Differentiated Treatment in Platform-to-Business Relations: EU Competition Law and Economic Dependence

Differentiated treatment is a key focus in current competition investigations of the European Commission and national competition authorities, ranging from more prominent placement of one’s own services in a ranking to preferential access to data and the favouring of businesses that pay higher levels of commission. Based on their exclusionary and/or exploitative character, the paper distinguishes three types of differentiated treatment on online platforms in order to provide an analytical framework for assessing the extent to which such practices are abusive under Article 102 TFEU, namely: pure self-preferencing, pure secondary line differentiation and hybrid differentiation. The paper points out that the main area where EU competition law currently does not offer effective protection is in the most far-reaching situation where a business is blocked from a platform without legitimate justification. To address harm in such cases, the paper suggests to give a stronger role to economic dependence both within and outside EU competition law, and explores possible measures building upon the Platform-to-Business Regulation as well as the notion of fairness of platform-to-business relations.

The paper is attached and also available online.

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Inge Graef is Assistant Professor at Tilburg Law School with affiliations to the Tilburg Institute for Law, Technology, and Society (TILT) and the Tilburg Law and Economics Center (TILEC). The focus of Inge's research is on competition law enforcement in the digital economy.