APPLYING TWO-SIDED MARKETS THEORY: THE MASTERCARD AND AMERICAN EXPRESS DECISIONS

Abstract

Since the seminal papers by Rochet and Tirole, the payment card industry has represented an elected field of study for the economic features of multi-sided markets and their effects on both regulation and antitrust analysis. The recent judgments of the UK High Court of Justice in MasterCard and of the US Court of Appeals for the Second Circuit in American Express are particularly relevant since they are the first to concretely apply the economic theory of multi-sided markets to the payment card industry. In particular, given the peculiarities of multi-sided markets, the coexistence of different business models, and the twofold competitive interpretation of the conduct once studied in its own context, courts have emphasised the need to articulate a judgment around counterfactual hypotheses. This is a way to measure the actual impact on competition, testing the realistic scenario that would occur if the investigated conduct was absent, so as to give appropriate consideration to the business model of the single platform, in which competition law should intervene. The same reasoning that makes us consider advantageous a flexible antitrust approach (meaning a case-by-case analysis) forces us to be critical of the current US and EU regulation of payment systems.