A Reconception of Power in Competition Law with Its Application in the Digital Realm

Abstract As a fundamental concern of competition law, the concept of power remains inadequately understood. The limitations have become increasingly evident in the digital economy realm where new challenges have often not been addressed promptly, coherently, and effectively. Although new theories and analytical tools have been proposed, they frequently result in overlaps and gaps. There is a pressing need to establish a more coherent theoretical foundation that integrates traditional and emerging theories of power. Tapping into legal philosophy and global empirical evidence, this article proposes a reconceptualization of power as an overarching theoretical framework. This reconceptualization differentiates between power as capacity and its exercise, classifies the various forms of power exertion, and identifies several distinct types of power. The reconceptualization elucidates how different types of power—such as economic, political, informational, and technological—all contribute to power dynamics in markets. By broadening the dimensions of power analysis in competitive assessment, the proposed understanding of power frees legal discourse from the limitations of a purely economic perspective. The Facebook/WhatsApp merger is analysed as an illustration. However, the proposed conception is also relevant for assessing other competitive issues, such as the power interplay between economic and noneconomic factors like privacy and personal data protection, and democracy.