In the recently published Universal/EMI decision, the European Commission developed a novel theory of harm based on the impact of the transaction on the merging parties’ bargaining power. This memo explains the economic reasoning behind the Commission’s bargaining theory and presents a critical view of its application to the recorded music industry. In particular, the memo argues that the theory did not fit the facts of the case, and highlights some of the pitfalls to be avoided when testing such bargaining theories of harm.
Data sharing in hybrid marketplaces with endogenous fee setting
The issue is especially timely given provisions in the EU’s Digital Markets Act (DMA) designed to expand access to data held by large digital platforms. The...