EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

The sober statement should be followed, that we do not need to look to competition enforcement to fix privacy problems, which doesn’t mean ignoring genuine competition issues just because they have a link to data (Vestager, 2016). In line with this position, the European Court of Justice adheres to more competitive considerations and, unlike German practice, abstains from normative considerations (Weck, Reinhold, p. 706).The view that the German BGHmanaged in the Facebook case to “integrate other objectives besides purely anticompetitive behaviour, namely the right to informational self-control and data protection” ... and that AT, therefore, “remains a suited tool within the legal competition for how to regulate social media” (Lepsius, p. 569) is rather dissenting in the literature, which tends more to the view that “Far from uniformly mutually reinforcing, AT law and privacy law are often a cross purposes” and that “markets, and therefore AT, cannot address the failure of policy makers to provide legal protection for privacy rights or address the public interest in personal privacy” (Alexander, p. 5, 7). Hardly anyone will downplay consumers’ concerns about how their personal data is being handled. There is no denying that digital players should be held accountable for privacy breaches. But “AT laws are not an appropriate vehicle for that social goal” (Harkrider, p. 43). It is neither reasonable to view AT as a privacy tool, nor to promote the separatist approach that data protection should play no role in AT and competition policy. Rather, “to the extent that market power or harm from anticompetitive conduct takes the form of data exploitation and privacy degradation, AT and privacy law should recognize them (Alexander, p. 15). AT law cannot be burdened (as in the case of other “exogenous” influences) with the task of performing all sorts of “public interest” tasks according to a political will that never existed in AT and for which AT was not intended. AT law cannot pursue (similarly as in the case of other “exogenous” influences) such public interest tasks (according to political or media and populist orders) that never existed in AT and for which AT was not intended to perform. If other considerations and interests outweigh the interest in protecting competition, they should be addressed by the legislature as part of the balancing of public interests, not by ad hoc “cannibalisation” of another public interest. AT agencies and courts are supposed to focus on assessing the competitive impact of the conduct under investigation and it is not up to them to balance privacy and antitrust considerations. 5. Conclusions AT is able to face the contemporary “endogenous” challenges of today, caused mainly by technological development, and to adapt organically while preserving its essence. It is not a revolution, but an evolution, albeit perhaps a rapid one. AT is capable of developing the necessary tools for its enforcement. It is a difficult task,

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