The Network Law Review is pleased to present a symposium entitled “The Future of the Neo-Brandeis Movement”, asking experts the following question: will the neo-Brandeis movement have a lasting impact on antitrust law?
This contribution is signed by Wolf Sauter (Vrije Universiteit Amsterdam and Authority for Consumers and Markets). The entire symposium is edited by Thibault Schrepel (Vrije Universiteit Amsterdam) and Anouk van der Veer (European University Institute).
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Introduction
I am writing this contribution from the perspective of a European, more specifically Dutch, perspective as an academic and public antitrust practitioner. My introduction to the neo-Brandeis movement came in what I remember as a 2018 or 2019 conversation with Barry Lynn of the Open Markets Institute at an Oxford seminar convened by Ariel Ezrachi and Bill Kovacic. In response to my comments on the need to hold Big Tech accountable, Barry recommended reading “Amazon’s Antitrust Paradox” by his then-colleague Lina Khan.[1] Around that time, I picked up a copy of Tim Wu’s The Curse of Bigness on my own accord.[2] Since then, the star of these two authors has risen further and they have been appointed to prominent government positions, Khan notably being selected by President Biden to head the FTC at a remarkably young age and without any obvious track record of public service.
To address the question of whether the neo-Brandeis movement will have a lasting impact on antitrust – or competition law as it is dubbed in the EU, I will look both at the US experience from the outside and the EU and Dutch experience from the inside.
1. The Neo-Brandeis movement in the US
I am profoundly sceptical of the ability of the US antitrust agencies to deliver change in terms of effective enforcement against dominance, where they have largely been inactive for some 25 years. This is particularly damaging because the main Big Tech companies are American and have been allowed to proceed virtually unchecked on their home turf. As far as I can tell as an outside observer from a distance, the Khan tenure at the FTC has not chalked up any notable practical successes so far. Moreover, the only digital legislation of note that I can discern in the US is the evisceration of TikTok, which appears to be guided primarily by anti-Chinese sentiments and is, therefore, bipartisan.
The bipolar nature of American politics makes it something of a toss-up whether the attempt to pursue Big Tech will continue after the next elections, and if so, whether it will not be guided primarily by a desire to counter their perceived liberal politics rather than by a wish to curb market power per se. However, in any event, the neo-Brandeis movement is likely to remain a strong (under)current in American academia. This alone would not, in my view, qualify it as having a lasting impact on antitrust law. However, I would be happy to be proven wrong by a second Biden administration.
2. The neo-Brandeis movement and EU-level competition law
From an EU perspective, the results are mixed. Big Tech has been a target of European antitrust since the first Microsoft Decision of the European Commission in 2004 (in a case which originated in 1998),[3] and cases have consistently been pursued since then, hence both prior to and in the absence of the neo-Brandeis impulse. Few would seriously contend that the neo-Brandeis movement has been an important influence in the Google, Amazon or Apple cases from 2017 onward (or in the preceding years when they were built by the Commission),[4] nor for that matter the adoption of the Digital Markets Act (DMA) in 2022.[5] Rather to the contrary, this EU trend was carried forward against the predominant Chicago School doctrine in the US, as well as against the Chicago School-inspired focus on the “new economic approach” in the EU itself.[6] Although there is some superficial convergence between the neo-Brandeis school and the EU approach to Big Tech, from my point of view, the neo-Brandeis focus on bigness is different from the focus on contestability and fairness, albeit directed at big undertakings that characterise EU competition law and the DMA.
At present, EU competition law appears to be both less theoretically ambitious and more practically effective than the neo-Brandeis movement. Unlike the former, the latter still needs to transition from theory to practical implementation and may be more seductive while it remains both idealistic and open to interpretation. At the same time, the peculiarities of the EU are such that, in my view, they ensure there will be no obvious future role for the neo-Brandeis movement in Europe outside of motivating antitrust students to become more morally ambitious. These peculiarities include the EU’s Ordoliberal competition law roots and strong data and privacy protection tradition, the demands of market integration and regional collaboration in an increasingly Eurosceptical setting, and the catching up that its industry must do in a world where domestically unrestrained American corporations have been especially successful at moving fast and breaking things. The latest example of this is the AI models trained without prior permission on materials generated by numerous authors and indiscriminately without recourse to guarantees of reliability and moral controls.
It might be argued that it was the neo-Brandeis movement that helped rekindle Ordoliberalism and other domestic European alternatives to the temporarily dominant Chicago School-inspired new economic approach. However, the most I would expect based on current evidence is that the neo-Brandeis movement will provide Trans-Atlantic interlocutors capable of conducting a fruitful conversation with neo-Ordoliberals, or liberals of all stripes, in the EU. Whether either or any of them will have a meaningful impact on the direction of travel of technological development is an open question.
The promises of a decentralised Web 3.0 and individual data autonomy are oddly reminiscent of the early days of the Internet per se, or indeed of the halcyon days when broadcast television was seen as a medium of cultural expression and popular education – while in actual practice it has notably degenerated into a platform for selling advertising leavened by the occasional snippet of lowest common denominator entertainment to the degree necessary to glue eyeballs to the screen while continuing to sell products. It is dubious whether antitrust could be decisive here, even if it becomes more proactive, if the market model continues to drive developments that undermine pluralism and public provision of information is systematically undermined by the right end of the political spectrum.[7] Instead, what we see e.g., in the recently adopted EU Media Freedom Act,[8] is a focus on interference with news provision by elected populist governments. Another source of worry is Russian Trolls. This defensive stance is a far cry from controlling sophisticated private actors exploiting a market-based framework.
3. The neo-Brandeis movement and the NCAs in the EU
From my vantage point, the Dutch perspective is not very different from that of the EU. This is logical because the Netherlands is an EU Member State, and the Dutch ACM is a national competition authority (NCA) that forms part of the European Competition Network (ECN) guided by the European Commission. In that context, the NCAs are more likely to focus on the bread and butter of competition law enforcement, and their ability to take on Big Tech is limited. This is because NCAs must rely predominantly on the prohibition of abuse of dominance, which is notably resource and time-consuming and characterised by a high evidentiary bar.[9] At the same time, issues such as promoting sustainability and controlling the excesses of pharmaceutical companies require attention as well.
That said, if they choose their battles wisely, the NCAs too can take on Big Tech in individual cases, as was shown by the Bundeskartellamt vis-à-vis Facebook/Meta,[10] by several Autorité de la concurrence cases against Google in France,[11]and the ACM case against Apple.[12] The latter was already in the cards when I first spoke with Barry Lynn. With such cases, the NCAs can take the lead not across the board but on individual issues that are of special relevance to them and/or where they are well-placed. In my experience, the neo-Brandeis movement, such as it was at the time was not a significant factor in any of these examples, which started well before the dates of their respective decisions and hence largely pre-Khan.
Arguably on par with Big Tech in terms of importance for a forward-looking competition policy, sustainability has been a much more European preoccupation and much less one of the neo-Brandeis movement.[13] This does not predominantly revolve around issues of market power and is concerned more with the effective scope for cooperation to avoid first-mover disadvantages and free-riding behaviour. Again, within the EU, NCAs such as the ACM have frequently been at the forefront of this development. The same applies mutatis mutandis to competition issues regarding agriculture, labour markets and media plurality. Next, areas adjacent to antitrust such as the recently adopted Supply Chain Due Diligence Directive,[14] will form new ground for thought leadership on issues such as the permissibility and usefulness of private enforcement by means of compliance agreements – which may involve tolerating or indeed promoting refusals to deal and collective boycotts of corporations who violate environmental norms or fundamental rights.
Conclusion
The question of whether the neo-Brandeis movement will have a lasting impact on antitrust law and policy is linked to whether it is even currently having an impact on the key issues of antitrust. The answer would appear to be a partial yes on policy and a no on the law. Hence, my expectation is that the neo-Brandeis movement in the years to come will provide a convenient shorthand to reference a wake-up call for antitrust that was relevant primarily in academic circles, primarily in the US, during a particular time period. A lasting impact on US antitrust will require penetration of the US judicial appointment system and the successful prosecution of cases that will serve as broad precedents – neither of which I believe we have seen so far.
Arguably, and paradoxically, for the EU and its constituent parts such as the Netherlands, the neo-Brandeis movement has primarily been a trigger for reawakening Ordoliberalism and other domestic alternatives to the Chicago School inspired new economic approach that previously enjoyed a period of intellectual dominance. Other than providing this initial impulse, it is unlikely to provide a propelling force for EU competition law. Going forward, from a European perspective, the neo-Brandeis movement is useful mainly to suggest new arguments to the extent that they can be deployed in a different economic, legal, social, and political context and to provide – at least temporarily – potential Trans-Atlantic allies for reshaping part of the agenda of modern antitrust.
My view on the question posed by the editors is, therefore, a sympathetic but sceptical one.
Wolf Sauter
I am grateful for the comments by Martijn Snoep. This contribution was written in a personal capacity, and the views presented are my own.
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Citation: Wolf Sauter, The impact of the neo-Brandeis movement on antitrust: A sceptical view, Future of Neo-Brandeis Movement (ed. Thibault Schrepel & Anouk van der Veer), Network Law Review, Summer 2024.
[1] Lina Khan, “Amazon’s Antitrust Paradox”, (2017) 126 The Yale Law Journal 564-907.
[2] Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports. New York 2018).
[3] Commission Decision of 24 March 20042007/53/EC relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement against Microsoft Corp. (Case COMP/C-3.37.792 – Microsoft), OJ 2007, L32/23.
[4] Case T-612/17, Google Shopping, Judgment of 10 November 2021, ECLI:EU: T:2021:763; See AG Opinion on appeal in Case C-48/22 P, Google and Alphabet v Commission (Google Shopping), 11 January 2024, ECLI:EU:C:2024:14; Case T-604/18 Google and Alphabet v Commission (Google Android), Judgment of 14 September 2018, ECLI:EU:T:2022:541; CASE AT.40411, Google Search (AdSense), Commission Decision of 20 March 2019 based on Article 7 of Regulation (EC) 1/2003; Antitrust: Commission sends Statement of Objections to Google over abusive practices in online advertising technology, European Commission Press Release, Brussels, 14 June 2023. Commission Decision C(2022) 9442 final of 20 December 2022 relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union (TFEU) and Article 54 of the EEA Agreement Cases AT.40462 – Amazon Marketplace and AT.40703 – Amazon Buy Box; Commission Decision of 4 March 2024 in CASE AT.40437 – Apple – App Store Practices (music streaming) based on Article 7 of Regulation (EC) 1/2003.
[5] Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act), OJ 2022, L265/1.
[6] Anne Witt, The More Economic Approach to EU Antitrust Law (Bloomsbury Publishing, London 2019).
[7] Cf. Glen Weyl, Audrey Tang and community, Plurality: The future of collaborative technology and democracy https://www.plurality.net/.
[8] Proposal for a Regulation of the European Parliament and of the Council establishing a common framework for media services in the internal market (European Media Freedom Act) and amending Directive 2010/13/EU, Brussels, 16.9.2022, COM(2022) 457 final, 2022/0277(COD).
[9] Cédric Argenton et al., Can Abuse of a Dominant Position be Tackled More Effectively? Report for the Dutch Ministry of Economic Affairs, Tilburg University 2023 https://open.overheid.nl/documenten/8d07509f-602a-49b5-b0f3-974644563fb0/file
[10] Bundeskartellamt, Decision of 6 February 2019 Facebook, B6-22/16, Exploitative business terms pursuant to Section 19(1) GWB for inadequate data processing Sector: Social networks. Cf. Case C-252/21 Meta Platforms Inc and Others v Bundeskartellamt, Judgment of 4 July 2023, ECLI:EU:C:2023:537.
[11] Autorité de la concurrence, Decision 19-D-26 of 19 December 2019, regarding practices implemented in the sector of online search advertising sector; Decision 22-D-13 of 21 June 2022 regarding practices implemented in the press sector.
[12] Autoriteit Consument en Markt, Decision ACM/UIT/568584 of 21 August 2021 in Case ACM/19/035630, e imposition of an order subject to periodic penalty payments on Apple Inc. and Apple Distribution International Ltd for the violation of section 24 of the Dutch Competition Act and article 102 TFEU.
[13] Simon Holmes, Dirk Middelschutte and Martijn Snoep (eds), Competition law, Climate Change & Environmental Sustainability (Concurrences, New York 2021); Julian Nowag and Wolf Sauter, “The European Commission’s new Horizontal Guidelines: A Great Reset for Competition Law and Sustainability”, (2023) 8 Competition Law and Policy Debate 57-62; Mariska van de Sanden and Wolf Sauter, “Greening Antitrust: The Dutch and EU Assessment of Sustainability Agreements”, (2023) 17 Antitrust 32-38.
[14] Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, Brussels, 23.2.2022, COM(2022) 71 final, 2022/0051(COD).
