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

• Published date: 01 December 2023
• DOI: http://doi.org/10.1177/0003603X231200942
• Author: Giuseppe Colangelo
• Date: 01 December 2023
• Subject Matter: Articles

https://doi.org/10.1177/0003603X231200942

The Antitrust Bulletin

2023, Vol. 68(4) 618 –640

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DOI: 10.1177/0003603X231200942

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Article

In Fairness We (Should Not) Trust:

The Duplicity of the EU Competition

Policy Mantra in Digital Markets

Giuseppe Colangelo*

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

Keywords

competition policy, digital platforms, fairness, efficiency

I. Introduction

Within the lively debate sparked by the emergence of digital markets and platform business models, a

particular role has been assigned to fairness as guiding principle of competition law enforcement. The

motivation behind the revival of fairness is the dissatisfaction with the profit allocation in digital ser-

vices and, against the undue corporate power and market concentration, fairness is invoked as the cure

for bigness.

This is particularly apparent in the European Union, where recent legislative initiatives are explicitly

declared to be aimed at promoting fairness in the digital economy. Such request is invoked against the

gatekeeping position earned by a few large online platforms (Big Techs), which allow them to exert an

intermediation power vis-à-vis business users. Serving as an important gateway for business users to reach

end users, these platforms often represent unavoidable trading partners and may exploit their superior

*Department of Mathematics, Computer Science, and Economics, University of Basilicata, Potenza, Italy

Corresponding Author:

Giuseppe Colangelo, Department of Mathematics, Computer Science, and Economics, University of Basilicata, Potenza

85100, Italy.

Email: giuseppe.colangelo@unibas.it

1200942ABXXXX10.1177/0003603X231200942The Antitrust BulletinColangelo

research-article2023

Colangelo 619

1. Giuseppe Colangelo, Antitrust Unchained: The EU’s Case against Self-Preferencing, 72 GRUR Int. 538 (2023).

2. Jonathan Kanter, Assistant Attorney General Jonathan Kanter Delivers Remarks at New York City Bar Association’s Milton

Handler Lecture (2022), https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-delivers-remarks-

new-york-city-bar-association. All the links have been last accessed on Nov. 23, 2022.

3. Ibid.

4. See, for example, Amelia Miazad, Prosocial Antitrust, 73 HastInGs Law J. 1637 (2022); Dina I. Waked, Antitrust as

Public Interest Law: Redistribution, Equity and Social Justice, 65 antItRUst BULL. 87 (2020); Ioannis Lianos, Polycentric

Competition Law, 71 CURR. LeG. PRoBL. 161 (2018); Lina M. Kahn & Sandeep Vaheesan, Market Power and Inequality: The

Antitrust Counterrevolution and Its Discontents, 11 HaRvaRd Law PoLICy Rev. 235 (2017). See also Margrethe Vestager,

Fairness and Competition Policy (2022), https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_22_6067, argu-

ing that properly functioning markets become an instrument of social change and progress as, for instance, “keeping mar-

kets open to smaller players and new entrants benefits female entrepreneurs and entrepreneurs with a migrant background”;

and European Commission, Amendments to the Communication from the Commission Guidance on the Commission’s

Enforcement Priorities in Applying Article 82 of the EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings,

C(2023) 1923 final, para. 1, stating that the enforcement of competition rules “can moreover contribute to achieving objec-

tives that go beyond consumer welfare, such as plurality in a democratic society.”

5. Eleanor M. Fox, The Battle for the Soul of Antitrust, 75 CaLIf Law Rev. 917 (1987).

6. Kanter, supra note 2. See also Alvaro M. Bedoya, Returning to Fairness, (2022), 2, https://www.ftc.gov/system/files/

ftc_gov/pdf/returning_to_fairness_prepared_remarks_commissioner_alvaro_bedoya.pdf, noting that “when Congress con-

vened in 1890 to debate the Sherman Act, they did not talk about efficiency.” See also Waked, supra note 4, framing anti-

trust as public interest law and arguing that the focus on efficiency-only goals is inconsistent with the history of antitrust.

For an analysis of the conceptual link between competition, competition law, and democracy in the European Union and the

United States, see Elias Deutscher, The Competition-Democracy Nexus Unpacked—Competition Law, Republican Liberty,

and Democracy, 41 Yearbook of European Law 197 (2022), arguing that the idea of a competition-democracy nexus can

only be explained by the republican concept of liberty as non-domination. In a similar vein, see Oisin Suttle, The Puzzle of

Competitive Fairness, 21 PoLIt. PHILos. eCon. 190 (2022) distinguishing competitive fairness from equality of opportunity,

sporting fairness (e.g. the level playing field), and economic efficiency, and arguing that the justification of competitive

fairness is under the republican ideal of non-domination, namely the status of being a free agent protected from subjection

to arbitrary interference.

7. Bedoya, supra note 6, 8.

8. See, for example, Louis B. Schwartz, “Justice” and Other Non-Economic Goals of Antitrust, 127 UnIv. Pa Law Rev. 1076

(1979); and John J. Flynn, Antitrust Jurisprudence: A Symposium on the Economic, Political and Social Goals of Antitrust

Policy, 125 UnIv. Pa Law Rev. 1182 (1977).

bargaining power by imposing unfair contracting terms and conditions. Moreover, since they usually also

perform a dual role, being simultaneously intermediaries and traders operating on their own platforms, they

may have the incentive to discriminate to their own benefit (so called self-preferencing).1 Risks generated

by imbalances of bargaining power and conflict of interest have induced several policy makers and legisla-

tors around the world to introduce or envisage provisions aimed at ensuring an even playing field and

neutralizing the competitive advantages of large intermediation platforms. According to this line of reason-

ing, Big Techs are required to treat both their rivals and their guests on the platform fairly.

Fairness has therefore become part of the larger debate on the role of competition law in the digital

economy, which questions the consumer welfare standard’s justification for a more aggressive inter-

vention. The claim is that ignoring the many goals of competition law systematically biases antitrust

toward underenforcement.2 The very same label of consumer welfare standard is questioned as it is

considered a “distraction” and a “catch phrase.”3 Against the pure efficiency-oriented Chicago school

approach, the idea of promoting a holistic approach which would require combining competition law

with other fields of law to take into account broad social interests and ethical goals such as labor protec-

tion, wealth inequalities, and sustainability has instead progressively gained support.4

However, fairness considerations, like the debate over the soul of antitrust, are not new to competi-

tion law.5 We are reminded that the history of U.S. antitrust laws shows a profound concern with eco-

nomic liberty, not merely as an economic concept, but as a concept connected to the freedom of a

country.6 After all, “[i]f efficiency is so important in antitrust, then why doesn’t that word, ‘efficiency,’

appear anywhere in the antitrust statutes?”7 By this view, antitrust has been described as a body of law

designed to promote economic justice, fairness, and opportunity.8 Therefore, the North Star of antitrust