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Vol. 19 Issue 2 (2023)

Tying, Self-Preferencing and the Digital Competition Bill: A Changing Landscape for Competition Intervention?

Pankhudi Khandenwal

The dominance of a few major entities in digital markets has led to stricter enforcement under competition law. Many jurisdictions have developed an ex-ante regulatory framework, such as the Digital Markets Act (DMA) in the EU. The need for an ex-ante regulation has also been highlighted in India, where the Committee on Digital Competition Law has issued the Draft Digital Competition Bill (“DDCB”). Some of the prohibitions included in the bill are tying, bundling, self-preferencing, restricting third-party applications, and steering. There have been opinions by various scholars on the impact of such legislation on the Indian economy, comparing the same with the effects of the DMA on the EU. However, this article attempts to anticipate the potential application of these obligations in light of the past decisional practice of the Competition Commission of India (CCI). On a preliminary analysis, the DDCB seems to exercise more restraint and caution in its approach than the DMA. The article attempts to look at how the CCI’s intervention could potentially change (or not change) with reference to these obligations compared to the analysis done prior to DDCB. The article is divided into four parts. Part I of the article lays down briefly the various obligations imposed under the DDCB. Part II discusses the CCI’s decisional practice on these obligations so far and analyses if the CCI approach differs from the EU approach, especially in the cases relating to the designated gatekeepers under the DMA. Part III evaluates the scope of the change in the CCI’s approach based on the proposed ex-ante regulation. Part IV concludes the work.

Author

Pankhudi is a PhD researcher at the European University Institute (EUI). Her research focuses on competition law and regulation in the digital markets.

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