MG in-depth

Matteo Negro

A “Europe that protects”, but from whom and why?

Europe, East Asia, North America

European countries are on the defensive. They want to protect themselves from China’s acquisitions in advanced technological sectors, from America’s digital empires and from Brussels’ interventionist attitude. Why France's idea of protection is also linked to the balance of power among EU States.

 

 

In his first interview after he was elected president of France, Emmanuel Macron argued for a “Europe that protects”. Even François Hollande spoke frequently of “une Europe qui protège”. However, while Hollande’s protection was mostly related to security concerns and ultimately lacked political capital, Macron’s idea of protection is multi-faceted and does not only address the “protection” of citizens from the attractiveness of anti-establishment parties.

The idea of a “Europe that protects” is declined through specific proposals in the “En Marche” programme.[i] These proposals, apart from the usual rhetoric on defence cooperation, sustainable growth and the strengthening of the Erasmus programme, include specific measures and initiatives aimed at protecting Europe from globalization (“L’Europe qui protège dans la mondialisation”) and reinforcement of Europe’s digital and data capabilities (“L’Europe du numérique”). These are two key areas for a geopolitics of protection.

In order to understand the geopolitics of protection and its prospects, it is necessary to analyse it thoroughly in three main ways.

First, Europe could protect itself from China, particularly on issues related to foreign investment, given China’s growing appetite for acquisitions in advanced technological sectors such as robotics, hardware and artificial intelligence. This is the “stealth” equivalent of intellectual property to One Belt, One Road.

Second, Europe could protect itself from the United States. This does not simply involve an Atlantic divide due to Donald Trump. One structural issue is the fact that European countries punch below their weight as far as digital companies are concerned compared to the United States, where “digital empires”, influential digital conglomerates such as Alphabet, Amazon, Apple, Facebook and Microsoft are firmly established. While countries such as France continue to pursue the project of creating “digital national champions”, antitrust policy might play a role in this. The European Commission’s actions could have an impact in undermining the concept of “innovation” on which digital empires thrive. Considering that, as MacroGeo previously argued, the politicization of technology is inevitable, the real battle will be fought in the United States, where the direction of antitrust policy might undermine the survival of digital empires. 

Third, considering that there is no “Europe” as a geopolitical entity, but rather various “Europes in the making”, we need to consider different strategies of protection among European nation-states or European groups of countries (such as Germany’s geo-economic value chain or the Visegrad Group). The idea of protection is therefore also linked to the balance of power between states such as Germany, France and Italy and their idea (or non-idea) of strategic assets. Proposals for easing the rules of state aid should be considered within this framework.

I. Protecting Europe from China

After the 2008 financial crisis, China shifted from being a major receiver of Foreign Direct Investments (FDI) to operate as a worldwide net exporter of capital.[ii] Since 2013, for instance, FDI flows between the PRC and Europe have moved in opposite directions.

This rise of Chinese outbound investments is partly due to political change at the helm of the Chinese Communist Party and its increased assertiveness. In 2010 China started a progressive relaxation of outbound FDI, eliminating administrative and fiscal obstacles.[iii] Chinese FDI was also driven by the political desire to relocate its colossal foreign currency deposits from low-interests U.S. Treasury Bonds to more profitable assets. This divestiture was aimed at the internationalisation of the Renminbi and it brought an increase of Chinese liquidity to the market, translated into investments.[iv] Moreover, given China’s internal challenges and the government’s role in selecting and promoting areas and sectors of investment, FDI could also be considered a way to increase Xi’s screening of Chinese companies.

The 13th Chinese five-year plan (2016-2020) provides a strategic framework for Chinese FDI.  Using a double strategy, the Chinese government wants to transform the country’s economy from a low-skilled manufacturing model into an innovation powerhouse. On the one hand, China maintains a pattern of first welcoming foreign investment into specific sectors to gain foreign technology, intellectual property and know-how, to then restrict investments in those sectors as domestic firms become competitive. On the other hand, the government fosters outbound investments in order to enrich Chinese tech capabilities directly through mergers and acquisitions on foreign markets.

Chinese investments acquire geopolitical relevance because they reveal a wider scope of One Belt, One Road (OBOR, launched in 2013) in the face of China’s technological ambitions.

Given that as a trade initiative OBOR cannot challenge U.S. primacy, as Dario Fabbri has shown, it is key for a strategic analysis to consider that the Chinese concept of “infrastructure” is wide-ranging. In ascending order of importance:

  • highways, railways, ports and airports;
  • power grids and other networks;
  • the infrastructure of digital transformation, technological catch-up, cyber influence.

Pan Jianwei, a leading quantum physicist who managed a joint laboratory with Alibaba, recently argued for the creation of a Chinese counterpart of the Defense Advanced Research Projects Agency (DARPA). Chinese investment matters because of China’s technological ambitions.

So far, Chinese investors have mainly focused on France, Germany and the UK, but also on Italy (ChemChina-Pirelli) and Greece. Key targeted sectors have so far been industrial machinery and equipment, ICT, utilities, transport and infrastructure, and energy.

This surge in Chinese FDI raises concern in relation to three issues. Firstly, given the broad real scope of One Belt, One Road, this could foster national security worries, not simply in EU countries, but also in the United States, for which China’s “Scramble for Europe”[v] could be worrisome if linked to a deeper relationship with Moscow and Berlin. In the European battleground, further moves by Chinese adversaries such as Japan, are likely.

Networks, such as operators in all Key Enabling Technologies[vi] could be considered part of national security. Chinese investments have (and will continue to) also focused on hardware, not simply on software solutions. For instance, the proposed acquisition of Aixtron, a German semiconductor company, by the Fujian Grand Chip Investment Fund was dropped after being blocked by the U.S. and the German authorities on the basis that the chips developed by the company could have been used for the Chinese nuclear programme.[vii]

Secondly, there is also suspicion of unfair competition as many transactions seem to be financed using state resources, thereby distorting market mechanisms.

Thirdly, Chinese investments – particularly in infrastructure in Greece and the Balkans – may help China gain a voice in the internal affairs of these countries, thus spreading Chinese influence. 

Moreover, the lack of reciprocal access for European companies to the Chinese market plays a key role. China is not willing to allow reciprocity. Consider that, in the process of politicization of technology, even Apple recently complied with Chinese regulations on data security, co-branding its iCloud services with Guizhou-Cloud Big Data, an operator backed by the Chinese government.[viii]

As far as Europe is concerned, China has always had a “divide and conquer” strategy, exploiting the loopholes in European common investment policy.[ix] China has acted as a “screening power”, able to consider rules more favourable for its geopolitical goals.  

Unlike trade, FDI had not been included up until the Treaty of Lisbon as being regulated by supranational competence. At the time, before 2009, states still had power in terms of the regulation of foreign investments, concluding bilateral investment treaties, while the European Community supervised trade agreements.

Consequently, the Chinese government entered bilateral negotiations with individual states, taking full advantage of individual specificities and weaknesses to gain access to the European market. While some countries were unwilling to impose FDI restrictions in order to be attractive, others wanted to prevent foreign investments in sensitive sectors. Under EU law, freedom of capital also extended to third country investors (Art. 63 (1) TFEU) and the Court of Justice has always strictly interpreted waivers to this principle.[x] So, national FDI screening mechanisms may restrict Chinese transactions only in a small number of cases. In a similar fashion, the 2004 European Merger Regulation, the European toolbox for reviewing mergers and acquisitions, allows little intervention other than one based on antitrust purposes.[xi]

But this is often at odds with reality. Italy’s experience with investment protection is significant for understanding this process. Italy was forced to abandon the “golden share” mechanism of 1994 because of EU jurisprudence in favour of the so-called “golden powers” established since 2012. However, these new rules have been criticized for their inability to protect Italian national interests (particularly as far as sensitive technological networks are concerned). 

In France, the 2005 Financial and Monetary Code makes investments from a third country, contingent to authorization when certain “sensitive” sectors or interests are involved.[xii] For instance, mergers and acquisitions dealing with activities that may threaten public order or that are related to national security or weapons production, must be scrutinized in advance. This also applies to transactions with companies operating in the gambling industry or holding national defence secrets.

In 2014, the Montebourg Decree broadened the scope of previous provisions to also include water and energy supplies, transport and electronic networks, defence infrastructure and the health sector.[xiii]

China fully leveraged all European divisiveness and incapacity. As a result of the cacophony within the European camp and the weakness of FDI policies, European states are not only unwilling (in some cases), but also unable to influence Chinese penetration.

However, it is precisely the wider scope of China’s “One Belt, One Road” programme that raises eyebrows in EU capitals. For instance, even Berlin’s special relationship with China is based on Germany’s manufacturing strength. Nevertheless, in the digital environment the notion of “manufacturing” is changing. A simple endorsement by Germany of the Chinese view of a full partnership based on free trade and investment would not be beneficial to German interests, given that China’s idea of free investment is always “free with Chinese characteristics”. Moreover, in a process of technological catch-up that is going to significantly affect manufacturing and industrial power, China possesses digital giants, such as Alibaba and Baidu. These players are able to invest significantly in new technologies, with the full support of the Chinese government, while other companies acquire intellectual property and patents. According to the McKinsey Global Institute, the U.S. and China already dominate the artificial intelligence environment, while European countries lag far behind.

In this context, Macron’s rise provides a reason for Germany and Italy to follow the French model of assertive control over foreign investments and move towards vetting mechanisms both at an EU and national level.

In February 2017, The French, German and Italian governments sent a letter to the Commission proposing the adoption of screening mechanisms for non-EU FDI, especially in cases in which the principle of reciprocity is not fully respected. According to their proposal, intervention would be justified only when transactions pursue other reasons than those of the market and when funded by state resources. On June 19th, 2017, the European Parliament’s Committee on International Trade published its proposal for the screening of foreign investments in strategic areas based on similar principles. During the last European Council held on June 22nd and 23rd, 2017, the proposal was rejected, but further action could be agreed on in the coming months. 

Germany is converging towards a more assertive screening system. Under the previous legislative regime on foreign investments, the so-called Außenwirtschaftsgesetz (AWG) and Außenwirtschaftsverordnung (AWV), the German Ministry for Economic Affairs and Energy may forbid an investment only if such an investment were to constitute a threat to public order or security, which is deemed to be the case if the investment represents a sufficiently serious and current threat to the fundamental interests of German society. The existence of a threat to public order or security is decided on a case-by-case basis. As such, it is generally recognized that public security may be affected by investments in sectors guaranteeing supply in crisis situations, such as telecommunications or electricity, or delivering services of strategic importance.

On July 11th, 2017, modifications to this regime were introduced by the German parliament.[xiv] The new law allows closer scrutiny of technology. For example, a threat to public policy and security can be said to exist if the target company develops or amends software that is required for these so-called critical infrastructures, such as transportation and traffic. Moreover, the review period has been extended from three to six months. The ministry is permitted to scrutinize past transactions for up to five years after the relevant agreement has been entered into, thus the potential consequence is that agreements can be held void.

II.Protecting Europe from the US: Technology and Antitrust.

Since the end of the Second World War, U.S. economic power has been viewed with suspicion in Europe, particularly by France. In 1968 Jean-Jacques Servan-Schreiber published “Le Défi Américain” (“The American Challenge”), arguing that Europe would be colonized by the United States through cultural and economic domination.[xv] American companies would conquer the Old Continent, exploiting European weaknesses and the superiority of their organizational model. In his opinion, Europe had to strive for common policies in order to defend its autonomy and independence, acting with a single and united voice. In this sense, antitrust laws could have had a strong influence.

David Gerber suggests that immediately after the creation of the European Economic Community, throughout the 1960s, the Commission decided to avoid the application of Art. 86 TEC prohibiting the abuse of dominant positions (today Art. 102 TFEU) specifically so as to allow European companies to grow and become sufficiently large enough to compete with their American rivals.[xvi]

Even the first case in which Art. 86 TEC was applied can be seen as a shrewd attempt to slow down American takeovers in Europe. In December 1971, the Commission found Europemballage, a subsidiary of Continental Can, an American company operating in the metal container and food packaging market, guilty of abusing its dominant position by acquiring a Dutch competitor and achieving a dominant position on the European market.[xvii] It must be taken into account that the European competition law and Art. 86 TEC did not prohibit monopolization per se, but the abuse of monopoly. Companies were, in theory, allowed to reach a dominant position, but could not use it to hamper adversaries and competition. In these terms, the application of Art. 86 to block a merger leading to a dominant position, may be considered inappropriate.  Although this episode cannot be seen as a clear manifestation of the use of antitrust policy to protect Europe from the U.S., it is indicative of such an eventuality. The norms were stretched as never before – and as never again – specifically in relation to the acquisition of dominance by a foreign player in the EU market. 

In any case, the divergence between Brussels and Washington has continued over the years. The Americans have always accused the Europeans of applying antitrust laws to protect competitors rather than the competition. In their opinion, DG COMP keeps defending small European companies from larger U.S. rivals. In 2001, Competition Commissioner Mario Monti blocked the General Electric/Honeywell merger because of its impact on related markets – a rarity as mergers are usually stopped due to their impact on the same market or on the supply chain market. Charles James, Assistant U.S. Attorney General, Antitrust Division, publicly condemned the European Union for its protectionist stance.[xviii] This has become a constant refrain following every major delicate case in which U.S. companies have been involved.

The prohibition of the UPS/TNT deal[xix] was also severely criticized, especially because of the suspicion that regulators did not want to threaten Deutsche Post and DHL’s strong position in the delivery sector.[xx] DG COMP has always rejected this sort of anti-American allegation, highlighting that antitrust sanctions targeting U.S. companies are only a small part of those aimed at European deals (15 percent of the total).[xxi] In this sense, European competition law has evolved in a far more proactive and interventionist way than American law. From a policy point of view, the Commission has always preferred to make false-positive mistakes (punishing “innocent” behaviour), while the U.S. Department of Justice makes false-negative ones (not punishing anticompetitive conduct). Moreover, antitrust practitioners have long argued about the technical and untainted nature of competition law.

According to their judgement, competition law is simply a technical discipline, based on the principle of the rule of law and on solid economic assumptions.[xxii]

Nonetheless, political interests do have a role in competition cases. For instance, the Google Search case, which recently saw the imposition of the highest fine ever imposed for abuse of a dominant position ($2.4 billion), has been at the centre of a political battle. The investigation was started in 2010 and dealt with Google’s prioritising practices (giving illegal advantage to its own comparison shopping service, damaging rivals).

The proceedings were due to reach a conclusion in 2014, when Google successfully negotiated a series of commitments with the Commission. However, the French and German economic ministers, Arnould Montebourg and Sigmar Gabriel, sent a formal letter to Joaquín Almunia objecting to the settlement and asking for strict and punitive measures.[xxiii] Similarly, the EU Parliament too voted a motion favourable to the unbundling of Google.[xxiv]

According to Peter Thiel, “Google had more power under Obama than Exxon had under Bush 43”.[xxv] Barack Obama instead, generally receptive to Silicon Valley’s concerns, was vocal against European actions, calling them “high-minded positions on issues just designed to carve out some of the (European) commercial interest.”[xxvi]

Overall, the tech industry could be considered the main regulatory battlefield for resolving issues between the European Union and the United States. The U.S. is pushing for a light and permissive regime in order to guarantee global reach for their digital giants. The EU adopts a more reflective approach and is ready to extend the scope of antitrust norms to penalise any further unlawful behaviour. The 2016 Apple decision on Irish state aid, on the basis of which Ireland was ordered to recover €13 billion back taxes from Apple (heavily criticized by the U.S. Treasury)[xxvii], the €100 million fine imposed on Facebook for breach of mergers rules - the use of WhatsApp data in violation of the Commission clearance decision - and the aforementioned Google Search case, are all examples of Europe’s stance regards to digital behemoths.

But the jury is still out on Atlantic differences concerning antitrust policies. 

On the one hand, since the 1990s the Europeans have been discussing the possibility of shifting their enforcement philosophy towards U.S. standards (the so-called more economic approach).[xxviii] Adopting a more lenient regime would surely favour dominant companies, but it would also enhance legal certainty.

On the other hand, even the American debate has started to take into account European sensitivities and ideas. For instance, Lina Khan in a ground-breaking paper on Amazon, advocates a more interventionist practice, especially regards to digital monopolies.[xxix]

She explains that Amazon is slowly increasing its market share in the retail market through a series of illegal practices such as price discrimination, predatory pricing and leveraging. In her opinion, the Seattle company poses a monopolistic threat both to the economy and to society. This is certified by the fact that investors keep pouring money into the stock notwithstanding the huge losses incurred by Amazon. In order to avoid a complete monopolization of the market, Lina Khan proposes to closely review Amazon’s conduct, basically re-elaborating European case law and principles for a series of offences. Lina Khan’s view, after Amazon’s $13.7 billion deal to buy Whole Foods, is attracting increasing attention from Congress.

The Trump administration’s stance towards Amazon will therefore be a much bigger story than the president’s personal feud with Jeff Bezos and will have profound geopolitical implications.

III. Protecting states from Brussels and from themselves. 

France’s ‘Europe that protects’ is an idea firmly rooted in the country’s idea of influence exercised through strategic tools of power (the military, demography) and through its competent and ambitious vast bureaucracy. A wide-ranging project of “protection”, both through public and private capital (given the alignment of interest in the French system) can now be pursued during Macron’s honeymoon period. 

Why is protection so attractive? “Protection” can pay dividends in political rhetoric. Governments can say that they are willing to protect the losers of globalization, putting their countries first and keeping “foreigners” distant. Moreover, governments can gain more influence in market processes through vetting mechanisms: bodies similar to the Committee on Foreign Investment in the United States (CFIUS) can be powerful vehicles for national balance of power.  

We should highlight that Macron can advance this project because he comes from France’s high bureaucracy. France’s bureaucracy is a geopolitical player that, as Rawi Abdelal has shown, has played a key role in establishing the economic rules of globalization and in the functioning of international economic institutions. This long-term process fostered domestic opposition to globalization, particularly on the left, but was able to guarantee France’s position in the European balance of power in banking and finance, limiting the country’s other strategic weaknesses (social relations, lack of entrepreneurship). 

Further developments of the “Europe that protects” might come from easing state aid rules. At an EU level, there are secretive discussions fostered by the Macron election regards the easing of state aid rules either in a substantive or policy sense. This trend can already be seen in a recent Commission decision to widen the scope of the state aid General Block Exemption Regulation to allow more public investments in airports and ports.[xxx] Governments can now invest in key infrastructures without notifying the Commission.

Moreover, the hypothesis of a major relaxation of these rules would also be on the table in relation to Brexit negotiations. On the one hand, the Commission may think that it would be counterproductive for the economy to authorize massive state investments, while, on the other, having a former EU country ready to subsidise industries and potentially compete unfairly could also be harmful. Something has to give.

It is therefore naïve to consider protection only against external players within the EU. In a scenario of a “return of the state”[xxxi] protection is a way for EU countries to maintain the balance against themselves, given the different interests of the main countries. 

For instance, are Italy and France part of the same “Europe in the making” or should they “protect” themselves from each other? This is a key geopolitical question for both countries, with two different scenarios; grand bargains or strategic differences.

The “grand bargain scenario” is certainly pursued by a number of top families in Italy’s capitalism, such as the Benettons, Caltagirones and the Del Vecchios, given their increased ties to France, particularly since 2016. Some kind of agreement would also be reached in telecommunications between Berlusconi and Bolloré. Italian exports would continue to increase their share in the France market. In this scenario, relationships in the energy sector would not change significantly, while in defence there would be a closer integration of industries, also thanks to common projects pursued by public development banks (CDC and CDP). The “Airbus of the seas” (Fincantieri’s formula) will continue, through a new deal with France’s government, while Leonardo-Finmeccanica would focus on some sectors and leave others.  

However, the “strategic differences scenario” adheres more to reality. Apart from national pride, it points at Italy’s attempt to get closer to Germany in order to balance France, in economics (given also Italy’s reliability in fiscal consolidation compared to France) and in defence. It also highlights geopolitical differences between Italy and France, particularly in the Mediterranean, as Libya continues to prove, as well as in the energy sector. On telecommunications. Bolloré will continue its aggressive stance, also due to the inaction of institutional investors. The imbalance of finance also leans towards to strategic differences. Due to Italy’s banking woes, France’s role in Italy’s asset management has increased (with the acquisition of Pioneer by France’s Amundi).

In banking, not only are Crédit Agricole and BNP Paribas firmly established in Italy, but France is also better positioned to harness the fintech transformation, both in banking and in insurance. The temporary nationalization of the STX France shipyard to “protect French strategic interests” also adheres to this scenario. France’s protection is both towards China (given Fincantieri’s ties with China State Shipbuilding Corporation and China’s goals in shipbuilding in Made in China 2025) but also towards Italy. Deals on headquarters, governance, employment and technology will continue to show that there are many “Europes in the making”.

 

[i] See “Le Programme d’Emmanuel Macron: Europe” available at https://en-marche.fr/emmanuel-macron/le-programme/europe

 

[ii] See Center for China & Globalization, “China becomes net capital exporter”, 24 November 2016, available at http://en.ccg.org.cn/china-becomes-net-capital-exporter/ 

 

[iii] See D. K. Das, “China’s Outbound Foreign Direct Investment: Sources of Growth and Transformation” University of Indiana Research Center for Chinese Politics and Business Working Paper #35, 2014, p. 19, available at https://www.indiana.edu/~rccpb/wordpress/wp-content/uploads/2015/11/RCCPB-WP35-Das-OFDI.pdf

 

[iv] See C. J. Neely, “Chinese Foreign Exchange Reserves, Policy Choices and the U.S. Economy”, Research Division Federal Reserve Bank of St. Louis, Working Paper 2017-001A, available at  

 https://research.stlouisfed.org/wp/2017/2017-001.pdf

 

[v] See F. Godement & J. Parello-Plesner,  “China’s Scramble for Europe”, European Council of Foreign Relations, 11 July 2011, available at  http://www.ecfr.eu/publications/summary/chinas_scramble_for_europe 

 

[vi] See European Commission, DG Growth, Key Enabling Technologies, available at  https://ec.europa.eu/growth/industry/key-enabling-technologies_en

 

[vii] See Guy Chazan, “Fujian drops Aixtron offer after US blocks deal”, Financial Times, 8 December 2016, available at  https://www.ft.com/content/b880ba3a-bd4a-11e6-8b45-b8b81dd5d080?mhq5j=e2

[viii] See Bien Perez,Apple to build massive data centre at China’s new hi-tech hub in Guizhou province” South China Morning Post, 12 July 2017, available at http://www.scmp.com/tech/enterprises/article/2102390/apple-build-massive-data-centre-chinas-new-hi-tech-hub-guizhou 

 

[ix] See S. Meunier, “Divide and conquer? China and the cacophony of foreign investment rules in the EU”, Journal of European Public Policy, 16 June 2014, pp. 996 – 1016, available at http://www.tandfonline.com/doi/abs/10.1080/13501763.2014.912145

 

[x] For more details on this point see J. Ganza “Free movement of capital and Golden Shares in Volkswagen: unexpected twist or foreseeable outcome?” EU Law Blog King’s Student Law Review, 7 April 2014, available at https://blogs.kcl.ac.uk/kslreuropeanlawblog/?p=678#.WXTId_-GOmF 

 

[xi] For instance, the problem of Chinese concentrations arose in relation to SOE and the way in which they are connected. EU merger scrutiny become obligatory only when certain turnover thresholds are passed. The fact that State companies are considered by the regulator all linked together means that antitrust control is activated more easily as it is simpler to meet the relevant thresholds

 

[xii] Monetary and Financial Code, articles L. 151-1 and R. 153-1

 

[xiii] The Commission validated this approach, see http://www.capital.fr/entreprises-marches/le-decret-sur-le-patriotisme-economique-valide-par-la-ce-947580.

 

[xiv] See C. Cornett, S. Link, T. Becker, “New German Regulation on Foreign Investment Control”, KNW, 14 July 2017, available at http://www.kwm.com/en/cn/knowledge/insights/new-german-regulation-on-foreign-investment-control-20170714

[xv] J. J. Servan-Schreiber, “Le Défi américain”, Paris, Éditions Denoël, 1968

 

[xvi] D.Gerber, “Law and Competition in the Twentieth Century: Protecting Prometheus”,

New York, OUP,2001, p. 356

 

[xvii] See European Commission, Case No. IV/26 811 - Continental Can Company, OJ L 7, 8.1.1972

 

[xviii] See E. Fox, “We protect competition, you protect competitors”, World Competition, No. 26, 2003, p.149.

 

[xix] See European Commission, Case No COMP/M.6570 – UPS/ TNT Express, OJ C 137/8, 7.5.2014

 

[xx] See H. Lee- Makiyahama, “Protecting competition or competitors? – Europe’s pursuit of Silicon Valley”, Open Political Economy Network, http://www.opennetwork.net/protecting-competition/

[xxi] See R. Toplensky, “Google faces $ 1 bn Brussels fine for abuse of dominance in search”, Financial Times, 25 June 2017, available at https://www.ft.com/content/8b0ab7a8-5990-11e7-9bc8-8055f264aa8b  

[xxii] On this presumption and on the problems that it generates see A. Ezrachi “Sponge”, Journal of Antitrust Enforcement, 2017, pp. 49-75.

 

[xxiii] See J. Kanter “E.U. Antitrust Chief Casts Doubt on Google Deal Over Rivals’ Links”, New York Times, 20 May 2014 , available at  http://www.nytimes.com/2014/05/21/business/international/eu-antitrust-chief-casts-doubt-on-google-deal-over-rivals-links.html?_r=0

 

[xxiv] See http://www.europarl.europa.eu/news/en/press-room/20141125IPR80501/meps-zero-in-on-internet-search-companies-and-clouds

 

[xxv] See M. Dowd, “Confirm or Deny: Peter Thiel” New York Times, 11 January 2017, available at  https://www.nytimes.com/2017/01/11/fashion/peter-thiel-confirm-or-deny.html?mcubz=2

 

[xxvi] See M. Ahmed, “Obama attacks Europe over technology protectionism”, Financial Times, 16 February 2015, available at  https://www.ft.com/content/41d968d6-b5d2-11e4-b58d-00144feab7de]. 

[xxvii] See US Treasury White Paper “The European Commission’s recent State aid investigations of transfer pricing rulings” 24 August 2016, available at https://www.treasury.gov/resource-center/tax-policy/treaties/Documents/White-Paper-State-Aid.pdf

[xxviii] For the lobbying role of American law firms in this process see D. Gerber, “Two Forms of Modernization”, Fordham International Law Journal, 2008, pp. 1235-1265.

 

[xxix] See L. M. Khan, “Amazon’s Antitrust Paradox”, Yale Law Journal, 2017, available at  http://www.yalelawjournal.org/note/amazons-antitrust-paradox

 

[xxx] See European Commission Fact Sheet, “State aid: Commission widens the scope of Block Exemption Regulation”  17 May 2017, available at http://europa.eu/rapid/press-release_MEMO-17-1342_en.htm

 

[xxxi] See D.S. Grewal, “The Return of the State”, Harvard International Review, February 1, 2010, available at http://hir.harvard.edu/article/?a=2634