Abuse of Dominance in Digital Platforms: An Analysis of Indian Competition Jurisprudence
An ongoing debate in competition jurisprudence today is with respect to the enforcement of competition law in digital markets. Digital markets are newer markets in context of which traditional tools of competition law have to be understood and applied. Though the challenges of competition enforcement in digital markets are manifold, this paper focusses on the assessment of dominance and abuse in platform markets, particularly in light of the 2019 Supreme Court judgement in the Uber matter. The Supreme Court’s opinion that loss-making pricing can be an indicator of dominance is inconsistent with the Competition Commission of India’s (CCI) views, which had cautioned against this circular interpretation of dominance and put the issue to rest. The author submits that conflicting interpretations such as these erode the certainty of the law. Competition laws can be flexible but not uncertain or unpredictable. The author identifies areas of concern in digital platforms that are yet unresolved and need to be addressed urgently by guidelines/amendments before the law on this issue becomes incoherent.
- Anderson, R., Daniel, T., Heimler, A. and Jakob, T. (n.d.). Abuse of Dominance. A framework for the design and implementation of Competition Law and Policy. World Bank and OECD, available at: http://www.oecd.org/daf/competition/prosecutionandlawenforcement/27123114.pdf.
- Areeda, P. and Turner, D.F. (1975). Predatory Pricing and Related Practices Under Section 2 of the Sherman Act. Harvard Law Review, Vol.8, No.4, pp. 697, 716-717.
- Bergemann, D., Bonatti, A. and Smolin, A. (2018, January). The Design and Price of Information. American Economic Review, 108 (1): 1-48.
- Bhattarcharjea, A. (2018). Predatory Pricing in Platform Competition: Economic Theory and Indian Cases. In Bharadwaj, A., Devaiah, V. H., and Gupta, I. (eds.) Multi-Dimensional Approaches Towards New Technology: Insights on Innovation, Patents and Competition, p. 218. Available at: https://link.springer.com/content/pdf/10.1007%2F978-981-13-1232-8.
- CCI (2020). Market Study on E-Commerce in India: Key Findings and Observations. Competition Commission of India, https://www.cci.gov.in/sites/default/files/whats_newdocument/Market-study-one-Commerce-in-India.pdf.
- Crémer, J., Montjoye, Y.-A.de, and Schweitze (2019). Competition Policy for the Digital Era. European Commission, p. 6,https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf
- Dessemond, EbruGökçe (2019, December). Restoring Competition in “winner-took-all” digital platform markets. UNCTAD Research Paper No. 40. Available at: https://unctad.org/en/PublicationsLibrary/ser-rp-2019d12_en.pdf.
- Duca, B.S. (2020). Scope of Article 102 TFEU: Protection of competition or Protection of Competitors? European Union Law Working Paper No.46, pp. 3-69. Stanford-Vienna Transatlantic Technology Law Forum, https://law.stanford.edu/wp-content/uploads/2020/06/duca_eulawwp46.pdf.
- European Commission. (2005). DG Competition Discussion Paper on the application of Article 82 of the Treaty to exclusionary abuses. Available at: https://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf.
- European Commission. (2020). Inception Impact Assessment. Ref. Ares (2020)2877634 - 04/06/2020, p.2 (2020), https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12416-Newcompetition-tool.
- Fletcher, A. (2019, January). The EU Google Decisions: Extreme Enforcement or the Tip of the Behavioral Iceberg? CPI Antitrust Chronicle, Competition Policy International, https://www.behaviouralscience.ac.uk/documents/cpi-fletcher.pdf.
- Filistrucchi, L., Geradin, D., Damme, E.V. and Affeldt, P. (2014). Market Definition in Two-Sided Markets: Theory and Practice. Journal of Competition Law and Economics, 10(2): 293-339, https://doi.org/10.1093/joclec/nhu007.
- Hagiu, A. (2006). Multi-sided platforms: From Micro-foundations to Design and Expansion strategies. Working Paper No. 07-094, Harvard Business School, https://www.hbs.edu/faculty/publication%20 files/07-094.pdf.
- Hourihan, R. and Finn, J. (2019). Google and the six billion dollar fine(s): We have the technology, but do we have to rebuild the competition rules? Kluwer Competition Law Blog, 18 April 2019, available at: http://competitionlawblog.kluwercompetitionlaw.com/2019/04/18/google-and-the-six-billion-dollar-fines-we-have-the-technology-butdo-we-have-to-rebuild-the-competition-rules/
- Kaushik, A. (2019). Working Paper on Competition Law and Digital Economy: Identifying Emerging Challenges. Working Paper No. 52, Centre for WTO Studies, http://wtocentre.iift.ac.in/workingpaper/WorkingPaper52.pdf.
- Leslie, C.R. (2013, November). Predatory Pricing and Recoupment. Columbia Law Review, 113(7): 1695-1771, https://www.law.uci.edu/faculty/full-time/leslie/PredatoryPricing.pdf.
- Mehta, U.S. (2008). Predatory Pricing: Lessons for developing countries. Briefing Paper No. 3/2008. CUTS Center for Competition, Investment and Economic Regulation, available at: https://cuts-ccier.org/pdf/Predatory_Pricing-Lessons_for_Developing_Countries.pdf.
- Moisejevas, R. (2017). Predatory Pricing: A Framework for analysis. Baltic Journal of Law & Politics, 10(1): 124-155, https://content.sciendo.com/view/journals/bjlp/10/1/article-p124.xml?language=en.
- OECD. (2012). The Digital Economy. Directorate for Financial and Enterprise Affairs Competition Committee, Organisation for Economic CoOperation and Development. Available at: http://www.oecd.org/daf/competition/The-Digital-Economy-2012.pdf
- Raychaudhuri, T. (2019, November 30). Predatory Pricing and Market Determination in Non-Traditional Markets: An analysis of recent cases decided by the Competition Commission of India. National Law Conclave on Law as an instrument of Social Transformation: Issues, Challenges and Emerging Trends, University of North Bengal, West Bengal, India.
- Robertson, V.H.S.E. (2019). The Relevant Market in Competition Law: A Legal Concept. Journal of Antitrust Enforcement, Vol. 7, Issue 2, pp.158-176.
- Russo, F. and Stasi, M. L. (2016, June 20). Defining the Relevant Market in the Sharing Economy. Internet Policy Review, Vol. 5, Issue 2, https://doi.org/10.14763/2016.2.418.
- Singh, S. and Mukherjee, S. (2020, March 06). Insights into Platform Markets and Abuse of Dominance: Innovation versus Competition in India. Paper presented at the CCI National Conference on Economics of Competition Law, New Delhi, India, https://www.cci.gov.in/sites/default/files/whats_newdocument/Papers.pdf
- Sharma, K. (2011, May-June). SSNIP Test: A Useful Tool, Not a Panacea. Competition Law Reports, pp. 188-192. Competition Commission of India, http://www.cci.gov.in/sites/default/files/presentation_document/SSNIPTestKKSharma260711.pdf
- Stigler Center (2019). Committee for the study of the digital platforms, Market Structure and Antitrust subcommittee Report. George J. Stigler Center for the Study of the Economy and the State and The University of Chicago Booth School of Business, p.8, https://som.yale.edu/sites/default/files/CompetitionDigitalPlatformsStigler19.pdf.
- Tapscott, D. (1995). The Digital Economy: Promise and Peril in the Age of Networked Intelligence. 1st ed. McGraw-Hill Education.
- Wismer, S. and Rasek, A. (2017, November). Note on Market Definition in Multi-sided Markets. Organisation for Economic Co-operation and Development, http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/WD%282017%2933/FINAL&docLanguage=En.