Economic dependence in digital markets: EU remedies and tools

Abstract

While the application of the abuse of dominant position struggles to face some exclusionary and exploitative abuses in digital markets, new tools and remedies are being explored within the EU multi-level context to address the abusive behaviours towards economically dependent businesses. This article discusses whether the doctrine of abuse of economic dependence may constitute a flexible remedy to complement the application of the abuse of dominant position and face the increasing economic dependence and imbalance of bargaining power in digital markets. Although not harmonised at EU level, this tool has been enhanced in national realms to tackle some abusive conducts in digital markets, such as the refusal to share datasets, the sudden interruption of commercial relationships, and the imposition of unfair conditions for the use of online intermediation services. Starting from a comparative analysis of some recent national applications of this tool in digital markets, the article questions whether an EU doctrine of abuse of economic dependence in digital markets may represent a feasible option, at the same time avoiding the risk of interpretative fragmentation among Member States. The article then compares different ex ante regulatory options proposed at the EU level to tackle (among others) the problems arising from the “dependence” of businesses on large online platforms, followed by a discussion on the possible role of the abuse of economic dependence among the spectrum of different ex ante and ex post EU remedies and tools for behaviours of abuse of economic power in digital markets.