EU ANTITRUST: HOT TOPICS & NEXT STEPS
EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022
disruption and ensure dynamism, while ultimately safeguarding consumer interest; or should one take measured action, with the aim of protecting consumer welfare and well-being, and ensure the competitiveness of markets as well as the mitigation of negative externalities? BEUC’s report on competition in the digital era (BEUC, 2019) was a contribution to this important debate where we called for an informed evolution of enforcement priorities, enforcement capacity and substantive theories of harm. We stressed that it should be a careful evolution that respects the need to maintain investment and innovation incentives and allows the market to flourish. Nonetheless, it should be an evolution that acknowledges changing market realities, the need to move beyond narrow price-centric analysis, and the necessity to rapidly adapt. In the context of that evolution, competition authorities should clearly see beyond the smoke screens and delaying tactics deployed by the large digital platforms and should appreciate that in the dynamic environment in which those platforms operate, the failure to act in a timely manner could have essentially the same effect as not acting at all. Therefore, we believe that the consumer welfare and wellbeing benchmarks, as well as other normative goals and values, provide a flexible instrument which can, first, address both price and non-price welfare effects onmultiple and diverse groups of customers; second, target, in combination with data protection and consumer law, practices which exploit consumers through profiling, discrimination, use of asymmetric information and asymmetric bargaining powers; third, address attempts to distort the competitive landscape; and finally, to tackle exclusionary practices and target the intentional introduction of friction to distort competition. When we consider the concept of consumer welfare, it is crucial to go beyond the mere aspect of price, consumers also benefit from competitive markets on the basis of choice, product we need to go beyond price: consumers benefit from competitive markets on the basis of choice, quality and innovation. All these criteria will become more important than ever in the digital economy. Nonetheless, when we start to consider and reflect on the scope of EU competition law, it is necessary to bear in mind that the latter is rooted into sui generis nature of the EU’s political, social, and economic agenda. The legal regime governing the Union includes specific references to the Union’s aims to promote, among other things, “the well-being of its peoples” and to ensure “an open market economy with free competition”. These aims include “a fair playing field” in which consumers are protected (European Union, 2012). As then Commission President Juncker said in its 2016 State of the Union address, “This is the social side of competition law. And this is what Europe stands for” (Juncker, 2016). The diverse objectives of European competition law embody certain trade-offs echoing the different values of the union.
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