Product Design and Business Models in EU Antitrust Law

53 Pages Posted: 20 Sep 2021 Last revised: 22 Sep 2021

See all articles by Pablo Ibáñez Colomo

Pablo Ibáñez Colomo

London School of Economics - Law Department

Date Written: September 17, 2021

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

Suggested Citation

Ibáñez Colomo, Pablo, Product Design and Business Models in EU Antitrust Law (September 17, 2021). Available at SSRN: https://ssrn.com/abstract=3925396 or http://dx.doi.org/10.2139/ssrn.3925396

Pablo Ibáñez Colomo (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
274
Abstract Views
640
rank
141,444
PlumX Metrics