Competition Law and Governance of Inclusion-Driven Markets

1. Introduction

Inclusion-driven markets are markets in which participation, access, interoperability, connectivity, data sharing, platform membership, or inclusion within an ecosystem substantially determines whether businesses can compete effectively.

Examples include:

• digital platforms and app stores;
• payment and financial networks;
• online marketplaces;
• cloud and software ecosystems;
• telecommunications networks;
• digital advertising;
• operating systems;
• transport and mobility platforms;
• healthcare and insurance platforms; and
• infrastructure-based markets.

The central competition-law issue is not simply whether a firm has a large market share. It is whether the firm controlling an important gateway to participation can use that position to determine who may participate, on what terms, with what degree of interoperability, and with access to which users or data.

Modern competition law therefore increasingly examines governance mechanisms—defaults, access conditions, ranking, interoperability, data portability, technical standards, API access, self-preferencing, tying and discriminatory participation rules.

The European Commission's Digital Markets Act (DMA), for example, expressly regulates designated gatekeepers and imposes interoperability obligations designed to increase opportunities for business users and innovation.

2. Meaning of an Inclusion-Driven Market

An inclusion-driven market has several characteristic features.

A. Participation is economically valuable

A business may require access to:

• users;
• customers;
• payment systems;
• operating systems;
• app stores;
• marketplaces;
• APIs;
• data;
• logistics networks;
• technical standards; or
• digital infrastructure.

Consequently, exclusion from the ecosystem can substantially reduce a firm's ability to compete.

B. Network effects

The value of the platform frequently increases as participation increases.

For example:

More users → more developers → more applications → more users

This feedback loop can produce substantial entry barriers.

C. Gatekeeper power

A platform may become an important intermediary between:

Business users ↔ Platform ↔ Consumers

The intermediary can therefore influence both sides of the market.

D. Switching costs

Users and businesses may face:

• loss of accumulated data;
• loss of reputation;
• technical incompatibility;
• contractual costs;
• loss of customers;
• retraining expenses; and
• ecosystem-specific investments.

E. Rules become commercially significant

Terms of participation that might appear merely technical can become competition-law issues when they materially affect competitive opportunities.

Examples include:

• API restrictions;
• interoperability limitations;
• platform commissions;
• ranking rules;
• app-review rules;
• default settings;
• self-preferencing;
• data-access restrictions; and
• anti-steering provisions.

3. Competition-Law Framework

Governance of inclusion-driven markets can be analysed under several branches of competition law.

A. Abuse of Dominance

Where an undertaking has a dominant position, exclusionary participation rules may constitute abusive conduct.

Relevant practices include:

1. discriminatory access;
2. refusal to interoperate;
3. tying;
4. exclusive dealing;
5. self-preferencing;
6. margin-related exclusion;
7. loyalty-inducing arrangements;
8. exploitative platform terms; and
9. restrictions on multi-homing.

The legal inquiry generally asks whether the conduct is capable of restricting competition rather than merely whether competitors have been inconvenienced.

B. Refusal of Access

Access becomes particularly important where an infrastructure or platform functions as a critical gateway.

Traditional essential-facility doctrine considers factors such as:

• control by a dominant undertaking;
• lack of reasonable alternatives;
• practical or economic impossibility of duplication;
• elimination or substantial restriction of competition; and
• absence of adequate objective justification.

Digital markets complicate this doctrine because a platform need not be literally indispensable to have significant competitive importance.

The Court of Justice's recent digital-platform jurisprudence illustrates this development. In a 2024 case concerning interoperability, the Court held that refusal by a dominant digital-platform operator to make its platform interoperable with a third-party app can constitute abuse even where the platform is not indispensable, provided the relevant competitive and consumer-harm conditions are established.

4. Interoperability as a Competition Instrument

Interoperability enables different systems, platforms or services to communicate.

It can prevent a dominant platform from converting technical control into permanent market control.

Examples include:

• messaging interoperability;
• payment interoperability;
• operating-system interoperability;
• cloud interoperability;
• data portability;
• API access;
• connected-device interoperability.

The European DMA expressly addresses interoperability and permits only measures that are strictly necessary and proportionate to protect the integrity of a gatekeeper's systems.

Thus, competition governance increasingly moves from:

"Who owns the infrastructure?"

towards:

"What competitive access must the infrastructure owner provide?"

5. Self-Preferencing

A platform can simultaneously act as:

1. infrastructure provider;
2. intermediary; and
3. competitor.

This creates a potential conflict of interest.

For example:

Platform controls ranking → Platform owns competing service → Platform gives its service preferential visibility → Rivals receive less traffic → Platform strengthens its position

The important competition-law question is whether the platform's conduct departs from competition on the merits and has foreclosure effects.

6. Governance of Access Rules

Competition law can scrutinise the actual architecture of participation.

Examples

7. Major Case Laws

1. Google LLC & Alphabet Inc. v European Commission — Google Shopping

C-48/22 P, Court of Justice of the European Union, 2024

This is one of the most significant modern authorities concerning governance of a platform-based market.

Google operated a dominant general-search service while also operating a comparison-shopping service. The European Commission found that Google systematically gave its own comparison-shopping results preferential placement while competitors were demoted.

The Court of Justice upheld the Commission's infringement finding and the €2.4 billion fine.

Competition-law significance

The case demonstrates that a platform can potentially use control over an important gateway infrastructure to advantage its own downstream service.

It is particularly relevant to inclusion-driven markets because:

Search access → visibility → consumer traffic → commercial participation

Control over visibility can therefore influence which competitors effectively participate in the market.

2. Microsoft Corp. v Commission

Case T-201/04, General Court, 2007

Microsoft's conduct concerning interoperability information for work-group servers was examined under Article 102 TFEU.

The case involved Microsoft's dominant position and its refusal to provide interoperability information necessary for competing server products to communicate effectively with Windows-based PCs and servers.

Competition-law significance

The case is foundational for understanding:

• interoperability;
• refusal to supply;
• technological ecosystems;
• leveraging of dominance; and
• protection of downstream competition.

It illustrates how technical compatibility can become a competition-law issue where control over an important technological environment creates exclusionary effects.

3. Google Android

European Commission Decision AT.40099, 2018

The European Commission examined Google's Android ecosystem, including contractual arrangements involving manufacturers and mobile-service providers.

The Commission identified concerns involving:

• tying of Google applications;
• anti-fragmentation arrangements; and
• incentives relating to pre-installation.

Competition-law significance

Android illustrates how a dominant ecosystem can influence participation architecture through contractual and technical conditions.

The case demonstrates the importance of examining the entire ecosystem rather than treating each contractual restriction in isolation.

4. Umar Javeed & Others v Google LLC & Another

Competition Commission of India, Google Android matter

The CCI examined Google's conduct in relation to Android and associated services.

The CCI's remedies included measures concerning OEM choice and placement of Google applications and, importantly, required Google not to deny access to Play Services APIs in a manner that disadvantaged OEMs, developers or competitors.

The remedy specifically addressed interoperability between Android and Android forks.

Competition-law significance

This is particularly important for the governance of inclusion-driven markets in India.

The case demonstrates that competition remedies may move beyond simply prohibiting conduct and instead restructure the conditions under which ecosystem participants can compete.

5. Epic Games, Inc. v Google LLC

U.S. Ninth Circuit, 2025

Epic challenged Google's operation of the Android app-distribution and in-app-billing ecosystem.

Following a jury verdict finding antitrust violations, the district court imposed a permanent injunction. The Ninth Circuit affirmed the verdict and injunction in 2025.

The litigation concerned Google's control over:

• Android app distribution;
• Google Play;
• alternative app stores;
• direct downloading;
• billing arrangements; and
• relationships with developers.

Competition-law significance

The case demonstrates how distribution architecture itself can become a competition-law issue.

The relevant competitive question is not simply the price of an app-store service. It includes whether developers and consumers can realistically access alternative distribution channels.

6. Apple v Pepper

587 U.S. 273 (2019)

The U.S. Supreme Court considered whether consumers could bring antitrust claims against Apple concerning its App Store.

The Court allowed the consumers' suit to proceed at the pleading stage, rejecting Apple's argument that consumers were merely indirect purchasers from app developers.

Competition-law significance

The case is important because it recognises the economic significance of the platform relationship between:

Apple → App developers → Consumers

It demonstrates how platform governance can affect both sides of a multi-sided market.

7. Ohio v. American Express Co.

585 U.S. 529 (2018)

The U.S. Supreme Court examined American Express's anti-steering provisions.

Because credit-card networks are two-sided transaction platforms, the Court considered effects on both merchants and cardholders.

Competition-law significance

The case is particularly important for inclusion-driven markets because it illustrates why competition analysis of platforms may need to examine both sides simultaneously.

A restriction affecting merchants may also influence consumer participation, and vice versa.

The principle is highly relevant to modern digital platforms, marketplaces and payment systems.

8. European Commission v Apple — App Store / DMA framework

Although the Digital Markets Act is regulatory legislation rather than a traditional Article 102 judgment, Apple's designation illustrates the shift toward ex ante governance of gatekeepers.

The EU has designated Apple and other major technology companies as gatekeepers for specified core platform services.

The regulatory model addresses matters such as:

• interoperability;
• access;
• data use;
• steering;
• business-user rights;
• switching; and
• platform neutrality.

The model is significant because competition governance is no longer limited to intervening after exclusionary conduct occurs.

8. Key Principles Emerging from the Case Law

Principle 1 — Access can itself be a competitive asset

Where access to users or infrastructure is commercially indispensable or strategically important, restricting access can affect competition.

Principle 2 — Technical design can have competitive consequences

Competition authorities increasingly examine:

• defaults;
• APIs;
• interoperability;
• ranking algorithms;
• technical restrictions;
• authentication systems; and
• software architecture.

Competition law therefore increasingly intersects with technology governance.

Principle 3 — Platform neutrality matters

A platform acting simultaneously as:

gatekeeper + infrastructure provider + competitor

creates a structural risk of self-preferencing.

Google Shopping is a leading illustration.

Principle 4 — Inclusion does not necessarily mean unlimited access

Competition law does not automatically require every dominant undertaking to open every facility.

Access obligations must ordinarily be assessed against:

• dominance;
• indispensability or competitive importance;
• foreclosure effects;
• objective justification;
• proportionality;
• innovation incentives; and
• consumer effects.

Principle 5 — Interoperability can preserve competition

Interoperability can reduce:

• switching costs;
• network-effect barriers;
• ecosystem lock-in;
• duplication costs; and
• dependence on a single platform.

The contemporary EU framework expressly recognises interoperability as a mechanism for strengthening innovation and competitive opportunities.

9. Inclusion Governance and Essential Facilities

Traditional essential-facility analysis can be represented as:

Dominant control
↓
Facility/platform important for competition
↓
No effective alternative
↓
Refusal or discriminatory access
↓
Foreclosure of rivals
↓
Consumer/competitive harm
↓
Possible access remedy

Digital markets complicate this framework because an ecosystem can be commercially critical without being literally indispensable.

The recent EU interoperability jurisprudence expressly recognises this distinction.

10. Data as an Inclusion Infrastructure

Data increasingly functions as infrastructure.

A dominant platform may possess:

• customer data;
• transaction histories;
• behavioural information;
• interoperability data;
• business-user information;
• technical data; and
• performance data.

Restricting access to competitively significant data can therefore affect market participation.

Possible competition concerns include:

• discriminatory data access;
• refusal to provide APIs;
• exclusive data arrangements;
• data portability restrictions;
• combining datasets to strengthen dominance;
• use of business-user data against those users; and
• leveraging data dominance into adjacent markets.

11. Inclusion and Multi-Homing

Multi-homing occurs when users or businesses participate in multiple platforms.

It can constrain platform power because users have alternatives.

A platform may therefore have incentives to restrict multi-homing through:

• exclusivity;
• technical barriers;
• contractual restrictions;
• preferential pricing;
• anti-steering rules;
• default settings; or
• interoperability restrictions.

Competition authorities should distinguish legitimate product differentiation from restrictions whose principal competitive effect is to prevent participants from using alternatives.

12. Competition Remedies

Governance of inclusion-driven markets may require remedies beyond conventional fines.

Structural remedies

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

Behavioural remedies

• non-discrimination;
• access obligations;
• interoperability;
• API access;
• transparent ranking;
• data portability;
• prohibition of self-preferencing.

Regulatory remedies

• ex ante gatekeeper obligations;
• mandatory interoperability;
• transparency requirements;
• switching rights;
• business-user protections.

The Indian Google Android proceedings demonstrate how remedies can directly address interoperability and ecosystem participation.

13. Challenges for Competition Authorities

A. Distinguishing legitimate product design from exclusion

Not every technical limitation is anticompetitive.

B. Protecting security

Interoperability may create cybersecurity or privacy risks.

C. Preserving innovation

Excessively broad access requirements could reduce incentives to develop new infrastructure.

D. Measuring non-price harm

Traditional price-based analysis is often insufficient where services are free but users pay through:

• data;
• attention;
• lock-in; or
• reduced choice.

E. Rapid technological change

A regulatory remedy appropriate today may become obsolete as technology changes.

14. A Governance Model for Inclusion-Driven Markets

A useful competition-law framework is:

1. Define the ecosystem
↓
2. Identify the gatekeeper
↓
3. Identify affected participants
↓
4. Determine network effects and switching costs
↓
5. Examine access/interoperability conditions
↓
6. Test discrimination and self-preferencing
↓
7. Examine foreclosure effects
↓
8. Consider objective justification
↓
9. Assess consumer and innovation effects
↓
10. Select proportionate remedy

This framework is particularly suitable for digital platforms, app stores, payment systems, cloud infrastructure and other participation-dependent markets.

15. Conclusion

Governance of inclusion-driven markets represents an important evolution of competition law from traditional control of prices and output toward control of competitive participation.

The principal concern is whether a powerful intermediary can determine the terms on which businesses, developers, consumers and competing services enter and operate within an ecosystem.

The major authorities—including Microsoft, Google Android, Google Shopping, Ohio v American Express, Apple v Pepper, Epic Games v Google, and the Indian Google Android proceedings—illustrate different dimensions of this problem.

The emerging regulatory approach combines traditional abuse-of-dominance principles with interoperability, non-discrimination, access, data portability, platform neutrality and ex ante gatekeeper regulation. The EU's DMA is particularly significant in this development, while recent Indian and U.S. platform cases demonstrate that similar issues are being addressed through conventional antitrust mechanisms.