TILEC Seminar: Pinar Akman (Leeds)
10:45-11:45, M 1003
Online Platforms, Agency, and Competition Law: Mind the Gap
Pınar Akman is a Professor of Law and the Director of the Centre for Business Law and Practice at the University of Leeds. She is also a Director of the Jean Monnet Centre of Excellence in Digital Governance funded by the EU Commission. She has published widely in the area of competition law and economics, particularly on abuse of dominance and competition in digital markets. She was awarded a Philip Leverhulme Prize (£100,000) in 2017 to further her research into the application of competition law in digital markets. She has presented her research in over 20 countries around the globe including providing oral evidence to the UK House of Lords, US Federal Trade Commission, and speaking at the OECD, World Economic Forum and the UN.
She is the author of the monograph The Concept of Abuse in EU Competition Law: Law and Economic Approaches (Hart Publishing, 2012; reprinted, 2015). Her other research has been published in prestigious journals such as the Oxford Journal of Legal Studies, Antitrust Law Journal, Modern Law Review, Fordham International Law Journal, etc. In 2019, she was appointed by the World Economic Forum to author a White Paper on Competition Policy in a Globalized, Digitalized Economy.
She is a Non-Governmental Advisor to the UK and to Turkey for the International Competition Network. She is a member of: the Economic and Social Research Council (ESRC) Peer Review College; the UK Research and Innovation Future Leaders Fellowships (UKRI FLF) Programme Peer Review College; Florence Competition Programme Scientific Committee (EUI); Editorial Board of World Competition and of Oxford Competition Law. In 2014, she was the International Rapporteur to the International League of Competition (LIDC) on abuse of dominance. She was shortlisted for an Antitrust Writing Award in 2016, 2017, and 2018 (Concurrences Review & George Washington Competition Law Center).
Professor Akman holds Bachelors and Masters degrees in Law from the University of Ankara. She holds a PhD in Competition Law from the University of East Anglia, which was funded by an Overseas Research Scholars Award of the UK Secretary of State for Education and Science. She was one of the investigators who secured over £4 million in funding for the second term of the ESRC Centre for Competition Policy at the University of East Anglia.
In 2018, she was awarded a Women of Achievement Award by the University of Leeds.
Areas of expertise: Competition law; competition and technology; abuse of dominance; vertical restraints; e-commerce; consumer law; contract law.
Online Platforms, Agency, and Competition Law: Mind the Gap
Many of the world’s most valuable companies adopt the online platform business model to bring together different groups of customers – suppliers and customers – seeking to transact with one another. This article aims to establish the correct legal characterisation of these platforms and the implications thereof for competition law purposes. To do so, it explores two related questions: first, whether platforms are agents of their suppliers; and, second, whether the competition law prohibition of anticompetitive agreements should apply to agreements between platforms and suppliers, which restrict competition on the relevant market for the products/services regarding which the platform facilitates a transaction. The first question arises because the platform business model resembles an agency arrangement more than any other, and many platforms self-proclaim to be agents of their suppliers. Yet, the decisional practice and commentary have developed on the premise that they are not agents. The second question arises due to the “agency rule” under the “single economic entity doctrine”, according to which restrictive agreements between an agent and a principal take place within the same “undertaking” and are consequently immune from the competition law prohibition of anticompetitive agreements between separate undertakings. After applying concepts of agency and similar delegation models found in different areas of law to the standard contracts of six major platforms – Amazon Marketplace, Apple App Store, Uber, eBay, Booking.com, and, Airbnb – this article finds that, as a matter of positive law, all of these platforms are agents of their suppliers. Consequently, platforms’ agreements with their suppliers that restrict competition on the relevant products/services market cannot be scrutinised due to the agency rule under the “single economic entity doctrine” as currently conceived. This represents a significant “platform gap” in the application of competition law in digital markets. Following these findings, the article conducts a normative assessment to demonstrate that in the context of platforms that not only intermediate transactions for, but also compete with their suppliers on the relevant market, the “single economic entity doctrine” should be (re)interpreted. The “agency rule” should not apply to agreements of such platforms and suppliers that contain restrictions of competition on the relevant market. This is because the conflict of commercial and competitive interests between a “principal” (supplier) and an “agent” (platform) that competes with its principal fundamentally violates the principles of agency and the reasoning underlying the single economic entity doctrine. The article develops a “competitive neutrality” principle to inform and underlie this proposed (re)interpretation of the “single economic entity doctrine”. This (re)interpretation fills the “platform gap” identified in the article by subjecting the agreements of platforms that are not in a competitively neutral position with regard to their suppliers to the full application of the prohibition of anticompetitive agreements.