Competition Law and Competition Implications of Inclusion Concentration

1. Introduction

Inclusion concentration refers to a market situation in which access to customers, infrastructure, data, interoperability, distribution channels, or an important digital ecosystem becomes concentrated in the hands of a small number of undertakings. The concept is particularly important in platform markets, digital ecosystems, payment systems, app stores, operating systems, cloud services, communications networks, and essential infrastructure.

The central competition-law concern is not concentration by itself. A highly concentrated market may result from legitimate competition, innovation, economies of scale, or network effects. The legal concern arises when concentrated control over an inclusion gateway is used to exclude competitors, impose discriminatory access conditions, foreclose downstream markets, tie complementary products, or prevent users and businesses from switching.

Thus, competition law examines the relationship between:

Concentrated control → control of inclusion/access → exclusion or foreclosure → reduction of competition → consumer and innovation effects

In modern digital markets, this issue has become particularly significant because an operating system, app store, payment network, search engine, marketplace, cloud platform, or interoperability layer may function as a gateway through which other businesses must participate in the market.

2. Meaning of Inclusion Concentration

A. Inclusion

"Inclusion" in competition law can refer to the ability of an undertaking to:

• access a platform;
• reach consumers;
• interoperate with another system;
• list or distribute products;
• access important data;
• participate in a digital ecosystem;
• use an essential infrastructure;
• connect with users of a dominant network;
• access payment or settlement facilities;
• obtain technical interfaces or APIs;
• remain compatible with a dominant technological standard.

B. Concentration

Concentration occurs where these opportunities are controlled by:

• one dominant undertaking;
• a small group of undertakings;
• a vertically integrated ecosystem;
• a network operator;
• a digital gatekeeper;
• a platform controlling an important interface;
• or a combination of interconnected platforms.

C. Inclusion concentration

Therefore:

Inclusion concentration = concentration of control over the mechanisms through which competitors, suppliers, developers, or consumers participate in a market.

It can arise even where the concentrated entity does not directly sell the final product.

For example:

Operating System → App Store → Developers → Consumers

If one undertaking controls both the operating system and the app-distribution gateway, it may possess significant power over whether competing applications can effectively reach consumers.

3. Why Inclusion Concentration Creates Competition Concerns

3.1 Market-access foreclosure

The most direct concern is denial of access.

A dominant undertaking may:

• refuse access;
• delay access;
• impose unreasonable technical requirements;
• charge discriminatory fees;
• provide inferior interoperability;
• exclude competing applications;
• or make access conditional upon accepting unrelated contractual restrictions.

Section 4(2)(c) of the Indian Competition Act expressly addresses denial of market access by a dominant enterprise.

3.2 Network effects

Inclusion concentration is intensified by network effects.

The more users a platform has:

more developers join → more services become available → more users join → platform becomes more attractive → competitors find entry increasingly difficult.

This can create a self-reinforcing concentration mechanism.

A competitor may therefore face a problem that is different from merely competing against a large company: it may have to recreate the entire network before it can become an effective alternative.

3.3 Switching costs

Concentrated inclusion systems can create:

• data-lock-in;
• contractual lock-in;
• technical lock-in;
• ecosystem lock-in;
• reputational lock-in;
• learning costs;
• compatibility costs.

A consumer may technically be able to switch platforms while practically finding switching expensive or inconvenient.

4. Relevant Competition-Law Doctrines

Several established doctrines are relevant to inclusion concentration.

4.1 Abuse of dominance

Dominance is not unlawful by itself.

The issue arises when dominance is used to:

• exclude competitors;
• exploit customers;
• restrict technical development;
• discriminate;
• tie products;
• foreclose downstream markets;
• or deny necessary access.

4.2 Essential facilities

Where a facility is indispensable for effective competition, competition law may under certain circumstances require access.

The classic questions include:

1. Is the facility controlled by a dominant undertaking?
2. Is access indispensable?
3. Can competitors reasonably duplicate it?
4. Is denial capable of eliminating or substantially restricting competition?
5. Is there an objective justification?
6. Can access be provided without disproportionate technical or security risks?

The doctrine is applied cautiously because competition law generally does not impose a universal obligation to deal.

4.3 Refusal to deal

A refusal to provide access can constitute abuse where the legal requirements are satisfied.

The important distinction is between:

legitimate commercial independence

and

strategic exclusion through control of an indispensable gateway.

4.4 Leveraging

Inclusion concentration becomes particularly problematic when dominance in one market is leveraged into another.

For example:

dominant operating system → control over app distribution → protection of payment/search/browser position.

The undertaking can therefore use power accumulated in one market to influence competitive conditions in another.

4.5 Tying and bundling

Access to an important ecosystem may be conditioned on acceptance of additional products.

The concern is greater when:

• the tying product is dominant;
• the tied product is separately identifiable;
• customers have limited choice;
• access conditions disadvantage rivals;
• and the arrangement produces foreclosure effects.

5. Major Case Laws

Case 1: United Brands Company v Commission

Court: Court of Justice of the European Union
Year: 1978

Facts

United Brands was found to hold a dominant position in the market for bananas. Among the issues examined was its conduct toward distributors and customers and the use of its market power to impose restrictive commercial conditions.

Competition principle

The case established an important foundation for modern abuse-of-dominance analysis.

Dominance does not mean that a company must stop competing vigorously. However, a dominant undertaking bears special responsibilities not to allow its conduct to impair genuine competition.

Relevance to inclusion concentration

The case is useful conceptually because inclusion concentration can create a similar problem:

control over an important market gateway can allow a dominant undertaking to determine who participates and under what conditions.

The case therefore helps distinguish competition on the merits from the exploitation of concentrated market power.

6. Case 2: Oscar Bronner GmbH & Co. KG v Mediaprint

Court: CJEU
Year: 1998

Facts

Bronner operated a newspaper and sought access to Mediaprint's newspaper home-delivery system.

Mediaprint operated an extensive delivery network. Bronner argued that refusal to provide access was abusive.

Judgment

The Court applied a strict test to compulsory access.

A facility would generally have to be indispensable, meaning that there was no actual or potential substitute and that duplication was not realistically possible.

Importance

The case is one of the most important authorities concerning essential facilities and refusal to deal.

Relevance to inclusion concentration

It prevents competition law from automatically converting every large platform or infrastructure system into a mandatory-access facility.

Thus:

Concentration ≠ automatic access obligation.

There must be a sufficiently strong competition justification.

7. Case 3: Microsoft Corp. v Commission

Court: CJEU / General Court proceedings concerning Microsoft's conduct
Year: 2004–2007

Facts

Microsoft's Windows operating-system position gave it substantial control over complementary software markets.

The European Commission found concerns involving:

• interoperability information; and
• tying Windows Media Player to Windows.

Competition significance

The interoperability aspect is particularly important.

Competitors needed sufficient information to ensure interoperability with Windows-based systems.

Microsoft's control over a technological interface therefore affected competition in neighboring markets.

Inclusion-concentration principle

The case demonstrates how:

technological concentration → interoperability dependence → downstream competitive effects.

It is highly relevant to modern platforms because APIs, operating systems, cloud interfaces and technical standards can perform functions similar to traditional infrastructure.

8. Case 4: Google Android — European Commission

Case: Google Android
Decision: European Commission, 2018

Facts

The Commission examined Google's contractual arrangements concerning Android mobile devices.

The arrangements included restrictions relating to:

• pre-installation of Google applications;
• search;
• Google Play;
• and Android forks.

The Commission found that certain practices restricted competition and helped reinforce Google's position in search and related markets.

Competition implications

The case illustrates ecosystem concentration.

Google did not merely operate a search engine. Its ecosystem included:

Android → Google Play → Google Search → Chrome → device manufacturers → users.

Control over one layer could therefore influence competition at another layer.

Inclusion concentration

The important lesson is that competition analysis must examine ecosystem-level foreclosure, rather than looking at each product in complete isolation.

9. Case 5: Google Shopping

Case: Google Search (Shopping)
European Commission decision: 2017
CJEU judgment: 2024

Facts

The case concerned Google's treatment of comparison-shopping services in its search results.

The European Commission found that Google had systematically given prominent placement to its own comparison-shopping service while demoting competing services.

Competition significance

The case demonstrates how a dominant platform can control visibility and participation.

A competitor may technically remain present in the market but still face significant competitive disadvantage if the dominant gateway controls:

• ranking;
• visibility;
• traffic;
• discovery;
• recommendation;
• or access to users.

Inclusion concentration principle

This produces an important modern competition-law insight:

Formal access is not necessarily effective access.

A platform may technically permit competitors to participate while its ranking or allocation system makes meaningful participation substantially more difficult.

10. Case 6: Google Android Auto / Enel X

Case: Alphabet/Google and Android Auto
CJEU: Case C-233/23
Judgment: 2025

This is particularly relevant to the concept of inclusion concentration.

Facts

Android Auto allows applications on Android smartphones to interact with vehicle infotainment systems.

Enel X developed an application relating to electric-vehicle charging and sought interoperability with Android Auto.

Google initially refused to provide the requested interoperability.

Legal issue

The CJEU considered whether refusal by a dominant platform operator to ensure interoperability with a third-party application could constitute an abuse under Article 102 TFEU.

The Court emphasized that the assessment must consider the factual circumstances and whether the conduct could hinder the maintenance or growth of competition. It also recognized possible objective justifications, including legitimate security or technical concerns.

Importance for inclusion concentration

The case is extremely significant because it demonstrates that a digital platform can become a competitive gateway.

The relevant chain is:

Android → Android Auto → vehicle interface → third-party applications → consumers

Control over the interface can determine which complementary services can effectively reach consumers.

11. Case 7: Google Play Store — Competition Commission of India

Authority: Competition Commission of India
Subject: Android mobile ecosystem

The CCI examined Google's position in the Android ecosystem and found concerns relating to Google's control over Android, Google Play and related services.

The appellate proceedings and subsequent litigation examined findings involving, among other matters:

• pre-installation;
• market access;
• leveraging;
• Android forks;
• Google Play;
• search;
• browsers;
• and related ecosystem restrictions. 

Importance

This is particularly important for Indian competition law because Section 4 of the Competition Act expressly addresses:

• denial of market access;
• leveraging;
• tying;
• discriminatory conditions;
• and restriction of technical or scientific development.

Inclusion-concentration principle

The Android litigation illustrates how a dominant digital ecosystem can create multiple interdependent gateways.

A manufacturer may depend on Android compatibility, while developers depend upon Google Play and consumers depend upon familiar applications.

Consequently:

ecosystem concentration can create competitive dependence even when several nominally separate markets exist.

12. Case 8: Google Android Auto — Additional significance under modern digital competition regulation

The Android Auto judgment also illustrates the transition from traditional refusal-to-deal doctrine toward a more sophisticated examination of digital interoperability.

The CJEU did not establish that every refusal of interoperability by a dominant platform is unlawful. Instead, it emphasized examination of:

• competitive effects;
• technical circumstances;
• platform security;
• availability of templates;
• feasibility;
• and objective justification. 

This is important because competition law must balance two competing considerations:

Interoperability

against

legitimate platform integrity and security.

13. Inclusion Concentration and Essential Facilities

The concept can be illustrated as follows:

                 DOMINANT GATEWAY                       │       ┌───────────────┼───────────────┐       ↓               ↓               ↓     Users          Developers      Suppliers       │               │               │       └───────────────┼───────────────┘                       ↓                COMPETITIVE MARKET

If the gateway is controlled by one undertaking, the undertaking may potentially influence:

• who enters;
• who remains;
• what terms apply;
• what data is available;
• what technologies interoperate;
• and which products receive visibility.

14. Inclusion Concentration in Digital Platforms

Digital markets create particularly strong forms of inclusion concentration.

Examples include:

15. Data as an Inclusion Infrastructure

Modern inclusion concentration increasingly involves data.

A dominant platform may possess:

• transaction data;
• search data;
• behavioural data;
• location data;
• consumer preference data;
• business-performance data;
• interoperability data.

Competitors may technically be allowed into the market but lack comparable data resources.

This can produce:

data concentration → informational advantage → better service → more users → more data → greater concentration.

The European Commission's 2026 DMA measures concerning Google are an example of this evolving regulatory approach. The Commission adopted measures requiring Google to provide effective interoperability for competing AI services on Android and to facilitate access by third-party search engines to certain search data, with safeguards concerning privacy and security.

16. Interoperability as a Remedy

Interoperability can reduce inclusion concentration.

Possible obligations include:

A. API access

Competitors receive access to technical interfaces.

B. Functional equivalence

Third parties receive access to the same relevant functionality as the dominant undertaking's own services.

C. Data portability

Users can transfer relevant data between services.

D. Protocol interoperability

Different systems can communicate effectively.

E. Non-discriminatory access

The platform cannot provide itself with superior technical access.

The DMA's Article 6(7) approach to interoperability is particularly relevant: designated gatekeepers must provide effective interoperability with certain operating-system features, allowing third parties to compete using the same relevant technical capabilities.

17. Self-Preferencing and Inclusion Concentration

A dominant platform may not formally exclude competitors.

Instead, it may control:

• rankings;
• recommendations;
• search visibility;
• default settings;
• advertising placement;
• technical integration.

The result can be soft exclusion.

For example:

Competitor A is technically available
↓
Platform controls ranking
↓
Platform's own product appears first
↓
Consumer discovery decreases for Competitor A
↓
Competitor A receives less traffic
↓
Platform's position strengthens

This is one reason modern competition analysis increasingly examines how users are included in a platform, not merely whether competitors are formally admitted.

18. Inclusion Concentration and Tying

Suppose:

Product A = dominant gateway

and

Product B = complementary service.

If access to A is conditioned upon taking B, the arrangement may raise tying concerns.

Examples could include:

• operating system + search;
• app store + payment service;
• marketplace + logistics;
• cloud + identity service;
• payment platform + financial product.

The legal inquiry should examine:

1. dominance;
2. separateness of products;
3. coercion;
4. foreclosure;
5. competitive effects;
6. objective justification;
7. consumer benefits.

19. Inclusion Concentration and Mergers

The issue is not restricted to abuse-of-dominance cases.

A merger may increase inclusion concentration by combining:

• a platform;
• a critical data source;
• an interoperability layer;
• a payment system;
• a major supplier;
• or a competing ecosystem.

Example

Imagine:

Large marketplace + leading logistics network

The concern may not merely be market share.

The deeper issue could be:

Will competitors of the marketplace continue to receive effective access to logistics infrastructure?

Thus, merger analysis increasingly needs to examine ecosystem foreclosure.

20. Competition Effects

Inclusion concentration may produce several effects.

20.1 Foreclosure

Competitors may be prevented from obtaining effective access.

20.2 Higher entry barriers

New entrants must recreate infrastructure or networks.

20.3 Reduced innovation

Competitors may have less incentive to develop products if access to users is controlled by another undertaking.

20.4 Reduced consumer choice

Consumers may encounter fewer alternatives.

20.5 Higher switching costs

Users may become increasingly dependent on one ecosystem.

20.6 Reduced interoperability

Different systems may become increasingly isolated.

20.7 Data advantages

The incumbent may accumulate more information than competitors.

20.8 Reinforcement of dominance

The most important effect can be a feedback loop:

Concentration → access control → exclusion → stronger network effects → greater concentration.

21. Possible Objective Justifications

Competition law should not treat every exclusion or interoperability refusal as unlawful.

A dominant undertaking may have legitimate reasons involving:

• cybersecurity;
• privacy;
• protection against malware;
• intellectual-property protection;
• technical limitations;
• system stability;
• consumer safety;
• fraud prevention;
• resource constraints.

The Android Auto litigation is particularly useful because the CJEU recognized that security, integrity and technical feasibility may constitute relevant objective considerations.

The crucial question becomes whether the justification is:

genuine, necessary, proportionate and consistently applied, rather than merely a mechanism for protecting the dominant undertaking.

22. Remedies for Inclusion Concentration

Competition authorities may employ several remedies.

Structural remedies

• divestiture;
• separation of business units;
• prohibition of acquisitions.

Behavioural remedies

• non-discriminatory access;
• interoperability;
• data portability;
• API access;
• transparency requirements;
• prohibition of self-preferencing;
• non-discrimination obligations.

Contractual remedies

• removal of exclusivity clauses;
• prohibition of anti-steering restrictions;
• modification of platform agreements.

Technical remedies

• interoperable APIs;
• common technical standards;
• data-transfer mechanisms;
• equal functionality;
• transparent ranking systems.

23. Indian Competition-Law Framework

The principal provisions are found in the Competition Act, 2002.

Particularly relevant are:

Section 4(1)

Prohibits abuse of dominant position.

Section 4(2)(a)

Addresses unfair or discriminatory conditions or prices.

Section 4(2)(b)

Addresses limitation or restriction of production, technical or scientific development.

Section 4(2)(c)

Addresses denial of market access.

Section 4(2)(d)

Addresses supplementary obligations unrelated to the subject of contracts.

Section 4(2)(e)

Addresses leveraging dominance in one relevant market to enter into or protect another market.

These provisions provide a strong legal framework for addressing inclusion concentration where concentrated control is transformed into exclusionary market power.

24. Distinguishing Legitimate Concentration from Anti-Competitive Concentration

The key principle is therefore:

Competition law should not punish scale; it should examine whether concentrated control is being used to impair competitive conditions.

25. Analytical Framework

A competition authority examining inclusion concentration can use the following sequence:

1. Identify the inclusion gateway              ↓ 2. Define the relevant market              ↓ 3. Determine market power/dominance              ↓ 4. Identify the source of concentration              ↓ 5. Examine access conditions              ↓ 6. Examine interoperability              ↓ 7. Examine discrimination/self-preferencing              ↓ 8. Examine foreclosure effects              ↓ 9. Consider objective justification              ↓ 10. Assess consumer and innovation effects              ↓ 11. Select proportionate remedy

26. Key Principles Emerging from the Case Law

The cases collectively support several important principles:

Principle 1 — Dominance is not itself unlawful

A large market share or concentrated ecosystem does not automatically establish an infringement.

Principle 2 — Indispensability matters

Bronner demonstrates that mandatory access requires a demanding analysis.

Principle 3 — Interfaces can be competitively significant

Microsoft demonstrates the importance of interoperability information.

Principle 4 — Ecosystem power can extend across markets

Google Android demonstrates the potential for leveraging and contractual restrictions to affect neighbouring markets.

Principle 5 — Visibility is part of effective market access

Google Shopping demonstrates that formal market presence does not necessarily equal effective competitive access.

Principle 6 — Digital interoperability is increasingly central

Google Android Auto demonstrates the competition-law relevance of interoperability between dominant digital platforms and third-party applications.

Principle 7 — Indian law expressly recognizes denial of market access

The CCI's Android proceedings demonstrate the application of Section 4 to concentrated digital ecosystems.

27. Overall Legal Assessment

Inclusion concentration is best understood as a competition-law problem of gateway power. The decisive question is not simply:

"How concentrated is the market?"

It is:

"Who controls the gateway through which competitors, suppliers, developers and consumers participate, and how is that control exercised?"

Where concentration is accompanied by:

• discriminatory access;
• refusal of indispensable interoperability;
• self-preferencing;
• tying;
• exclusivity;
• leveraging;
• data foreclosure;
• contractual restrictions;
• or technical restrictions,

competition concerns become significantly stronger.

At the same time, courts and authorities must distinguish exclusionary conduct from legitimate reasons involving security, privacy, technical feasibility, intellectual property and system integrity.

28. Conclusion

Competition implications of inclusion concentration represent an important evolution of traditional competition law.

Traditional competition analysis often focused on:

price + market share + output.

Modern ecosystem markets require attention to:

access + interoperability + data + visibility + network effects + switching + ecosystem dependence.

The case law from United Brands, Bronner, Microsoft, Google Android, Google Shopping and Google Android Auto, together with the CCI's Google Android proceedings, demonstrates the development of a broader competition-law inquiry into concentrated gateways.

The central legal principle can be summarized as:

Concentration may be lawful; concentration combined with exclusionary control over effective market participation may constitute an abuse of market power.

For digital markets in particular, effective inclusion—not merely formal access—is becoming an increasingly important dimension of competition analysis. The European Commission's current DMA enforcement concerning Android interoperability and search-data access illustrates this continuing development toward ensuring that concentrated digital ecosystems remain contestable.