To Discriminate or Not to Discriminate? Personalised Pricing in Online Markets as Exploitative Abuse of Dominance

European Journal of Law and Economics

26 Pages Posted: 6 Jan 2020

See all articles by Marco Botta

Marco Botta

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS); Max Planck Institute for Innovation and Competition

Klaus Wiedemann

Max Planck Law Network - Max Planck Institute for Innovation and Competition

Date Written: December 13, 2019

Abstract

The advent of big data analytics has favoured the emergence of forms of price discrimination based on consumers’ profiles and their online behaviour (i.e. personalised pricing). The paper analyses this practice as a possible exploitative abuse by dominant online platforms. The paper argues that, in view of its “mixed” effect on consumers’ welfare, personalised pricing requires a case-by-case assessment under EU competition law and thus it should not be banned a priori. However, in view of the recent case law of the European Court of Justice on price discrimination, the National Competition Authorities (NCAs) and the European Commission would face a high burden of proof to sanction this conduct under Art. 102(c) TFEU. Finally, the paper argues that, due to its case-by-case approach, competition law seems more suitable than omnibus regulation to tackle the negative effects that personalised pricing could have on consumers’ welfare. In particular, an NCA/the European Commission could negotiate with online platforms different kinds of behavioural commitments: transparency requirements, limits on data collection/user profiling, rights to opt out of personalised pricing and the obligation to share customers’ data with competitors could significantly tame the risks of personalised pricing.

Keywords: Price discrimination; personalised pricing; EU competition law; exploitative abuse; remedies

JEL Classification: K21; L11; L41; L42; L86

Suggested Citation

Botta, Marco and Botta, Marco and Wiedemann, Klaus, To Discriminate or Not to Discriminate? Personalised Pricing in Online Markets as Exploitative Abuse of Dominance (December 13, 2019). European Journal of Law and Economics, Available at SSRN: https://ssrn.com/abstract=3503337 or http://dx.doi.org/10.2139/ssrn.3503337

Marco Botta (Contact Author)

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
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Max Planck Institute for Innovation and Competition ( email )

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Munich, Bayern 80539
Germany

Klaus Wiedemann

Max Planck Law Network - Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

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