(AGENPARL) – ven 04 ottobre 2024 COMPETITION POLICY
IN DIGITAL MARKETS
THE COMBINED EFFECT OF EX ANTE AND
EX POST INSTRUMENTS IN G7 JURISDICTIONS
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1 Introduction
In recent years, regulators have become increasingly concerned about large digital platforms’ market
power and their growing influence within and beyond the respective markets. A number of expert studies
and the perception that competition law enforcement was not as effective in solving digital competition
concerns spurred the debate about whether and, if so, how to regulate, and proposals to intervene with
ex ante regulation multiplied (see also (OECD, 2021[1])).
In this context, in 2022 the OECD Competition Division was entrusted by Germany’s G7 presidency with
the task of compiling an inventory of proposed or enacted legislative reforms that were developed to
address digital competition issues in G7 jurisdictions (hereinafter, the “Inventory”1). The aim of the detailed
Inventory is to provide an objective comparison of “ex ante” regulations in digital markets in selected
jurisdictions, based on their status, scope, institutional setting and content. In addition, an analytical note2
was prepared to accompany the Inventory and assist the reader in understanding its content, while drawing
some high-level findings. This work continued to develop in 2023 under Japan’s presidency, expanding to
non-G7 jurisdictions as well.
Currently, while some jurisdictions are debating the most effective way to move ahead with digital
regulation, and others deal with the implementation of their recent reforms, 3 competition authorities
continue to tackle concerns around digital platforms’ conduct through traditional ex post enforcement.
This note, prepared for the 2024 Joint Competition Policy Makers and Enforcers Summit under the Italian
presidency in continuity with previous work, aims at expanding the scope of the analysis by considering
the combined effect of ex ante and ex post instruments,4 in order to provide a picture of how G7
jurisdictions are addressing large platforms’ use (and misuse) of market power.
Following the 2023 analysis of convergences and divergences between the various regulatory regimes
proposed to date, this exercise focuses instead on the substance of the key competition concerns at the
heart of multi-jurisdictional efforts in digital markets, and on the patterns that can be identified in terms of
both platforms’ conduct and enforcement activities in G7 countries.
The following chapters analyse a number of recent antitrust cases, to understand what conducts have
been deemed most problematic and have been the focus of competition authorities thus far, and what
remedies were implemented to address the concerns. These trends and patterns are then observed in
light of the prohibitions and obligations contained in recent ex ante reforms, in order to appraise the
complementarities and overlaps between the two types of instruments. Further, the note aims at gathering
preliminary evidence around large platforms’ compliance strategies and whether extraterritorial effects are
arising, to shed some light on the global implications of national enforcement activity in digital markets.
For the purpose of this note, cases were selected according to a number of criteria: the jurisdiction, limiting
the scope to G7 countries and EU; the timeframe, considering investigations opened from 2015 onwards
in order to frame the exercise; the entity, looking mainly at those digital platforms to which the ex ante
regulations implemented thus far would apply.
The remainder of this note, based exclusively on publicly available information as of September 1 st 2024,
is structured as follows. Chapter 2 will focus on lessons from traditional enforcement against selected
digital platforms, with regard to aspects that are also covered in the applicable ex ante regulations, to gain
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insight on how the most problematic conducts are captured, patterns of anticompetitive behaviours across
jurisdictions and the types of remedies imposed to address them. Chapter 3 will provide insights on whether
companies’ compliance efforts, in response to both new regulations and remedies imposed in enforcement
cases, are tailored and limited to the jurisdiction at stake or if extraterritorial effects can be identified.
Chapter 4 concludes.
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2 The combined effect of ex ante and
ex post instruments
Alongside the development of new rules for digital markets in certain jurisdictions, G7 authorities have
engaged in significant ex post enforcement of competition law in digital markets. This enforcement has
focused on a broad range of conducts, which, in several instances, overlap with those covered by the
various ex ante regimes proposed or implemented to date. Notably, remedies put in place in response to
competition law investigations may be similar to those contemplated under ex ante reforms.
This section identifies the types of conduct and remedies which have been the focus of ex post
enforcement in G7 jurisdictions, and considers how these issues are, or could be, addressed under ex ante
provisions. The global nature of digital platforms’ operations means that it is common for the same
conducts to raise competition concerns and be subject to investigation in multiple jurisdictions at any
particular time. Certain conducts have featured heavily in enforcement action, with substantial remedies
put in place across multiple cases and jurisdictions, while other conducts are still under investigation or
have received less attention from enforcers. In each case, the potential impact of ex ante reforms is likely
to vary.
Anti-steering practices and MFNs
In the majority of G7 jurisdictions, competition authorities have focused significant attention on digital
platforms’ restrictions on their business users. This includes anti-steering rules, which prevent business
users from offering consumers access to their services via alternative channels, and most-favoured-nation
clauses (MFNs), which prevent business users from providing offers on more favourable terms (e.g. at a
lower price) via alternative channels.
In certain cases, such restrictions can be justified in order to limit free-riding, whereby users benefit from
the service provided by the platform but avoid the payment of fees on the actual sale (OECD, 2021[1]).
However, these restrictions can impact competition – limiting the ability of alternative providers to reach
consumers, reducing consumer choice and entrenching users’ reliance on the digital platform. These
concerns have generally been addressed under competition law provisions, with G7 competition authorities
recently scrutinising Apple’s anti-steering requirements for app developers and Amazon’s MFN
requirements for retailers.
Enforcers have targeted the anti-steering requirements in Apple’s app store terms, which prohibit app
developers from informing consumers about alternatives to Apple’s in-app payment system (such as
purchasing via the developer’s own website), including within the app itself or via other means (such as
email). In 2021, an investigation by the Japan Fair Trade Commission (JFTC) identified that Apple’s
specific prohibition on app developers linking consumers to their own websites (to make a purchase) could
be in violation of Japan’s Antimonopoly Act.5 Also in 2021, the Epic Games vs Apple decision in the United
States (US) found that Apple’s broader anti-steering provisions were anti-competitive, hiding critical
information from consumers and illegally stifling consumer choice. 6 More recently, in March 2024, the
European Commission (EC) concluded that Apple’s anti-steering provisions, as applied to music streaming
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apps,7 were an abuse of dominance and amounted to unfair trading conditions, which were neither
necessary nor proportionate and negatively affected the interests of users of Apple’s mobile operating
system (OS).8
As part of a complaint filed in 2023, the US Federal Trade Commission (FTC) alleged that Amazon illegally
maintained its monopoly power by ‘punishing’ third-party retailers whose products are available at lower
prices elsewhere, such as by downgrading their rankings,9 despite ceasing to apply contractual price parity
obligations (MFNs) in 2019. Similarly, in 2020, the Canadian Competition Bureau announced an
investigation into potential abuse of dominance by Amazon, including examining whether Amazon’s
policies may impact third-party retailers’ willingness to offer their products for sale at a lower price
elsewhere, including via their own websites or on rival marketplaces.1011
These cases follow previous enforcement actions by the EU12 and Japan13 in 2017, in which enforcers
considered that Amazon’s contractual MFNs for e-book publishers could amount to an abuse of dominance
and/or distort competition. Concerns were also raised about similar contractual obligations for third-party
retailers on Amazon Marketplace in Japan14 in 2017 and by the United Kingdom (UK)15 and Germany16 in
2013.
In most cases, the remedies and/or commitments that were used to eliminate the competition concerns
have required the platform to remove (or not enforce) the relevant contractual provisions. In 2021, to close
the JFTC’s anti-steering investigation, Apple implemented voluntary measures on a global basis to allow
certain apps to include an in-app link to their own websites.17 In the US Epic Games vs Apple ruling in
2021, Apple was ordered to remove its broader anti-steering provisions in the US,18 and the same remedy
was imposed for music streaming apps by the EC in March 2024. 19 Similarly, Amazon has progressively
removed its price parity obligations on a voluntary basis in direct response to enforcement actions in
different jurisdictions.20
The concerns discussed above are also in scope of new ex ante rules that have been implemented or
proposed in G7 jurisdictions. For instance, the EU’s Digital Markets Act (DMA)21 contains a prohibition
against anti-steering in its Article 5(4), under which Apple and Google, as designated gatekeepers for their
app stores, are required to remove their anti-steering provisions from their respective app store rules 22.
Following a non-compliance investigation against both Apple and Google to determine whether their app
store rules are in breach of the DMA, 23 on 24 June 2024, the EC informed Apple of its preliminary view
that Apple’s App Store rules are in breach of Article 5(4) of the DMA, as they prevent app developers from
freely steering consumers to alternative channels for offers and content. 24 The DMA also prohibits MFNs,25
which is consistent with the changes made by Amazon following investigations in the EU and Japan.
Meanwhile, Japan’s Mobile Software Competition Act (MSCA) prohibits designated smartphone app store
operators from engaging in anti-steering practices, while the 2020 Act on Improving Transparency and
Fairness of Digital Platforms (TFDPA) requires designated platforms to disclose the details and reasons
for including MFNs in their terms and conditions. In Germany, Section 19a of the German Competition
Act,26 allows to prohibit covered undertakings from restricting other firms from advertising their offers via
alternative channels, 27 and, more generally, from taking measures that impede other firms in carrying out
their business activities, where the covered undertaking’s activities are of relevance for accessing the
relevant markets.
Anti-steering practices and MFNs have been a major focus of both traditional competition law enforcement
and new ex ante rules in G7 jurisdictions, where in place. The remedies that have been imposed to address
authorities’ competition concerns have generally required platforms to remove the offending contractual
provisions. However, these platforms remain under ongoing scrutiny by competition authorities and
regulators regarding the effectiveness of their compliance – particularly where the platforms may have
introduced alternative constraints on business users’ activities. 28 While authorities will continue to assess
the effectiveness of these remedies, at this stage there does not appear to be much divergence in the
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substance of the remedies chosen to address these competition concerns under ex post enforcement or
ex ante regulations, or from jurisdiction to jurisdiction.
Use of data
Large platforms’ continuous accumulation and combination of users’ data, together with the well-known
features of digital markets, has allowed them to strengthen their market power and leverage their position
into other markets, thus expanding and entrenching their ecosystems over time (OECD, 2021[1]). This can
give rise to anti-competitive effects, for instance by enabling foreclosure strategies at different points of the
ecosystem, as well as exploitative abuses. As discussed in (OECD, 2024[2]), this is also particularly relevant
for first movers in the development of generative AI, “which may enjoy a competitive advantage over other
firms”, particularly if they have been able to train their models in “legally grey areas”.
Antitrust enforcement in G7 jurisdictions has targeted a range of competitive harms arising from the use of
data by digital platforms, including concerns around Amazon and Meta’s use of their business users’ data
to obtain a competitive advantage in related markets, where they may be in competition with those users.
Competition authorities in the UK and the EU have investigated data-related concerns arising from
Amazon’s Marketplace platform, which Amazon’s own retail business and third-party retailers use to sell
their products. In 2022, the EC found competition concerns with regard to Amazon’s use of non-public,
commercially sensitive data about third-party retailers from Amazon Marketplace to inform its own retail
business’ decisions (e.g. what products to sell, stock levels and prices).29 The Competition and Markets
Authority (CMA) in the UK conducted a similar investigation in 2023. 30
Similarly, in June 2021, the EC and CMA both announced investigations into Meta, which operates the
social networks Facebook and Instagram and is a dominant supplier of online display advertising.31 These
investigations targeted concerns around Meta’s use of third-party advertisers’ data, i.e. businesses using
Meta’s advertising services, for instance on Facebook Marketplace. In particular, the authorities were
concerned that Meta could use such ad data to develop and improve its own products, where Meta
competes directly with those advertisers, thus obtaining an unfair competitive advantage and distorting
competition.
To address competition concerns in these cases, authorities accepted behavioural commitments from
Amazon (in the UK and EU) and Meta (in the UK). Amazon’s commitments in both jurisdictions prevent it
from using non-public data from retailers for any decisions relating to its retail business. Meta’s
commitments in the UK prohibit it from using advertisers’ data when developing products that compete
with those advertisers.32 The EU’s investigation into Meta is still ongoing at the time of writing of this
report.33
There is considerable convergence between the commitments made by Amazon and Meta and the
relevant ex ante rules’ provisions in the EU and the UK. In a press release, Amazon noted that its
commitments in the EU enforcement case came about in the context of the upcoming DMA, 34 which coming
into force would have covered those business practices, among others,35 as also highlighted by the EU. 36
Additionally, in the UK, Amazon and Meta’s commitments to the CMA specify that they will cease to apply
if the CMA decided to impose obligations pursuant to Digital Markets, Competition and Consumers Act
2024 (the DMCC Act) addressing the same concerns. Similarly, Japan’s MSCA prohibits smartphone
software service providers from using acquired data, such as usage information and sales numbers, for
their own services in competition with third parties.
The need to address unfair competitive advantages stemming from dominant platforms’ use of data is a
key element of most implemented and proposed ex ante reforms in G7 jurisdictions. Beyond the cases
discussed above, these rules will also extend to other aspects of data collection and use which have not
been subject to widespread enforcement action across multiple jurisdictions. For example, the DMA’s
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Article 5(2) prohibits gatekeepers from combining user data across their ecosystems without consent, to
ensure that, among other things, they do not unfairly undermine the contestability of core platform services,
in light of their significant advantages in terms of accumulation of data. 37
This is similar to new provisions in Section 19a of the German Competition Act, which followed
the Bundeskartellamt’s 2019 decision against Meta (formerly Facebook).38 In the 2019 case, the authority
prohibited Meta’s practice of combining user data across multiple services without their consent, and
making this a condition of accessing its services (see also (OECD, 2024[2])). In addition to the exploitative
effects, it was also found that this practice could place rivals at a competitive disadvantage. Germany
closed a similar case against Google under Section 19a in 2023, emphasising the close cooperation with
the Commission in the course of the proceeding and the coherence between commitments made by
Google and its obligations under the DMA. Moreover, Google’s commitments extended Google’s
obligations under Article 5(2) DMA to additional Google services.39
Data portability and interoperability have also received considerable attention as potential remedies to
address, among other issues, the role of data as a source of market power for dominant platforms.40
However, there are fewer examples of data portability or horizontal interoperability remedies being
implemented in response to traditional antitrust investigations,41 although vertical interoperability remedies
have been proposed in some antitrust cases where dominant platforms have impeded competition by
imposing interoperability restrictions on their competitors in downstream markets (discussed further
below).
To conclude, multiple platforms have made commitments in different G7 jurisdictions to resolve competition
concerns arising from their use of their business users’ confidential data, where they may be in competition
with those users. However, there have been fewer remedies focused on addressing emerging competition
issues relating to the combination and use of user data or imposing data portability requirements.
This may point to a complementary role for ex ante rules in addressing the full range of competition issues
arising from the use of and access to data. These ex ante rules may differ from the remedies that have
been imposed so far in traditional competition law enforcement cases, including by introducing broader
positive obligations for digital platforms (e.g. to provide data portability) and/or applying to new services
that may not have been captured by targeted remedies or commitments. Competition authorities may also
choose to adopt similar remedies or approaches as part of future enforcement actions.
Self-preferencing
Self-preferencing concerns in digital markets can arise when platforms use their position in one market to
favour their own products in an ancillary market (for example, by giving them a preferential ranking), thus
distorting competition in the related market. While self-preferencing concerns have recently increased in
prominence, they can be seen as similar to traditional leveraging theories of harm in which firms leverage
market power in one market (e.g. the intermediation platform) to foreclose competitors in a related market
(e.g. a downstream retail market) (OECD, 2021[1]).
Competition authorities have taken a range of cases targeting these practices, with many of these
investigations still underway and as yet unresolved. Self-preferencing behaviour by Amazon and Google
has been a particular focus for authorities, with increasing attention on recent practices by Apple.
In 2021, Italy concluded a major case against Amazon, finding that Amazon abused its dominance by
giving favourable rankings to products from retailers using Amazon’s delivery services.42 Specifically, these
products were more likely to appear in the ‘Buy Box’ than the products of other third-party retailers – offers
in the ‘Buy Box’ are displayed prominently and enable consumers to quickly purchase the item by clicking
a ‘buy’ button. This issue also forms part of the ongoing Amazon cases in the US and Canada, and the EU
and UK commitments decisions discussed in the previous sections, with enforcers in the EU and UK finding
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that Amazon was also self-preferencing its own retail products. These cases followed the EC’s well-known
Google Shopping decision in 2017, which found that Google had abused its dominance in general internet
search to favour its own comparison shopping service.43 44
Recently, investigations in many G7 jurisdictions have targeted Google’s self-preferencing conduct in the
ad tech supply chain. Ad tech services are used by advertisers and publishers to buy and sell large volumes
of online display advertising inventory in real time. France’s investigation, which concluded in 2021,
focused on concerns that Google had abused its dominant position in France in one part of the supply
chain (publisher ad server) by giving preferential treatment to another of its ad tech services (ad
exchange), to the detriment of rival ad exchanges and publisher customers.45 Ongoing cases in the EU 46
and UK47 incorporate similar allegations, while also examining concerns that Google had used its dominant
position in advertiser buying tools to also favour its ad exchange, at the expense of rivals. Google’s
leveraging conduct in ad tech services is also under investigation in Canada. 48
In France,49 Germany50 and Italy,51 Apple is currently subject to investigation for self-preferencing
concerns and/or discriminatory conditions relating to the introduction of its App Tracking Transparency
(ATT) framework. In April 2021, Apple introduced an additional consent dialogue for user tracking on its
mobile OS, which applied only to third-party apps. Authorities are concerned that Apple has abused its
dominant position by implementing a discriminatory policy which disadvantages its rivals (for example,
third-party apps with business models that rely on user tracking) and benefits its own products, as Apple
does not seem to be restricted in its ability to engage in the types of user tracking covered by the ATT
framework. Germany’s investigation is based on the new Section 19a of the German Competition Act, 52
as well as traditional competition law provisions.
As many of these cases are still underway, there is less certainty about the nature of the remedies that
may be implemented to address competition authorities’ self-preferencing concerns, as well as what
constitutes effective compliance with such remedies.53 Some investigations have been closed with
behavioural commitments, including the Amazon Buy Box cases (Italy, EU, UK) and Google ad tech case
(France). For example, Amazon made commitments in the UK and EU to ensure equal access to the Buy
Box for all retailers using Amazon Marketplace.54 This is in line with Article 6(5) of the DMA, which prohibits
gatekeepers from treating more favourably, its own products over similar ones of a third party, specifically
in relation to ranking and related indexing and crawling.55 The UK DMCC Act enables the CMA to impose
behavioural remedies to address platforms’ self-preferencing behaviour.56
In contrast, in the EU’s Google ad tech antitrust enforcement cases, enforcers are considering structural
remedies to address the underlying cause of the self-preferencing concerns such as the inherent conflicts
of interest, which may involve requiring Google to divest some of its ad tech services. 57 Such remedies
would also be possible under the DMCC Act in the UK, with the CMA able to impose pro-competitive
interventions, which could include structural remedies, to remedy, mitigate or prevent adverse effects on
competition.58 Under the DMA, structural remedies are only available where designated gatekeepers
systematically infringe their obligations,59 while, for instance under antitrust rules in the EU and Germany, 60
structural remedies are only available in cases in which behavioural alternatives are insufficient or less
effective.61
Overall, there is a high volume of cases across G7 jurisdictions that address competition concerns arising
from self-preferencing behaviour from a number of digital platforms. However, many of these cases are
still ongoing and it remains to be see if remedies will be implemented and what form these will take. Due
to the number of ongoing cases, including several prominent cases seeking structural remedies, there is
likely to be a strong continuing role for traditional antitrust enforcement in driving outcomes to address
concerns around self-preferencing behaviour.
Additionally, while self-preferencing has been extracted as a key concern for most proposed and
implemented ex ante regimes, not all of these include a general prohibition on self-preferencing, meaning
that traditional antitrust frameworks will remain relevant for those practices not caught by the ex ante rules.
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For example, the EU’s self-preferencing prohibition in the DMA relates specifically to ranking on certain
platforms (e.g., social networks, online marketplaces and search engines). In Japan, the MSCA prohibits
self-preferencing within search engine results’ rankings, while the TFDPA focuses on requirements for
platforms to disclose the details and reasons for any self-preferencing behaviour.
Tying and bundling practices and interoperability restrictions
Tying and bundling practices are a common feature of digital markets, due to the interconnected nature of
digital products. Tying occurs when a firm requires its customers to purchase additional product(s)
alongside the product they wish to purchase. This can be accomplished through technical tying – for
example, restricting interoperability with rivals’ products, or through contractual tying, which obligates
customers to purchase the products together (OECD, 2020[3]). Bundling occurs when a firm offers multiple
products together as a single package.62
Tying and bundling strategies may benefit consumers,63 however, they may be harmful when used to
foreclose competition, including by excluding competitors from the market or denying them scale (OECD,
2020[4]). Competition concerns may also arise in situations where dominant firms place interoperability
restrictions on suppliers, customers, or rivals. As such, tying conduct and related interoperability
restrictions have been a longstanding focus of digital competition enforcement, and a range of
investigations are currently underway in G7 jurisdictions. Recent enforcement action has focused
particularly on Apple and Google’s mobile operating systems (OS) and app stores.
In the EU’s Google Android decision in 2018, the EC found that Google had engaged in anti-competitive tying
and bundling practices, including by requiring mobile device manufacturers to pre-install Google Search and
Google Chrome in order to license Google’s app store.64 The US Department of Justice (DoJ) filed a major
lawsuit targeting similar concerns in 2020. In August 2024, the US District Court for the District of Columbia’s
ruled65 that Google had unlawfully maintained its monopolies in the product markets for general search and
general search text ads by implementing and enforcing exclusionary agreements with manufacturers.66 The
JFTC is also investigating these issues as a suspected violation of the Antimonopoly Act.6768
In August 2020, Epic Games in the US filed separate lawsuits against Apple 69 and Google70, alleging that
they had engaged in tying conduct which substantially forecloses competition – including tying their app
stores to their in-app payment systems, requiring app developers to use their systems and incur fees on
all in-app purchases of digital goods. Epic Games was not successful in its case against Apple, however
a jury found in its favour against Google in December 2023. Google also settled a similar lawsuit with
various state attorneys general in September 2023, 71 and this conduct has been subject to investigation
in the EU72 (Apple only) and the UK73 (Google and Apple).
Apple has also faced scrutiny in the EU 74 and US75 over other interoperability restrictions, particularly
concerns that it has prevented third parties from accessing the hardware necessary to deliver tap-to-pay
services, in order to foreclose competitors of its digital wallet product, Apple Pay. Statements from the EC
and DoJ highlight the impact of these interoperability restrictions on innovation and consumer choice. The
DoJ’s Apple case also alleges that Apple has blocked the functionality of a range of other app categories,
including “super apps”, mobile cloud streaming services and messaging apps, with the aim of maintaining
its monopoly power while extracting maximum revenue.
Some of the above enforcement investigations are still ongoing, and there have been a range of outcomes
across the cases which have concluded. Google has made changes to its practices to address competition
concerns raised by enforcers in several jurisdictions 76. For instance, as part of its compliance efforts
following the EC Google Android case, Google implemented a “choice screen” for users in the EU in 2019,
allowing users to select their default search provider on its mobile OS where the Google Search app is
preinstalled.77 More recently, in its 2023 settlement with the state attorneys general in the US, Google
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committed to allowing alternative payment options on its mobile OS,78 and proposed similar commitments
to the CMA in the UK. However, the CMA rejected this proposal in August 2024, stating that it was not
satisfied that the proposed commitments effectively addressed its competition concerns, and that it expects
to consider the issue further under the new digital markets competition regime. 79
Additionally, in July 2024, the EC accepted binding commitments from Apple in response to its Apple Pay
investigation.80 Apple and Google are also subject to a range of interoperability requirements under the
DMA, including requirements to allow third-party in-app payment systems on its mobile OS.81
Tying practices by digital platforms are a longstanding concern for competition authorities in G7 jurisdictions,
with a number of substantial remedies being imposed on dominant platforms. However, with several major
open investigations across different jurisdictions, and the implementation of enforcement remedies and
ex ante provisions still in progress, there is considerable uncertainty about the nature and extent of remedies
that will be agreed upon to address competition concerns on an ongoing basis. It appears likely that both
traditional competition law enforcement and ex ante regulation will play a role in determining final outcomes,
although this raises the risks of divergences (discussed further in Chapter 3 below).
Summary – key concerns
G7 authorities have engaged in significant ex post enforcement in digital markets over many
years. More recently, some of these jurisdictions have proposed or enacted new ex ante
regulations applying to large digital platforms, which target similar competition concerns as
these enforcement actions. This includes anti-steering practices and MFNs, the use of data,
self-preferencing behaviour, and tying, bundling and interoperability practices.
Anti-steering practices and MFNs have been a key focus for G7 enforcers, with substantial
remedies put in place to address these concerns. At this stage, there does not appear to be
much divergence in terms of substance between these remedies and platforms’ new
obligations under the ex ante regimes. However, there remains ongoing scrutiny regarding the
effectiveness of these remedies and platforms’ approach to compliance.
Addressing unfair competitive advantages arising from the use of data is a key element of the
ex ante reforms in place in certain G7 jurisdictions. In this area, ex post enforcement efforts
so far have focused particularly on competition concerns from platforms’ use of their business
users’ confidential data, with some jurisdictions also tackling emerging issues such as the
combination and use of end users’ personal data. This may point to a complementary role for
ex ante rules, some of which were inspired by previous antitrust cases, to address additional
and emerging issues arising from access to large amounts of user data in the future.
A large number of enforcement cases are underway targeting self-preferencing behaviour in
digital markets, although there is uncertainty about whether remedies may be imposed and
what form these will take. Due to the volume of ongoing cases, there is likely to be a strong
continuing role for traditional antitrust enforcement in addressing concerns arising from selfpreferencing, alongside some potential impacts from the implementation of various ex ante
rules.
Tying practices and interoperability restrictions by large digital platforms have been a
longstanding concern for G7 authorities, with a variety of ex post remedies and ex ante
regulations now in place. However, given the number of investigations still open, there is some
uncertainty about the nature of the remedies that may be implemented on an ongoing basis.
In light of this, it is likely that both traditional competition law enforcement and ex ante
regulation will both play a role in driving the response to these concerns.
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3 Compliance and extraterritoriality
In light of the array of ex post enforcement and ex ante provisions canvassed in Chapter 2, platforms are
adjusting their operations, services and practices to comply with the remedies imposed by competition
authorities and their requirements under new ex ante regimes. Given the global nature of platforms’
operations and ecosystems, these changes may have extraterritorial effects, i.e. where platforms make
changes to their operations beyond the boundaries of the applicable jurisdiction. This could be for efficiency
reasons, or to pre-empt or deter potential regulation or enforcement action in other jurisdictions (OECD,
2023[5]).
Extra-territorial effects are more likely to arise where it is not legally or technically feasible, or economically
viable, for firms to adhere to different regulations in different jurisdictions (Bradford, 2012[6]). In the first
instance, this will be driven by whether platforms have the ability to separate their operations in the
particular jurisdiction. Secondly, firms will consider how beneficial it is for them to do so – i.e. whether the
benefits of avoiding the particular regulation outweigh the costs of maintaining differentiated operations.
Platforms’ compliance strategies may also be influenced by additional concerns, such as whether the firm
expects other jurisdictions to introduce similar regulations, or the potential reputational risk arising from
users in some jurisdictions being perceived as ‘not receiving as good a deal’ as users in other jurisdictions
(Fletcher, 2022[7]).
Evidence of extraterritorial effects
It has been speculated that rules applying to large digital platforms are likely to have extraterritorial effects,
due to the nature of platforms’ complex ecosystems which operate on a global basis (OECD, 2023[5]).
However, it appears that, in practice, platforms are generally tailoring and limiting their compliance to the
jurisdiction at stake, for both ex ante obligations and ex post enforcement remedies, with the reasons
behind this still in question (discussed further below).
In their public statements and DMA compliance reports, Amazon, 82 Apple,83 ByteDance,84 Google,85
Meta86 and Microsoft87 state that they are implementing most measures in Europe only, 88 with some
specific exceptions.89 This means that the measures discussed in Chapter 2, such as changes to Apple
and Google’s policies regarding in-app payments and anti-steering, will only take effect in Europe. The
vast majority of the remedies in the ex post enforcement cases analysed in Chapter 2 are similarly applied
on a geographically-limited basis.90
However, in some cases, platforms have changed their behaviour across multiple jurisdictions when
multiple authorities have investigated the same competition concerns and reached similar conclusions.
This results in a situation of “de facto” convergence where platforms incrementally adjust their behaviour
from jurisdiction to jurisdiction – either because multiple jurisdictions impose similar remedies on the firm,
or because the firm proposes similar commitments in direct response to each investigation (rather than
making global changes on a purely voluntary basis).
Chapter 2 shows this situation, where competition authorities examine the same conducts by digital
platforms, is relatively common. These investigations can occur simultaneously, such as various probes
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into Apple’s ATT practices in France, Germany and Italy. Occasionally, authorities will investigate conduct
that has already been assessed in another jurisdiction, such as recent investigations into Google’s conduct
in the US and Japan which cover similar issues to the EU’s 2018 Google Android decision. The evidence
also shows that competition authorities often accept similar remedies in relation to the same competition
concerns.91
This alignment most often occurs in situations where platforms offer authorities commitments or voluntary
measures which are consistent across jurisdictions. 92 In one illustration of this, Google developed its ‘User
Choice Billing’ (UCB) programme (which allows app developers to offer alternatives alongside Google’s
own payment service) and offered this solution in order to resolve competition concerns across multiple
jurisdictions.93 Similarly, Amazon has also taken the approach of progressively removing its MFN clauses
on a voluntary basis in response to investigations in various jurisdictions, although similar changes to those
applied in the EU were implemented in the US only in 2019, following heightened attention from
lawmakers.94
It is unclear how much of this convergence is driven by the platforms themselves, who may be proactively
designing and proposing similar remedies to authorities investigating similar concerns in different
jurisdictions. However, it is ultimately the decision of the relevant authority on whether to accept any
commitments or voluntary measures within its respective jurisdiction. In light of this, convergence could be
occurring because authorities consider the particular solutions are well designed to address their
competition concerns. That is, if the platform and the conduct is the same in each jurisdiction, it may be
that the ‘best’ solution is the same, despite possible differences in domestic market characteristics.
Competition authorities could also be giving weight to potential efficiencies flowing from streamlined
implementation and reduced compliance costs for platforms and business users.
Authorities may also benefit from the ability to assess the effectiveness of particular remedies in other
jurisdictions, as part of their decision about whether to accept them in their own jurisdiction. For example,
the CMA’s 2023 Amazon commitments decision and 2023 Google commitments consultation show that
the CMA had regard to the implementation of similar remedies in other jurisdictions, although it did not
always adopt an identical approach. Further, evidence of substantial cooperation between G7 authorities,
including specifically on remedies, emerges in a number of cases. 95 Competition authorities may tend to
cooperate and closely coordinate their investigations and assessment of possible remedies to ensure
consistent outcomes and streamlined solutions.
Outside of these circumstances, it is less common for platforms to voluntarily implement the same
measures across multiple jurisdictions, or indeed on a global basis, although this does occur in some
cases.96 Often, this occurs where the platform is facing wider scrutiny from enforcers or lawmakers outside
the jurisdiction.
For example, Apple made global changes to some of its anti-steering practices in 2021, in response to the
JFTC’s investigation.97 However, these changes occurred in the broader context of heightened scrutiny
from enforcers on this particular issue,98 although other jurisdictions continued to have some concerns
about Apple’s practices. In another case Google made some changes to its ad tech operations on an EEA
basis following the 2021 decision of the French Competition Authority (Autorité de la concurrence),99
despite that decision applying only to France and while multiple other jurisdictions into Google’s ad tech
business were (and remain) open.
In a minority of cases, platforms may find that it is not economically feasible to keep their global operations
separated. For example, in April 2024, Microsoft announced that it would unbundle its Teams software
from its Office 365 and Microsoft 365 software suites on a worldwide basis, having previously done so in
Europe in August 2023 in response to an EC investigation,100 in order to support ‘globally consistent
licensing’ for its customers.101 Additionally, in 2022, the CMA accepted commitments from Google to
mitigate competition concerns in relation to the implementation of Google’s “Privacy Sandbox” browser
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changes, which Google said it would apply on a global basis. 102 These cases demonstrate the relatively
rare situation where the ‘first moving’ jurisdiction is in the position of driving outcomes at a global level.
Overall, it appears that digital platforms are able to implement changes required by enforcement remedies
and/or ex ante rules only in the relevant jurisdiction, and it seems still rare for platforms to voluntarily
implement the same measures more broadly. Where adjustments are applied to operations across multiple
jurisdictions, this is often driven by “de facto” convergence, where platforms roll out similar changes in
response to separate investigations in multiple jurisdictions.
Platforms’ compliance strategies and resulting implications
Based on the cases considered, it appears that platforms’ compliance strategies are influenced by the
extent to which the benefits of maintaining differentiated operations and compliance outweighs the costs
in each case.
It may be the case that the costs associated with separating operations by jurisdiction are relatively lower
for digital goods, where platforms can more easily generate multiple versions of their software, website or
app, as compared to physical goods, which may have a common supply chain for sales in different markets.
It is therefore possible for platforms to offer different versions of their products to different customers, based
on their increasingly sophisticated ability to use geo-identification technology to distinguish between
customers located in different jurisdictions (Frankenreiter, 2022[8]), or even refrain from serving specific
jurisdictions in response to regulatory interventions.
Large digital platforms may also have the internal legal resources to design and maintain different terms
for users in different jurisdictions, (which may be required for various other reasons), making it relatively
easier to limit contractual-based remedies to one jurisdiction (e.g. changes to MFN clauses). Further, the
nature of the allegations in the cases considered suggests that the conduct is likely to be highly profitable
for the platforms. For example, in the Apple music streaming case, the EC pointed to Apple’s app store
high commission fee, which may have led users to pay significantly higher prices for music streaming
subscriptions. It is also possible that there are other reasons for platforms to limit their compliance to
particular jurisdictions, such as security concerns or impacts on consumers and small businesses. 103
As extraterritorial effects do not appear to be very common so far, it is possible that platform services, and
outcomes for users, become increasingly fragmented across the G7 and globally. Ultimately, measures
are considered by authorities within the context of their domestic circumstances, and some of this variation
may be justified on the basis of unique market conditions or legislative frameworks in each jurisdiction.
Further, there may be benefits from the sequential introduction of remedies and regulations, which may
provide the opportunity for jurisdictions to learn from and identify refinements based on other jurisdictions’
experiences (Fletcher, 2022[7]).
However, this divergence could also increase complexity for platforms and users, including business users
or individual customers with international exposure (OECD, 2023[5]). For example, new entrants and
business users seeking to access consumers via large digital platforms, may struggle to navigate complex
platform operations and rules which vary by jurisdiction, limiting innovative entry, and high compliance
costs for digital platforms may also impact innovation incentives (Fletcher, 2022[7]).
These considerations point to the importance of international coherence and cooperation to mitigate the
costs of divergences.
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4 Conclusions
The scope of the ex ante provisions proposed or implemented in G7 jurisdictions broadly reflects the key
competition concerns which have been the focus of ex post enforcement cases to date. This is in line with
the rationale behind the new digital regulations of providing competition authorities with a dedicated
complementary instrument, considered better suited to address specific competition issues stemming from
gatekeepers’ power in digital markets.
The intensity of enforcement action, including the number of cases and platforms involved, and the
alignment with proposed or implemented ex ante regulations, varies depending on the particular practice
and competition concern. For some issues, such as those related to anti-steering practices and platforms’
use of competitors data, there is considerable convergence between the numerous ex post enforcement
remedies which are in place and the new ex ante obligations and prohibitions.
For other concerns, related for example to self-preferencing and tying practices, there is less certainty
about the design and implementation of potential remedies, as a number of major investigations remain
open. In these cases, traditional antitrust frameworks are likely to remain relevant, alongside ex ante
regulation, in determining the ultimate outcomes in digital markets.
Finally, although relatively rare, there are also concerns and associated remedies which have arisen less
frequently as an outcome of competition law enforcement, but are a significant component of ex ante
frameworks. This is the case for example of data portability and interoperability obligations, which may see
a more substantial application in the future, driven by the new regulations.
In terms of compliance with both ex post enforcement remedies and ex ante regulations, extraterritorial
effects were not commonly found for the key patterns of conducts examined. Digital platforms generally
seem to only implement the required changes in the relevant jurisdiction, and so far rarely extend these
changes to other jurisdictions on a voluntary basis. Where similar adjustments take place in multiple
jurisdictions, this is often driven by “de facto” convergence following investigations of the same conduct by
the various competition authorities.
Due to the limited extraterritorial effects observed so far, and different regulatory landscapes at the G7 level,
the prominence of competition law enforcement and ex ante regulations respectively is likely to vary going
forward. It is possible that a number of jurisdictions might rely more significantly on the new reforms, either
as a standalone solution or in parallel to ongoing investigations, while others, such as Canada, or the US,
may prioritise traditional antitrust routes to investigate similar concerns around large platforms’ market power.
The high amount of activity in this space, and the general lack of extraterritorial effects, also creates
opportunities for enforcers and policy makers to learn from the progressive implementation of antitrust
remedies and ex ante rules in other jurisdictions, including identifying which changes are most effective
and efficient in improving competitive outcomes, to the benefit of platform users and consumers.
Authorities may also be able to leverage the work undertaken in other jurisdictions by choosing to adopt
similar remedies as part of future enforcement actions or similar ex ante rules – effectively ‘importing’
remedies from other jurisdictions. Alternatively, depending on the situation, jurisdictions may also benefit
from the flexibility to tailor remedies to best address harms in their domestic situation.
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This can best be supported by different forms of international cooperation as well as expertise sharing via
international fora such as the OECD. Such knowledge sharing is particularly important given the dynamic
nature of digital markets – with ongoing monitoring and refining of remedies likely to be critical. Finally, a
heightened level of coordination could also help address the risk of increasing fragmentation, as the
number of cases and the variety of remedies and ex ante requirements increases globally.
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Endnotes
https://www.oecd.org/content/dam/oecd/en/topics/policy-sub-issues/competition-and-digitaleconomy/g7-inventory-of-new-rules-for-digital-markets-2023.pdf/
https://www.oecd.org/content/dam/oecd/en/topics/policy-sub-issues/competition-and-digitaleconomy/analytical-note-on-the-G7-inventory-of-new-rules-for-digital-markets-2023.pdf
In the United Kingdom, Digital Markets, Competition and Consumers Act enacted in May 2024; in the
EU, Digital Markets Act enacted in September 2022; in Germany, Amendment to the German Act against
Restraints of Competition “Section 19a: Abusive Conduct of Undertakings of Paramount Significance for
Competition Across Markets” enacted in January 2021; in Japan, Act on Improving Transparency and
Fairness of Digital Platforms enacted in June 2020 and Mobile Software Competition Act enacted in June
2024; in the United States, American Choice and Innovation Online Act S.2033, as reported by the Senate
Judiciary Committee, and the Open App Markets Act S. 2710, as reported by the Senate Judiciary
Committee, proposed.
Note that some instruments may be considered both ex ante and ex post in certain contexts, and the
boundaries between traditional competition law and new regulations might vary between jurisdictions. This
note does not aim to strictly delineate between different tools, but presents the development and use of
additional rules that address evolving issues in digital markets alongside traditional antitrust enforcement.
JFTC press release, 2
2021/September/210902.html.
September
2021,
https://www.jftc.go.jp/en/pressreleases/yearly-
Court order in Epic Games, Inc. v Apple Inc. (Case 4:20-cv-05640-YGR), 10 September 2021. This
decision was upheld on appeal in 2023.
In the Netherlands, the ACM concluded that Apple had abused its dominant position by imposing
unreasonable contractual conditions, including the anti-steering requirements, on dating-app providers
specifically (Decision ACM/UIT/559984, 24 August 2021).
EC decision of 4 March 2024, AT.40437, Apple – App Store Practices (music streaming).
Complaint in FTC v. Amazon (Case 2:23-cv-01495-JHC), 26 September 2023.
Competition Bureau press release, 14 August 2020, https://www.canada.ca/en/competitionbureau/news/2020/08/competition-bureau-seeks-input-from-market-participants-to-inform-an-ongoinginvestigation-of-amazon.html.
Similarly, in the online hotel booking sector, the Italian Competition Authority is market testing
Booking.com’s commitments so that hotels joining its partner programme would not be prevented from
offering better prices on their own websites or platforms of other online travel agencies. 11 In Italy, parity