A Competition Law Assessment of Platform Most-Favoured-Customer Clauses

(2016) 12 (4) Journal of Competition Law and Economics 781

53 Pages Posted: 6 Oct 2015 Last revised: 26 Apr 2017

See all articles by Pinar Akman

Pinar Akman

School of Law, University of Leeds

Date Written: October 1, 2015

Abstract

Most-favoured-customer (MFC) clauses adopted by online platforms in their relevant contractual relationships guarantee to an online platform that a supplier will treat the platform as favourably as the supplier’s most-favoured-customer concerning price, availability and similar terms of a given transaction. These clauses are a fundamental aspect of the business models of some of the world’s leading companies such as Apple, Amazon, Expedia, etc. The competition law implications of these clauses have been one of the key concerns of over a dozen competition authorities around the world in recent years. The competition authorities involved have adopted different approaches and reached different substantive and procedural outcomes, sometimes in proceedings that concern the application of the same legal rule against the same company. This is best demonstrated by the line of investigations pursued against certain online travel agents in Europe. This article posits that such diverging approaches lead to legal and business uncertainty, as well as to procedurally unfair and substantively incorrect assessments. In an effort to rectify this suboptimal situation, the article provides a comprehensive, principled approach for the assessment of platform MFC clauses under competition law – in particular, under EU competition law.

Keywords: online platforms, two-sided markets, most-favoured-customer (MFC) clauses, online travel agents, agency exception, abuse of a dominant position, anticompetitive agreements

JEL Classification: K21, L41, L42

Suggested Citation

Akman, Pinar, A Competition Law Assessment of Platform Most-Favoured-Customer Clauses (October 1, 2015). (2016) 12 (4) Journal of Competition Law and Economics 781. Available at SSRN: https://ssrn.com/abstract=2669395 or http://dx.doi.org/10.2139/ssrn.2669395

Pinar Akman (Contact Author)

School of Law, University of Leeds ( email )

Leeds, LS2 9JT
United Kingdom

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