Discriminatory Conduct in the ICT Sector: A Legal Framework
Vertical access disputes are frequent in the ICT sector. Prominent cases before the European Commission, such as Google, and some regulatory debates—and in particular discussions about “net neutrality”—are evidence of this. The purpose of this piece is to identify a legal framework for the assessment of unilateral discriminatory practices under competition law. Three main approaches could be considered: (1) a welfare-based approach, based alone on the economic impact of the practice on welfare; (2) an approach based on the (presumed or alleged) intent of the firm; and (3) one that seeks to achieve consistency by examining the substantive standards applying to similar practices. It is shown that the latter approach is to be preferred, as it seems to be not only sound from an economic perspective, but in line with the purpose and logic of competition law regimes.