Antitrust Compliance and Abusive Behaviour

Abstract

The economic literature on antitrust compliance has concentrated on cartels as the most serious competition law violation. There are, however, infringements of competition law in form of an abuse of a dominant position which have not yet been considered in detail in the economics literature on antitrust compliance. This chapter examines how a comprehensive antitrust compliance programme should deal with abusive behaviour. In a first step, such a programme should determine whether the firm under consideration holds a dominant position. This requires the definition of the relevant antitrust market and the assessment of the competitive conditions in this market. If the firm is found to be dominant, the second step of a compliance programme has to ensure that no exploitative or exclusionary practices are employed. While for exploitative abuses screens similar to those in cartel cases can be used, no simple and reliable screens for exclusionary behaviour have been devised yet. Instead, the “no economic sense” test that has been suggested as an administrable rule to identify exclusionary behaviour could be applied. Roughly speaking, this test requires that a firm is able to demonstrate that the conduct under consideration is rational for the firm absent a tendency to eliminate competition. In the digital economy particular problems arise with respect to the definition of the relevant market and the determination of dominance. This is mainly due to the two-sided nature of most platform markets. Also, new forms of abusive behaviour can emerge in the digital economy that are related to the user data a platform has collected.