The problems of adapting Antitrust Law to the digital economy

Abstract

In connection with the Fifth Antimonopoly Package, the author analyzes the effectiveness of new competition law. The aim of the research is to identify the legal and economic consequences of including the term “network effect” and special legal structures for abuse of a dominant position in digital markets in Russian legislation. The study is based on Russian and foreign legislation, materials from judicial practice, and scientific research. The new rules make it possible for the existing legal regulation on the protection of competition to be applied to the phenomena of the digital economy. However, in the digital sectors, prohibiting the abuse of a dominant position contributes to strengthening the dominance of platform operators and the formation of a digital monopoly. This is not entirely consistent with the goals of antitrust regulation. With the consolidation in the provisions of Russian law of the principle of technological neutrality, as well as the design of a public contract, the strengthening of the dominance of platform operators may be restricted. A consequence of the lack of unified terminology in the Fifth Antimonopoly Package and legislation on digital platforms is the unreasonable limitation of the subject composition of the prohibition of abuse of a dominant position in digital markets. The Fifth Antimonopoly package applies to the activities of marketplaces and aggregators, but does not extend to digital ecosystems and digital services in the format of applications, cloud storage, social networks, search engines, streaming services, among others. This limitation will be overcome by applying the general rules on the prohibition of monopolistic activities and unfair competition to digital ecosystems and digital services. The author draws attention to a number of practical problems in applying dominance criteria to the activities of digital intermediaries, focusing on their business model. Conclusions are drawn about the advisability of expanding the subject composition of relations regulated by the new special rules of the Fifth Antimonopoly Package. Legal means are also proposed aimed at ensuring a balance of interests of the dominant digital platform operators and users.