ARTICLES: GRATUITY - COMPETITION LAW - FREE PRODUCTS AND SERVICES - PAID PRODUCTS AND SERVICES

“Ceci n’est pas un marché”: Gratuity and competition law

An overall analysis of judicial and administrative practice, focused predominantly on EU legal orders, relating to a wide range of sectors, shows highly divergent and contradictory positions concerning the treatment of gratuity under competition law. This paper argues that competition law does not apply to truly gratuitous exchanges (de gratis non curat lex), but free products may be taken into account in the enforcement of competition law regarding paid products (e.g. when assessing market power). It is also argued that European competition law does not allow for the definition of gratuitous markets, and it is highly unlikely that free products/services can be included in markets with paid products/services.

(This is an abbreviated and revised version of the working paper M. Sousa Ferro, “Ceci n’est pas un marché”: Gratuity and competition law, 2014, available at http://ssrn.com/abstract=2493236, which includes further details on the underlying research. The author thanks Professors João Gata, John Newman, Laurence Idot, Michal Gal, Rolf Weber and Spencer Weber Waller for their helpful comments to that earlier draft of this paper. The opinions presented herein are the author’s alone, as is the responsibility for any errors.) I. Introduction 1. The offer of products and services free of charge precedes competition law. Be it with commercial intent, or to fulfill a public mission, or with an altruistic or charitable goal, a myriad of economically useful goods have been and continue to be offered

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  • New University of Lisboa - Faculty of Law

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Miguel Sousa Ferro, “Ceci n’est pas un marché”: Gratuity and competition law, January 2015, Concurrences N° 1-2015, Art. N° 70679, www.concurrences.com

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