Abuse of Dominance in Technology-Enabled Markets: Established Standards Reconsidered?

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Series Details Volume 9, Number 1, Pages 1-65
Publication Date January 2013
ISSN 1744-1056
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"This paper seeks to examine whether the legal standards underpinning the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU) need to be revisited in light of the alleged specifi cities of technology-enabled markets. To this end, the paper is divided into seven parts.
Following this short introduction (A), the paper offers first a definition of the very notion of technology-enabled markets (B). It then questions whether competition agencies should depart from conventional enforcement techniques when reviewing conduct in fast-moving, technology-enabled markets, and follow new, expedited enforcement procedures as proposed recently by several highranking officials (C). After this, the paper turns to substantive issues. It begins by reviewing the intricacies of market definition and dominance in technology enabled markets (D). It then offers some general thoughts on whether a new, general legal standard for the determination of unlawful abuse is needed in technology-enabled markets (E). Finally, the paper considers six categories of abusive conduct in the high-tech sector and shows that, faced with a variety of applicable legal standards for each of them, competition agencies, courts and plaintiffs have—understandably—almost always invoked and applied the loosest possible test in support of their allegations or findings. We suggest, in turn, that under existing case law stricter standards could and should be applied, and that this is particularly important in the context of technology-enabled markets for the simple reason that it is in these markets that the most common pitfalls and shortcomings of the EU law on abuse of a dominant position are magnified (F)."
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