EU ANTITRUST: HOT TOPICS & NEXT STEPS
EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022
Commission, 2020a) and Digital Services Act (European Commission, 2020b). Still, in competition law the anticipatory approach is novel.
4. Conclusion Changes could be done to the understanding and definition of consumer welfare in the EU competition law which would denote moving away from economic harms to the consumer in the form of paying high prices for the product, having not enough choice of products etc. to the harm in the form of having no influence of what happens to my personal information. Here, data is not given away freely and with a clear purpose etc., a consumer is not worse off because they are paying too much for the product but the harm to them cannot be easily grasped and monetized. According to Ezrachi and Stucke (2018) ‘the design of competition law should be based on its core values which are dependent on ‘what do we, as a society, want to promote’ (ibid., 1-2). Enhancing self-determination of data would make people feel safer and that they have more control over own data. However, what would this self-determination denote in practice? It would denote that consumers could decide whether they would prefer to receive a more personalized service and consequently give more of their data away as a payment for this personalized service or whether they prefer to give less data away and receive less personalized service. This would lead to increased consumer welfare in competition terms. Such a standard increases a more conscious choice and more autonomy of consumers. Recognizing self-determination as a dimension of consumer welfare would also constitute some kind of form of nudging of gatekeepers into specific, preferred – in the light of competition law – behaviour. Acknowledgements This article was created within the project on “Potential and Boundaries of Algorithmic Transparency” funded by the Academy of Finland, decision no. 324116 (2020). The article has been inspired by the comics that have been as result of discussions by the group of researchers at the Legal Tech Lab, University of Helsinki. The author of the comics is Annukka Mäkijärvi, the discussants include among others, Jenni Hakkarainen, Suvi Sankari, Riikka Koulu, Ida Koivisto, Tuulia Karjalainen, Béatrice Schütte, and others. I would also like to thank for comments Susanna Lindroos-Hovinheimo, Miikka Hiltunen, Jaakko Taipale, Sofia Söderholm.
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