Safeguarding essential access

Abstract

As markets and societies become increasingly reliant on digital platform services and infrastructures, businesses and individuals depend ever more heavily on these platforms for access to opportunities. This concentration of control grants platform operators significant power to regulate access. This dissertation, situated within the ERC-funded ‘Modern Bigness’ project, examines how the law can safeguard access to essential digital platforms, considering both an EU competition law approach, namely the essential facilities doctrine, and a regulatory approach grounded in the concept of public services. It thereby addresses the following research question: Which of the two approaches – the essential facilities doctrine or the concept of public services – can better safeguard access to essential digital platforms in light of access justice? This power to regulate access raises the risk of arbitrary exclusion by big tech companies, a risk that speaks to the foundational importance of access to the European project. Access justice, as developed by Hans-W. Micklitz and adopted as the dissertation's normative framework, recognises this importance. It is against this backdrop that the essential facilities doctrine and the concept of public services are tabled as potential avenues for tackling the exclusionary effects of big tech power. The doctrinal analysis finds that the essential facilities doctrine, whilst narrowed by recent case law confining the Bronner test to facilities developed exclusively for a dominant undertaking's own use, has been accompanied by a growing body of access restrictions and equality of opportunity jurisprudence operating beyond Bronner. The concept of public services, operating through services of general (economic) interest, an increasing constitutionalisation, and universal service obligations, is found capable of extension to digital platforms, though no digital platform provider has yet been so designated. Evaluated against three principles inferred from access justice, namely that access must be materialised and meaningful, fair and non-discriminatory, and ensured for the vulnerable, competition law (ie the essential facilities doctrine) is found to be increasingly attuned to the realities of contemporary digital markets, though refinements to Bronner's condition of indispensability are proposed (for instance, it is suggested that indispensability might be assessed through a broader public interest lens). The concept of public services, by contrast, remains under-utilised in this domain, despite being well equipped to counter the negative effects of big tech power, with a persistent gap identified between political commitment to (digital) solidarity and inclusion and legislative reality. The dissertation concludes that both approaches safeguard access in line with access justice and are best understood as complementary, with the concept of public services holding considerable, as yet unrealised, potential to address the challenges posed by the digital platform economy.