Criteria for Regulating Prerequisites of Applying Competition Rules in Digital Platforms: Pathology of Traditional Criteria and Providing New Solutions

Kadkhodaei Elyaderani, Abbasali; Rostami, Vali; Farahani, Mohammad Sadegh

doi:10.22099/jls.2023.44359.4775

Criteria for Regulating Prerequisites of Applying Competition Rules in Digital Platforms: Pathology of Traditional Criteria and Providing New Solutions

Document Type : Research Paper

Authors

¹ Professor at the Faculty of Law and Political Sciences of the University of Tehran.

² Faculty of Law and Political Sciences, University of Tehran

10.22099/jls.2023.44359.4775

Abstract

The application of competition rules in legal systems necessitates defining the market and measuring market power. These two prerequisites form the basis for enforcing competition laws, and their regulation becomes increasingly crucial with the expansion of internet-based platform businesses and their impact on consumer rights. This research addresses the challenges in setting prerequisites for applying competition rules in digital platforms and offers new solutions.
The traditional approach to competition analysis involves defining the relevant market and assessing market power. However, the unique characteristics of digital platforms present obstacles in achieving these objectives. To establish rules governing market definition and market power measurement, a three-step process is proposed. Firstly, the traditional rules for market definition and market power measurement in conventional businesses are examined, as they are commonly used in judicial authorities. Secondly, the specific competitive challenges in digital platforms are assessed to identify cases where traditional criteria fall short in providing
prerequisites. Finally, new criteria for market definition and market power measurement in digital platforms are proposed.
The research reveals that both market definition and market power measurement in platform businesses face significant challenges. Defining the market in digital platforms proves difficult due to the inability to assert that virtual and traditional businesses coexist within the same market. Additionally, the traditional product and market scope determination method (SSNIP test) may not apply to two/multi-modal platforms and platforms offering products with zero prices. Furthermore, traditional indicators for calculating the market area, such as "transportation" and "main area," do not apply to virtual markets with cross-border transactions.
Measuring market power in digital platforms presents its own challenges. Relying solely on income as a criterion is inadequate, as it cannot be compared to other factors like the number of active users, volume of traffic, or time spent on the platform. Furthermore, using income to determine market share is not applicable to platforms with zero-priced products. Measuring product demand elasticity using the Lerner index is also hindered by the zero marginal cost of many platforms. Moreover, identifying effective entry barriers specific to digital platforms and devising mechanisms for measuring them presents a challenge not yet addressed by legal systems.
To overcome these challenges and provide new criteria for market definition in digital platforms, a three-step process is proposed. The identification of non-linear value chains helps identify platform components. Assessing whether each component constitutes a separate market or a part of the same market relies on their correlation and their contribution to specific services. To address challenges in defining the product and scope, the research suggests using the SSNDQ test (small but significant and stable reduction in quality) instead of the SSNIP test. Criteria such as "service speed," "data protection," "privacy protection," "exchange cost," "negotiation cost," and "search cost" can measure the quality of service provision in digital platforms.
For measuring market power in digital platforms, distinguishing between "transaction-based platforms" and "audience-based platforms" is suggested. The "users' payment" criterion, instead of platform income, can determine market share using indicators like the number of users, traffic volume, time spent, and number of visits. Recognizing new structural and strategic entry barriers in digital platforms within relevant laws and regulations is crucial. Evaluating the three-stage process of "possibility of entry," "possibility of competitive influence," and "possibility of limiting market power" in platform markets offers potential solutions to measuring market power in this context.

Keywords

Main Subjects

Economic law

References

Apec (Asia-Pacific Economic Cooperation) (2022). Competition Law and Regulation in Digital Markets, Singapore: APEC Secretariat.

Armenter, R. & Koren, M. (2015). Economies of Scale and the Size of Exporters, Journal of the European Economic Association13 (3),482-511.DoI: 10.1111/jeea.12108

Arowolo, O. (2016). “Application of the Concept of Barriers to Entry Under Article 82 of EC Treaty: Is there a Case for Review?” In Dominance and Monopolization, Rosa Greaves, London: Routledge.

Bagheri, M. & Sadeghi M. (2014). Conceptual interaction and examples of market and non-market in the body of the legal rule of competition, Comparative Law Studies, 6 (2), 413-441. [in persian] DoI: 10.22059/jcl.2015.55770

Bamberger, K., & Lobel, O (2017). Platform market power, Berkeley Technology Law Journal, 32 (3),.1051-1092. DoI: 10.15779/Z38N00ZT38

Brescia, R (2018). Finding the Right “Fit”: Matching Regulations to the Shape of the Sharing Economy. In The Cambridge Handbook of the Law of the Sharing Economy, N. M. Davidson & M. Finck (Eds.), London: Cambridge University Press.

Broder, D. (2012). U.S. Antitrust Law and Enforcement: A Practice Introduction, Oxford: Oxford University Press.

Brown, W. (2006). Legal Terminology, Florence: Thomson.

DCMS & BEC (Ministry of State for Digital, Culture, Media and Sport & Ministry of State for Business, Energy and Climate of UK) (2022). A New Pro-Competition Regime for Digital Markets, Available at: https://www.gov.uk/government/consultations/a-new-pro-competition-regime-for-digital-markets/outcome/a-new-pro-competition-regime-for-digital-markets-government-response-to-consultation

European Commission (2002). Glassary of terms used in EU competition policy, Luxembourg: Office for oficial publications of the European Communities.

Faull, J. & Nikpay, A. (2000). The EC Law of Competition, Oxford: Oxford University Press.

Filistrucchi, L. (2008). A SSNIP test for two-sided markets: the case of media, Working Papers, NET Institute, Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1287442 DoI:10.2139/ssrn.1287442

Gallaugher, J. & Wang, Y. (2002). Understanding Network Effects in Software Markets, MIS Quarterly, 26 (4), 303-327. DoI: 10.2307/4132311

Ghaffari Farsani, B. (2013). Competition Laws and Civil Enforcement Guarantees, Tehran: Mizan. [in persian]

Grimes, W. (2005). Buyer power and retail gatekeeper power: protecting competition and the atomistic seller, Antitrust Law Journal, 72 (2), 563-588. DoI: 10.1007/BF01539808

Guy, T. (2002). Intellectual Property in Europe, London: Sweet & Maxwell.

Holloway, S. (2012). Straight and Level: Practical Airline Economics, Farnham: Ashgate Publishing.

Jones, A. & Sufrin, B. (2019). EC Competition Law, Text, Cases and Materials, Oxford: Oxford University Press.

Kattan, J. (1993). Market power in the presence of an installed base, Antitrust Law Journal, 62 (1), 1–21. DoI: DoI: 10.1007/BF01450808

Lancieri, F., & Sakowski, P. (2021). Competition in digital markets: review of expert reports, Stanford Journal of Law, Business & Finance, 26 (1), 65-170. DoI: 10.1111/jeea.12178

Lane, Robert (2000). EC Competition Law, Pearson Education Limited, London: Longman.

Lerner, A (1934). The concept of monopoly and the measurement of monopoly power, Review of Economic Studies, 1 (3), 157-175. DoI: 10.2307/2967480

Maboudi Neishaburi, R. (2009). Legal rules of commercial competition, doctoral thesis, under the guidance of Asghar Handi, Shahid Beheshti University. [in persian]

Monti, M. (2001). Market Definition as a Cornerstone of EU Competition Policy, Available at: https://ec.europa.eu/commission/presscorner/api/files/document/print/en/speech_01_439/SPEECH_01_439_EN.pdf

Motta, M. (2015). Competition Policy, Theory and Practice, London: Cambridge University Press.

Newman, J. (2020). Antitrust in attention markets: objections and responses, Santa Clara Law Review, 59 (3),743-769.

Niels, G. & Ralston, H. (2021). Two-sided market definition: some common misunderstandings, European Competition Journal, 17 (1), 118-133. DoI: 10.1080/17441056.2020.1851478

O`Donoghue, R. & Padilla, J. (2006). The Law and Economics of Article 82 EC, London, Hart Publishing.

O'Sullivan, A. & Sheffrin, S. (2007). Economics: Principles in Action, New Jersey: Pearson Prentice Hall.

OECD (1993). Glossary of Industrial Organisation Economics and Competition Law, Paris, OECD Publishing.

Slesinger, R. (1995). The Use of Economic Analysis by the Supreme Court in Applying the Concept of the Relevant Market, European Journal of Law and Economics, 2 (1), 227-245. DoI: 10.1007/BF01540808

Sultanzadeh, J. & Eliasi M. & Narimani, M. (2021). Competition Law in the Era of Platform Businesses (Multiple Case Study), Scientific Quarterly Journal of Management Improvement, 15 (4), 6-37. [in persian] DoI: 10.22034/jmi.2021.276172.2508

Tatos, T. (2019). Relevant market definition and multi-sided platforms after ohio v. american express: evidence from recent ncaa antitrust litigation, Harvard Journal of Sports and Entertainment Law, 10 (2), 147-172. DoI: 10.2307/2957480

Rahbari, E. (2022). An Analysis of Big Data's Competitive Legal Challenges, Legal Research Quarterly, 25 (98), 295-319. [in persian] DoI: 10.29252/jlr.2022.226773.2164

Rahbari, E. & Hassani Sangani, V. (2018). competition rights in the field of intellectual property, vol. 1, Tehran: Samt. [in persian]

Rochet, J. & Tirole, J. (2003). Platform Competition in Two-Sided Markets, Journal of the European Economic Association, 1 (4), 990-1029. DoI: 10.1162/154247603322493212

Tucker, C. (2019). Digital Data, Platforms and the Usual [Antitrust] Suspects: Network Effects, Switching Costs, Essential Facility, Review of Industrial Organization, 54 (1), 683–694. DoI: 10.2139/ssrn.3326385

UNCTAD (United Nations Conference on Trade and Development), (2007), Model Law on Competition: substantive possible elements for a competition law, commentaries and alternative approaches in existing legislations, (last visited: 2023/6/19) at:

https://digitallibrary.un.org/record/603546

Van Gorp, N. & Batura, O. (2015). Challenges for Competition Policy in a Digitalised Economy, Available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2015/542235/IPOL_STU(2015)542235_EN.pdf

Whish, R. (2021). Competition Law, London: Butter Worths.

Yun, J. (2019). Antitrust after Big Data, Criterion Journal on Innovation, 4 (19),407-429. DoI: 10.1163/22115897_01801_007