EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

without valid options to choose from. To benefit from personalized products that are unique and relevant to the particular consumer this consumer has to agree for data gathering by Facebook. However, where online platforms and their enormous impact on our social life show that the classical focus on seeing people as rational consumers, or the focus on seeing competition harm as connected to the loss that derives from high prices, less choice or not enough innovation has to broadened in technological markets (see e.g., Lianos, 2013). It seems that the approach that self-determination over ones’s data could be seen as a dimensions of consumer welfare, in particular, the increased consumer choice. In fact, the Digital Markets Act sets as its expected results and impacts “interventions aiming at increasing the contestability of the digital sector would have a significant positive and growing contribution to achieve all of the potential benefits of a Digital Single Market, also resulting in lower prices and greater consumer choice, productivity gains and innovation” (European Commission, 2020a, Article 14.3.). Therefore, the increased consumer choice is explicitly mentioned as a goal of a specific EU competition policy that aims at dominant online platforms. What is more, references to online platforms impairing consumer choice by their operations can also be found in the recent ruling of General Court on Google Search ( Google and Alphabet v Commission , 2021, paras. 556 and 558). The problem of consumer choice was also originally tackled by Bundeskartellamt in its Facebook investigations where it has been pointed out that the choice for the user is either to accept ‘combination of data or to refrain from using the social network (…) the consumer’s choice cannot be referred to as voluntary consent’ (Bundeskartellamt, 2019, p. 2). Enhancing individual’s right to self-determination would denote making the well-being of individual a goal of competition law and it could be done by means of self-determination. Self-determination can be actually be made up of a harm a of many individual well beings, where some will be worse off than others, still all of them are kind of left without choice – here – whether they prefer to give their data away and receive more personalized Facebook – social media or not. This problem could be solved in the form of a “personalized welfare standard” to accommodate abuses involving data extraction that are based on the provision of personalized services. This would lead to increased consumer sovereignty and freedom of choice (Graef, 2021, p. 474). Self-determination denotes that we need to look at the choice of a consumer as to what data they wish to reveal and what can it be done in the future ex ante . However, competition law is inherently ex post focused. Nevertheless, an ex ante approach is already existing as regards mergers, as well as to be introduced later on by means of new legal proposals of Digital Markets Act (European

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