Skip to main content
Disciplines
Automotive Business IT + Informatics Construction + Real Estate Electrical Engineering + Electronics Energy + Sustainability Insurance + Risk Finance + Banking Management + Leadership Marketing + Sales Mechanical Engineering + Materials
Events
DE
EN
Books
Journals
Topic Page
Marketing
Start single access now
Access for companies
EXTENDED SEARCH
Log in
Top

2023 | Book

Introduction Read chapter Read first chapter

Restrictions of EU Competition Law in the Digital Age

The Meaning of 'Effects' in a Digital Economy

Author: Bernadette Zelger

Publisher: Springer International Publishing

Book Series : Studies in European Economic Law and Regulation

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

Login to get access
insite
SEARCH

About this book

This book offers an in-depth legal analysis concerning the notion of restrictions of competition, be it by object restrictions according to Article 101 TFEU or prima facie abusive practices treated according to the form-based approach under Article 102 TFEU. Although extensive research has been conducted on the notion of object infringements of competition, there is no systematic review of this topic covering both competition provisions, namely Articles 101 and 102 TFEU. This book fills that gap by providing an extensive analysis of the relevant case law, while also covering new phenomena stemming from the digital revolution and its impact on the functioning of traditional markets.

In this regard, particular attention is paid to the concept of prima facie infringements and the analysis necessary for their successful establishment. Object restrictions and object abuses are not infringements per se in the sense that they can be established in the abstract and without consideration of the actual legal and economic context (context analysis) within which a measure is implemented. Hence, the indispensable context analysis is informed by the potential economic effects of a given measure.

Examining the changes regarding the economic reality and how markets work in the digital economy, this book makes a valuable contribution to the current debate about whether our competition law toolkit is fit and proper to deal with the challenges posed by digitalization. The author argues that while there is a coherent framework covering both Treaty competition provisions as regards object restrictions of competition, the increased use of an actual effect analysis and thus the concept of a restriction of competition by effect represents an underestimated (and underused) weapon for combating measures that are ambivalent from a competition law perspective as regards their (anticompetitive or non-detrimental) nature in a digital economy.

Table of Contents

Frontmatter
Chapter 1. Introduction
Abstract
This chapter sheds light on the monograph's main topic, line of reasoning and arguments. While setting the scene by elaborating on the fundamental role and function of competition law in a democratic society, the underlying conceptual approaches of Article 101 and 102 shall be illustrated.
Bernadette Zelger
Chapter 2. Competition Law, Economics and the ‘More Economic Approach’: The Necessity of a Broader Perspective
Abstract
This chapter sheds light on the normative values and goals of competition law. It will be shown that competition law goals have always been multiple ones not only serving the economy, but rather society as a whole. Put differently, competition law should be seen as a means to serve society and a liberal democracy not being driven by economic objectives only. However, a focus on economic purposes and goals makes sense from a consistency perspective, economic theory serving as the ‘lowest common denominator’. Moreover, this section also aims to illustrate and shed light on the increasing importance of economics, that is, economic theories and thinking by means of the Commission’s commitment to the so-called ‘more economic based approach’.
Bernadette Zelger
Chapter 3. Effects and Article 101 TFEU
Abstract
This chapter will deal with effects in the establishment of Article 101(1) TFEU infringements, thereby especially focussing on the meaning and role of the latter in the context of by object restrictions. Moreover, the respective relevant Article 101 case law with respect to real-world markets, that is, the offline environment will be analysed.
Bernadette Zelger
Chapter 4. Effects and Article 102 TFEU
Abstract
This chapter will deal with effects in the establishment of Article 102 TFEU infringements. In this respect it is worth recognising that a differentiation of a form-based as well as an effect-based approach also exists regarding Article 102 TFEU, notwithstanding the fact, however, that there is no such formal distinction of object and effect infringements within the Treaty provision itself. However, as will be shown in the following, considering the case law of the ECJ and the GC, there are indeed practices that are considered prima facie or per se abusive, that is arguably abuses ‘by object’, and other practices where a proof of anticompetitive effects is required.
Bernadette Zelger
Chapter 5. Particularities of the Digital Economy
Abstract
This chapter illustrates the changes digitisation brought with respect to the digital economy and digital markets. It will be shown why markets online differ from markets offline and why established classical economic theory and models might need to be revised and adapted to the novelties related to digitisation and a digital economy. Whether or not markets function similarly or not is crucial in particular for the context analysis necessary for the establishment of an object infringement of competition. Hence, whether a measure offline is, with respect to its potential detrimental impact on competition, to be assessed equally or differently as the very same practice in an online environment depends a lot on whether we can conclude that the context of digital markets is or is not to be equated with (market) mechanisms known from the analogue world. As mentioned initially, a fact one could arguably doubt. Hence, the changing economic environment, that is, economic trends and phenomena evolving due to digitisation (such as, for example, platforms in any form whatsoever) are particularly interesting and crucial when trying to define a coherent approach for the meaning and role of effects in competition law cases.
Bernadette Zelger
Chapter 6. Competition Cases in the Digital Economy
Abstract
In light of the previous chapter, the question is whether and to what extent the particularities of the digital economy alter the actual contextual backdrop against which practices are to be assessed and, as a consequence, also changes the latter’s qualification. Hence, could it be that a measure that qualifies as object infringement of competition in the analogue world is not, however, to be qualified as such given an online environment? Put differently, to what extent leads the online environment to changes which require, considering the very same conduct offline, a refinement of its assessment from a competition law perspective in the online context? Moreover, are there (new) practices put forth by the digital economy, which do not fit into any of the existing categories developed by the law as illustrated in the Chaps. 3 and 4?
Bernadette Zelger
Chapter 7. Conclusions
Abstract
The debate concerning the differentiation between by object and by effect infringements of competition has existed since the birth of EU competition law, that is, Article 101 and 102 TFEU. Moreover, whether effects or a negative impact on competition play a role also in the context of object infringements, somehow runs in the same vein. Insofar, the debate and controversies surrounding the latter are, arguably, anything but new. However, considering digitisation, recent market developments as well as the particularities of the digital environment and online markets, the debate is arguably to be flared up again. Furthermore, although extensive research exists as regards the notion of by object infringements of competition, also in the context of the analogue world, there is no systematic review of this topic covering both competition provisions, namely Articles 101 and 102 TFEU. This gap is filled by this monograph also covering new phenomena owed to the digital revolution and its impact on and altering of the functioning of traditional markets.
Bernadette Zelger
Backmatter
Metadata
Title
Restrictions of EU Competition Law in the Digital Age
Author
Bernadette Zelger
Copyright Year
2023
Electronic ISBN
978-3-031-31339-4
Print ISBN
978-3-031-31338-7
DOI
https://doi.org/10.1007/978-3-031-31339-4

Premium Partner

    Image Credits