Superior Bargaining Power, Antitrust, and Digital Markets: A Transaction Cost Economics Perspective
Abstract
The abuse of economic dependence is undergoing a revival, driven by the growing policy emphasis on restoring fairness in digital markets. Legal provisions originally intended to address bargaining power imbalances in traditional, brick-and-mortar settings are now being repurposed as part of the digital enforcement toolkit. Yet the scope and antitrust character of these rules remain contested. Indeed, a central paradox persists. If antitrust law aims to protect competition rather than individual competitors, it is unclear why abuses of economic dependence belong under its purview rather than contract law. Conversely, if such abuses do affect market dynamics, the distinction from abuses of dominant position becomes blurred. Drawing on the insights of transaction cost economics, this paper offers a critical analysis of national provisions on the abuse of economic dependence and outlines a framework for defining the scope and criteria of such abuse as a standalone antitrust offence, with the aim of ensuring consistency between its application and the principles of transaction cost economics.