Product Design and Business Models in EU Antitrust Law

Abstract

The design of products and firms' business models are subject to increased scrutiny by competition authorities (including the European Commission) within the EU. This trend is the consequence of the focus on agencies' efforts on digital markets. Product design and business model cases differ from traditional ones in fundamental ways. The differences relate to the nature of intervention (necessarily more intrusive and far-reaching), to the pro-competitive gains that may result from them and the way in which such gains are intertwined with any possible restrictions.

This paper shows that the case law takes into account the specificities of product design and business model cases, and this, in a variety of ways. First, where intervention results in forcing a firm to deal with third parties with which it had chosen not to deal, it is necessary to show, inter alia, that access to the relevant input or platform is indispensable. Second, the anticompetitive effects can never be established in the abstract, which means, in particular, that an authority or claimant would need to identify the relevant counterfactual.

There is some tension between the case law and the most recent administrative practice. It is not clear, at the time of writing, how this tension will be resolved (and, by extension, what the relationship of EU antitrust law with sector-specific regimes will be).

Keywords: product design; business model; EU antitrust law; Article 101 TFEU; Article 102 TFEU; digital platforms; self-preferencing; tying; refusal to deal; exclusivity

JEL Classification: K21, L14, L24, L41, L42