Google/Fitbit: The starting point for a revolution in merger remedies in digital markets?

Click here to read the full article online

Even in the usually vibrant antitrust universe, 2021 was unique. It was hard to keep track of the constant flow of investigations and lawsuits launched worldwide against the ’big tech’ firms and legislative proposals seeking to tame the supposed ’gatekeepers’ of the tech industry. While the sheer number of cases and initiatives was overwhelming, it gets all the more confusing if the decisions taken by the regulators seem to be at odds even though they supposedly pursue the same goal.

This was the case in Google’s much-discussed acquisition of the fitness tracker manufacturer Fitbit. Despite similar concerns raised by the European and Australian antitrust authorities, they disagreed over Google’s predominantly non-structural remedy proposal.

In their paper, the authors examine the clearance decision of the European Commission (EC) which came as a surprise, in light of the competition concerns the authority had raised regarding the merger and its overall scrutiny over Google’s dominant position on various markets. The paper then compares the EC’s decision with the opposing view taken by the Australian Competition and Consumer Commission (ACCC) and puts it into the larger picture of the principles and practice on merger remedies applied by the two authorities. Given the EC’s and the ACCC’s general reluctance to accept non-structural remedies in merger proceedings and their largely consistent agenda towards the ’big tech’ firms, the paper explores explanations for their contrasting views in this case. The authors conclude that the EC’s proposal for a Digital Markets Act which is aimed at regulating the ’big tech’ firms ex ante and requires to monitor their behaviour, might already have influenced the EC’s assessment and could set a new path for merger remedies in digital markets.

The paper contributes to finding an order in the seemingly confusing international case law and antitrust regulation aimed at the ’big tech’ firms and shows that regulatory initiatives might be influencing the authorities’ decision making even before they are enacted.