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Analysis of competition on technological platforms
Article by Julieth Sanclemente, associate of Administrative Law Department o Garrigues in Bogota ('Asuntos Legales')
The antitrust authorities have recently been directing their attention at analyzing potentially uncompetitive conduct on two-point platforms. The constant development and increasing relevance of these platforms has captured the interest of antitrust authorities, especially as regards their structure and the effects they may have on antitrust law.
What are two-point platforms?
Generally speaking, two-point platforms are comprised of an infrastructure provided by a third party and by the offerors and acquirers of services and/or products unrelated to the agent that provides the infrastructure. In view of the constant development of technology, we currently find two-point platforms where the agent that provides the infrastructure also offers products and/or services on the platform, acting as competitor of the other offerors.
Consequently, the effects generated by the markets (platforms) in which the agent that supplies the infrastructure also offers products and services on the platform are different to those where the agent is not the offeror. In this regard, we will only analyze the potentially uncompetitive conduct that may be found where the agent that provides the infrastructure also participates as offeror.
How important are two-point platforms in antitrust law?
In the market we are dealing with here, the agent that provides the infrastructure participates as a retail agent (offering the goods and services) and also as a wholesale agent (providing the infrastructure) in the same value chain. To this extent, it would be important to analyze that the efficiencies generated within the integrated agent do not affect antitrust rules, and in particular, that they do not affect access to the market by other offerors, give it an anticompetitive edge over other offerors, or make improper use of the confidential information to which the offeror has had access as a wholesale agent.
In addition, it is very important to analyze from the standpoint of competition, the synergies presented on the integrated two-point platforms, since consumers are increasingly acquiring goods and services online. This analysis is relevant because electronic commerce has increased the dynamics of competition in the retail trade offering more options and competitive prices.
As far as Colombia is concerned, how should these two-point platforms be analyzed?
We believe that these platforms should be analyzed from the standpoint of the purpose and the effects generated in the entire spectrum of anticompetitive conduct enshrined in our legislation. The participation of different agents on a two-point platform (offerors, customers, platform, suppliers) could give rise to different types of anti-competitive conduct. These include: abuse of a dominant position, in particular, in related markets, a potential violation of the general prohibition on unfair competition, the materialization of vertical agreements or anticompetitive acts.
However, we consider that the analysis should not hinge on the integration model per se, but rather on the purpose and effect of the conduct. In these “contemporary” cases, it is also necessary to bear in mind that these platforms have demonstrated considerable economic growth and have benefitted the dynamics of competition.