Elisa Maria Faustinelli
Karen Blixens Plads 16, 2300 København S, Søndre Campus, Building: 6A.3.05
The development of a “more multi-sided” approach in the enforcement of EU competition law
Multi-sided platforms have been recently surrounded by significant judicial ferment and a new line of case law, gradually emerging both at the EU and national level, highlights the presence of two remarkable trends. On the one side, there is an increasing recourse to economic notions or concepts developed in the context of the new economics of multi-sided platforms (also known as “two-sided market theory”). These concepts include the presence of two sides adhering to the platform, indirect network effects between them, and a skewed price structure. On the other side,a fair degree of uncertainty as to when, and how, to rely on such concepts, as well as on how to import them in the legal assessment of market practices. Legal uncertainty emerges when dealing with basilar questions for EU competition law, including how to define the relevant market where multi-sided platforms operate or how to assess their market power, but also surrounds the definition of appropriate theories of harm and the legal assessment of specific competition problems. The uncertainty that permeates the way in which a “multi-sided approach” is developed negatively affects coherence and consistency in the decisional practice of competition authorities and courts, increases the risk of errors in decision-making, and may potentially raiseissues about the legitimacy of antitrust interventions.
Against this background, the present dissertation claims, and intends to demonstrate, that the development of a more “multi-sided approach”, which in turn relies on the basic tenants of the economics of the “two-sided market theory”, is relevant and necessary, since it can reduce legal uncertainty by providing guidance for an economically robust competition law enforcement, and increase the legal understanding of the practices under assessment. Yet, it is of outmost important that such an approach is developed more consistently and coherently by competition authorities and courts. Therefore, this research investigates the main areas of uncertainty and inconsistency that currently characterize this enforcement areas. The primary data considered is the growing case law on multi-sided platforms, and the analysis alternates a descriptive or exploratory approach so as to capture the way in which multi-sided considerations have been, or could have been, included in the legal assessment. Whileseeking to enhance the legal understanding of the multi-sided business model, this diversified legal analysis ultimately converges towards the identification of those factors to be considered in order to develop a more consistent and coherent multi-sided approach in the enforcement of EU competition law, so as to reduce the risk of type-I and type-II errors in decision-making.
EU Competition Law