Morality in Competition Law: The Culture of Honesty and Trust in Consumer Protection

The protection of the interests of consumers is a central aspect of all modern competition laws as well as a direct aim of consumer protection laws. However, despite being complementary in many ways, competition and consumer protection laws cover different issues and employ different methods to achieve their goals. While consumer protection rules are built upon the premise that consumers are the weaker party to transactions and should be directly protected for this reason in their dealings with traders through certain consumer rights, competition law only indirectly protects the consumers’ economic well-being by ensuring that the markets are subject to effective competition. This article explores the interplay between consumer protection and competition law in the Indian context with some comparison with the EU position, where relevant. After an examination of the relevant legislation and case law, the article finds that given that the mandate of the Competition Commission of India is to prevent practices having an adverse effect on competition, in cases of overlap between consumer protection and competition laws, the Authority should act only on the basis of adverse effects on competition. The treatment of ‘unfair trade practices’ is used to demonstrate the appropriateness of this approach.

Consumer protection law and competition law are interrelated, closely knitted, and cannot be dealt with in isolation of the other. The two branches of law are delicately intertwined and often overlap with each other and a critical assessment needs to be undertaken to fully understand and appreciate how the two laws interface with each other. These two laws have interfaced in many aspects including sharing a common purpose and their cardinal desire to promote and protect each other. It should be borne in mind that through such interface, the two branches of law either co-operate or at times conflict with each other. In interfacing, Competition and Consumer Protection laws have benefits that include realisation of a fully functioning market, an improved inflow of information, detection of anticompetitive practices, control of complicated products and services, and protection of consumers. However, the above interface has demerits. These include disincentives to invest by firms holding dominant positions, increase of “fly-by-night” operators and cropping up of unethical and criminal behaviours as firms compete with each other. To address the above demerits posed by the interface of the two branches of law, this article suggests that there should be close coordination and coherence of the two laws, use of economics based models and emphasis on consumer protection. Keywords: Consumer Protection Law, Competition Law, Cooperation, Conflicts, Tanzania.

The intricacies of unfair commercial practices within the e-commerce platforms market highlight a critical and urgent necessity for an evolution in both consumer protection and competition laws. As new consumer vulnerabilities emerge or existing ones are exacerbated in e-commerce, effective rules are needed to better protect consumers, govern businesses and regulate a healthy competitive dynamic in the market. This article examines the interplay between consumer protection law and competition law in addressing unfair commercial practices of e-commerce platforms. The large-scale deployment of unfair commercial practices by e-commerce platforms may result in anti-competitive effects, thereby undermining fair and effective market competition. Yet, in the ASEAN region, unfair commercial practices often fall under consumer protection law rather than competition law. A lack of synergy between consumer protection law and competition law undermines the regulatory efforts in promoting fair market practices. This paper employs qualitative content analysis with comparative analysis of the ASEAN countries’ competition law development, highlighting the importance of regulating unfair commercial practices in preventing anti-competitive effects and promoting fair market competition in the e-commerce platforms market.

The significance of consumer protection in achieving sustainable development goals is a critical element in stimulating a more dynamic and competitive digital economy. Consumers are the major economic participants in the economy with an active role in the digital marketplace, the participation of responsible platforms' businesses, and the empowerment of responsible consumers contribute directly toward achieving sustainable development goals. Consumer protection and competition law are intertwined with both focusing on consumers as the key stakeholder. This chapter focuses on the interplay between consumer protection law and competition law in the e-commerce platforms economy, highlighting the trade-off for e-commerce in sustainable consumption and production, and how reconsidering competition law in e-commerce platforms could enhance sustainable consumption and production.

This article analyzes the interaction of EU competition, consumer and data protection law in the digital economy. We compare the objectives, rules and enforcement structures of these legal regimes, and we discuss market failures that justify regulatory intervention in digital markets. In particular, the Facebook investigations in Germany and Italy are selected as a case study. The Bundeskartellamt’s investigations are remarkable, being the first in which an exploitative abuse of dominance involving a digital platform has been decided under competition law. These we compare with their Italian counterpart, where the AGCM has recently sanctioned Facebook for behavior similar to that investigated in Germany. Yet, the Italian case has been decided under consumer, rather than competition law. This shows the regulatory dilemma faced by European antitrust authorities, which are currently struggling to find a solution to the market failures arising in digital markets.

The Interaction of EU Competition, Consumer, and Data Protection Law in the Digital Economy: The Regulatory Dilemma in the Facebook Odyssey

The article deals with the issue of referrals to the study of criminal law as sources of inspiration for the enforcement of public law rules of competition and consumer protection (Act of February 16, 2007, on Competition and Consumer Protection (Journal of Laws of 2021, item 275) (oukk)). It is now widely accepted in antitrust jurisprudence that although the liability of the parties to the proceedings before the President of the Office of Competition and Consumer Protection (UOKiK) is not of criminal nature, and fines imposed by the President of UOKiK are not penalties within the meaning of the Criminal Code, the rules of judicial verification of the correctness of UOKiK’s decisions imposing these sanctions should meet the requirements analogous to those applicable by a court adjudicating in a criminal case. However, while there is little doubt that antitrust authorities should be required to apply standards of protection of fundamental rights as derived from the study of criminal law and international sources (European Convention on Human Rights, Charter of Fundamental Rights), the issue of transferring to competition and consumer law other standards recognized in criminal law remains open. The current jurisprudence contains divergent positions on this issue. The Supreme Court emphasized that „there are no justified grounds for applying the provisions of the general part of the Penal Code under the regime of administrative liability” (case I NSK 4/18). On the other hand, it approved references by analogy to the solutions taken from the Criminal Code in the absence of similar provisions in the uokk (case I NSK 8/19) or in cases where competition law uses concepts taken from criminal law (case I NSK 62/18). The article presents both of the jurisprudence lines mentioned above. In addition, the article point outs issues of competition and consumer protection law in the case of which, in the author’s opinion, the use of concepts derived from the study of criminal law would be justified.

This article assesses the consolidation of competition and consumer protection regulation through an analysis of the institutional framework established by the Nigerian Federal Competition and Consumer Protection Act of 2019. While such a consolidation is not uncommon, it still raises the question as to whether the approach is practical. The article argues that while competition and consumer protection regulation have a common purpose, they are two distinct areas of the law which require separate application and enforcement. To this end, the article discusses the pros and cons of the consolidated approach adopted by Nigeria. Comparisons are drawn with regard to South Africa, where the regulation of competition and consumer protection law remains separated as seen in the Competition Act 89 of 1998 and the Consumer Protection Act 68 of 2008. The article finds that Nigeria’s first coherent competition legislation may have been better off without this consolidated approach.

Contents: Preface PART I: ECONOMIC FOUNDATIONS OF COMPETITION LAW 1. Are People Self-interested? The Implications of Behavioral Economics on Competition Policy Maurice E. Stucke 2. Consumer Choice as the Best Way to Recenter the Mission of Competition Law Robert H. Lande 3. Protecting Consumer Choice: Competition and Consumer Protection Law Together Neil W. Averitt 4. Is Competition Law Part of Consumer Law? Paul L. Nihoul PART II: INDIVIDUAL JURISDICTIONS AND INTERNATIONAL PERSPECTIVES 5. Resale Price Maintenance: A Reassessment of its Competitive Harms and Benefits Marina Lao 6. The Leegin Case: A US Antitrust Chief Event versus a Storm in a European Teacup? Josef Bejcek 7. Competition Law Issues Concerning Related Markets and their Treatment under EU Competition Law Thomas Eilmansberger 8. A Comparative Look at the Competition Law Control of State-owned Enterprises and Government in China Deborah Healey 9. Australia's Criminalization of Cartels: Will it be Contagious? Caron Beaton-Wells PART III: INTELLECTUAL PROPERTY AND COMPETITION LAW 10. Patent Ambush Strategies and Article 102 TFEU Andreas Fuchs 11. Three Statutory Regimes at Impasse: Reverse Payments in Pay-for-Delay Settlement Agreements between Brand-name and Generic Drug Companies Rudolph J.R. Peritz 12. Patent Ambush and Reverse Payments: Comments Gustavo Ghidini 13. Intellectual Property in Competition: How to Promote Dynamic Competition as a Goal Josef Drexl 14. Industrial Standards and Technology Pools: A Regulatory Challenge for EU Competition Law Steven Anderman PART IV: PROMOTING COMPETITION POLICY NATIONALLY AND ACROSS BORDERS 15. International Antitrust Solutions: Discrete Steps or Causally Linked? Michal S. Gal 16. Penumbras of European Union Competition Law: External Governance, Extraterritoriality, and the Shifting Borderlands of the Internal Market Clifford A. Jones 17. The Role of Non-governmental Organizations in the Development of Competition Law Albert A. Foer Index

The article discusses the issue of legal liability of managers set out in the Polish competition and consumer protection law, resulting from the Act of 16 February 2007 on competition and consumer protection (Dz. U. (Journal of Laws) of 2021, item 275) (hereinafter: Competition Act). The starting point for my reflections is the provisions of the Competition Act providing for financial liability of persons in managerial positions for infringing prohibitions resulting from competition law (Article 106a of the Competition Act). In Polish law this type of liability is subsidiary to the liability of undertakings. It was also introduced to the Competition Act relatively recently, after the principles of undertakings’ liability for infringements of competition law had been formed and developed. My goal is to present the scope of managers’ liability and present conclusions resulting from the recent, still rather innumerable, case law of the Polish Competition Authority (President of Office for Competition and Consumer Protection, UOKiK). Due to the quasi-criminal nature of Article 106a, I propose my own reflections on the development of managers’ liability considering whether the law and judicial decisions recognize adequate standards of their rights.

In his seminal article ‘The Limits of Antitrust’, Easterbrook argued that ‘when everything is relevant, nothing is dispositive’; therefore, when applying competition law, judges should resort to clear presumptions rather than balancing the proand anti-competitive effects of particular conduct. In the intervening 20 years, much ink has been spilled on the issue of whether competition law should take into consideration wider policy objectives. This discussion has been given renewed impetus in recent months following the publication of a ‘preliminary opinion on the intersection of data protection, consumer protection and competition law’ in March of this year by the European Data Protection Supervisor (EDPS). The publication of this report was followed by a workshop held under Chatham House rules in Brussels in June, a summary of which was published by the EDPS in July. The report reflects lively discussions on several issues familiar to data protection experts, such as the role of personal data in the digital economy and how to foster privacy as a competitive advantage. However, it also serves to launch a debate regarding matters which have been overlooked or unsubstantiated thus far. Most significantly, the report queries whether the traditional tools of competition law, which focus on parameters such as price, quality, and choice can explain the impact of certain business practices on data protection and privacy. It also questions ‘wider issues’ in competition law enforcement, for instance whether the Commission’s current case-by-case approach is correct in the digital environment or whether specific guidelines or a study should be introduced to inform authorities dealing with antitrust and merger cases involving personal data. These are queries which need to be addressed and the EDPS is to be applauded for kick-starting this discussion, whatever its outcome. Many of web 2.0’s datacentric services are two-sided platforms which are characterised by network effects: the more users they have, the more users they acquire. This leads to winnertakes-all markets which makes the application of key data protection concepts, such as consent, more difficult. Quite simply, individual control over personal data (or ‘informational self-determination’) becomes illusory when individuals are dealing with monopolies. For this reason, competition law is frequently depicted as the silver bullet which will render data protection rules more effective by injecting competition into monopolised markets and facilitating individual choice. However, that competition law can or even should play this role is contested by experts in that field. A discussion on the potential—and limits—of competition law was therefore conspicuously lacking until the EDPS initiative in March. Nevertheless, it is not yet apparent whether, and if so how, the two fields actually intersect. In recent years, the enforcement activity of DG Competition has been guided by a consumer welfare standard, according to which competition law should seek to deliver benefits to consumers in the form of ‘lower prices, better quality and a wider choice of new or improved goods and services’. This approach assumes that consumer welfare is negatively affected only when a particular practice has the effect of foreclosing an equally efficient competitor

The aim of this article is to analyse different goals of the competition law, which are established in European Union and Lithuania. EU Commission and the Court of Justice distinguish a number of goals of the competition law. Most commonly, mentioned goals of competition law are the following: the integration of the Internal Market, the protection of consumers, protection of the competitors, freedom of competition and economic efficiency. Different goals of competition law are analysed in this paper and relationship between them is explained. Special attention is given to the analysis of protection of the consumers as one of the main objectives of competition law. While analysing protection of the consumers in competition law, a difference between the concept of consumer in competition law and consumer protection law is explained. The authors express a number of critical thoughts towards practice of the EU Commission and the Court of Justice so far, as there is a lack of consistency in evaluation of the protection of consumers’ rights in the context of the other objectives of competition law. Relevance of the present article is supported by the several facts such as revision of the competition law goals by the EU Commission and adoption of resolution “Concerning priority of the activities of the Lithuanian Competition Council” by the Lithuanian Competition Council that establishes main principles (priorities) applied while implementing competition policy in Lithuania. Setting out the main goals in Lithuanian competition law may have important practical consequences in the everyday activities of the Lithuanian national competition authority.

This article explains the consumer protection and competition law rules that apply to dynamic pricing in the United Kingdom. It describes the framework for assessing dynamic pricing under current and incoming UK legislation (including the Digital Markets, Competition, and Consumers Act 2024). It explains what dynamic pricing is, and how this has to date been regarded by the Competition and Markets Authority and other agencies. It then provides a summary of potentially applicable competition and consumer rules. Finally, it sets out a list of recommendations for businesses considering dynamic pricing strategies.

The Article describes the impact of artificial intelligence in different areas of the civil law, namely tort law, contract law, antitrust law and consumer protection law. It shows that the use of artificial intelligence already leads to legal constellations, which cannot longer easily subsumized under elementary terms of the civil law and therefore cause a real disruption in the civil law. Terms, which are based on a freedom concept of the subjective rights of the actors, such as private autonomy and contractual will not fit anymore to the activity of artificial intelligence systems the more those systems are able to act independant of human actors. Similar applies to terms which are referring to the freedom of decision like the market behaviour in the competition law. The article discusses several solution approaches, such as personification approches, agent-principal approaches and the definition of new categories of market and contractual acting. In the consumer protection the special focus in the future legal development will be on the problem how to achieve adequate, though not overflowing, transparency for consumers, especially regarding the combination of big data and algorithms.

Pre-Formulated Declarations of Data Subject Consent Citizen-Consumer Empowerment and the Alignment of Data, Consumer and Competition Law Protections