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Regulation of Cloud Services under US and EU Antitrust, Competition and Privacy Laws

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Sára Gabriella Hoffman

This book examines how cloud-based services challenge the current application of antitrust and privacy laws in the EU and the US. The author looks at the elements of data centers, the way information is organized, and how antitrust, competition and privacy laws in the US and the EU regulate cloud-based services and their market practices. She discusses how platform interoperability can be a driver of incremental innovation and the consequences of not promoting radical innovation. She evaluates applications of predictive analysis based on big data as well as deriving privacy-invasive conduct. She looks at the way antitrust and privacy laws approach consumer protection and how lawmakers can reach more balanced outcomes by understanding the technical background of cloud-based services.

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6 Cloud computing and EU competition law

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6 Cloud computing and EU competition law

6.1 Introduction

In the following chapter, I examine the competition law exposure of cloud services. First, I determine the relevant market for cloud services. Next, I will look into specific types of conduct under Art. 101 and 102 TFEU that could exposure cloud service operators to competition law liability. The assessment of a competition law proceeding always begins with the definition of the relevant market. The relevant market assessment is needed for both Art. 101 and Art. 102 TFEU proceedings. For Art. 102 TFEU, the definition of the relevant market is immediately triggered by the question of dominance on the relevant market. But also for Art. 101 TFEU proceedings, the relevant market must be defined. Numerous competition law instruments rely on defining the relevant market and the undertakings’ market share. For example, claiming the privilege of the De Minimis Notification and block exemption regulations is only possible if the relevant conduct under competition law remains under a certain market threshold.

The De Minimis Notification has the legal effect that Art. 101 para. 1 TFEU cannot be applied where the anti-competitive effects of a cartel agreement on the EU internal market is not noticeable due to its small impact.186187 Using market share thresholds, the De Minimis Notification creates a safe harbor and reduces compliance costs for mostly small enterprises. If SMEs conclude agreements with competitors, block exemptions very often fail to cover these under Art. 101 para. 3...

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