EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

help to maintain or even raise barriers to entry for rivals and ultimately limits the competitive pressure on the incumbent platform. This problem is compounded by the presence of “Big Data” which drives to a significant extent the innovation in the digital economy. Big Data has become an essential asset for big and small companies alike. The algorithms developed and constantly improved by digital platforms allows them to optimise the use of the data they collect and to identify with ever-better precision what consumers need and want. While product recommendations can help consumers and save them time and effort, overreliance on algorithms and Big Data can lead to demand estimation and price optimisation that would be detrimental to consumers. Ultimately, one can identify worrying trends where digital platforms can determine each consumer’s willingness to pay and charge them the highest possible price while they remain unaware that another customer purchased the same product at a cheaper price. Here as well, one can identify worrying trends such as demand estimation and price optimisation and identification of biases to power exploitative practices. Second, large online platforms have spent a lot of time and resources in developing a controlled ecosystem – or “walled garden” – where they are able to unilaterally set the rules and enforce them. These controlled ecosystems have come to play a significant role in the digital environment; companies rely on those ecosystems to offer their products and services, and consumers use them to access those products and services. However, because of the unilateral nature of walled gardens, consumers face asymmetric information regarding costs, benefits, and available of outside options. This is the crux of the Commission’s argument in the Android (European Commission, 2018) and the Google Shopping case (European Court of Justice, 2021) where Google respectively attempted to hide rival search engines and rival online search comparison websites. Apple also tightly controls its ecosystem purportedly to the benefit of users’ security and privacy, but with important negative effects on consumers and app developed as alleged by the Commission it is pending cases on music streaming services (European Commission, 2021) and Apple Pay (European Commission, 2020a). Users are often locked into one platform or provider or are subject to its control and possible use of manipulative techniques. Amazon has implemented a two-fold strategy based on “dark patterns” to entice consumers to become Amazon Prime members and to dissuade them from cancelling their Prime membership (Forbrukerrådet, 2020). These manipulatives techniques are the subject of a complaint launched by the Norwegian Consumer Council last year (Forbrukerrådet, 2021). The controller of such ecosystem might spend time and resources to ensure continued engagement on the part of the consumers since such engagement generates the data that constitutes profit-making activities of the platform. In addition, the controller may seek to combine together the data

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