EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

that many of the insights derived from behavioural sciences will shed light on how certain practices can harm consumers and markets alike. As confirmed in the judgement of the General Court in the Google Shopping case (European Court of Justice, 2021), the way consumers behave matters. It is crucial that we consider and assess the implications for competition of how companies are manipulating consumers and taking advantage of their human cognitive biases in order to gain an anti-competitive advantage over their rivals. We have so far praised competition law, but one should not forget that the latter cannot solve all and every societal problem by itself. First, it is not the role of competition authorities to take decisions that have a profound societal impact or that belong to democratically elected institutions. Antitrust enforcement is a case-specific tool, and it should remain like that way. Cases and decisions create precedents that can guide firms about their future conduct, but it should become a substitute for fully-fledged legislation with its erga omnes effect. Second, legislation should be considered to address specific behaviours or practices that society as a whole considers undesirable. The General Data Protection Regulation (GDPR) (European Parliament and Council of the European Union, 2016) illustrate this policy choice made by the elected representatives to sacrifice some efficiencies in favour of the protection of personal data and privacy as fundamental rights. Such important policy decision should be left to the legislature. Legislation may also have strong pro-competitive effects; such was the case with the Payment Services Directive 2 which promoted open banking (European Parliament and Council of the European Union, 2015), the Type Approval Regulation (European Parliament and Council of the European Union, 2018) on access to in-vehicle data for repair and maintenance, or the new pharmaceutical rules on stockpiling to allow earlier entry of generics in the market (European Parliament and Council of the European Union, 2019). 4. The (complementary) role of regulation Against this background, a pertinent question is how to legislate or adapt existing legislation and enforce the law while creating predictability and legal certainty for companies while encouraging markets to generate positive externalities. Europe is a frontrunner in thinking about the regulatory framework that is needed to tackle complex societal challenges. The GDPR is often cited as an example but there have been other extremely important developments in the fields of competition, consumer, and internal market law. Nonetheless, with the benefit of hindsight, one can identify two mistakes when considering regulation in the digital era. The first error was to have considered these areas of law in isolation, both at the level of law-making and enforcement. For example, due to the distribution of competences between the different DGs in the Commission

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