Data Regulation: Understanding The Present To Regulate The Future

“Data Regulation: Understanding The Present To Regulate The Future”, TechREG™ Chronicle, Inaugural Edition, 6 December 2021, by Juan Delgado.

What does existing data regulation tell us about data regulation in tech industries? Basically, that shortcuts do not exist. Data is not a commodity. The strategic value of a specific piece of data differs from one industry to another, varies over time, and depends on the level of aggregation and on the combination with other data. This implies that data regulation is necessarily a case-by-case exercise and requires specific solutions to well-defined specific problems. The current EU proposals for data regulation (the European Data Strategy and the Digital Markets Act) ignore this fact and attempt to regulate data through generic principles. A more flexible evidence-based approach to data regulation is likely to be more workable and effective in solving potential market failures in data intensive industries.

Antitrust Damages Actions in the EU: The Way Forward

“Antitrust Damages Actions in the EU: The Way Forward”, Global Competition Litigation Review, 2021, Volume 14, Issue 2/2021, pp. 77-87, by Juan Delgado.

Despite the adoption of the European Damages Directive and its transposition to national legal systems, a number of obstacles to antitrust damages actions in the EU still persist. Such obstacles stem from both substantial and procedural aspects. Information and data available to plaintiffs and defendants are asymmetric and incomplete. In addition, the financial interests of defendants are generally higher than those of the plaintiffs, which implies higher incentives to invest in litigation resources. Also, in many cases, it is complex to establish what would have happened in the absence of the anticompetitive conducts. Lastly, procedures differ broadly across Member States and several procedural obstacles to an effective damage claim mechanism still persist. The removal of obstacles to antitrust damages actions is a common responsibility of legislators, courts and competition authorities both at domestic and EU levels. Further policy and legislative actions are needed in order to improve the effectiveness and efficiency of antitrust damages actions in the EU.

Regulating Digital Gatekeepers: Lessons from the Banking Industry

“Regulating Digital Gatekeepers: Lessons from the Banking Industry”, CPI Antitrust Chronicle, Vol. 2, No. 1, 21 February 2021, by Juan Delgado.

Gatekeepers are not exclusive to digital markets. Gatekeepers exist in many other industries such as banking, telecoms and energy. The new element introduced by digital gatekeepers is their scale and scope: Digital gatekeepers have a global scope, have millions of users and are present in several industries. The European Commission recently proposed Digital Markets Act (DMA) can learn from existing regulation of gatekeepers in other industries. In particular, banking regulation addresses issues such as the use of data, interoperability and self-preferencing which constitute some of the main competition concerns in digital markets. The examples from the banking industry illustrate that the general principles and obligations set by the DMA can be a starting point for developing further and more detailed regulations but are no substitute for a detailed evidence-based analysis of the existing competitive concerns.

Obstacles to antitrust damages actions

Obstáculos para la reclamación de daños derivados de infracciones del derecho de defensa de la competencia (Obstales to Antitrust Damages Actions), by Juan Delgado.

Published in “Política de competencia y mejora de la regulación económica en Andalucía (2008-2020). Balance y retos.“. M. Arcos Vargas & L. Palma Marcos  (ed.). Thomson Reuters Aranzadi, 2021.

This chapter is part of a book that reviews the main accomplishments and challenges of competition policy in the Region of Andalucía (Spain) in the last decade. In particular, my chapter is devoted to antitrust damages actions. The chapter identifies the main obstacles to claiming antitrust damages in Europe and proposes different measures to overcome such obstacles.

Market Power in Digital Markets

«(Not so) New Sources of Market Power in the Digital Economy» by Juan Delgado.

Published in “The Digital Economy: Regulatory Contractual and Competition Aspects“. Robles A. and M. P. Perales (eds.). Tirant Lo Blanch, 2021.

The omnipresent scale, scope and reach of the digital economy have triggered heated debates in the competition and regulatory policy arenas. The far-reaching presence of digital giants has led to an increasing concentration of economic and political power, which is perceived with concern by governments and competition and industry regulators. The sources of market power in the digital economy are neither new nor unknown: The impact of private information and data, network externalities and innovation on market power and competition has been widely analysed. What is new in digital markets is the scale and scope of those effects, the interaction between them and the speed of change of the markets concerned. Any regulatory intervention to control the exercise of market power should be based on the state of the art of the knowledge on the dynamics of market power and should be extremely precise to limit anticompetitive market power without missing the potential positive externalities of big data analytics, network effects and innovation.

Financial markets manipulation: From Libor to the Spanish derivatives cartel

“Manipulación de los mercados financieros: Del LIBOR al cártel de los derivados”, CNMCBlog, 21 March 2019, by Juan Delgado.

Regulators and competition authorities have recently sanctioned several episodes of price manipulation in financial markets: from the LIBOR conspiracy to the recent Spanish interest rate derivatives cartel. All episodes have similar characteristics: financial entities take advantage of legitimate cooperation platforms to reach market sharing and price fixing agreements. The deficient design of financial indexes, the opacity of financial markets and their vulnerability to manipulation have facilitated the collusion between competitors. In the course of 2019, new cases are likely to emerge and damage claims from victims are likely to be filed all over the world.

The Challenges of Modern Antitrust

“Retos de los sistemas de defensa de la competencia en las economías avanzadas”, Revista de Economía ICE, December 2018, by Juan Delgado.

This article analyses the main challenges of modern antitrust: to improve its effectiveness in a increasingly complex economy, to integrate the particularities of the digital economy and to adapt to a more globalized world. The article concludes that modern antitrust does not need radical changes but a stricter and more rigorous use of the latest legal and economic tools.

How (not) to design a Regulator: Lessons from Spain

El Regulador de las Comunicaciones en España (The Spanish Communications Regulator), by Juan Delgado.

Published in “Reguladores y Supervisores Económicos Independientes: El Caso Español“. J. Segura  (ed.). Fundación Ramón Areces, 2018.

The chapter is part of a book that reviews the main milestones of the history of economic regulators in Spain. Based on the past experience, the book explores how regulators and regulation should be designed in order to better address the challenges currently faced by the regulated industries.

Who Cares about Pro-competitive Regulation in the EU

The Quest for Pro-Competitive Regulation in the EU: Who Cares?, by Juan Delgado and Héctor Otero.

Competition Policy International. Europe Column.

The removal of obstacles to competition, especially in highly regulated markets, and the design of procompetitive regulations in response to new market dynamics are essential to mobilize resources and unlock the potential of Europe’s economy. The lack of appropriate policy tools by European institutions and the lack of incentives by national governments, often dominated by vested interests, might prevent the further development of competitive markets in the EU. Increasing governments accountability and consumer awareness on the benefits from competition are ways to make progress in this direction. The empowering of competition authorities to conduct market investigations and to supervise ex-ante the impact of regulations on competition; and the wider use of properly designed public consultation mechanisms provide incentives to governments and legislators to incorporate competition concerns in the regulatory process.

Restructuring the Spanish Regulators

CNMC: The Story of an Unfinished Reform (“La CNMC: la historia de una reforma inacabada“), by Juan Delgado and Héctor Otero. PAPELES DE ECONOMÍA ESPAÑOLA. Regulación y política de defensa de la competencia en España; no. 135. September 2015.

Entry blog (In Spanish): La CNMC: Historia de una Reforma Inacabada. funcasBlog, 25 September 2015.

In 2012, the Spanish government proposed the merger of the antitrust authority together with six sectoral regulators in a single authority, the National Commission for Markets and Competition (CNMC). The reform was justified by the need for better coordination between regulators, to improve the consistency of their respective decisions and to reduce their operational costs. The design of the new institution however does not necessarily guarantee that those potential benefits will be materialized. Improving decision-making mechanisms, creating a more horizontal organization and strengthening the financial and functional autonomy of the regulator would facilitate the generation of synergies that so far do not seem to have arisen.