson is a PhD candidate in law at Université Côte d’Azur. She is currently in her third year researching the subject of monopolization in antitrust law facing the challenges of the Digital Economy. Her aim is to submit a proposition to renew the prohibition, doing comparative law between American antitrust laws and European competition law. She has also a wide interest in international law, regarding for example International Trade Law or International Private Law, both classes that she teaches at University Côte d’Azur as Assistant to the Professor.
During her PhD, she has published five different articles in antitrust law, covering a wide range of subjects: mergers, sanctions, due process of law… She has also participated in multiple conferences such as the GREDEG PhD Workshop, a Symposium in Würzburg University and in Aix-en-Provence, the 2022 ASCOLA conference in Porto, the 2023 ASCOLA conference in Athens and conferences organized by Université Côte d’Azur.
nathalie.nielson@univ-cotedazur.fr

• Conseil d’analyse économique : Plateformes numériques et pratiques anti‐concurrentielles et déloyales (2020) : https://www.cae-eco.fr/plateformes-numeriques-et-pratiques-anti-concurrentielles-et-deloyales
• Conseil d’analyse économique : https://www.cae-eco.fr/plateformes-numeriques-reguler-avant-qu-il-ne-soit-trop-tard (2020) / English version https://www.cae-eco.fr/staticfiles/pdf/cae-note60-en-2.pdf

• Akman, Pinar. "A Web of Paradoxes: Empirical Evidence on Online Platform Users and Implications for Competition and Regulation in Digital Markets." Va. L. & Bus. Rev. 16 (2021): 217.
• European Commission, Directorate-General for Justice and Consumers, Lupiáñez-Villanueva, F., Boluda, A., Bogliacino, F., et al., Behavioural study on unfair commercial practices in the digital environment: dark patterns and manipulative personalisation : final report, Publications Office of the European Union, 2022, https://data.europa.eu/doi/10.2838/859030
• Helberger, N., Lynskey, O., Micklitz, H. W., Rott, P., Sax, M., & Strycharz, J. (2021). EU consumer protection 2.0. Structural asymmetries in digital consumer markets. Joint Report from EUCP2. 0 Project BEUC.
• Podszun, R. (2022). The Digital Markets Act: What’s in it for Consumers?. Journal of European Consumer and Market Law, 11(1).

• 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 and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) : L_2022265EN.01000101.xml (europa.eu)
• Crémer J., de Montjoye Y.-A. & Schweitzer H., « Competition Policy for the Digital Era », Final Report, 2019 : https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf

• Frédéric Marty: case commentary - Submission deadline: 30/04/2024 (33 % of the final grade)
• Nathalie Nielson: two questions on the module and a short case analysis - Submission deadline: 14/03/2024 (33 % of the final grade)
• Jeanne Mouton: case anaysis - Submission deadline: 22/04/2024 (33 % of the final grade)