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To discriminate or not to discriminate? Personalised pricing in online markets as exploitative abuse of dominance

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The advent of big data analytics has favoured the emergence of forms of price dis- crimination based on consumers’ profiles and their online behaviour (i.e. personal- ised pricing). The paper analyses this practice as a possible exploitative abuse by dominant online platforms. The paper argues that, in view of its “mixed” effect on consumers’ welfare, personalised pricing requires a case-by-case assessment under EU competition law and thus it should not be banned a priori. However, in view of the recent case law of the European Court of Justice on price discrimination, the National Competition Authorities (NCAs) and the European Commission would face a high burden of proof to sanction this conduct under Art. 102(c) TFEU. Finally, the paper argues that, due to its case-by-case approach, competition law seems more suitable than omnibus regulation to tackle the negative effects that personalised pric- ing could have on consumers’ welfare. In particular, an NCA/the European Com- mission could negotiate with online platforms different kinds of behavioural com- mitments: transparency requirements, limits on data collection/user profiling, rights to opt out of personalised pricing and the obligation to share customers’ data with competitors could significantly tame the risks of personalised pricing.