Competition Law and Digital Governance Infrastructures and Competition Law

1. Introduction

Digital governance infrastructures are the technical, institutional, and contractual systems through which digital markets are organised and controlled. They include:

• digital identity and authentication systems;
• app stores and operating systems;
• APIs and interoperability layers;
• cloud and data infrastructure;
• digital payment systems;
• search and ranking systems;
• data-sharing and portability mechanisms;
• digital advertising exchanges;
• content-moderation and access-control systems;
• platform standards and technical protocols;
• digital public infrastructure and access gateways.

These infrastructures may be commercially operated by private undertakings, jointly governed by industry participants, or created and regulated by the State. Their competition significance arises because control over infrastructure can become control over the conditions under which downstream competitors can enter, operate, innovate, or reach consumers.

Modern competition law therefore increasingly examines not merely prices, but also access, interoperability, data, switching costs, network effects, technical standards, defaults, self-preferencing, tying, exclusion, and ecosystem control.

2. Meaning of Digital Governance Infrastructure

A digital governance infrastructure can be understood as a system that determines:

who can participate in a digital ecosystem, what technical resources they can access, on what conditions they can interact with users, and how information and transactions flow through the ecosystem.

Examples include:

3. Why Digital Governance Infrastructure Creates Competition Concerns

A. Infrastructure can become an essential gateway

When an infrastructure is indispensable or extremely difficult to replicate, its operator may possess substantial market power.

For example:

Operating system → App store → Developers → Consumers

or:

Payment infrastructure → Merchants → Consumers → Transactions

or:

Search infrastructure → Discovery → Traffic → Advertising revenue

The infrastructure owner can therefore influence downstream competition.

4. Relevant Competition-Law Theories

4.1 Abuse of Dominant Position

The primary concern arises when a dominant infrastructure operator uses its position to exclude competitors.

Relevant forms include:

• refusal to provide access;
• discriminatory access;
• unfair access conditions;
• exclusionary contracts;
• tying and bundling;
• self-preferencing;
• interoperability restrictions;
• excessive switching costs;
• degradation of rival services;
• discriminatory ranking;
• technical foreclosure.

5. Refusal of Access and Interoperability

One of the most important principles in digital infrastructure competition law is that control over an infrastructure does not automatically create an obligation to deal.

However, exceptional circumstances can justify intervention where:

1. the infrastructure is indispensable;
2. duplication is technically or economically impracticable;
3. refusal eliminates effective competition;
4. the refusal lacks objective justification; and
5. access can reasonably be provided.

This doctrine is particularly important for:

• APIs;
• operating systems;
• payment networks;
• app stores;
• interoperability protocols;
• cloud infrastructure;
• data interfaces.

6. Case Law

Case 1: Microsoft Corp. v Commission, Case T-201/04

The European General Court upheld major findings against Microsoft concerning its refusal to provide interoperability information to competitors in the work-group server operating-system market.

Microsoft's control over its client PC operating system gave it strategically important information concerning interoperability. The Commission considered that withholding that information could prevent competing server operating systems from achieving effective interoperability.

The Court substantially upheld the infringement finding.

Competition-law significance

The case demonstrates that:

• interoperability can constitute an important competitive parameter;
• technical information can have competitive significance;
• a dominant firm controlling an important technological interface may have special responsibilities;
• infrastructure control can be used to exclude downstream competitors.

It remains a foundational authority for digital interoperability and access-to-infrastructure theories.

Case 2: Google and Alphabet v Commission (Google Android), Case T-604/18

The Google Android litigation concerned Google's conduct relating to Android mobile devices, Google Search, Chrome, app distribution and agreements with device manufacturers and mobile network operators.

The General Court largely upheld the Commission's findings concerning restrictions imposed on manufacturers and operators that helped consolidate Google's position in search.

The case is particularly important because the Court expressly considered:

• multi-sided platforms;
• ecosystems;
• operating systems;
• app stores;
• network effects;
• tying;
• exclusivity;
• anti-fragmentation obligations.

The General Court ultimately imposed a €4.125 billion fine after modifying aspects of the Commission's reasoning.

Competition-law significance

The case demonstrates that competition analysis can extend across an interconnected digital ecosystem, rather than examining every digital product in isolation.

A dominant position in one infrastructure layer may potentially be leveraged into another market.

7. Self-Preferencing in Governance Infrastructure

Infrastructure operators may also favour their own downstream services.

For example:

Platform infrastructure → platform search → platform marketplace → platform-owned service

If the infrastructure operator controls ranking, access, visibility, or technical compatibility, it may be capable of disadvantaging competing services.

Case 3: Google and Alphabet v Commission (Google Shopping), Case T-612/17

The Google Shopping case concerned Google's treatment of its own comparison-shopping service within general search results.

The Commission found that Google favoured its own comparison-shopping service over competing comparison-shopping services.

The General Court largely upheld the Commission's decision and the €2.42 billion fine.

Competition-law significance

The case illustrates the relationship between:

• infrastructure control;
• ranking;
• visibility;
• self-preferencing;
• downstream competition.

The search engine functioned as an important discovery infrastructure. Control over discovery could consequently influence competition among downstream services.

8. Data as Digital Governance Infrastructure

Data can itself function as infrastructure.

A dominant digital platform may possess:

• behavioural data;
• transaction data;
• search data;
• location data;
• communication data;
• advertising data;
• technical telemetry;
• user-engagement information.

The competitive problem is not simply the possession of data.

The crucial questions are:

1. Can competitors obtain comparable data?
2. Is the data indispensable?
3. Can data be replicated?
4. Does data provide a significant network-effect advantage?
5. Is data combined across services?
6. Does the platform prevent portability?
7. Does the platform use data from downstream competitors to compete against them?

Case 4: In Re: Updated Terms of Service and Privacy Policy for WhatsApp Users, CCI

The Competition Commission of India examined WhatsApp's 2021 privacy-policy update.

The CCI considered the relationship between:

• WhatsApp's dominance;
• user data;
• privacy as a non-price parameter of competition;
• data sharing with Meta;
• network effects;
• leveraging into other markets.

The CCI's 2021 prima facie order considered whether the policy could constitute exploitative and exclusionary conduct under Section 4 of the Competition Act, 2002.

The matter subsequently generated further proceedings, with the CCI issuing a detailed order on 18 November 2024 concerning the WhatsApp/Meta privacy-policy matter.

Competition-law significance

The case demonstrates that privacy and data governance can become competition parameters.

Consequently, digital governance rules cannot always be treated as purely privacy-law issues. Where data practices affect market power, access, entry, or exclusion, competition law may also become relevant.

9. App Stores as Governance Infrastructure

An app store is more than an online marketplace.

It can determine:

• which applications are permitted;
• which payment mechanisms developers can use;
• how applications are ranked;
• commission structures;
• access to users;
• technical permissions;
• security requirements;
• application-distribution conditions.

It therefore operates as a governance layer for an entire digital ecosystem.

Case 5: Epic Games v Google

The Google Play Store litigation illustrates the competition problems surrounding app-store infrastructure.

The case concerned Google's conduct relating to:

• Android app distribution;
• in-app payment systems;
• developer access;
• contractual restrictions;
• alternative distribution channels.

A jury found Google liable for multiple antitrust violations concerning Android app distribution and Android in-app payment solutions. The FTC subsequently addressed the implications of effective remedies in the litigation.

Competition-law significance

The case illustrates how an app store can simultaneously function as:

marketplace + technical gateway + payment infrastructure + governance mechanism.

This creates the possibility that the infrastructure operator can regulate downstream competition through contractual and technical rules.

10. Apple and Smartphone Governance Infrastructure

Case 6: United States and State Plaintiffs v Apple Inc.

The U.S. Department of Justice brought an antitrust action against Apple concerning alleged monopolization of smartphone markets.

The complaint alleged that Apple used restrictions affecting:

• super apps;
• cloud streaming;
• messaging;
• smartwatches;
• digital wallets;
• interoperability;
• access to iPhone functionality.

The DOJ characterised Apple's control over important access points in the iPhone ecosystem as part of its alleged monopoly-maintenance strategy. The allegations remain allegations of the government in litigation and should not be treated as established findings merely because they were pleaded.

Competition-law significance

The case is particularly relevant to the concept of ecosystem governance.

The competition question extends beyond the price of the smartphone to whether the platform owner can use control over technical interfaces to make competing products and services less interoperable.

11. Google Search and Data-Access Remedies

Case 7: United States v Google

The U.S. search-monopolization litigation provides another important example of digital infrastructure.

In 2024, the U.S. District Court for the District of Columbia found Google liable for unlawful monopolization in general search and search advertising.

In 2025, remedies included measures concerning:

• exclusive distribution agreements;
• search-index data;
• user-interaction data;
• search syndication;
• search advertising.

The remedies illustrate a significant development: competition remedies may require controlled access to information or infrastructure that can help competitors develop competing capabilities.

Competition-law significance

The case demonstrates the increasing importance of data-access remedies in digital markets.

Traditional remedies such as fines may not restore competition where the primary competitive advantage derives from:

• accumulated data;
• network effects;
• distribution defaults;
• scale;
• user feedback loops.

12. Digital Infrastructure and Network Effects

Digital governance infrastructures frequently exhibit powerful direct and indirect network effects.

For example:

More users → more developers → more applications → more users

Similarly:

More merchants → more consumers → more payment transactions → more merchants

This produces a feedback loop.

A dominant infrastructure may therefore become increasingly difficult to challenge even without continuously increasing prices.

Competition concern

The key issue becomes:

Can competitors reach sufficient scale to challenge the incumbent infrastructure?

If not, conduct that reinforces network effects may have significant foreclosure effects.

13. Lock-In and Switching Costs

Digital governance infrastructure can create substantial switching costs.

Examples include:

• proprietary data formats;
• incompatible APIs;
• loss of historical data;
• account migration difficulties;
• incompatible applications;
• device ecosystem dependencies;
• contractual commitments;
• loyalty programmes;
• authentication dependencies.

Competition law therefore needs to examine dynamic competition, not merely current market shares.

14. Interoperability as a Competition Remedy

Interoperability can be used to reduce artificial barriers between ecosystems.

Possible remedies include:

A. API access

Competitors receive access to necessary technical interfaces.

B. Data portability

Users can transfer data between competing services.

C. Functional interoperability

Third-party services can interact with infrastructure on equivalent terms.

D. Protocol interoperability

Competitors can communicate through common technical standards.

E. Non-discriminatory access

The infrastructure operator cannot provide materially better technical access to its own downstream service.

15. Contemporary EU Development: AI and Digital Infrastructure

The European Union's Digital Markets Act demonstrates how digital governance is increasingly moving from purely ex post antitrust enforcement toward ex ante infrastructure obligations.

In July 2026, the European Commission adopted binding specification measures concerning Google's Android interoperability and search-data sharing.

The Android measures concern effective interoperability between competing AI services and Android's hardware and software features, while the search-data measures concern access by third-party search providers to certain Google search data.

This is significant because it demonstrates a transition from:

"Prove that exclusion occurred"

toward:

"Establish technical access obligations in advance where the regulatory framework identifies a structural bottleneck."

16. Digital Governance Infrastructure and Essential Facilities

The essential-facilities doctrine can become relevant where a digital infrastructure is genuinely indispensable.

However, not every successful digital platform is an essential facility.

Courts and authorities generally need to consider questions such as:

1. Is the facility indispensable?
2. Are realistic alternatives available?
3. Can the infrastructure reasonably be duplicated?
4. Does refusal eliminate effective competition?
5. Is there an objective justification?
6. Would access be technically feasible?
7. Would compulsory access reduce incentives to innovate?

The Microsoft interoperability litigation is particularly important in understanding these issues.

17. Digital Governance and Discriminatory Access

Discrimination may occur through:

• different API access;
• different latency;
• different technical permissions;
• discriminatory ranking;
• preferential certification;
• different payment terms;
• different data access;
• preferential integration with the platform's own products.

A particularly sensitive situation arises where:

the infrastructure operator competes against the firms that depend upon its infrastructure.

This creates a structural vertical conflict of interest.

18. Digital Governance and Tying

Infrastructure operators can also use tying.

Examples include:

Operating system + search engine

App store + payment system

Cloud platform + identity service

Smartphone + wallet

Platform + advertising technology

Tying can be problematic where the infrastructure operator has substantial market power in the tying product and uses that power to foreclose competition in the tied product.

The Google Android litigation is particularly relevant to this issue.

19. Digital Governance and Self-Preferencing

Self-preferencing becomes particularly significant where the infrastructure operator controls the rules governing visibility.

A simplified structure is:

Platform infrastructure

↓

Ranking / access algorithm

↓

Platform's own downstream service

↓

Competing independent services

Competition concerns may arise if the infrastructure operator systematically gives its own service preferential access or visibility.

Google Shopping provides an important example.

20. Digital Governance and Data Portability

Data portability can promote competition by reducing switching costs.

Suppose:

Consumer's entire transaction history → Platform A

If Platform B cannot obtain equivalent information, the consumer may face significant switching costs.

Portability can therefore:

• reduce lock-in;
• facilitate multi-homing;
• assist new entrants;
• improve contestability;
• reduce incumbent advantages.

But portability must also be balanced against:

• privacy;
• cybersecurity;
• confidentiality;
• intellectual property;
• trade secrets.

21. Digital Public Infrastructure

The concept becomes especially important when infrastructure is publicly governed.

Examples may include:

• digital identity;
• public payment infrastructure;
• government authentication systems;
• public data exchanges;
• electronic procurement systems;
• digital health infrastructure;
• public digital registries.

Competition questions include:

1. Equal access

Are all qualified businesses able to access the infrastructure?

2. Neutrality

Does the infrastructure operator favour particular participants?

3. Interoperability

Can private providers connect to the system?

4. Transparent technical standards

Are access criteria objectively defined?

5. Non-discriminatory pricing

Are similarly situated participants charged comparable amounts?

6. Data governance

Can infrastructure data be used to favour particular market participants?

22. Public Infrastructure Versus Private Infrastructure

The competition analysis can differ depending on ownership.

Private infrastructure

Usually assessed through:

• dominance;
• abuse;
• exclusion;
• refusal to deal;
• tying;
• discriminatory access;
• vertical foreclosure.

Public infrastructure

May additionally raise:

• State-action issues;
• regulatory neutrality;
• public procurement;
• competition-neutrality principles;
• sectoral regulation;
• State-aid/subsidy questions;
• access regulation.

Thus, public ownership does not necessarily eliminate competition concerns.

23. Digital Governance Infrastructure and Merger Control

Competition authorities must also consider infrastructure concentration during mergers.

A merger involving:

operating system + payment platform

or:

cloud provider + cybersecurity infrastructure

or:

digital identity + payment infrastructure

may create competitive risks even if the parties currently operate in different markets.

The concern may be ecosystem foreclosure.

The authority may therefore examine:

• vertical foreclosure;
• data aggregation;
• interoperability;
• access discrimination;
• bundling;
• network effects;
• entry barriers;
• future competition.

24. Remedies

Competition authorities have an increasingly broad range of remedies.

Structural remedies

• divestiture;
• separation of business units;
• ownership restrictions.

Behavioural remedies

• non-discrimination;
• interoperability;
• data portability;
• API access;
• prohibition of tying;
• prohibition of self-preferencing.

Technical remedies

• open APIs;
• interoperability protocols;
• data-access mechanisms;
• transparent ranking;
• technical neutrality requirements.

Governance remedies

• independent monitoring;
• compliance officers;
• access committees;
• transparent technical standards;
• audit mechanisms.

25. Important Case-Law Principles at a Glance

26. Emerging Competition Issues

Digital governance infrastructure is likely to generate increasingly important questions concerning:

A. AI infrastructure

Who controls:

• model APIs;
• computing access;
• AI agents;
• model interoperability;
• training data;
• inference infrastructure?

B. Cloud infrastructure

Potential issues include:

• switching costs;
• data portability;
• cloud credits;
• interoperability;
• egress fees;
• tying.

C. Digital identity

Potential issues include:

• exclusive authentication;
• discriminatory access;
• interoperability;
• identity portability.

D. Digital payments

Potential issues include:

• access to payment rails;
• wallet interoperability;
• transaction data;
• platform-owned payment systems.

E. Internet-of-Things infrastructure

Potential issues include:

• proprietary standards;
• device compatibility;
• API restrictions;
• data access.

F. Autonomous systems

Infrastructure operators may control:

• navigation data;
• charging networks;
• vehicle interfaces;
• mapping systems;
• operating systems.

27. Core Legal Tests

A competition-law analysis of digital governance infrastructure can therefore follow this framework:

Step 1 — Define the infrastructure

What technical or institutional system is being controlled?

↓

Step 2 — Define the relevant market

Is it an operating-system market, app-distribution market, data market, payment market, cloud market, or another market?

↓

Step 3 — Establish market power

Consider:

• market share;
• network effects;
• switching costs;
• entry barriers;
• data advantages;
• ecosystem effects.

↓

Step 4 — Identify the conduct

Is there:

• refusal of access?
• discriminatory access?
• tying?
• self-preferencing?
• exclusivity?
• data foreclosure?
• interoperability restriction?

↓

Step 5 — Determine competitive effects

Does the conduct:

• foreclose competitors?
• increase entry barriers?
• reduce innovation?
• increase switching costs?
• restrict consumer choice?
• reinforce network effects?

↓

Step 6 — Examine justification

Could the conduct be justified by:

• security;
• privacy;
• technical integrity;
• intellectual property;
• cybersecurity;
• legitimate efficiency?

↓

Step 7 — Select remedy

Possible remedies:

• access;
• interoperability;
• portability;
• non-discrimination;
• structural separation;
• technical remedies.

28. Conclusion

Digital governance infrastructures are becoming a central object of competition law because control over digital infrastructure can determine the competitive conditions of entire ecosystems.

The central competition-law problem is not simply that one company owns a successful technology. The more difficult issue arises when the infrastructure owner can set the technical, contractual, data, ranking, or interoperability rules for competitors while simultaneously competing against them downstream.

The major cases demonstrate several recurring principles:

1. Microsoft — interoperability can become a competition-law issue.
2. Google Android — infrastructure layers can be leveraged across interconnected digital markets.
3. Google Shopping — control over discovery infrastructure can facilitate self-preferencing.
4. WhatsApp/Meta — data practices can affect non-price dimensions of competition.
5. Epic Games v Google — app stores can function simultaneously as distribution and payment infrastructure.
6. US v Apple — control of ecosystem interfaces can raise broader interoperability and foreclosure concerns.
7. US v Google — effective digital remedies may include controlled access to data and infrastructure.

The emerging regulatory direction is therefore toward a combination of traditional antitrust principles, interoperability obligations, data-access rules, portability, non-discrimination, and ex ante digital-market regulation. The 2026 EU measures concerning Android interoperability and search-data sharing illustrate how infrastructure governance is increasingly being treated as a direct competition-policy issue