Modernising the Law on Abuse of Market Power: Report for the Federal Ministry for Economic Affairs and Energy (Germany)

11 Pages Posted: 9 Oct 2018

See all articles by Heike Schweitzer

Heike Schweitzer

Humboldt University of Berlin - Faculty of Law

Justus Haucap

Heinrich Heine University Dusseldorf - Department of Economics; German Institute for Economic Research (DIW Berlin)

Wolfgang Kerber

University of Marburg - School of Business & Economics

Robert Welker

Humboldt University of Berlin - Faculty of Law

Date Written: September 17, 2018

Abstract

Digitization has transformed – and continues to transform – the economy. Among the characteristic features of digitization are the increasing importance of (a) data as a critical input resource in production and distribution processes and of (b) digital platforms as new players in the markets. The changes in the structure of markets – some of which have become highly concentrated – and in business strategies raise the question whether EU competition law and German competition law are able to deal with the new challenges of the digital economy. Our report for the German Economic Ministry looks at whether a modernization of the (European and German) rules on the abuse of market power is needed. For this purpose, we look at Article 102 TFEU and their (rough) equivalents in German competition law, namely in §§ 18, 19 GWB. In addition, we pay particular attention to the question of whether § 20 GWB – a specificity of German competition law which prohibits exclusionary abuses of relative market power (§ 20 para. 1 – “economic dependence”) and superior market power vis-à-vis small and medium sized competitors (§ 20 para. 3) – can become an effective instrument for closing persisting gaps in controlling abusive behaviour in view of the special challenges facing the digital economy.

Keywords: competition law, market power, abuse, dominance, relative market power, superior market power, merger control, digital economy, platform economy, siec, tipping, oligopoly, conglomerate, information intermediaries, data access

Suggested Citation

Schweitzer, Heike and Haucap, Justus and Kerber, Wolfgang and Welker, Robert, Modernising the Law on Abuse of Market Power: Report for the Federal Ministry for Economic Affairs and Energy (Germany) (September 17, 2018). Available at SSRN: https://ssrn.com/abstract=3250742 or http://dx.doi.org/10.2139/ssrn.3250742

Heike Schweitzer (Contact Author)

Humboldt University of Berlin - Faculty of Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

Justus Haucap

Heinrich Heine University Dusseldorf - Department of Economics ( email )

Duesseldorf
Germany

HOME PAGE: http://www.dice.uni-duesseldorf.de

German Institute for Economic Research (DIW Berlin) ( email )

Mohrenstraße 58
Berlin, 10117
Germany

Wolfgang Kerber

University of Marburg - School of Business & Economics ( email )

Am Plan 2
Marburg, D-35037
Germany
+49 6421 2823921 (Phone)

Robert Welker

Humboldt University of Berlin - Faculty of Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

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