EU Competition Law, Data Protection and Online Platforms: Data as Essential Facility: Data as Essential Facility

EU Competition Law, Data Protection and Online Platforms: Data as Essential Facility: Data as Essential Facility

by Inge Graef

Hardcover

$170.00
Use Standard Shipping. For guaranteed delivery by December 24, use Express or Expedited Shipping.

Product Details

ISBN-13: 9789041183248
Publisher: Wolters Kluwer Law & Business
Publication date: 10/27/2016
Series: International Competition Law Series
Pages: 422
Product dimensions: 6.30(w) x 9.80(h) x 1.10(d)

Table of Contents

Acknowledgements xi

Chapter 1 Introduction 1

1.1 Background 1

1.2 Focus of the Book 2

1.3 Structure and Methodology 3

Part I Competition and Innovation on Online Platforms 7

Chapter 2 Business Models and Economic Characteristics of Online Platforms 9

2.1 Introduction 9

2.2 Describing the Online Intermediary Environment 9

2.2.1 Search Engines 10

2.2.2 Social Networks 12

2.2.3 E-commerce Platforms 16

2.3 Multi-sided Businesses 18

2.3.1 Multi-sidedness in General 18

2.3.2 Establishing a Multi-sided Business 25

2.3.3 Multi-sided Nature of Online Platforms 27

2.4 Network Economy Characteristics of Online Platforms 32

2.4.1 Economies of Scale 32

2.4.2 Network Effects 33

2.4.3 Switching Costs and Lock-In 40

2.4.4 Barriers to Entry 47

2.5 Conclusion 53

Chapter 3 Evaluating the Link Between Competition and Innovation 55

3.1 Introduction 55

3.2 Measuring Competition and Innovation 56

3.2.1 Indicators of Competition 56

3.2.2 Indicators of Innovation 57

3.2.3 Reliability of the Indicators 59

3.3 Economic Theory and Empirical Evidence on the Relationship Between Competition and Innovation 59

3.3.1 Schumpeter 60

3.3.2 Arrow 61

3.3.3 Aghion 63

3.3.4 Appraisal 64

3.4 Different Types of Innovation 68

3.4.1 Disruptive versus Sustaining Innovation 68

3.4.2 Appraisal 71

3.5 Conclusion 74

Chapter 4 Market Definition and Dominance on Online Platforms 77

4.1 Introduction 77

4.2 Market Definition of Multi-sided Businesses 78

4.2.1 An Approach for Market Definition of Multi-sided Platforms 79

4.2.2 Relevant Product Market for the User Side 87

4.2.3 Relevant Product Market for the Advertiser Side 93

4.2.4 Relevant Geographic Market for Online Platforms 99

4.2.5 Economic Tools for Market Definition on Multi-sided Platforms 100

4.3 Market Definition in New Economy Industries 103

4.3.1 US Initiative Towards a Framework for Innovation in Competition Analysis 104

4.3.2 EU Approach Towards Innovation in Competition Enforcement 106

4.4 Assessing Dominance on Online Platforms 111

4.4.1 Room for Competition in Markets in Which Multi-sided Businesses Operate 111

4.4.2 Establishing Dominance of Online Platform Providers 114

4.4.3 From Market Shares to Potential Competition? 117

4.5 Conclusion 120

Part II Data as Essential Facility 123

Chapter 5 Setting the Scene 125

5.1 Introduction 125

5.2 Role of Data in the Digital Economy 126

5.3 Protection of User Data under Data Protection and Intellectual Property Regimes 132

5.3.1 Protection of Personal Data under the European Data Protection Regime 133

5.3.2 Copyright and Sui Generis Database Protection for User Data 134

5.3.3 Trade Secret Protection for Datasets 141

5.4 Potential Competition Problems Involving Access to Data and Online Platforms 143

5.4.1 Data Portability 144

5.4.2 Interoperability of Online Platforms 148

5.4.3 Refusals to Give Competitors Access to User Data 152

5.5 Conclusion 154

Chapter 6 Normative Analysis of the Essential Facilities Doctrine 155

6.1 Introduction 155

6.2 Unravelling the Legal Standards for Refusals to Deal in the United States and the European Union 156

6.2.1 Development of the Essential Facilities Doctrine in the United States 157

6.2.2 Development of the Essential Facilities Doctrine in the European Union 163

6.2.3 Comparison Between the US and EU Standards Applicable to Refusals to Deal 173

6.3 Influence of American and European Schools of Economic Thought on the Development of the Essential Facilities Doctrine 174

6.4 Economic Trade-Off in Essential Facilities Cases 179

6.5 Need for a More Coherent Application of the Essential Facilities Doctrine 182

6.6 Principles Underlying the Proposed Framework 184

6.6.1 Balance Between Competition in and for the Market Is Established over Time 185

6.6.2 Competition Enforcement Can Only Restore the Process of Competition in the Market 186

6.6.3 Market Specifics Are instrumental in Determining Whether a Competition Law Intervention Is Appropriate 190

6.7 Role of Intellectual Property and Trade Secret Law 193

6.7.1 Analysing Refusals to License in the Light of the Interface Between Competition and Intellectual Property Law 193

6.7.2 Limits of the New Product Condition 196

6.7.3 Do Intellectual Property Rights and Trade Secrets Require a Different Treatment under the Essential Facilities Doctrine? 201

6.8 A Proposed Framework for the Application of the Essential Facilities Doctrine 209

6.8.1 Market Definition and Dominance in Essential Facilities Cases 210

6.8.2 Absolute Refusals to Supply 216

6.8.2.1 Indispensability 216

6.8.2.2 Exclusion of All Effective Competition on the Downstream Market 220

6.8.2.3 Prevention of the Introduction of a New Product 223

6.8.2.4 Absence of an Objective Justification 229

6.8.3 Disruptions of Supply 235

6.8.4 Discriminatory Refusals to Supply 242

6.9 Conclusion 245

Chapter 7 Application of the Essential Facilities Doctrine to Data 249

7.1 Introduction 249

7.2 Data as a Competitive Advantage 249

7.3 Scenarios with Regard to Access to Data 256

7.4 Market Definition in Essential Facilities Cases Relating to Data 259

7.5 Market Power with Regard to Data 265

7.6 Characteristics Which Set Data Apart from Other Assets Previously Being Considered under the Essential Facilities Doctrine 267

7.7 Abusive Nature of Refusals to Give Access to Data on Online Platforms 269

7.7.1 Indispensability of Data 270

7.7.2 Exclusion of All Effective Competition on the Downstream Market 273

7.7.3 Prevention of the Introduction of a New Product 274

7.7.4 Absence of an Objective Justification 276

7.8 Conditions under Which Access to Data Should Be Granted 277

7.9 Conclusion 279

Part III Data Protection Interests in Competition Enforcement 281

Chapter 8 How Data Protection Has Become Relevant to Competition Enforcement 283

8.1 Introduction 283

8.2 Disentangling Data Protection and Privacy 283

8.3 Rise of Attention for Data Protection in Competition Enforcement 287

8.4 Conclusion 292

Chapter 9 Identifying the Interaction Between Competition and Data Protection Law 293

9.1 Introduction 293

9.2 Key Data Protection Principles and Their Enforcement in Relation to Competition Law 293

9.2.1 From Consent and Purpose Limitation to Substitutability 294

9.2.2 Comparing the Enforcement Mechanisms of EU Data Protection and Competition Law 297

9.3 Effect of Data Protection Regulation on Competition 302

9.4 Data Protection as a Non-price Parameter of Competition 306

9.5 Potential Conflicts Between Competition and Data Protection Law 315

9.6 Conclusion 322

Chapter 10 Data Protection as a Non-efficiency Concern in Competition Policy 325

10.1 Introduction 325

10.2 Exploring the Objectives of EU Competition Law in Current Decision-Making Practice and Case Law 326

10.2.1 Article 101 TFEU 326

10.2.2 Merger Review 327

10.2.3 Article 102 TFEU 329

10.2.4 Consumer Welfare Standard 330

10.3 Examining the Scope for Data Protection Interests in EU Competition Policy 332

10.3.1 Comparing the Objectives of EU Competition and Data Protection Law 332

10.3.2 Weighing Pros and Cons of Integrating Data Protection Interests in EU Competition Policy 335

10.3.3 Three-Layer Approach Towards the Integration of Data Protection Interests in EU Competition Policy 337

10.3.3.1 Protection of Economic Efficiency Also Furthers Data Protection Interests 338

10.3.3.2 Going beyond Protecting Economic Efficiency? 339

10.3.3.3 Negative Duty to Respect the Right to Data Protection 340

10.3.3.4 Positive Duty to Promote the Application of the Right to Data Protection 343

10.4 Data Protection Interests in Merger Review 345

10.4.1 Assessing Data-Related Competition Concerns in Merger Cases 345

10.4.2 Scenario 1: The Merger Does Not Significantly Impede Effective Competition 349

10.4.3 Scenario 2: The Merger Significantly Impedes Effective Competition 352

10.5 Data Protection Interests and Abuse of Dominance 355

10.6 Conclusion 361

Chapter 11 Conclusion 365

11.1 Threefold Relevance of Data for Competition Policy 365

11.2 Two General Observations 366

11.3 Summarising the Resorts from the Analysis in Part I 366

11.4 Summarising the Results from the Analysis in Part II 368

11.5 Summarising the Results from the Analysis in Part III 372

11.6 Outlook 375

Bibliography 377

Table of Cases 407

Table of Legislation 415

Index 419

Customer Reviews

Most Helpful Customer Reviews

See All Customer Reviews