In Fairness We (Should Not) Trust: The Duplicity of the EU Competition Policy Mantra in Digital Markets

Abstract

Fairness is not foreign to competition law and fairness considerations are not new to it. However, the endemic uncertainty on its notion has traditionally made fairness unsuitable to act as a stand-alone applicable legal standard. Indeed, antitrust enforcers have usually been reluctant to engage with the unfairness of terms and conditions. Nonetheless, against the perceived undue corporate power and market concentration in the digital economy, fairness has recently gained center stage in the policy debate, especially in Europe where recent regulatory interventions have been declared to be aimed at promoting fairness in digital markets. Against this background, the article attempts to demonstrate that the vagueness and ambiguity associated with its meaning may make fairness particularly attractive to policy makers and that, accordingly, the revival of fairness risks being simply functional to grant them more discretion and room for intervention. JEL codes: K20, K21, L40, L50