ABSTRACT
The new network industries tend to concentration, just as the traditional network industries. Some digital platforms tip into market dominance. Competition law is increasingly applied to platforms, particularly in Europe. But traditional network industries demonstrate that competition law is rarely enough when there is a structural tendency to monopoly. There are growing calls to introduce further regulation, defining a lower threshold to trigger regulatory obligations on the digital gatekeepers. Such intervention will take the form of behavioral pro-competition obligations, most of them inspired by regulatory measures adopted in the telecoms industry to foster competition after liberalization: data portability inspired in number portability, data openness, protecting multi-homing, and imposing interoperability and access as in the traditional network industries. If behavioral obligations are not enough, structural measures could be considered, particularly vertical separation. A set of behavioral obligations can be imposed upon digital platforms with market power in order to rule out exploitative abuses; that is, unfair conditions imposed upon users, such as excessive pricing, tying, and so on. In such cases, platforms could be forced to trade with users under fair, reasonable, and non-discriminatory (“FRAND”) conditions.
