EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

alia , to improving the production or distribution of products or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits, may be exempted from the prohibition of such agreements. Article 102 b) TFEU prohibits abuse of a dominant position consisting, inter alia, of restricting production, markets, or technical developments to the detriment of consumers. Article 107(2)(a) TFEU then considers compatible with the internal market these forms of aid of a social character, which are granted to individual consumers based on non-discrimination origin of the products. The later EC soft-law, in line with the then “more economic approach”, has defined the consumer in the context of competition law as an economic unit. The most comprehensive approach towards consumers can be found in a still valid 2009 Guidance on enforcement priorities in the application of Article 82 of the EC Treaty (now Article 102 TFEU) to abusive exclusionary behaviour (European Commission, 2009). In its footnote 15, the EC defined the concept of ‘consumer’, which includes “all direct or indirect users of the product concerned by the conduct in question, including producers of semi-finished products which use the products as an input, as well as distributors and final consumers of the direct product and of the products provided by the semi-finished producers.” On the other hand, in the same document, the EC has provided with a second type of abuse of a dominant position, the so-called exploitative behaviour, which is directly to the detriment of (end) consumers, such as charging excessive prices. With a growing importance of cases dealing with digital giants, the question arose whether the well-being of consumers (and the whole consumer welfare concept) suits for these cases. A price-centric approach to consumer welfare may be ill-suited to a digital economy in which ‘free’ has become the norm and digital (end) consumers provide value through engagement and data. In the digital environment, where the price is often set at zero, quality forms an important dimension of competition. For example, degradation of the quality of services or product characteristics can result in harm to consumer welfare, despite the absence of price effects. A price-centric approach in such a setting fails to identify consumer harm. Enforcers need to adjust their metrics to identify fully effects on competition. The digital landscape will increasingly require enforcers to consider a range of variables that impact on welfare, even when these are not easily quantifiable (BEUC, 2019). However, so far, DG Comp and national competition authorities at least rhetorically still apply consumer welfare standard. In contrast to competition law, the regulation of end-consumer protection is detailed in case law and legislation regulate in detail and statically the various indirect subjects of consumer relations (consumer credit, travel tours, time shared ownership of immovable property, etc.) or selling techniques (distance,

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