In our recent joint submission to a call for evidence, ARTICLE 19 and partner organisations urge the European Commission to adopt a balanced approach to enforcement of competition law involving both effects and object-based analysis of conduct to expand the existing framework for assessment to better reflect the wide range of potential objectives for competition policy, and to include exploitative abuses among the enforcement priorities under Article 102 of the Treaty of the Functioning of the European Union (TFEU). In a parallel standalone submission, we emphasise the importance of scrutinising the impact of tying and bundling practices on consumers’ rights, including freedom to choose and freedom of expression.
The European Commission issued a call for evidence, which closed on 24 April 2023, as it plans to adjust its guidelines for the implementation of Article 102 of the TFEU. Article 102 TFEU prohibits companies in a dominant position from abusing their power to the detriment of competitors and consumers alike. As such, it is key to promoting fair and competitive digital markets, where the right to free expression online is adequately guaranteed to all consumers.
In our joint submission, we welcome the European Commission’s plans to shift away from the ‘as efficient competitor’ test as a means of establishing exclusionary abuses. This change will allow understandings of abuse to move beyond narrow, price-focused conceptions and focus on other key contextual factors that similarly harm competition. However, we urge the Commission to go further. Our recommendations include:
- Move beyond the consumer welfare standard and set out tools and frameworks that better reflect the wide range of potential objectives for competition policy.
- Include exploitative abuses in the enforcement priorities.
- Tackle dominance at source by outlining structural as well as behavioural remedies and preventing mergers and acquisitions from securing or entrenching dominant positions.
In our parallel standalone submission, we focus more explicitly on the severe under-enforcement of Article 102 TFEU in situations of exploitative abuses towards consumers. Widespread exploitative practices adopted by dominant players across digital markets give consumers no choice about the unfair conditions imposed on them and ultimately limit their choices when it comes to data protection, free expression, and privacy. We call on the European Commission to look at these exploitative practices and take into account their broader impact on consumers’ rights. We also make specific suggestions with regards to tying and bundling conduct in social media markets, which we believe to be among the most detrimental for consumers’ freedom of expression online.