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Antitrust

Abstract

This section covers the antitrust framework for operating a blockchain node. The focus is on EU competition law, but most of the jurisdictions world-wide have similar rules in place.

Motivation

Competition law principally applies to economic operations, and therefore also to the creation of a blockchain consortium and the operation of a blockchain node by one or more companies.

The competition law provisions of the Treaty on the Functioning of the European Union ("TFEU") aim to protect intra-European trade from restrictions and impediments by means of agreements or abuse of power by companies. Competition law wants to make sure businesses and companies compete fairly with each other. This encourages enterprise and efficiency, creates a wider choice for consumers and helps reduce prices and improve quality.

Article 101 (1) TFEU prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition.

Art 102 (1) TFEU prohibits any abuse by one or more undertakings of a dominant position within the internal market in so far as it may affect trade between the Member States.

Infringements of European Competition Law may lead to company fines of up to 10% of total worldwide annual group turnover. The fines reflect gravity and duration of the infringement. Infringements of the competition law might also result in damage claims: individuals or companies harmed by competition infringements might bring forward compensation claims in national courts.

Elaboration

Art. 101 TFEU

The operator of a blockchain node must take care that there is no anti-competitive coordination between the members of the blockchain consortium and / or the participants of the blockchain project. Concerns relating to anticompetitive coordination by or through the Blockchain node may mainly arise on two levels:

  • Participants might use the opportunities for contact and cooperation provided by the blockchain operator to form anticompetitive agreements or engage in other forms of anticompetitive collusion among themselves.
  • The blockchain operator itself might take a primary role in coordinating the activities of its members or in facilitating tacit collusion between them.

The following agreements, decisions or concerted practices may lead to competition problems:

  • Information exchange: the exchange of confidential business information (e.g. information on prices, license fees, costs, customers, production volumes, etc.) going beyond a strict need-to-know basis. In particular, where the members of the consortium are actual or potential competitors, sufficient safeguards must be implemented in order to avoid any anti-competitive information exchange. This includes contractual compliance obligations (a competition law code of conduct) and technical information barriers.

  • Collective boycotts: members of a blockchain consortium must not agree not to source products from or supply products to certain companies or to foreclose certain companies from the market, for example by refusing access to the blockchain on fair and non-discriminatory terms).

  • Membership rules: where membership in the consortium is a relevant factor for operating on a market, the criteria for membership must be fair, reasonable and non-discriminatory and membership must be open to all interested parties fulfilling the criteria.

  • Standardisation: blockchain projects aiming at creating industry-wide standards must ensure participation in standard-setting is unrestricted, the procedure for adopting the standard in question is transparent, there is no obligation to comply with the standard, and access to the standard is provided on fair, reasonable and non-discriminatory terms.

Art .102 TFEU

Where a single blockchain operator has a certain degree of market-power and/or acts as a gatekeeper to certain economic activities. In such case, particular care must be taken that no company is foreclosed from the market. Access to the blockchain should be granted on fair, reasonable and non-discriminatory terms.

Merger Control

Merger control regulations on EU-wide and national level set up notification requirements for setting up joint venture business consortia that meet certain thresholds. Depending on the individual terms of the project, blockchain consortia may thus be subject to ex-ante merger control approval(s). This should be analysed in a very early stage of the project, and in particular before concluding a binding agreement.

Internal references and dependencies

(Lists of internal references and dependencies)

References to best practice, examples

(List of references to best practice, examples)

Bibliography of selected references

Antitrust pitfalls in blockchain technology: the key issues https://www.freshfields.com/en-gb/our-thinking/campaigns/digital/fintech/blockchain-and-antitrust/

Blockchain Antitrust, Open source academic studies focusing on blockchain antitrust – by Dr. Thibault Schrepel https://blockchainantitrust.com/

Publications by Dr. Thibault Schrepel: https://thibaultschrepel.com/en/publications/

Further guidance is provided by the:

RFC-0311
Contributing authors: Dr. Christian Bahr, Partner Kartellrecht, Fieldfisher, Düsseldorf/Hamburg
Status of this document: draft
Last day modified: 2021-06-07