Towards Smarter Regulation in the Areas of Competition, Data Protection and Consumer Law: Why Greater Power Should Come with Greater Responsibility

Sean Van Berlo,Inge Graef

doi:10.1017/err.2020.92

Abstract

Based on a mix of conceptual insights and findings from cases, this paper discusses three ways in which the effectiveness of regulation in the areas of competition, data and consumer protection can be improved by tailoring substantive protections and enforcement mechanisms to the extent of market power held by firms. First, it is analysed how market power can be integrated into the substantive scope of protection of data protection and consumer law, drawing inspiration from competition law’s special responsibility for dominant firms. Second, it is illustrated how more asymmetric and smarter enforcement of existing data protection rules against firms possessing market power can strengthen the protection of data subjects and stimulate competition based on lessons from priority-setting and cooperation by consumer authorities. Third, it is explored how competition law’s special responsibility for dominant firms can be further strengthened in analogy with the principle of accountability in data protection law. Similarly, it is discussed how positive duties to ensure fair outcomes for consumers are developed in consumer law. The analysis offers lessons for improving the ability of the three regimes to protect consumers by imposing greater responsibility on firms with greater market power and thus posing greater risks for consumer harm.

Highlights

Debates about the protection of consumers are often dominated by concerns relating to the practices of powerful firms whose activities reach large groups of consumers and thereby create high risks of consumer harm
While EU competition law imposes additional restrictions on the behaviour of dominant firms through the abuse of dominance prohibition of Article 102 of the Treaty on the Functioning of the European Union (TFEU), the regimes of EU data protection and consumer law apply to all firms without tailoring their obligations to a firm’s market share or scope of activities
Based on an analogy with the role of the special responsibility applicable to dominant firms in EU competition law, this paper explores to what extent stricter obligations for stronger market players can already be derived from current data protection and consumer law

Summary

INTRODUCTION

Debates about the protection of consumers are often dominated by concerns relating to the practices of powerful firms whose activities reach large groups of consumers and thereby create high risks of consumer harm. This is reflected in current policy discussions at the European Union (EU) level where the introduction of asymmetric regulation only applicable to “gatekeeping platforms” is considered. Based on a mix of conceptual insights and findings from concrete cases, the paper discusses three ways in which the effectiveness of regulation can be improved by tailoring enforcement approaches to the extent of market power held by firms.

INTEGRATING MARKET POWER INTO THE SUBSTANTIVE SCOPE OF PROTECTION

28 Press release European Commission “Antitrust

TOWARDS MORE ASYMMETRIC AND SMARTER ENFORCEMENT

Enforcement priorities in consumer law

Impact of effective enforcement of GDPR’s principle of purpose limitation

FROM NEGATIVE DUTIES TO REFRAIN FROM BEHAVIOUR TO POSITIVE DUTIES TO

Expanding competition law’s special responsibility

Positive duties in consumer law

CONCLUSION