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Cited by 35Diverse Legal and Medical StudiesMerger and Competition AnalysisDigital Platforms and Economics

To discriminate or not to discriminate? Personalised pricing in online markets as exploitative abuse of dominance

Open access
Botta, Marco, Wiedemann, Klaus·2020·European Journal of Law and Economics
DOI 10.1007/s10657-019-09636-3
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Abstract

The advent of big data analytics has favoured the emergence of forms of price discrimination based on consumers’ profiles and their online behaviour (i.e. personalised pricing). The paper analyses this practice as a possible exploitative abuse by dominant online platforms. The paper argues that, in view of its “mixed” effect on consumers’ welfare, personalised pricing requires a case-by-case assessment under EU competition law and thus it should not be banned a priori. However, in view of the recent case law of the European Court of Justice on price discrimination, the National Competition Authorities (NCAs) and the European Commission would face a high burden of proof to sanction this conduct under Art. 102(c) TFEU. Finally, the paper argues that, due to its case-by-case approach, competition law seems more suitable than omnibus regulation to tackle the negative effects that personalised pricing could have on consumers’ welfare. In particular, an NCA/the European Commission could negotiate with online platforms different kinds of behavioural commitments: transparency requirements, limits on data collection/user profiling, rights to opt out of personalised pricing and the obligation to share customers’ data with competitors could significantly tame the risks of personalised pricing.

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  • Not much is to be expected from antitrust legislation, even with a case-by-case approach, because finding a dominant position is a major hurdle.

    “As such, not much is to be expected from antitrust legislation, even if-as Botta and Wiedeman (2019) argue-a caseby-case approach is utilized, given that a dominant position in the market must first still be found, which may be the greatest hurdle.”

    From A note on the future of personalized pricing: cause for concern (2020) · cites this paper as Botta and Wiedeman (2019)

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4 of the 60 references couldn’t be matched to a known paper.

Research works printed but not linked: 2

  1. Ezrachi, A. (2017). Sponge. Journal of Antitrust Enforcement, 5(1), 49-75.
  2. Hellström, P., Maier-Rigaud, F., & Bulst, F. W. (2009). Remedies in European antitrust law. Antitrust Law Journal, 76(1), 43-63.

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Authors
Botta, M., & Wiedemann, K.
Affiliations
Max Planck Institute for Innovation and Competition (DE)
Corresponding author
  • Botta, Marco
  • Wiedemann, Klaus
ORCID
Venue
European Journal of Law and Economics
Publisher
Springer Science and Business Media LLC
Published
2019-12-09
Volume
50
Issue
3
Pages
381-404
ISSN
  • 0929-1261 (ISSN-L)
  • 1572-9990
DOI
10.1007/s10657-019-09636-3
OpenAlex
W2994941589
Cited by
35
References
60
Citations by year
2026: 2 · 2025: 8 · 2024: 3 · 2023: 8 · 2022: 9 · 2021: 3 · 2020: 2
FWCI
5.38
Type
journal article
Language
en
Open access
Licence
Locations
  • European Journal of Law and Economics (publishedVersion, cc-by)
  • SSRN Electronic Journal (acceptedVersion)
  • Cadmus - EUI Research Repository (European University Institute) (submittedVersion, public-domain)
  • RePEc: Research Papers in Economics (submittedVersion)
  • MPG.PuRe (Max Planck Society) (submittedVersion)
Funders
Max-Planck-Gesellschaft
Topics
  • Social Sciences › Business, Management and Accounting › Strategy and Management › Diverse Legal and Medical Studies
  • Social Sciences › Economics, Econometrics and Finance › Economics and Econometrics › Merger and Competition Analysis
  • Social Sciences › Business, Management and Accounting › Strategy and Management › Digital Platforms and Economics
Keywords
personalized pricing, price discrimination, abuse of dominant position, EU competition law, Article 102 TFEU, digital platforms, big data analytics, consumer welfare, burden of proof, national competition authorities, European Commission, behavioural commitment, data protection, user profiling, transparency requirements, opt-out rights

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