De Gratis Non Curat Lex: Abuse of Dominance in Online Free Services

Abstract

This paper sets out from the observation that several competition authorities are showing a tendency to revise competition law in their attempts to react to what they perceive to be anticompetitive practices in the supply of free online services. It begins by demonstrating that the issues being tackled are not new. It, then, shows that, under EU competition law, there is no such thing as a market for a product supplied free of charge and that such products cannot be included in market with paid products. It highlights the maxim de gratis non curat lex. Then, it argues that we do not need to change this principle in order to appropriately tackle anticompetitive practices in the supply of these services that should fall under the scope of competition law, and, moreover, that other concerns can and should be tackled with other branches of the law. Finally, it illustrates this thesis by looking at its impact in recent and ongoing cases.

Keywords: Antitrust, Competition Law, Abuse of dominance, Online services, Digital markets, Gratuity

JEL Classification: K21