Refusal to Deal, Abuse of Right and Competition Law in Electronic Markets and Digital Communities

In: European Review of Private Law, Band 22, Heft 5, S. 685-702

Abstract

Abstract: Economic activity is today to a great extent, totally or partially, developed in the electronic realm. Commercial transactions are more and more frequently concluded within electronic markets and other trading platforms, supplementing or even entirely replacing traditional negotiating channels and marketplaces. Likewise, non-commercial activities and professional and social interaction increasingly take place in digital spaces from P2P systems to social networks. These closed, network-based and community-building platforms compete with each other for gaining and retaining users, clients or participants. With such a purpose, electronic markets and platforms may be tempted to impose exclusivity obligations to ensure a minimum efficient scale or adopt leveraging and exploitative practices. At the same time, for certain disclosed reasons or merely on an arbitrary basis, platforms' managers may refuse to accept the application of a user or the offer of a business entity willing to join the network and become a member. As a premise, it can be argued that the electronic market is so exercising the right to run business activities, decide whom to deal with, and on which commercial conditions, under the free enterprise principle. Notwithstanding, such a refusal to deal can entail an abusive exercise of right ignoring constitutional principles and involve in practice an anticompetitive exclusionary behaviour resulting in market foreclosure or an effective social marginalization of the user, especially in the case of excessive concentration, market dominance or even essential facilities. Therefore, private autonomy in dealing with decisions, specifically in refusing admission, has to be carefully examined under public policy principles, considering, in particular, the specific features of the 'electronic markets' market' and the rules of the digital economy.