EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

markets. However, the question is whether there has ever been a factor as strong as digitalisation in the history of modern European competition law. The impact of digitalisation has been attracting the interest of competition authorities around the world for several years. Likewise, various aspects of the digital economy and the need to adapt competition law are very often discussed in academic circles. Subjectively assessed, it can be said that most attention is focused on whether the instruments of competition law used so far are sufficient, they need to be adapted to some extent, or it is necessary to create completely new tools. The current enforcement tendencies point to a larger importance of Article 102 TFEU. It seems that for many current or future Article 102 cases, an element of a dominant position could be central. A dominant position has been analysed predominantly through market shares on a defined relevant market. This long-standing approach evolved in the early years of the Court of Justice and has, without much hesitation, survived until current days. However, the facts of Article 102 cases have likely shifted substantially, especially with regard to levels of substitutability of products. The pattern of competition in so-called new industries differs from the “old” ones, competitors’ positions are often unstable, and their turnovers do not have to always be a good proxy of their market power. This paper aims to point out something, which, according to the author, is not yet fully reflected in the academic discussion. As early as the first seminal judgments on dominant position were rendered by the Court of Justice, Richard Posner warned that only practical difficulties drove us to a market definition when assessing market power and claimed a more precise economic approach will be found (Posner, 1976, p. 125). Few years later, a firm’s own price elasticity of demand (individual price elasticity of demand) was suggested for the first time (Landes and Posner, 1981, p. 939). However, it has not yet been applied (and, if so, exceptionally and outside the European Union) with references to impossibility or complexity of its practical application (Sousa Ferro, 2019, p. 332). As long as these objections may remain valid in certain cases, it is argued that their general truthfulness is doubtful. The main reason is digitalisation. The availability of applicable data has clearly significantly increased in the last 40 years. From the other side, digitalisation also casts shadow on the probability of market shares being an accurate proxy for market power. This is particularly true in dynamic markets and for products with partial or one-sided substitutability. Thus, a firm’s own price elasticity of demand, which is an elasticity of demand relating to the pricing of a specific product to which the conduct in question relates (below described as a product specific price elasticity of demand), shall be theoretically analysed in the light of ongoing digitalisation and it shall be discussed, whether it can be helpful in some cases for a measurement of market power. This contribution should serve in particular to establish further directions

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