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Committing to Commitments : A Strategic Analysis of Article 9 Commitments in Abuse of Dominance Cases in the IT Sector

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Title: Committing to Commitments : A Strategic Analysis of Article 9 Commitments in Abuse of Dominance Cases in the IT Sector
Author(s): Autio, Riina
Contributor: University of Helsinki, Faculty of Law
Discipline: Commercial law
Language: English
Acceptance year: 2016
The topic of the thesis is the enforcement of Article 102 TFEU, focussing on the IT sector specifically, and on the use of commitments in particular, from the point of view of games of strategy. The approach of the present endeavour is thus one of law and economics. The paper focusses on the following issues: Are Article 9 commitments an appropriate way of dealing with abuse of dominance in dynamic markets? Is this option being applied adequately at present? Can a game theoretical model such as a two-by-two matrix game enhance our understanding of the value of commitment decisions in competition enforcement cases concerning abuse of dominance in dynamic markets? So-called new markets or technology-enabled markets are developing at a pace no regulator seems to be able to keep up with. The subject is important considering the economic significance of the markets involved, but also from a practical point of view. The Commission’s approach seems dramatically different from the approach of undertakings competing for new markets. It seems, however, to be a difference in more than just pace; objectives are of course different for the Commission and the undertakings, but is it a game of Battle of the Sexes, or are the two playing entirely different games? Even in more traditional markets, judgments often take so long that the market in question has gone through an irreversible change by the time the case is closed. This may be problematic in any market, but the issue is more pronounced in markets dynamic by nature. It is possible to argue that the judgment is of value primarily as a legal precedent. One should, however, bear in mind that specific goals have been set for competition regulation and enforcement. Especially following the implementation of Regulation 1/2003, effectiveness of intervention should be a priority. The European Commission's right to intervene in volatile market situations is not, and ought not to be, a given, and any intervention should either achieve the goals set for such interventions, or at the very least be more likely than not by reasonable assessment to achieve said goals. In technology-enabled markets, one practical solution that has been proposed to the problem of prolonged proceedings failing to address the underlying issues has been favouring commitments over more time-consuming procedural options. The thesis discusses the pros and cons, the possibilities and limits of this option.

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