Doctrine of Abuse of Dominance in the Digital Age

Abstract

Law of abuse of dominance forbids a dominant firm from misusing its position against competing firms. This doctrine is the foundational concept of harm, to analyze the adverse effect of a firm’s behavior, on the anticompetitive effects ultimately causing competitive harm. A formalistic and effect-based approach has been historically used to analyze this harm. However present digitalization focuses the inclination on effect-based approach. The uniqueness of digital markets and digital products is making it difficult for authorities to challenge the assessment of such harm. Two common abusive conducts refusal to deal and tying and bundling have been identified by authorities. This study explores the evolution of doctrine of abuse of dominance and the role played by theories of harm and economic theories on its modification over time. It further discusses the conduct of refusal and tying of the digital markets and the challenges it poses for assessment. The research suggests that peculiarity of digital products and markets assess the actual effect of firms’ conduct in a more judicious way, to categories harm. A collaborative approach can be explored for the emerging new avenues of harm to competition. Protection of consumer interests must alone remain the guiding factor for any policy made for digital markets, and that alone shall accord justifications for taking enforcement actions.