Market definition and the calculation of market shares for dominance are two features of competition law that are at the core of many abuse cases. Yet, the concepts – market definition, dominance – have significant weaknesses. Instead of turning away from market definition completely, as is advocated by some scholars, the better way seems to have a more open and evolutionary concept of market definition. Market definition is to be understood as the starting point for setting the scene, gathering economic information. This requires qualitative assessments and awareness for path dependencies and bounded rationality. Such an understanding may solve problems currently associated with market definition in multi-sided markets.
Edited by Fabiana Di Porto and Rupprecht Podszun
Rupprecht Podszun and Stephan Kreifels
With data as an important parameter for success in markets, issues of the data economy become relevant for competition law. This field of the law traditionally deals with the functioning of market mechanisms and power of individual firms. Competition authorities and courts have to adapt to paradigm shifts in many areas: the value of data can hardly be monetized. Markets in the digital economy are often multi-sided and shaped by strong network effects. Powerful platform operators may control access for customers. Access to data may become a market-entry barrier. Finally, the use of data to feed algorithms and AI may even change competition as such. We examine the data economy from a competition law perspective and present the relevant theories of harm by means of a sample of leading cases, mainly of European courts and competition authorities. Finally, we touch upon first regulatory responses and related questions.