Competition Law and Digital Inclusion Infrastructures

Introduction

Digital inclusion infrastructures are the technological and institutional systems that enable individuals, businesses, public bodies, and communities to participate in the digital economy. They include broadband and mobile networks, digital identity systems, payment infrastructures, app stores, cloud platforms, interoperability layers, digital marketplaces, data-sharing systems, APIs, and other access-enabling platforms.

From a competition-law perspective, the central issue is not inclusion itself, but whether control over an infrastructure that enables digital participation can be used to exclude rivals, discriminate among users, raise entry barriers, or extend market power into adjacent markets.

Digital inclusion infrastructure can therefore generate a distinctive competition-law tension:

The more essential an infrastructure becomes for digital participation, the greater the potential competition significance of access, interoperability, neutrality, pricing, data, and governance rules.

1. Meaning of Digital Inclusion Infrastructure

Digital inclusion infrastructure can be understood as infrastructure that enables users who would otherwise face technological, economic, geographic, or informational barriers to participate in digital markets.

It may include:

1. Telecommunications infrastructure
   • broadband networks;
   • mobile networks;
   • fibre networks;
   • 5G infrastructure;
   • internet exchange facilities.
2. Digital identity infrastructure
   • authentication systems;
   • electronic identification;
   • digital signatures;
   • identity verification services.
3. Digital payment infrastructure
   • payment gateways;
   • card networks;
   • instant-payment systems;
   • digital wallets.
4. Platform infrastructure
   • app stores;
   • operating systems;
   • cloud computing;
   • search engines;
   • digital marketplaces.
5. Data and interoperability infrastructure
   • APIs;
   • data portability systems;
   • interoperability protocols;
   • data-sharing frameworks.
6. Public digital infrastructure
   • government digital platforms;
   • open digital networks;
   • public databases;
   • digital public infrastructure.

The competition problem arises when an undertaking controlling one of these infrastructures possesses the ability and incentive to determine who can participate, on what terms, and under what technical conditions.

2. Competition-Law Significance

Digital inclusion infrastructure may exhibit characteristics traditionally associated with essential or bottleneck infrastructure.

Important characteristics include:

• substantial fixed costs;
• network effects;
• economies of scale;
• switching costs;
• interoperability dependence;
• data advantages;
• technical standards;
• ecosystem effects;
• user lock-in;
• high entry barriers.

A successful infrastructure may consequently become a bottleneck between competitors and users.

For example, if an operating-system provider controls the principal route through which applications reach consumers, it may potentially influence:

• app distribution;
• payment processing;
• ranking;
• discoverability;
• commissions;
• access to device functions;
• interoperability.

This creates potential competition-law questions concerning exclusionary conduct, discriminatory access, tying, self-preferencing, refusal to deal, interoperability restrictions and excessive or discriminatory access conditions.

3. Relevant Competition-Law Framework

A. Abuse of Dominant Position

A dominant infrastructure provider may breach competition law if it uses its position to exclude competitors or exploit dependent users.

Potential forms include:

• refusal to provide access;
• discriminatory access;
• unreasonable technical conditions;
• excessive access fees;
• discriminatory interoperability;
• degradation of rival services;
• self-preferencing;
• tying or bundling;
• exclusionary rebates;
• denial of essential technical information.

The important point is that dominance alone is generally not unlawful. The competition concern concerns the use of market power in a manner prohibited by applicable law.

4. Essential-Facilities Dimension

Digital inclusion infrastructures can sometimes resemble traditional essential facilities.

An infrastructure may become particularly important where:

1. competitors cannot reasonably reproduce it;
2. access is necessary to compete effectively;
3. denial of access can eliminate or substantially restrict competition;
4. access can technically be provided; and
5. competition law justifies intervention under the applicable legal framework.

However, courts have traditionally approached compulsory access cautiously because forcing firms to share infrastructure may reduce incentives to invest.

Digital markets therefore require a balance between:

accessibility + competition + innovation + investment incentives.

5. Interoperability as a Competition Issue

Interoperability is particularly important to digital inclusion.

An infrastructure can technically allow competitors to connect but nevertheless make interoperability difficult through:

• closed APIs;
• proprietary protocols;
• incompatible formats;
• restricted technical documentation;
• discriminatory authentication;
• API throttling;
• degraded functionality;
• delayed certification.

Thus, technical interoperability can become a form of market access.

Competition authorities increasingly examine whether interoperability restrictions protect legitimate security or technical interests or instead protect an incumbent's market position.

6. Network Effects

Digital infrastructure often benefits from network effects.

For example:

More users → more developers → more applications → more users.

This can create a reinforcing competitive advantage.

A dominant infrastructure may consequently become difficult to challenge even without traditional physical barriers to entry.

Network effects can produce:

• tipping;
• concentration;
• ecosystem dependency;
• winner-takes-most dynamics;
• high switching costs.

Competition authorities therefore consider whether conduct by a dominant infrastructure provider strengthens network effects in an exclusionary manner.

7. Data as Digital Infrastructure

Data can function as an important component of digital infrastructure.

Large platforms may possess:

• behavioural data;
• transaction data;
• identity information;
• location data;
• usage data;
• merchant data;
• advertising data.

A dominant undertaking can potentially use privileged access to data to disadvantage competitors.

Competition concerns may arise where an infrastructure provider:

• refuses reasonable data portability;
• restricts access to competitively important data;
• combines data across markets;
• uses dependent-business data to compete against those businesses;
• discriminates in data access.

This creates an intersection between competition law, data governance and digital inclusion.

8. Digital Payment Infrastructure

Payment infrastructure illustrates the inclusion–competition relationship particularly clearly.

Digital businesses may depend upon:

• card networks;
• payment gateways;
• mobile wallets;
• instant-payment infrastructure;
• authentication systems.

Competition concerns may arise from:

• discriminatory access;
• exclusivity;
• interchange arrangements;
• tying;
• interoperability restrictions;
• preferential treatment of affiliated payment services.

If a dominant platform controls both the user interface and payment infrastructure, it may potentially use that control to disadvantage rival payment providers.

9. App Stores as Digital Inclusion Infrastructure

App stores increasingly function as gateways between developers and consumers.

An app-store operator may control:

• application distribution;
• search ranking;
• payment systems;
• technical access;
• developer accounts;
• commissions;
• device permissions.

This makes app-store governance a significant competition-law issue.

Potential concerns include:

• mandatory use of proprietary payment systems;
• anti-steering restrictions;
• discriminatory commissions;
• self-preferencing;
• exclusion of competing applications;
• restrictions on alternative app stores.

10. Cloud Infrastructure

Cloud infrastructure has become fundamental to digital participation.

Businesses increasingly depend upon cloud providers for:

• computing;
• storage;
• databases;
• cybersecurity;
• AI services;
• software development.

Competition issues can arise through:

• switching costs;
• interoperability restrictions;
• data portability barriers;
• cloud credits tied to particular services;
• contractual restrictions;
• technical incompatibility;
• preferential treatment of affiliated services.

Cloud infrastructure therefore creates a potential vertical competition relationship between infrastructure providers and businesses dependent on that infrastructure.

11. Digital Identity Infrastructure

Digital identity systems can become important gateways to digital services.

Competition concerns may arise where one undertaking controls:

• authentication;
• verification;
• identity credentials;
• digital signatures;
• access credentials.

Potential problems include:

• discriminatory authentication;
• refusal to interoperate;
• exclusion of alternative identity providers;
• excessive access charges;
• leveraging identity infrastructure into adjacent markets.

The competition-law objective is not necessarily to mandate universal access, but to prevent control over a critical gateway from being used improperly to suppress competition.

12. Six Major Case Laws

1. United Brands Company v Commission

Case: United Brands Company and United Brands Continentaal BV v Commission, Case 27/76, European Court of Justice (1978).

Principle

The case established important principles concerning dominance and abusive conduct.

United Brands possessed substantial market power in the relevant banana market and imposed discriminatory conditions on certain customers.

Relevance to digital inclusion infrastructure

The case illustrates that a dominant undertaking controlling an important commercial gateway may have special responsibilities regarding discriminatory treatment.

For digital infrastructure, analogous issues can arise where an infrastructure operator provides materially different access conditions to similarly situated digital businesses.

Competition-law lesson

Dominance creates responsibilities concerning discriminatory and exclusionary conduct.

2. Commercial Solvents v Commission

Cases: Joined Cases 6/73 and 7/73, Instituto Chemioterapico Italiano S.p.A. and Commercial Solvents Corporation v Commission (1974).

Principle

The Court recognized that a dominant undertaking controlling an upstream input may abuse its position by restricting supply to downstream competitors.

Digital relevance

This is highly relevant to digital infrastructure.

Suppose an undertaking controls an infrastructure input and competes downstream with businesses dependent on that input.

It may potentially have an incentive to:

restrict infrastructure access → weaken downstream competitors → strengthen its own downstream position.

Digital examples

Potential analogies include:

• cloud infrastructure;
• payment infrastructure;
• app distribution;
• API access;
• technical authentication.

Competition-law lesson

Control of an upstream infrastructure can create opportunities for vertical foreclosure.

3. Bronner v Mediaprint

Case: Oscar Bronner GmbH & Co. KG v Mediaprint Zeitungs und Zeitschriftenverlag GmbH & Co. KG, Case C-7/97 (1998).

Principle

The Court established a restrictive approach to compulsory access under the essential-facilities doctrine.

The facility must be genuinely indispensable, and the refusal must satisfy demanding conditions before competition law requires access.

Digital relevance

This is one of the most important principles when analysing digital infrastructure.

A digital platform should not automatically be classified as an essential facility merely because competitors find access commercially valuable.

The question is whether the infrastructure is genuinely indispensable and whether duplication is realistically possible.

Competition-law lesson

Importance is not automatically the same as indispensability.

4. IMS Health v Commission

Case: Joined Cases C-418/01 P and C-457/01 P, IMS Health GmbH & Co. KG v NDC Health GmbH & Co. KG.

Principle

The case developed the European approach to compulsory access and intellectual-property-related infrastructure.

The Court emphasized stringent conditions before a refusal to license could amount to abuse.

Digital relevance

Digital infrastructure frequently involves:

• software;
• APIs;
• proprietary standards;
• databases;
• technical interfaces;
• intellectual property.

The case demonstrates why competition authorities must carefully balance:

competition access vs incentives to innovate.

Competition-law lesson

Compulsory interoperability or access requires careful analysis rather than automatic intervention.

5. Microsoft Corp. v Commission

Case: Microsoft Corp. v Commission, Case T-201/04, General Court (2007).

Principle

Microsoft's refusal to provide interoperability information to competing work-group server products formed a central part of the European Commission's abuse finding.

The case is particularly significant because interoperability information was considered important for competitors to operate effectively within the technological ecosystem.

Digital-infrastructure relevance

The case directly illustrates how technical interoperability can become a competition issue.

Relevant modern parallels include:

• APIs;
• operating systems;
• cloud interoperability;
• messaging interoperability;
• platform interfaces;
• technical protocols.

Competition-law lesson

A dominant technological ecosystem can potentially use control over interoperability information to disadvantage competing products.

6. Google Shopping

Case: Google and Alphabet v Commission, Case T-612/17, General Court (2021).

Principle

The European Commission found that Google had abused its dominant position by favouring its own comparison-shopping service in general search results while placing rival comparison-shopping services in less favourable positions.

The General Court largely upheld the Commission's decision.

Digital-infrastructure relevance

Search engines can operate as important digital access gateways.

Control over:

• search visibility;
• ranking;
• traffic;
• discovery;

can influence whether competing digital services can effectively reach consumers.

Competition-law lesson

Control over a digital gateway can create competition concerns where the infrastructure operator uses that position to favour its own downstream service.

7. Google Android

Case: Google and Alphabet v Commission, Case T-604/18, General Court (2022).

Principle

The case concerned Google's Android ecosystem and practices involving application distribution, search and browser services, including contractual arrangements affecting device manufacturers and mobile ecosystems.

Digital-inclusion relevance

Mobile operating systems are important gateways to digital participation.

They determine access to:

• applications;
• search;
• browsers;
• payment services;
• digital content.

Competition-law lesson

Control of an operating-system ecosystem can create opportunities for leveraging and foreclosure in adjacent digital markets.

8. Apple – App Store / Digital Markets Cases

Apple's App Store practices have also generated extensive competition-law scrutiny in multiple jurisdictions.

The principal issues include:

• mandatory payment systems;
• commissions;
• anti-steering provisions;
• alternative distribution;
• app-store access;
• developer restrictions.

Digital-infrastructure relevance

An app store can effectively function as an infrastructure gateway between developers and consumers.

Consequently, competition law may examine whether the operator uses control over that gateway to restrict competing payment or distribution channels.

9. Competition Concerns Across the Digital-Inclusion Infrastructure Chain

10. Self-Preferencing

Self-preferencing occurs when an infrastructure operator gives preferential treatment to its own downstream products or services.

Examples may include:

• ranking its own service above rivals;
• preferential API access;
• preferential data access;
• preferential interoperability;
• favourable app-store placement;
• preferential payment integration.

The competition analysis should examine whether the practice:

1. involves a dominant undertaking;
2. concerns a competitively important gateway;
3. disadvantages rivals;
4. restricts effective competition;
5. has legitimate technical or efficiency justifications.

11. Discriminatory Access

Digital infrastructure may provide access to numerous businesses while applying different conditions.

Potential discrimination can involve:

• price;
• technical specifications;
• API availability;
• latency;
• authentication;
• data access;
• certification;
• ranking;
• service quality.

Competition law may become relevant where discrimination is used strategically to disadvantage competitors.

12. Refusal of Access

A refusal can be particularly problematic where the infrastructure is effectively indispensable.

However, the analysis should consider:

• availability of alternatives;
• possibility of duplication;
• technical feasibility;
• investment incentives;
• legitimate security concerns;
• intellectual-property rights;
• effect on competition.

The Bronner and IMS Health principles demonstrate the caution traditionally applied before requiring compulsory access.

13. Interoperability and Switching Costs

Interoperability can reduce switching costs.

For example:

Closed system

Platform A → proprietary data → proprietary API → high switching cost

versus:

Interoperable system

Platform A ↔ common API ↔ Platform B

Greater interoperability may make it easier for consumers and businesses to move between competing services.

However, mandatory interoperability can also create:

• cybersecurity risks;
• privacy concerns;
• technical costs;
• reduced innovation incentives.

Therefore, competition authorities must distinguish legitimate technical restrictions from strategically exclusionary restrictions.

14. Digital Inclusion and Small Businesses

Digital inclusion infrastructure can significantly affect SMEs.

Small businesses may depend upon:

• online marketplaces;
• payment platforms;
• cloud services;
• app stores;
• advertising platforms;
• digital identity;
• logistics platforms.

If access conditions become discriminatory or prohibitively costly, SMEs may be unable to compete effectively.

Competition law can therefore operate alongside digital-inclusion policy by addressing private barriers to digital market participation.

15. Competition and Digital Public Infrastructure

Public digital infrastructure can also affect competition.

Governments may establish infrastructure intended to provide broad access.

Examples include:

• digital identity;
• payment rails;
• public data platforms;
• open APIs;
• government cloud;
• digital authentication.

Competition questions may include:

• whether private firms receive equal access;
• whether public infrastructure favours particular providers;
• whether incumbent firms receive preferential treatment;
• whether access standards are transparent;
• whether interoperability is available on neutral terms.

The objective should be to create infrastructure that permits competitive neutrality.

16. Regulatory Interoperability vs Competition-Law Intervention

Two different regulatory approaches should be distinguished.

Ex post competition law

Intervenes after potentially anticompetitive conduct occurs.

Examples:

• abuse-of-dominance proceedings;
• refusal-to-deal cases;
• discriminatory-access investigations.

Ex ante digital regulation

Creates obligations before individual anticompetitive conduct is established.

Examples:

• interoperability requirements;
• data portability;
• platform access obligations;
• transparency requirements.

The growth of digital markets has increased interest in combining these approaches.

17. Economic Effects

Digital inclusion infrastructure can produce both pro-competitive and anticompetitive effects.

Pro-competitive effects

• lower transaction costs;
• greater market access;
• wider consumer participation;
• increased innovation;
• reduced geographic barriers;
• lower entry costs;
• improved interoperability.

Potential anticompetitive effects

• network-effect-driven concentration;
• exclusion of rivals;
• platform lock-in;
• discriminatory access;
• excessive switching costs;
• leveraging;
• self-preferencing;
• foreclosure.

Therefore, the existence of a large infrastructure is not itself evidence of an infringement.

18. Key Doctrinal Tests

A competition-law investigation concerning digital inclusion infrastructure should generally examine:

Step 1 — Relevant market

Determine:

• product/service market;
• geographic market;
• infrastructure layer;
• downstream market.

Step 2 — Market power

Consider:

• market shares;
• network effects;
• switching costs;
• entry barriers;
• control over data;
• ecosystem dependence.

Step 3 — Infrastructure significance

Ask:

Is the infrastructure merely useful, or is it genuinely indispensable?

Step 4 — Conduct

Identify:

• refusal;
• discrimination;
• tying;
• self-preferencing;
• interoperability restriction;
• exclusivity;
• data restriction.

Step 5 — Competitive effects

Examine:

• foreclosure;
• reduced innovation;
• increased prices;
• reduced choice;
• degraded quality;
• exclusion of competitors.

Step 6 — Justifications

Consider:

• security;
• privacy;
• intellectual property;
• technical feasibility;
• investment;
• efficiency.

Step 7 — Remedy

Possible remedies include:

• non-discriminatory access;
• interoperability;
• data portability;
• behavioural commitments;
• technical separation;
• transparency obligations;
• structural remedies in exceptional circumstances.

19. Indian Competition-Law Perspective

In India, the principal framework is the Competition Act, 2002, administered by the Competition Commission of India.

Digital inclusion infrastructure can engage particularly with:

• Section 3 — anti-competitive agreements;
• Section 4 — abuse of dominant position;
• Section 5 — combinations;
• Section 19 — inquiry into agreements and dominant position;
• Section 26 — investigation procedure;
• Section 27 — orders following inquiry.

The Indian digital economy has generated substantial competition-law discussion concerning platforms, digital markets, app stores, online marketplaces, payment systems and data-driven businesses.

20. Important Indian Digital Competition Cases

1. Matrimony.com Ltd. v Google LLC

The CCI examined Google's practices concerning search and online search-related services.

Relevance

The matter illustrates the competition significance of controlling a major digital gateway through which users discover online businesses.

It demonstrates how:

search infrastructure → visibility → traffic → downstream competition

can become a competition-law chain.

2. Umar Javeed & Ors. v Google LLC

The CCI considered Google's position in relation to Android mobile operating systems and associated markets.

Relevance

The case illustrates the importance of:

• operating-system ecosystems;
• mobile application access;
• platform dependence;
• tying and leveraging;
• interoperability.

It is particularly relevant to the idea that operating systems may constitute important digital participation infrastructure.

3. XYZ v Google — Android Ecosystem

Indian competition proceedings involving Google's Android ecosystem have examined contractual and ecosystem arrangements affecting:

• app distribution;
• search;
• browsers;
• device manufacturers;
• application developers.

Relevance

The case demonstrates the competition-law significance of control over mobile infrastructure and access gateways.

4. In Re: Updated Terms of Service for WhatsApp

The CCI's examination of WhatsApp's data-related practices illustrates the growing relationship between:

• data;
• platform power;
• privacy;
• user dependency;
• competition.

Relevance

Where data becomes an important input into digital services, data practices can become relevant to competition analysis.

5. Flipkart / Amazon-Related Digital Market Proceedings

CCI proceedings involving major e-commerce platforms have considered allegations concerning:

• preferential treatment;
• exclusive arrangements;
• marketplace practices;
• seller relationships;
• private-label or affiliated products.

Relevance

Digital marketplaces may function as infrastructure for participation by sellers and consumers.

The competition question can therefore involve whether the platform acts simultaneously as:

infrastructure provider + marketplace operator + competitor.

6. Fast Way Transmission Pvt. Ltd. v Amazon India

Indian competition proceedings concerning Amazon's marketplace relationships have contributed to the broader examination of platform governance and access conditions.

Relevance

The case illustrates the competition concerns that arise when a platform controls access to customers while simultaneously operating commercial arrangements with participating businesses.

21. Remedies for Anticompetitive Digital Infrastructure Conduct

Competition authorities may consider several remedies.

A. Access remedies

Require access on reasonable and non-discriminatory terms.

B. Interoperability remedies

Require technical systems to communicate with competing services.

C. Data portability

Allow users or businesses to transfer data to competing providers.

D. Non-discrimination

Prevent an infrastructure operator from applying materially discriminatory access conditions.

E. Transparency

Require publication of access criteria or ranking principles where appropriate.

F. Structural remedies

In exceptional circumstances, separation of infrastructure and downstream commercial activities may be considered.

22. Challenges for Competition Authorities

Digital infrastructure creates several enforcement difficulties.

1. Rapid technological change

Market conditions can change faster than traditional competition investigations.

2. Defining relevant markets

Traditional product-market boundaries may not adequately capture ecosystems.

3. Multi-sided markets

Platforms simultaneously serve several groups:

• consumers;
• advertisers;
• developers;
• merchants;
• payment providers.

4. Zero-price services

Consumer services may be offered at zero monetary price, making conventional price-based analysis more difficult.

5. Data advantages

Competitive advantage may derive from data rather than conventional assets.

6. Technical complexity

Competition authorities may require sophisticated technological expertise to determine whether interoperability restrictions are genuinely necessary.

23. Relationship Between Inclusion and Competition

Digital inclusion should not automatically be equated with compulsory access.

A competition-law analysis should distinguish:

Legitimate inclusion policy

from

competition-law intervention.

For example:

A government may decide that every citizen should have access to digital services.

That is primarily a public-policy objective.

Competition law asks a narrower question:

Has an undertaking with market power engaged in conduct that unlawfully restricts competition or exploits market participants?

The two objectives can overlap but remain conceptually distinct.

24. Emerging Issues

Future competition-law disputes are likely to involve:

AI infrastructure

Control over:

• foundation models;
• compute;
• training data;
• AI APIs.

5G and 6G

Issues concerning:

• network sharing;
• spectrum;
• interoperability;
• infrastructure access.

Digital identity

Competition between:

• public identity systems;
• private authentication providers.

Cloud interoperability

Potential lock-in between competing cloud environments.

Digital wallets

Control over:

• payment interfaces;
• NFC functionality;
• authentication;
• payment data.

Internet-of-Things infrastructure

Interoperability among:

• devices;
• cloud services;
• smart-home ecosystems.

Digital public infrastructure

Questions concerning neutral access to public digital rails.

Conclusion

Digital inclusion infrastructures occupy a strategically important position in modern competition law because they can function as gateways to digital markets. Their economic value comes not merely from the infrastructure itself but from the access, interoperability, data, network effects and user relationships that it enables.

The principal competition-law concerns are:

1. refusal of access;
2. discriminatory access;
3. interoperability restrictions;
4. self-preferencing;
5. tying and leveraging;
6. data-access restrictions;
7. excessive switching costs;
8. vertical foreclosure;
9. ecosystem lock-in; and
10. strategic control of digital gateways.

The major cases—United Brands, Commercial Solvents, Bronner, IMS Health, Microsoft, Google Shopping and Google Android—provide a doctrinal foundation for analysing these issues. Their combined significance is that competition law must distinguish between legitimate control of infrastructure and the strategic use of infrastructure control to exclude competitors.