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Alexey Ivanov "The case against Apple is a landmark for global antitrust practice"

The Director of the Institute has written on Lenta.ru about the Federal Antimonopoly Service of Russia (FAS Russia)'s decision in finding Apple guilty of abuse of its dominant position in the software market. The reason for the investigation was an appeal from Kaspersky Labs.

Alexey's comment:

"Digital monopolies set the tone for global markets today. It is almost impossible for independent developers and startups to enter the market without going through one or another global monopolist. In the case of Kaspersky Labs against Apple, FAS Russia consolidated the logic of the application of antitrust laws, which were formed in the case of Yandex against Google regarding the rules of competition on the Android platform five years ago. The point is that platform competition in the digital economy is becoming as important as competition between platforms. Given the importance of digital platforms as kind of natural monopolies or, as our American partners call them, essential facilities or utilities, as the digital economy continues to grow, antitrust authorities around the world are trying to formulate rules of conduct for such key infrastructure owners. This is the focus of the antitrust policy of many antitrust authorities in developing countries, in particular, our BRICS partners.

In the report of the BRICS Antimonopoly Center on the problems of antitrust regulation in the digital economy, presented last September at the BRICS conference on antitrust law in Moscow, we paid a lot of attention to competition on digital platforms. I would like to note that, as in the Android case, FAS Russia was among the leaders of this process in the world. Let me remind you that the decision in the case against Google was made in 2015, and the European Commission took a similar decision three years later in 2018. I think that the case against Apple in relation to abuse of market power in the app market will also become a landmark for global antitrust practice. Today the European Commission is already considering two complaints against Apple on grounds similar to those in the Russian case - a complaint from the music streaming service Spotify and a number of e-book publishers. I am confident that the FAS Russia decision on the Kaspersky complaint can help our European colleagues to develop effective responses to such abuses of market power in the digital economy. Despite these successes, the Russian antitrust agency is quite lacking in legislative powers to effectively respond to such challenges. We can say that the successes in the Android and Apple cases were achieved in spite of, and not due to, the current Russian legislation. For example, the so-called "antitrust immunities" for intellectual property, which were abnormally included in the Russian law on the protection of competition in the wake of trade negotiations with the United States on our country's accession to the WTO, which significantly limit the ability of FAS Russia to regulate digital economy markets. There are no such immunities in any developed jurisdiction, and their presence in Russia is a kind of atavism of an era of thoughtlessly following the advice of overseas partners, who formed Russian legislation in according to their own pragmatic interests.

Today, it is technology and innovation that are the key elements in building up market power and the state should have tools to influence the abuse of such resources, including in terms of intellectual property rights. The growing power of global digital platforms requires more active antitrust regulation if we want to somehow protect the interests of Russian business in the global market and provide conditions for healthy competition in the digital economy."