Does the EU Commission really hate the US? Understanding the Google decision through competition theory

Abstract

This article analyses EU competition law to identify its theoretical influences. It finds that there are two distinct periods. The first, the ‘mono-theoretical period’, is influenced by Ordoliberalism. The second, the ‘poly-theoretical period’, has a number of influences, not least the Chicago School, post-Chicago analysis and behavioural economics. These new theories refine the way the law is used to achieve Ordoliberal aims, in particular, the aim of protecting economic freedom. This insight is then used to analyse the EU competition law approach to software markets. This reveals that software markets have characteristics that allow dominant, up-stream software firms to conceal the choice consumers have (choice evasion) and undermine competition. Recommendations on how to avoid this abuse are made.