Competition in (data) privacy: ‘zero’-price markets, market power, and the role of competition law

... Market power—defined as the ability of a firm ‘to profitably increase prices, reduce output, choice or quality of goods and services, diminish innovation’1—is a central guiding concept in the application of EU (European Union) competition law. This is because most competition law violations depend on whether a firm or a group of firms possess market power. Unilateral conduct that contravenes Article 102 TFEU2 is dependent on the existence of dominance, which is equivalent to ‘substantial market power’.3 Although less prominent, market power is important for Article 101 TFEU. This is because the de minimis doctrine exempts some anticompetitive agreements, decisions, or concerted practices owing to lack of market power.4 Moreover, the rules on mergers are primarily aimed at controlling the accumulation of market power into a single or handful of firms.5 Thus, arguably, proof of market power, albeit of different degrees, is a prerequisite for competition law intervention.