Market and Competition Law Review (Oct 2020)
To be agents or not to be agents, that is the question: the impact of the online platforms revolution on the notion of agency under EU competition law
Abstract
In recent years, practitioners, commentators and competition authorities have been facing the question of whether online platforms fit the mould of a typical agent under EU competition law. The stakes are high. If online platforms could be qualified as agents, the obligations imposed on them in relation to the contracts concluded and/or negotiated on behalf of their principal(s) may fall outside Article 101 (1) TFEU. This article wishes to contribute to the debate in two ways. First, it offers an assessment of whether, under existing EU competition law, online platforms can be qualified as agents. Second, it provides a conceptual framework to determine whether the existing rules are fit for purpose. After a brief overview of the relevant case-law, the article finds that, as a matter of current law, online platforms can fall under the definition of agents. However, the article considers that the existing rules should be updated to reflect the disruptive changes brought by the online platforms revolution. The existing rules were conceived at a time when value was created and transferred following the traditional value chain (or pipeline) model. Value flew in a linear way from producers to consumers. Companies are nowadays increasingly shifting from the value chain model to a more complex business model, i.e. the platform model. The platform model re-shaped ordinary competitive dynamics. Under the platform model, value is created through a complex array of interactions among producers, a number of principals, consumers and online platforms. The output is a package of products and services. Online platforms compete with each other, with other market players and sometimes even with their principals. The article finds that these new challenges are not adequately addressed by the EU Guidelines on Vertical Restraints, that should be reviewed accordingly to catch up with the online platforms revolution.
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