EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

non-permanent establishment, etc.) and are intended to ensure continued legal certainty for all end consumers (Šmejkal, 2012). 3.2 Threats in the digital sector and what are the regulators doing to defend digital end consumers The rapid development of consumer services provided via the internet in digital markets has become an important milestone in rethinking the relationship between competition and the protection of end consumers. Providers of these services (‘online platforms’) collect and process a huge amount of personal data of end consumers, who do not have control (and sometimes the need for control) over their personal data and become increasingly dependent on online services. These developments have shifted the focus of competition law to the end “online” consumer in the digital field. In particular, the collection, processing, and subsequent use of the vast amount of personal data of end consumers are in the focus. Overall, the digital landscape cumulates negative characteristics that differentiate digital market from other markets. These negatives include excessive big data collection and processing, abuse of network effects, platform exclusionary practices, self-preferencing, exploitation of upstream providers, discrimination, and some others. As a response, the EC and national competition authorities have responded in two ways – with increased efforts to investigate cases of abuse of dominant position in the digital sector and with preparation of ex ante regulation of the digital sector. On the national level, one of the first competitive decisions in this area was the 2019 German Bundeskartellamt decision (Bundeskartellamt [online], 2019, p. 27) prohibiting Facebook from making the private use of Facebook’s social network subject to the collection of data from private users. This makes the private use of Facebook’s social network conditional on the aggregation of information stored on Facebook’s social network user accounts with information collected on websites visited or on third-party mobile applications used through programming interfaces and using that data without the consent of users (Musil, 2019, p. 13). Germany has also adopted several amendments to its anti-monopoly law with a view to tackle anticompetitive practices in the digital sector (Bundeskartellamt [online], 2021, p. 31). The EC has gradually opened investigations against possible anticompetitive practices of all the GAFAs (Google, Apple, Facebook, Amazon). In 2020, the EC has opened three cases against Apple: Apple mobile payments in case of potential abuse of dominance of Apple pay practices (European Commission Apple mobile payments [online] 2020) and two cases of a potential abuse of dominance of app store practices (European Commission Apple e-books and Apple music streaming [online], 2020).

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