title: Market power and exploitation in EU competition law
Creators: name: Tepper M., Richard
name: Tepper Maturana, Richard
Publisher: name: The University of Edinburgh
Year: 2025
Subjects: subject: Market Power
subject: Competition Law
subject: Exploitative Practices
subject: European Court of Justice (ECJ)
subject: Digital Markets

description: In recent years, the prevailing view is that market power is on the rise, with concerns about its implications permeating both economic and legal discourse. Competition law is widely regarded as the primary legal framework for addressing the creation, consolidation, and exercise of market power by undertakings. Despite the centrality of market power in competition law, the concept remains widely underexplored in both judicial and academic contexts. The European Court of Justice (ECJ) has rarely engaged directly with the term, and scholarly analyses often focus on its application rather than its conceptual foundations. This thesis seeks to fill this gap by offering a dual contribution: first, by reflecting on the meaning and significance of market power within the framework of competition law; and second, by evaluating the capacity of competition law to address the direct exercise of market power through exploitative practices. To address these issues, the thesis is structured into four interrelated chapters. The first chapter provides a foundational analysis of market power, situating it within broader discussions of power and competition. This chapter examines how various economic and philosophical traditions help conceptualise market power, exploring its implications for competitive dynamics and societal governance. The second chapter delves into the case against market power, highlighting its detrimental effects on societal welfare and specific groups within society. Beyond the standard economic concerns of inefficiency and deadweight loss, this chapter examines how market power distorts innovation, exacerbates inequality, and entrenches systemic economic disparities. These effects are framed as both economic and moral challenges that warrant robust regulatory responses. The third chapter shifts focus to a specific manifestation of market power: exploitative pricing. It explores how dominant undertakings may abuse their position to impose unfair pricing on consumers and customers. By critically analysing the ECJ’s case law on excessive pricing, this chapter reveals both the theoretical potential and practical limitations of competition law in addressing direct exploitation. It underscores the challenges of defining and quantifying what constitutes "unfair" prices and the broader implications of these difficulties for enforcement. The final chapter examines the exploitation of user data in the context of digital markets. It highlights how the digital economy introduces new dimensions of market power, particularly through data dependency, network effects, and platform dominance. The chapter critically evaluates whether competition law, despite its conceptual flexibility, can effectively address the direct exploitation of users in such contexts. It concludes that while competition law can engage with some aspects of data-related market power, its ability to provide comprehensive solutions is constrained, especially in the absence of coordination with other regulatory frameworks like data protection law.