Quod erat demonstrandum.
The 9th amendment to the German Act on Restraints of Competition (ARC) introduced market structure criteria which need to be applied in the analysis of multi-sided markets and networks. The criteria are “network effects”, “parallel use of services from different providers and the switching costs for users”, “economies of scale arising in connection with network effects”, “access to data relevant for competition” and “innovation-driven competitive pressure” (cf. section 18 (3a) ARC). Now, the Düsseldorf Higher Regional Court for the first time dealt with a platform case in merger control proceedings. And the case proves what some may have sensed before: The change in the law was not necessary – at least to solve the “ordinary” platform constellations. All competitive aspects of the case could have been easily grasped using the non-exhaustive list of section 18 (3) ARC (“in particular”) and could have been found by considering the specific circumstances of the case – and they would have been obvious. It will be interesting to see when the first case will arise that cannot be solved adequately without the provision in section 18 (3a) ARC.
Prof Dr Jürgen Kühnen is the presiding judge of the 1st Competition Law Senate at the Düsseldorf Higher Regional Court.