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European law --- Economic law --- European Union

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The overarching theme of this thesis is abusive pricing practices, but one abusive pricing practice – margin squeeze – takes center stage. This abuse occurs when a vertically integrated undertaking conducts an upstream or downstream pricing policy that does not allow an equally efficient competitor to trade profitably on the downstream market. Over time, the Commission and the European courts have developed a rationalised theory for this abuse. They assess margin squeeze as an independent abuse, using the as-efficient-competitor test and requiring anti-competitive effect. The as-efficient-competitor test evaluates whether the vertically integrated undertaking could offer its retail product to end-users profitably if it had been obliged to pay its own wholesale prices. In this way, it prevents the exclusion of competitors that are as efficient as the vertically integrated undertaking. Margin squeeze predominantly occurs in liberalised sectors, especially the telecom sector. While the Commission and European courts conceive margin squeeze as an independent abuse, this is far from the only possibility. The US Supreme Court, for example, does not endorse a separate margin squeeze theory, but requires either a duty-to-deal violation at the wholesale level or predatory pricing at the retail level. Two policy considerations seem to underlie this disagreement: price competition and legal certainty. Different authors see margin squeeze as price discrimination, predatory pricing, refusal to supply, excessive pricing, or a combination of those. As margin squeeze abuses mainly take place in regulated sectors, the interaction between competition law and sector-specific regulation raises questions. While these two regimes share a similar goal, they use different methods, which means their application may lead to different outcomes. In contrast to the US Supreme Court, the Commission and the European courts regard the two regimes as complimentary, with the state compulsion defence as a narrow exception. At the same time, competition law does take account of regulatory objectives. There are arguments pro and contra combining competition law and sector-specific regulation, but the combination may lead to an unsatisfying outcome, as the case of Deutsche Telekom demonstrates. When an undertaking abides by the national regulatory regime but is then found to abuse competition law, one may question who is at fault: the undertaking or the regulator/Member State.

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Geo-blocking, which basically refers to the practice of preventing customers from accessing websites or content of the website, has become widespread in the European Union. More particularly, the most affected sector by it is the audiovisual sector. Against this background, EU consumers have not been sitting idly by. They have expressed their dissatisfaction with geo-blocking by contending that it erects virtual barriers where there should be none. Others have eased their frustrations by falling back on VPNs to circumvent these obstacles. By contrast, the stakeholders of the audiovisual industry – especially European players in the audiovisual market – have intensively lobbied against a geo-blocking ban. Their main argument is that artificially partitioning the Internet landscape through geo-blocking is indispensable to preserve the principle of copyright territoriality upon which current business models are founded. Elimination of geo-blocking would adversely affect content production and subsequently decrease consumer’s welfare. Hence, the redline of this Master’s thesis is this war of words on the geo-blocking issue. Put it differently, it investigates how cross-border access to online audiovisual content services could be secured without harming the incentives of the audiovisual industry to produce and distribute content. To answer this question, this research has been conducted as following. Firstly, it outlined the inadequacy of the legal framework prior to the adoption of the 2015 Digital Single Market Strategy to deal with the issue. Indeed, the legal framework does little to nothing to address geo-blocking per se and/or to tackle the underlying reasons for the use of it. Secondly, it observed that the Geo-blocking Regulation which entered into force in 2018 does not alter the status quo since audiovisual services are expressly left outside the scope of it. Lastly, out of the presumption that the traditional copyright-territoriality-based business model of the audiovisual industry will inevitably have to adapt to the new paradigm in the way audiovisual content is consumed and distributed, this Master’s thesis answers the research question by advocating for a threefold approach towards the geo-blocking issue. In other words, this contribution defends that an elimination of geo-blocking in the EU (and thus allowing cross-border access to online audiovisual content services) without harming the incentives of the audiovisual industry to produce and distribute content will only be feasible if the European Union adopts an incremental, cross-sectoral and proactive approach.

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This Thesis shall critically assess the issues which Reflective Learning and Deep Learning algorithms pose on the enforcement of traditional EU Competition rules (Article 101 TFEU), and whether this framework is up to the task in regulating them. That is because, academics and practitioners concur that in the event that algorithms start fixing prices by themselves without the involvement of human intervention, the virtual ‘meeting of minds’ is likely not to be caught by the current laws due to the perfect forms of collusion they can reach. Further to the above, in AI cases there is no legal basis to attribute liability, which leaves the question open as to whom liability is attributed should things go wrong – is it the programmer of the algorithm, its user or both? The discussion will be supplemented with academic research, robotic case studies and surveys. As such, the tacit collusion and parallel pricing aspects will represent the focal point of this Paper.