Miten SEUT 102 artiklaa määräävän markkina-aseman väärinkäytöstä tulkitaan digitaalisessa alustataloudessa?

How Shall TFEU Article 102 on Abuse of Dominant Position be Interpreted in the Digital Platform Economy?

Abstract

In 2021, The European General Court issued its judgment in Case T-612/17 Google and Alphabet v Commission (Google Shopping). The case concerned whether Google had abused its dominant market position by favouring its own comparison shopping service on its general results pages while demoting the results from competing comparison shopping services. The General Court stated that Google’s conduct was not competition on the merits and thus it had breached Article 102 of the Treaty on the Functioning of the European Union (TFEU).

This article discusses firstly this judgment and its consequences for the interpretation of Article 102 TFEU in digital platform economy markets. Secondly, this article takes on the issue of abuse of dominant position in digital markets and tries to find out what kind of conduct of digital platform companies should be prohibited by Article 102 TFEU. The purpose is to identify what kind of conduct should be seen as an abuse of dominance and how to legally assess such conduct.

The ECJ judgment states that self-preferencing can constitute a breach of Article 102 TFEU and that this can be seen as a form of discrimination. Besides self-preferencing or discrimination there is also other conduct that can be abusive. These include personalised pricing, forced free riding and different forms of information based abusive conducts. It is not clear how this conduct relate to Article 102 TFEU, but it is clear that should this conduct be seen abusive, it will be difficult to determine the basis for this since well-established theories of harm are incompatible. In addition, when assessing the abusive nature of such conduct, an effects-based case-by-case approach is needed.