Large internet companies could be held to higher standards of proof in competition cases as part of changes to EU rules being considered by Margrethe Vestager.
The EU antitrust chief said she was examining a proposal from independent experts suggesting that digital platforms suspected of anti-competitive behaviour be required, in certain cases, to demonstrate clear gains for their users to avoid punitive measures — instead of Brussels having to show the damaging effects on consumers.
“I think it’s an important discussion in figuring out what kind of regulation would be useful,” Ms Vestager told the Financial Times.
Stressing she had yet to reach a decision on whether to tighten the standard of proof, the Danish politician said that companies such as Google should bear extra responsibilities because they are so dominant that they have become “de facto regulators” in their markets.
“When you own a market and you’re the de facto market regulator, what are then the obligations that you get? And how do you show that you actually meet your obligations?,” the commissioner said.
Ms Vestager’s tough line on Big Tech has won her both admirers and political enemies on both sides of the Atlantic during her first term in Brussels. The commissioner levied more than €8bn in antitrust fines on Google and demanded that Apple cough up €13bn in an illegal state aid case. As she prepares for a wider role under incoming commission president Ursula von der Leyen, Ms Vestager is envisaging an overhaul of EU regulation alongside further competition enforcement actions.
The change in the burden of proof would be limited in its scope, according to a person with direct knowledge of the talks. It would apply to companies preventing users from accessing multiple apps and companies blocking access to their data for third-party applications looking to offer supplementary services — such as apps that read emails.
“Say for instance, Uber started offering higher rates for those drivers who used its platform more often,” said this person. “This would put competitors at a disadvantage because drivers would start favouring Uber to carry out their trips over competing apps. Under the proposed change it would be Uber who would need to show its behaviour is causing no harm to competition rather than the commission having to prove it.”
An EU official stressed that changing the burden of proof was one of several suggestions under review and there was no certainty it would be adopted.
But Ms Vestager, who will oversee EU digital policy in addition to her competition responsibilities, said: “It’s quite important to discuss fast and listen quick because there is a limit as to how much time we have available, because the legislative process in itself is quite long.”
Ms Vestager’s stance on Silicon Valley has irked Donald Trump, US president, who accused her of hating America. Earlier this month she ordered US chipmaker Broadcom to stop alleged anti-competitive behaviour while a probe was ongoing, the first time the commission had applied so-called interim measures in nearly two decades.
“I’m particularly happy about the interim measures tool now being out of the toolbox,” Ms Vestager said. “If we find cases where interim measures is the right tool to use, we will use it again.”
Among various ongoing inquiries, the commission was looking into Marketplace, Facebook’s ecommerce app, and submitted a list of preliminary questions to the US company. “We are still in the process of looking at the different answers, because obviously if we don’t have a case, we don’t have a case,” Ms Vestager said.
The commission has also set eyes on Apple Pay and it is exploring allegations that Wallet, the payment app on the iPhone, refuses to carry other payment apps.
Ms Vestager said the commission has also received calls from Google rivals to implement interim measures against the Silicon Valley company on Google Local and Google Travel, even though a probe is not imminent.
“I’d say sometimes, people ask for it, but sometimes, look at the Broadcom case, obviously, that was high priority, and yet, it takes a year before you get there,” she said. “And here, we have quite a clear case about immediate risk on the market if interim measures are not imposed.”
Ms Vestager defended her wider commissioner’s role and dismissed any potential conflicts of interest by saying there will enough scrutiny from EU courts and parliament on her actions.
“If you complain to us about not doing what we should, we shall have to reject that in public,” she said. “We’ll have to answer for ourselves.”
Javier Espinoza and Sam Fleming in Brussels
