Competition Law and Competition Concerns in Inclusion Monopolies

1. Introduction

An “inclusion monopoly” is not a formally defined category under most competition statutes. The expression can be used analytically to describe a market in which a dominant undertaking controls whether, how, or on what terms other businesses, products, users, developers, suppliers, or services are included within an important ecosystem or platform.

The central competition concern is therefore not simply that one firm has a large market share. It is that the firm may possess gatekeeping power over participation itself. A business may technically remain free to operate elsewhere, but exclusion from the dominant ecosystem can substantially impair its ability to reach customers, obtain data, access infrastructure, interoperate, receive visibility, or compete effectively.

Typical examples include:

• digital platforms controlling app or developer admission;
• operating systems determining which applications or services receive access;
• marketplaces controlling seller participation and visibility;
• payment systems controlling merchant or fintech participation;
• cloud ecosystems controlling interoperability;
• search or advertising ecosystems determining access to commercially important traffic;
• logistics or infrastructure networks controlling third-party access;
• vertically integrated platforms deciding whether competing services are included in their ecosystem.

2. Meaning of Inclusion Monopolies

An inclusion monopoly can be understood through the following structure:

Dominant ecosystem → control over participation → conditions for inclusion → dependence of participants → possibility of exclusion or discrimination → reduced competition

The concept has three principal dimensions.

A. Control over entry

The dominant undertaking decides:

• who can participate;
• which products can be listed;
• which applications can be distributed;
• which suppliers can connect;
• which APIs are accessible;
• what technical standards must be satisfied.

B. Control over continued participation

Even after admission, the platform may control:

• suspension;
• delisting;
• algorithmic visibility;
• access to data;
• interoperability;
• ranking;
• commissions;
• contractual conditions.

C. Control over competitive visibility

Inclusion may formally exist while meaningful competition is undermined through:

• preferential ranking;
• self-preferencing;
• discriminatory access;
• degraded interoperability;
• excessive fees;
• tying;
• exclusionary technical standards;
• discriminatory recommendation algorithms.

Thus, formal inclusion is not necessarily effective inclusion.

3. Relevant Competition-Law Framework

A. Abuse of Dominant Position

The principal legal issue is whether control over inclusion constitutes an abuse of dominance.

Depending on the jurisdiction, potentially relevant conduct includes:

• refusal to deal;
• discriminatory conditions;
• exclusionary access restrictions;
• tying and bundling;
• self-preferencing;
• margin-related exclusion;
• unfair contractual terms;
• leveraging dominance into adjacent markets.

Under Section 4 of India's Competition Act, 2002, for example, a dominant enterprise may be prohibited from imposing unfair or discriminatory conditions or prices, limiting or restricting markets, denying market access, or using dominance in one relevant market to protect or enter another market.

B. Refusal to Deal and Essential-Facility Principles

An inclusion monopoly can resemble an essential-facility problem where access to the dominant infrastructure is indispensable for effective competition.

The important questions are:

1. Is the facility genuinely indispensable?
2. Is duplication realistically possible?
3. Does refusal eliminate effective competition?
4. Is access technically and commercially feasible?
5. Is there an objective justification for refusal?

Competition law generally does not impose a universal duty on every dominant company to deal with competitors. The obligation becomes more significant where denial of access threatens the competitive structure of a dependent market.

C. Discriminatory Inclusion

A particularly important problem arises where a platform allows access to some firms but imposes materially different conditions on rivals.

Examples include:

• competitor receives lower API functionality;
• rival is charged higher commission;
• independent seller receives inferior ranking;
• competing application faces additional technical requirements;
• platform's own product receives automatic ecosystem integration.

Such conduct may transform an apparently neutral participation system into an instrument of exclusion.

4. Competition Concerns Created by Inclusion Monopolies

4.1 Foreclosure of Competitors

The strongest concern is foreclosure.

If participation in a dominant ecosystem is commercially indispensable, denying access can prevent competitors from reaching consumers.

The exclusion can occur through:

Direct exclusion → discriminatory access → degraded access → economic disadvantage → competitor exit

4.2 Self-Preferencing

A vertically integrated platform may simultaneously act as:

• infrastructure provider;
• marketplace operator;
• service provider;
• competitor.

It may therefore give its own downstream business preferential inclusion.

Examples include:

• preferential search ranking;
• privileged marketplace placement;
• automatic installation;
• superior API access;
• better data access;
• lower platform fees.

This creates a structural conflict between neutral ecosystem governance and vertical competitive interests.

4.3 Access Discrimination

Even where competitors are formally admitted, discriminatory conditions may substantially impair competition.

Relevant variables include:

• price;
• technical functionality;
• latency;
• data access;
• ranking;
• interoperability;
• advertising access;
• customer information.

Competition authorities may therefore need to examine quality-adjusted access, rather than merely asking whether access exists.

4.4 Excessive Participation Fees

A monopoly over ecosystem participation can potentially facilitate excessive fees.

For example, an intermediary controlling access to millions of consumers may impose:

• high commissions;
• mandatory service charges;
• technology fees;
• advertising requirements;
• payment-processing fees.

Whether such charges constitute an abuse depends on the applicable jurisdiction and economic evidence.

4.5 Tying and Bundling

A dominant ecosystem may require participation in one layer to depend upon acceptance of another service.

Examples:

• marketplace access conditioned on use of the platform's payment system;
• operating-system inclusion conditioned on default applications;
• cloud access conditioned on additional services;
• advertising access conditioned on use of a proprietary analytics system.

Such practices can extend dominance from one market into another.

4.6 Network Effects

Inclusion monopolies are particularly powerful in markets with network effects.

More participants attract more users:

More users → more sellers/developers → more services → more users

Once this feedback loop becomes entrenched, exclusion from the dominant ecosystem may become increasingly damaging.

This creates a potential competitive tipping problem.

5. Six Major Case Laws

5.1 United States v. Terminal Railroad Association of St. Louis

Supreme Court of the United States, 1912

The Terminal Railroad Association controlled critical railroad-terminal facilities necessary for competing railroads to reach St. Louis.

The Supreme Court required arrangements that prevented the terminal operators from using control over essential infrastructure to exclude competitors.

Relevance to inclusion monopolies

The case illustrates an early form of the essential-facility problem:

Control of indispensable infrastructure can confer power over whether rivals can effectively participate in a market.

It is particularly relevant where a dominant ecosystem operates infrastructure that competitors cannot realistically duplicate.

5.2 United States v. AT&T

United States, 1982

The AT&T litigation concerned the structure of the telecommunications system and the relationship between network infrastructure and competitive telecommunications services.

The eventual structural remedy separated important network functions and addressed the ability of a dominant telecommunications system to use control over infrastructure to restrict competition.

Relevance

The case demonstrates that competition concerns may become particularly serious where:

• infrastructure is vertically integrated;
• competitors depend upon network access;
• the infrastructure owner also competes downstream.

This is highly relevant to modern digital ecosystems.

5.3 Bronner v. Mediaprint

Court of Justice of the European Union, 1998

In Oscar Bronner GmbH & Co. KG v Mediaprint, the CJEU considered whether a dominant newspaper distributor's home-delivery network had to be made available to a competing newspaper.

The Court established a demanding standard for treating infrastructure as indispensable.

Key principle

The refusal must concern a facility that is:

• indispensable;
• incapable of realistic duplication;
• necessary to eliminate effective competition.

Relevance

Bronner is important because it prevents competition law from becoming a general obligation requiring dominant companies to share every commercial resource.

For inclusion monopolies, indispensability must therefore be demonstrated rather than assumed.

5.4 IMS Health GmbH & Co. KG v NDC Health

CJEU, 2004

IMS Health concerned access to a commercially important pharmaceutical data structure.

The CJEU developed the conditions under which refusal to license intellectual property could constitute an abuse.

The circumstances included:

1. indispensability;
2. elimination of effective competition;
3. prevention of a new product or service for which consumer demand existed;
4. absence of objective justification.

Relevance

The case is particularly significant for digital inclusion systems because data structures, APIs, technical standards, databases, and interoperability architectures may become commercially indispensable.

It demonstrates that intellectual-property control and competition law can intersect when exclusion from a technical ecosystem prevents effective downstream competition.

5.5 Microsoft Corp. v Commission

General Court of the European Union, 2007

Microsoft was found to have abused its dominant position through conduct involving interoperability information and the tying of Windows Media Player.

The interoperability aspect concerned Microsoft's refusal to provide sufficient information necessary for competing work-group server products to interoperate effectively with Microsoft's dominant operating-system environment.

Relevance

The case is highly relevant to inclusion monopolies because it demonstrates how technical interoperability can function as a condition of effective market participation.

The important competition issue is not merely whether competitors are technically allowed to exist, but whether they receive the information or functionality necessary to compete effectively.

5.6 Google Shopping

European Commission / General Court, 2017–2024

The Google Shopping proceedings concerned Google's treatment of its own comparison-shopping service in search results.

The Commission concluded that Google systematically gave prominent placement to its own comparison-shopping service while rival comparison-shopping services received inferior visibility.

The General Court substantially upheld the Commission's findings in 2021, and the CJEU confirmed the infringement in 2024.

Relevance to inclusion monopolies

This case demonstrates a modern form of ecosystem gatekeeping:

Search infrastructure → control over visibility → preferential inclusion → disadvantage to competing services

The concern therefore extends beyond outright exclusion. A platform can potentially distort competition by determining how prominently competitors are included.

6. Additional Important Cases

6.7 United Brands v Commission

CJEU, 1978

The case concerned United Brands' conduct toward distributors and customers, including restrictions affecting commercial relationships.

The judgment is important for the principle that a dominant undertaking can abuse its position through conduct that exploits or restricts trading relationships.

Relevance

Inclusion monopolies may similarly involve contractual restrictions imposed on dependent participants.

6.8 Magill

RTE and ITP v Commission, CJEU, 1995

The case involved refusal to provide copyright-protected television-programme information.

The CJEU identified exceptional circumstances in which refusal to license intellectual property could amount to abuse.

Relevance

The decision remains important when ecosystem participation depends upon access to information, data, or proprietary content.

6.9 Slovak Telekom

CJEU, 2021

The litigation concerned access to telecommunications infrastructure and the application of abuse-of-dominance principles to a vertically integrated network operator.

Relevance

It demonstrates the importance of analysing access restrictions where a dominant undertaking controls infrastructure necessary for downstream competitors.

6.10 Google Android

European Commission / General Court

The Android proceedings concerned contractual arrangements involving Google's Android operating-system ecosystem, including restrictions affecting competing search services and applications.

Relevance

The case illustrates how ecosystem architecture can be used to influence competition across connected markets through:

• tying;
• defaults;
• contractual restrictions;
• distribution conditions;
• network effects.

7. Analytical Test for an Inclusion Monopoly

A competition authority examining an alleged inclusion monopoly can consider the following framework.

Step 1 — Define the relevant market

Possible markets include:

• platform services;
• app distribution;
• digital advertising;
• payment services;
• cloud infrastructure;
• marketplace intermediation;
• data-access services;
• interoperability infrastructure.

Step 2 — Establish dominance

Relevant factors may include:

• market share;
• network effects;
• switching costs;
• ecosystem dependence;
• data advantages;
• entry barriers;
• economies of scale;
• interoperability advantages.

Step 3 — Identify the inclusion mechanism

Determine whether the undertaking controls:

• admission;
• ranking;
• technical access;
• API permissions;
• interoperability;
• data access;
• pricing;
• suspension;
• visibility.

Step 4 — Examine competitive effects

Ask whether the conduct:

• forecloses rivals;
• increases competitors' costs;
• reduces innovation;
• limits consumer choice;
• prevents entry;
• increases switching costs;
• protects the dominant firm's downstream business.

Step 5 — Consider objective justification

Possible justifications include:

• cybersecurity;
• privacy;
• technical integrity;
• fraud prevention;
• consumer protection;
• legitimate quality standards.

The authority should distinguish genuine technical justifications from restrictions that merely protect the incumbent's competitive position.

8. Inclusion Monopoly and Essential Facility Doctrine

The concepts overlap but are not identical.

Thus, an inclusion monopoly can exist without satisfying the strictest essential-facility test.

A platform may not possess an absolutely indispensable facility, but its ecosystem may nevertheless create substantial competitive dependency.

9. Digital-Ecosystem Dimension

Modern inclusion monopolies are especially important in digital markets because platforms can control several layers simultaneously:

Infrastructure
↓
Identity / account system
↓
Data
↓
Marketplace
↓
Payment
↓
Advertising
↓
Consumer access

A firm controlling multiple layers can potentially make inclusion in one layer conditional upon accepting restrictions in another.

This produces a form of ecosystem leverage.

10. Competition Remedies

Competition authorities may employ several remedies.

A. Non-discriminatory access

Require comparable participants to receive materially equivalent access conditions.

B. Interoperability

Require technical interfaces that allow competing services to function effectively.

C. Data portability

Reduce ecosystem lock-in by enabling users and businesses to transfer relevant data.

D. Structural separation

In exceptional circumstances, separate infrastructure operations from downstream competitive activities.

E. Transparency

Require explanation of:

• ranking criteria;
• suspension rules;
• access standards;
• technical requirements.

F. Prohibition of self-preferencing

Where legally justified, prohibit preferential treatment of the dominant firm's own downstream services.

G. Monitoring and compliance

Complex ecosystems may require continuing supervision because a platform can technically comply with a formal access obligation while still degrading practical access.

11. Key Challenges for Competition Authorities

11.1 Distinguishing legitimate standards from exclusion

Not every admission requirement is anticompetitive.

Platforms may legitimately require:

• security;
• quality;
• privacy;
• technical compatibility;
• consumer protection.

The challenge is determining whether the requirement is necessary and proportionate.

11.2 Measuring ecosystem dependence

Traditional market-share analysis may understate power where a platform has relatively modest revenue but controls a strategically important gateway.

11.3 Algorithmic inclusion

Modern inclusion decisions may be automated.

Algorithms can determine:

• search visibility;
• recommendations;
• seller ranking;
• app discovery;
• advertising access.

This makes discriminatory inclusion difficult to detect.

11.4 Dynamic competition

Competition authorities must also consider innovation.

A remedy that forces unrestricted access could potentially reduce incentives to invest in:

• infrastructure;
• security;
• software;
• interoperability;
• new ecosystem services.

12. Indian Competition-Law Perspective

In India, inclusion-monopoly concerns can principally be examined under Section 4 of the Competition Act, 2002, particularly where a dominant enterprise:

• denies market access;
• imposes discriminatory conditions;
• restricts technical or economic development;
• leverages dominance into another market;
• uses contractual or platform arrangements to exclude competitors.

The Competition Commission of India (CCI) has increasingly dealt with digital-platform questions involving:

• app ecosystems;
• online marketplaces;
• search;
• digital advertising;
• payment systems;
• platform neutrality;
• self-preferencing;
• data-related competitive advantages.

The Indian analysis should therefore combine traditional abuse-of-dominance principles with the economic characteristics of digital ecosystems.

13. Distinction Between Monopoly and Inclusion Monopoly

A conventional monopoly primarily concerns control over supply.

An inclusion monopoly concerns control over participation.

Conventional monopoly

“I control the product.”

Inclusion monopoly

“I control the gateway through which you must participate.”

The second form can be particularly significant in platform markets because the dominant undertaking may simultaneously be:

1. infrastructure provider;
2. market operator;
3. rule-maker; and
4. competitor.

That combination creates the possibility of regulatory capture of the competitive interface, even without complete exclusion.

14. Conclusion

Competition concerns in inclusion monopolies arise when a dominant undertaking acquires the ability to determine who participates, on what terms, with what functionality, and with what degree of commercial visibility.

The principal legal concerns include:

• refusal of access;
• discriminatory inclusion;
• self-preferencing;
• interoperability restrictions;
• tying and bundling;
• excessive participation charges;
• foreclosure;
• ecosystem leveraging;
• network-effect reinforcement.

The case law from Terminal Railroad, Bronner, IMS Health, Microsoft, Google Shopping, United Brands, Magill and Slovak Telekom demonstrates the evolution from traditional infrastructure-access disputes toward modern ecosystem and platform governance.

The central competition-law question is therefore not simply “Is the undertaking a monopoly?” but:

Does control over participation allow the dominant undertaking to determine the competitive conditions under which actual or potential rivals can reach the market?

Where the answer is supported by evidence of dominance, dependency, exclusionary effects, and insufficient objective justification, competition law may provide tools ranging from non-discriminatory access and interoperability obligations to behavioural or, in exceptional circumstances, structural remedies.