EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

While enhancement of consumer welfare has been one of the goals of the EU competition law, next to economic freedom and market integration, however it has not been supported in positive law. Enhancing consumer welfare denotes the need for lower prices, increased quality as well as increased choice and innovation on the market ( Helberger et al. , 2021, p. 151). Similarly, a lack of self determination impairs consumer welfare, that is their choice, where consumers are worse off due to the lack of autonomy, lack of privacy, suffering due to the lack of transparency they face. This in result affects consumers’ behaviour where they are more prone to sharing their data with dominant online platforms without a deeper consideration. However, including such a consideration in the notion of consumer welfare requires widening discretionary limits of consumer welfare, which seems inevitable in the environment of digital platforms. Before the existence and popularity of online platforms, consumer welfare was not concerned with the loss of autonomy or privacy of a consumer as it is originally concerned with monetary harm, one that can be measured in euros etc. Here, the concern touches directly upon agreeing to data collection by a dominant online platform, and this shifts the analysis to the area of competition law. This is because of some working principles that limit the purpose of data gathering such as purpose limitation principle etc. However, the execution of this principle has been in the hands of controllers/co-controllers and the responsibility has been on companies, and such an issue has not been a concern of public competition authorities. Where we are talking about data collection by dominant companies, even where it is done in accordance with GDPR, that is on the basis of consent given to a dominant platform for the collection of data of its users, however, the question arises whether this consent is strong enough and how it affects the self-determinantion of consumers where they are only faced with two options, (1) consent to the terms and conditions, or (2) not use the services of an online platform at all. In terms of autonomy, the right to choose is already a big step forward. However, what does this autonomy denote in the context of excessive data collection? How much autonomy should be given to consumers of dominant platforms? Or is in fact too much autonomy given to consumers when the decision to give their data away or not is based on too much information that needs to be processed before consenting to the terms and conditions which they rarely do (information dumping on consumers). Would autonomy in this context denote that a consumer has more choice than only using Facebook according to the terms and conditions it offers and get the full personalized experience or do not use it at all? Instead, some options in between could be offered, i.e., different levels of personalization would denote different amounts of data being given away. However, could we leave such a decision to consumers?

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