EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Privacy is a factor in non-price competition. However, harm to privacy is not identical to harm to competition. AT rules are not tailored to deal with consumer protection problems. The relevant authorities (leaving aside the public law remit problem) are not equipped to do so either in terms of personnel or methodology. Competition law is not destined to solve privacy harms caused by pervasive information asymmetry, but it is about efficient markets. Consumer protection or special protection of private data are better suited to privacy protection. If the mixing of competition and privacy protection continues, it may mean a de facto doctrinal and jurisprudential intertwining of the protective purposes of the respective laws. One can also speak of an expansion, but also of an overlapping of protective purposes, or the addition of the protective purpose of so-called consumer welfare. Some commentators talk (in connection with well-known German Facebook case) even about an abuse of competition law and subverting competition rules which should not take over the role of better contractual regulation and action against unfair commercial practices (Bergh, Weber, p. 52). Similarly, it is argued, that AT should not be applied automatically to abuse of another branch of law and the AT control should always examine the potential harm to competition (Lypalo, p. 197). Information about market behaviour and privacy is hardly economically calculable as a consideration for free digital services, even though it is already of enormous economic value today. An extensive approach to privacy protection and broadening the content of “consumer welfare” raises a number of questions. First of all, the all encompassing regulatory expansion and blurring of boundaries of AT is dangerous. AT is not able to address all kinds of inequalities in size, power, and wealth, or even the mere threat of such inequalities without any relation to competition, but has only a very narrow scope. AT is able to solve only competition problems, or at least it has mostly done so far. Not only economic growth but also consumer welfare will be at risk if undertakings fear fierce competition and breakthrough innovation activities that could put them in conflict not only with AT law but also with privacy law. The optimal compromise (regulation) must not only be counterproductive but should be pro competitive. Appropriate, precise, targeted, and predictable regulatory instruments should be used. Attempts to use antitrust to address non-competitive issues could backfire. In this context, it is aptly argued by an analogy with the relationship of the contract law and the law of intellectual property rights to the AT: for instance, some refusals to license are perfectly legal under intellectual property law but objectionable from a competition law point of view. A decision on an infringement of EU competition law is not based on an infringement of intellectual property rights or contract law. This should be no different in cases involving data protection rules (Robertson, p. 188).

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